Slip Op. 00 - 46

 UNITED STATES COURT OF INTERNATIONAL TRADE

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SAVE DOMESTIC OIL, INC., 

 :

 Plaintiff,

 :

 v. Court No. 99-09-00558

 :

 

UNITED STATES, : 

 

 Defendant. :

 

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 Memorandum & Order

[Plaintiff's motion for supplemental briefing

 denied.]

Dated: April 26, 2000

Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Timothy C. Brightbill) for the plaintiff.

David W. Ogden, Acting Assistant Attorney General; David M.

Cohen, Director, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice (A. David Lafer and Lucius B. Lau);

and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Robert J. Heilferty), of counsel, for the 

defendant.

White & Case (Carolyn B. Lamm and David L. Elmont) for intervenor-defendant Saudi Arabian Oil Company. 

Shearman & Sterling (Thomas B. Wilner) for intervenor-defendants Petroleos de Venezuela, S.A. and CITGO Petroleum Corporation. 

Barnes, Richardson & Colburn (Robert E. Burke and Brian F.

Walsh for intervenor-defendant BP Amoco.

AQUILINO, Judge: In accordance with the Joint Status

Report filed herein by the parties pursuant to CIT Rule 56.2(a),

the plaintiff has interposed a motion for judgment upon the rec-
Court No. 99-09-00558 Page 2

1 This company, and others originally denied leave to intervene herein as parties defendant per Save Domestic Oil, Inc. v.

United States, 23 CIT , Slip Op. 99-108 (Oct. 12, 1999), subsequently persuaded this court to grant them such leave upon renewed motions, alleging, for example, that "failure to include 

BP Amoco would result in serious prejudice because BP Amoco would

not be adequately represented" by intervenor-defendant API Ad Hoc

Free Trade Committee or other parties hereto. Consent Motion of

BP Amoco to Intervene as a Matter of Right and Points to Support

Thereof, second-third pages.

2 This memorandum will not be received, as the Rules of this

Court of International Trade, prima facie, do not permit the filing of replies in support of nondispositive motions. See Rule

ord compiled by the International Trade Administration, U.S. Department of Commerce ("ITA") sub nom. Dismissal of Antidumping

and Countervailing Duty Petitions: Certain Crude Petroleum Oil

Products From Iraq, Mexico, Saudi Arabia, and Venezuela, 64 

Fed.Reg. 44,480 (Aug. 16, 1999). Included in this submission 

are papers styled by the plaintiff as Motion for Supplemental

Briefing -- "following a response from the Department of Energy 

to Plaintiff's pending Freedom of Information Act ('FOIA') request."

While the briefing schedule agreed upon in the Joint

Status Report does not yet call for responses to plaintiff's

motion for judgment, the defendant and intervenor-defendants 

BP Amoco1, Saudi Arabian Oil Company, and Petroleos de Venezuela,

S.A. and CITGO Petroleum Corporation have timely filed papers 

in opposition to the requested supplemental briefing which, in

turn, have led the plaintiff to attempt to file a reply memorandum2.
Court No. 99-09-00558 Page 3

7(d) & (g).

3 Brief in Support of Plaintiff's Motion for Judgment on the

Agency Record, part IV. The plaintiff pleads a ninth cause of

action in its complaint, averring in addition to the foregoing:

59. If the facts obtained through discovery reveal

that Secretary Richardson interfered in the Commerce

Department's proceeding in any way, Commerce's determination not to initiate would be arbitrary, capricious

and unlawful.

Plaintiff's proffered reasons for the requested supplemental briefing are stated to be as follows:

From the day Save Domestic Oil's petition was

filed, Secretary of Energy Richardson made numerous

statements of opposition. While Secretary Richardson admitted that he and his department had no formal

role in the Title VII investigations, Secretary Richardson nevertheless stated that the "U.S. Government

does not support the petitions" and that he was attempting to "fix" the problem.

More than six months ago, Plaintiff properly submitted a FOIA request to the Department of Energy regarding the Secretary's involvement in the Commerce

proceeding. This request has not been acted on, in

contravention of the FOIA statute. Accordingly, Plaintiff requests in the attached Motion for Supplemental

Briefing the right to file additional arguments on this

limited issue (with an appropriate opportunity to reply

by Defendant) after this FOIA request is answered. 

. . .

3

The sole authority offered for this relief is that "supplemental

pleadings are well within this Court's discretion, as set forth

in Rule 15(d)." Plaintiff's Motion for Supplemental Briefing,

second page.

But of course, the plaintiff seeks leave to file more

briefing, not pleadings, which CIT Rule 7(a) defines to be only 
Court No. 99-09-00558 Page 4

a complaint in an action such as this brought pursuant to 28

U.S.C. §1581(c) and specifically states that "[n]o other pleading shall be allowed". See also 5 Wright & Miller, Federal Practice §1183, n. 10 (1990)(a brief is not a pleading). On the

other hand, even if the plaintiff were moving for leave to 

amend its complaint, Rule 15(d) provides that, upon the motion 

of a party, 

the court may, upon reasonable notice and upon such

terms as are just, permit the party to serve a supplemental pleading setting forth transactions or 

occurrences or events which have happened since the 

date of the pleading sought to be supplemented.

Assuming the Energy Department responds to plaintiff's FOIA request, such response should be expected to contain information

regarding events that occurred before the ITA's dismissal of

plaintiff's petition and thus before its complaint was filed

herein. That is, plaintiff's instant motion is not in conformity with the chronology contemplated by the rule. E.g., Intrepid v. Pollock, 907 F.2d 1125 (Fed.Cir. 1990)(Rule 15(d) authorizes supplementation of a complaint based on later events). 

Cf. Saarstahl AG v. United States, 20 CIT 1413, 949 F.Supp. 863

(1996) (motion for supplemental briefing in conjunction with 

motion for leave to amend complaint pursuant to Rule 15 denied).

Furthermore, while the Supreme Court's rejection in

Conley v. Gibson, 355 U.S. 41, 48 (1957), of the concept that

pleading in federal court still is "a game of skill in which
Court No. 99-09-00558 Page 5

one misstep by counsel may be decisive to the outcome" cannot 

be overlooked, neither can the nature of this action be disregarded. As plaintiff's own motion in chief signifies, it seeks

judgment upon the ITA's record, such as it may be. In granting

this court jurisdiction to review this record per 19 U.S.C. §

1516a(a)(1), Congress reported that the 

review of determinations subject to the provisions of

subsection (a)(1) would proceed upon the basis of information before the relevant decision-maker at the

time the decision was rendered including any information that has been compiled as part of the formal record. The court is not to conduct a trial de novo in

reviewing such determinations. 

S. Rep. No. 249, 96th Cong., 1st Sess. 247-48 (1979). See, e.g.,

Sanyo Elec. Co. v. United States, 23 CIT , , 86 F.Supp.2d

1232, 1238 (1999); Kerr-McGee Chem. Corp. v. United States, 21 

CIT 11, 18-19, 955 F.Supp. 1466, 1471-72 (1997); Neuweg Fertigung GmbH v. United States, 16 CIT 724, 726, 797 F.Supp. 1020,

1022 (1992):

The case law of this court is very clear that 

the administrative record "is limited to the information that was presented to or obtained by the agency

making the determination during the particular . . .

proceeding for which section 1516 authorizes judicial

review"[,]

quoting from Beker Indus. Corp. v. United States, 7 CIT 313, 316

(1984); Cabot Corp. v. United States, 11 CIT 447, 449, 664 F.-

Supp. 525, 526 (1987) ("Congress intended to limit the scope of

the record for review to those matters considered in the particular determination challenged"). 
Court No. 99-09-00558 Page 6

4 The court notes in passing that FOIA, 5 U.S.C. § 552(a)-

(4)(B) & (a)(6) (1999), and its pertinent, governing regulation, 

10 C.F.R. §1004.5(d)(4) (1999), offer applicants more expedi-

(footnote continued)

As with many rules, certain, limited exceptions have

been made. Most notably, "[m]aterials outside the administrative record may be discovered . . . where the party requesting

discovery makes a strong showing of bad faith or improper behavior on the part of the officials who made the determination." 

Saha Thai Steel Pipe Co. v. United States, 11 CIT 257, 259, 661

F.Supp. 1198, 1201 (1987) (emphasis in original), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420

(1971). See also Sanyo Elec. Co. v. United States, supra; Ammex,

Inc. v. United States, 23 CIT , , 62 F.Supp.2d 1148, 1166

(1999) (only upon showing of bad faith or improper behavior

should courts allow a party to go behind the stated rationale 

of agency decisionmakers to conduct discovery concerning what 

may have been the "real" motives or considerations that led to 

a particular conclusion); F.lli De Cecco di Filippo Fara San

Martino S.P.A. v. United States, 21 CIT 1124, 1126, 980 F.Supp.

485, 487 (1997). Cf. NEC Corp. v. U.S. Dep't of Commerce, 21 

CIT 198, 205-06, 958 F.Supp. 624, 632 (1997)(where no administrative record or formal findings exist, a strong showing of 

bad faith is not required before discovery can be granted).

While the plaintiff may have hoped to uncover that kind

of negative influence through its FOIA request to the Department

of Energy4, this court is not at liberty to grant any relief upon 
Court No. 99-09-00558 Page 7

tious resolution thereunder than apparently has been sought by

Save Domestic Oil, Inc. Be that as it may, however, this court

does not subscribe to the premise that any attempted resort to

FOIA in regard to an action such as this is out of bounds. Compare, e.g., Defendant-Intervenor Saudi Arabian Oil Company's Opposition to Plaintiff's Motion for Supplemental Briefing, p. 4

and Opposition of Petroleos de Venezuela, S.A. and CITGO Petroleum Corporation to Plaintiff's Motion for Supplemental Briefing,

p. 3 with Star-Kist Foods, Inc. v. United States, 8 CIT 305, 306,

600 F.Supp. 212, 215 (1984), and Nat'l Latex Prod. Co. v. United

States, 3 CIT 49, 50 n. 4 (1982). 

5 Saha Thai Steel Pipe Co. v. United States, 11 CIT 257,

260, 661 F.Supp. 1198, 1202 (1987). 

such hope alone. Hence, even though evidence of "unlawful political suasion . . . is seldom highlighted on dog-earred pages of

the administrative record"5, plaintiff's Motion for Supplemental

Briefing must be, and it hereby is, denied.

 So ordered.

Dated: New York, New York

 April 26, 2000 

 ________________________________

Judge