Slip Op. 01 - 94

 UNITED STATES COURT OF INTERNATIONAL TRADE

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SAVE DOMESTIC OIL, INC., 

 :

 Plaintiff,

 :

 v. 

 :

 

UNITED STATES, : Court No. 99-09-00558

 

 Defendant, :

-and- :

 

API AD HOC FREE TRADE COMMITTEE et :

alia, :

Intervenor-Defendants.

 :

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 Memorandum & Order

 Dated: August 6, 2001

Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Timothy

C. Brightbill) for the plaintiff.

Stuart E. Schiffer, 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.

Dewey Ballantine LLP (Harry L. Clark, Michael H. Stein, Bradford L. Ward and John W. Bohn) for intervenor-defendant API Ad

Hoc Free Trade Committee.

White & Case (Carolyn B. Lamm, Adams C. Lee and David L.

Elmont) for intervenor-defendant Saudi Arabian Oil Company. 

Shearman & Sterling (Thomas B. Wilner, Jeffrey M. Winton and

Jeronimo Gomez del Campo) for intervenor-defendants Petroleos de

Venezuela, S.A. and CITGO Petroleum Corporation.

O'Melveny & Myers LLP (Gary N. Horlick and Michael A. Meyer)

for intervenor-defendants Petróleos Mexicanos, P.M.I. Comercio

Internacional S.A. de C.V., and PEMEX Exploración y Producción. 
Court No. 99-09-00558 Page 2

King & Spalding (Joseph W. Dorn and Duane W. Layton) for

intervenor-defendant Texaco Inc.

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

and Robert F. Seely) for intervenor-defendant BP Amoco.

AQUILINO, Judge: On November 27, 2000, this court, in

denying defendant's motion(s) for leave to appeal from its interlocutory order of remand to the International Trade Administration,

U.S. Department of Commerce ("ITA"), per slip opinion 00-158, was

unable to conclude that the defendant [wa]s attempting to

proceed in good faith as opposed to in further delay of

final determination of plaintiff's prayer for relief if

not in contempt.

24 CIT , , 122 F.Supp.2d 1375, 1381. Indeed, on August 3,

2001, the defendant served and filed a Second Motion for Extension

of Time in which The Department of Commerce May Respond to the

Court's Order of September 19, 2000, appended to which is an order

of the U.S. Court of Appeals for the Federal Circuit dated July 31,

2001 and holding that the attempted appeal and concomitant motion

for a stay of this court's order by the defendant, as well as by

intervenor foreign and multinational oil companies, was baseless.

The interlocutory order in question issued pursuant to

slip opinion 00-120, 24 CIT , 116 F.Supp.2d 1324 (2000),

familiarity with which is presumed herein. It stated: 

This case is hereby remanded to Commerce for

contemplation of commencement of a preliminary investigation by its ITA (and referral for such an investigation

by the [International Trade Commission] ITC) in accordance with law . . .. The defendant may have 60 days from
Court No. 99-09-00558 Page 3

the date hereof for this purpose. To the extent, in the

exercise of its sound discretion during that time, the

agency determines to reconsider its analysis of any of

the threshold issues raised by the petition, including

the nature of SDO's domestic product vis-à-vis that of

other domestic producers and support for, and opposition

to, the petition on the part of domestic producers and

workers, the ITA may call upon the interested parties to

supplement the record, and also upon the U.S. Departments

of Labor and of Energy for relevant, publicly-available

data not yet part of the record. If the stated opposition of the API Ad Hoc Free Trade Committee is still

sought to be taken into account, the agency is hereby

directed to consider the facts and circumstances of the

business of each Committee company, standing on its own,

including most necessarily that particular company's

imports of crude petroleum oil from Iraq, México, Saudi

Arabia or Venezuela.

If the result of this remand is not initiation of

preliminary investigation(s) by the ITA (and the ITC),

the written reasons therefor are to be filed with the

court on or before the close of the aforesaid 60-day

period, whereupon the parties hereto may have 30 days to

serve and file comments thereon, with any replies thereto

due within 15 days thereafter.

24 CIT at , 116 F.Supp. at 1343. In other words, the initial

deadline set by slip opinion 00-120 was November 20, 2000. 

The defendant did not comply with the foregoing order,

nor has it yet done so. Rather, its current motion (for further

delay -- until August 10, 2001), represents that,

[a]t this time, an extension . . . is warranted to allow

the current Assistant Secretary for Import Administration

an opportunity to adequately and faithfully respond to

the Court's remand order. During the original 60-day

period in which the Court instructed Commerce to conduct

its remand, that agency's staff undertook the analysis

contemplated in this Court's opinion and order. However,

the current Assistant Secretary was only nominated in

February 2001 and confirmed in May 2001. Thus, he has

not had an opportunity to review this Court's opinion and
Court No. 99-09-00558 Page 4

1

 The amount of time for comments on whatever the defendant

deigns to submit, and for replies thereto, shall remain as set

forth in that order. 

the staff's analysis in order to make an appropriate

determination. A brief extension of time of seven days

would allow the Assistant Secretary sufficient time to

render a reasoned and thoughtful decision.

If this representation genuinely reflects a change in the

administering authority within the meaning of the Trade Agreements

Act of 1979, as amended, in the aftermath of the 2000 presidential

election, defendant's motion can be granted. However, neither this

motion, nor anything else on the record of this case to date,

dispels the above-quoted inability of the court to conclude that

the defendant has not been dilatory and contemptuous. Indeed, this

court has long warned the ITA and its counsel that they are not at

liberty to ignore a remand order, "whether or not subject to

further judicial review." Smith Corona Corp. v. United States, 13

CIT 96, 100, 706 F.Supp. 908, 912 (1989), aff'd in pertinent part,

915 F.2d 683 (Fed.Cir. 1990). 

Ergo, while the defendant may have until the close of

business on Friday, August 10, 2001, within which to respond to the

above-quoted, outstanding order of the court dated September 20,

20001, the defendant is also hereby directed to appear before the

undersigned in courtroom 3 at 11 a.m. on that day to show cause, if

there be any, why it should not be formally cited and sanctioned

for contempt of court, commencing on or about November 20, 2000.
Court No. 99-09-00558 Page 5

The Clerk forthwith shall enter on the docket this

memorandum and order and notify all parties to this case thereof

before the close of business today.

It is so ordered.

Dated: New York, New York

 August 6, 2001

 

Judge
Slip Op. 01-94 Erratum

Save Domestic Oil, Inc. v. United States

Court No. 99-09-00558 

"September 20," in the third line of the second full

paragraph on page 4 should be September 19, 

Dated: New York, New York

 August 7, 2001