Slip-Op. 02-100
UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RIC HARD K. EATO N, JUDGE

__________________________________________ : NIPP ON STEEL CORP ., KAWA SAKI STEEL : CORP., THYSSENKRUPP ACCIA I : SPECIALI TERNI Sp.A and ACCIAI : SPECIALI TERNI (USA), INC., : : Plaintiff s, : : v. : Consol. Court No. 01-00103 : UNITED STATE S INTERNATI ONAL : TRADE COM

MISSION : : Defendant, : : and : : ALLEGHENY LUDLUM CORP., AK STEEL : CORP., BUTLER ARM CO INDEP ENDENT : UNION, ZANESVILLE ARMCO : INDEPEN

DENT UNION , and : UNITED STEELW ORKERS OF : AMERICA, AFL-C IO/CLC , : : Defend ant-I nterven ors. : __________________________________________: [Plaintiffs’ motion for summary judgment as to Counts One and Two of the complaints denied; ITC’ s cross- motion for

summary judgmen t as to Count s One and

Two of the

complain ts granted.] Dated: August 30, 2002 Gib son , Du nn & Cru tch er, LLP ( Joseph H. Price , Douglas R. Cox , Gracia M. Berg , Gregory C. Gerdes ), for Plaintiff Nippon Steel Corporation.
Are nt Fox Kin tn er P lo tk in & Ka hn, PLLC ( Robert H. Huey , Matthew J. Clark , Nancy A

. Noonan , Steven F . Hill , Timothy D. Osterhaus ), for Plaintiff Kawaski Steel Corporation.Consol. Court No. 01-00103 Page 2

1 Each Plaintiff filed a complaint in this consolidated action. While Counts One and Two o f each c omplaint ta ke issue w

ith the man

ner of D ennis M. D evaney ’s appoin tment as a commissioner of the United States International Tra de Commission with respect to: (1) the validity of the rec ess appointment; and (2) the existence of a vacancy , they do not do so in the same order. For purposes of this opinion, the court follows the order of the Nippon complaint. In Count One, Plaintiffs assert that the actions by which Mr. Devaney

assumed office were not lawfully completed dur

ing a Senate recess and, there fore, “[b]ecause Dennis Devaney ’s alleged appointment to the ITC was invalid, his vote [on the final results was] invalid.” (Compl. at ¶ 18.) Plaintiffs further allege that “[a]s a result of Dennis Devane y’s invalid vote and dete

rmination, the Commission’s determination . . . was not in accordance with law.” ( Id. at ¶ 19.) In like manner, Plaintiffs’ Count Two alleges that, because no va cancy existed at the time Mr. Devaney assumed office, Mr. Devaney was not lawfully appointed a nd, thus, ineligible to vote on the Commission’ s determi

nation le ading to

the fina l results. (Compl. at

¶¶ 25, 26. ) Beca

use of the se alleged irregularities, Plaintiffs ask the c ourt to “[d]eclare unlawful Dennis Devaney ’s vote and determination with

regar d to the [final result s]” and “[d ]eclare that the I TC shall ins truct the

U.S. Department of Commerce to revoke the antidumping or der[s] . . . .” (Compl. at 10, 11.) Hog an & Har ts on, LLP ( Lewis E. L eibowitz , Steven J. Rou th , David G. Leitch , T. Clark Wey mouth , David P. Kassebaum ), for Plaintiffs ThyssenKr upp Acciai Speciali Terni Sp.A. and Acciai Speciali Terni (USA), I nc. Ly n M. Schlitt , Gener

al Counse l, United St

ates I nternat ional Tra de Commissio

n; James M. Ly ons , Deputy Gene

ral Counsel, United States International Tra de Commission ( Gracemary Rizzo Roth-Roffy , Mark B. Rees ), for th e IT C.
Co ll ier Sh ann on S cot t, PLLC ( Kathleen W. Cannon , Michael J. Coursey , Eric R. McClaff erty , John M. Herrmann , Grace W. Kim , David A. H artquist , R. Alan Luberda ), for Defendant-Inte

rveners Allegheny

Ludlum Corporation, AK Steel Corporation, Butler Ar mco Independent Union, Z anesville Armco Indepe ndent Union, and the United Steelworkers of America , AFL -CIO/CLC.

OPINION AND ORDER EATON , Judge : This matter is before the court on cross-motions for summary judgment pursuant to USCIT R. 56, as to Counts One and Two 1 of the complaints filed by Nippon Steel Corporation (“Nippon”), Kawasaki Steel Corporation, Thy ssenKrupp Acciai Speciali Terni Sp.A and Acc iai Speci ali Tern

i (USA), I nc. (col lectivel

y “ Plaintiff

s”). On D ecembe

r 28, 2001 , thisConsol. Court No. 01-00103 Page 3

2 This court held that “as the question of who is entitled to cast a vote on an [Inte rnationa l Trade C ommission] fi

nal dete rmination is surely a question of proc edure, i t is surely within the competenc e of this court to hear such question. Thus, the court finds that it has jurisdict ion, within

the conte xt of an af

firmativ e finding

of injury in a five -year suns et revie w, to hear procedural questions relating the reto, including the claims found in Counts One and Two of Plaintiffs’ complaints.” Nippon , Slip Op. 01-153 at 10–11, 25 CIT at __. court granted discovery

with respect to the matters at issue in Counts One and Two by its opinion in Nippon Steel Corporation v. United States International Tra de Commission , Slip Op. 01-153, 25 CIT __ (Dec. 28, 2001), fa miliarity with which is presumed.

The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I ) (2000). 2 Where a party

challenges the findings of an a ntidumping review the court will hold unlawful “any determination, finding, or conclusion found . . . to be unsupported by substantial evidenc e on the record, or otherwise not in accor dance with law . . . .” 19 U.S.C. § 1 516a(b) (1)(B) (i). Summa ry judgmen t is appro priate w hen “the pleading s, depositions, answe

rs to inter rogatories, an

d admission s on file, togethe r with the affida vits, if
any , show tha

t there is no genu ine issue as to any materia l fact an d that the moving pa

rty is entitled t o judgme nt as a ma

tter of la w.” USCIT R. 56(c) ; see Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 247 (1986). Here, there being no “ genuine issue as to any material fact,” summary judgmen t is appro priate. Oral ar

gument was hear

d on Aug ust 14, 200 2. For th e reasons set for th below, the court finds that Dennis M. Devaney was validly appointed a c ommissioner of the United States International Trade Commission (“ITC”) and that his vote with respect to the final results was lawfully c ast, and grants summary judgment as to Counts One and Two in favor of the I TC.Consol. Court No. 01-00103 Page 4

3 The holdover prov ision provides: “a

ny c ommissione

r may continue to serve as a commissioner after an expiration of his [statutory] term of offic e until his successor is appointed and qualified.” 19 U.S.C. § 1330(b)(2).

4 This memorandum is designated as being “F or the President” “Via the Executive Clerk” and refers to documents for the President’s sig nature. ( See Nash Decl. Attach.) At oral argument counsel for the ITC could not confirm that there were, in fact, documents attac hed. BACKGROUND By their c omplaints in this consolidated action, Plaintiffs challenge the IT C’s affirmative material injury dete

rmination in the context of the five-year sunset review of imports of grainoriented silicon electrical steel from I taly and Japan. See Grain-Oriented Silicon Elect. Steel from Italy and Japan , 66 Fed. Reg. 12, 958 (Mar . 1, 2001) ; see also USITC Pub. No. 3396 (Feb. 2001) (“ Final Results ”). Counts One and Two of these complaints claim that the vote by which the Final Results were reached was not in acc ordance with law because Dennis M. Deva ney, one of those voting, had not validly be en appointed an ITC commissioner.

The facts with respect to Mr. Devaney ’s disputed appointment can be briefly stated. The term of I TC Commissioner Thelma Askey expired on

Decemb er 16, 20 00, and she continu ed to

serve a s a commiss ioner pur suant to th e IT C’s holdov er provi sion, 19 U. S.C. § 1330( b)(2), u ntil such time as her successor was “appointed and qua lified.” 3 The United States Senate, having commenced an intersession recess on Dece mber 15, 2000, reconvened at 12:01 p.m. on January 3, 2001. On January 2, 2001, Mr. Bob J. Nash, Assistant to the President and Dire ctor of Presiden tial Personnel for

Presiden t William J. Clinton, prepa red a me morandum

(“Nash
Memoran dum”) “i n a form r outinely used for such purp oses” 4 by which he c onveyed to the Executive Clerk’s Office the “President’s approval of Mr. D evaney ’s appointment” (Def.’sConsol. Court No. 01-00103 Page 5

5 The Rece ss Appointments Claus e reads : “The Pre sident sha ll have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II , § 2, cl. 3.

6 On this poin

t Mr. Nash

also state s: The President’s personal approval was require d of all presidential appointments and my office would implement the President’s decision. I never appr

oved the preparation of an appointment document for a pa rticular appointe e unless I

had prev iously ascertained that the President had personally approved the appointment. I would receive suc h approval directly

from the Presi dent o r, in r are ins tances (whic h did not o ccur he re), t hrough the Chief of Staff when the Chief of St

aff was specific ally instructed by the President to inform me of the President’s approva l of the a ppointmen

t. (Nash Decl. at ¶ 2.)

7 The “Rec ess Appoi ntment Or

der” re ads as fo llows: I hereby appoint Dennis M. Devaney , of Michigan, to be a member of the United States International Tra de Commission for a term Mem., Ex. 4 (“Nash Decl.”) at ¶ 4) pursuant to the “Rece ss Appointments Clause” of the Constitution 5 as a commissioner of the ITC. While Mr. Nash states that he “ cannot recall . . . whether the Presi dent conveyed his approval of the appoi ntment dir

ectly to me ora

lly o r in writi ng” he does state that he “would not have prepare d this memorandum had Mr. Devaney ’s recess appointment to the ITC not rec eived the President’s consideration and had I not been certain of the President’s personal approval of the appointment.” 6 ( Id. ) The Nash Memorandum was received by

the Executive Clerk’s Office between 10:00 a.m. and 11:00 a.m. on January 3, 2001, and during t he cours e of its pr

ocessing , various

White House

personne l affixed t

heir initials to it, together with the time of day e ither manually or by stamp. Based on the authorization provided by the Nash Me morandum, a “Recess Appointment Order” 7 “in a formConsol. Court No. 01-00103 Page 6

expiring December 16, 2009, until the end of the next session of the Senate of the United States and no longer, subject to the conditions prescribed by

law. s/William J. Clinton THE WHI TE HOUSE January 3, 2001

8 For purposes of this opinion, “formal commission” means a commission meeting the requirements of 5 U.S.C. § 2902(a) (2000) which states: “the Secr etary of State shall make out and record, and affix the seal of the United States to, the commission of an office r appointed by the President. The se al of the United States may not be affixed to the commission before the commission has been signed by the President.” routinely used by

then President Clinton to make recess appointments” was prepared, a nd President Clinton’s autopenned signature was affixed thereto. (De f.’s Resp. to Pls.’ Third Set of Req. for Admis., I nterrog s., and Pr

od. of Doc s. at 4–5; see Pls. ’ Mem. Su pp. Mot . Sum

m. J. (“Pls.’ Mem.”) App., Ex. 5 at 4–5.) All of this was completed prior to the Senate reconvening at 12:01 p.m. on January 3, 2001. The United States Senate c ommenced an intrasession recess on January 8, 2001, a

nd recon vened on January 20, 2001. M s. Askey

particip ated in I

TC busines s until at least January 12, 2001, and rec eived the salary and other perquisites of an I TC commissioner until January 16, 2001. Mr. Devaney took the oath of office on January 16, 2001. On January 18, 2001, President Clinton signed Mr. De vaney’s f ormal commission 8 which was dated January 3, 2001. Mr. De vaney c ast his vote with respect to the Final Results at a meeting of the commissioners of the ITC on Febr uary 23, 2001.

By its Final Results , the ITC sustained the existing antidumping dutyorders on grainoriented electrical silicon steel from I taly and Japan by

finding that “revocation of the[se] antidumping duty order

s . . . would be likely to lead to continuation or re currence of materialConsol. Court No. 01-00103 Page 7

9 This subsection provides: “If the Commissioners voting on a dete rmination . . . are evenly divided as to whe

ther the determination should be affirmative or neg ative, the Commission shall be deemed to have made an affirmative determination.” 19 U.S.C. § 1677(11). injury to an industry

in the United States . . . .” See Final Results at 1. The ITC r eached this finding by a

three-to-three—i.e., evenly divided—vote and, thus, the antidumping duty or ders remained in effect pursuant to 19 U.S.C. § 1677(11) (2000). 9 The three persons voting in the af fi rm at iv e w er e M r. St ep he n K op la n, Ms . M ar ci a M il le r a nd Mr . D en ni s M . D ev an ey.

With respect to Mr. Devaney ’s assumption of office and subsequent vote, Plaintiffs claim: Mr. Devaney ’s purported recess appointment to the I TC on January

3, 2001 was invalid because (a) there wa s not a “vacancy ” on the ITC to which he lawfully could have been appointed, and (b) the Presiden t did not sig

n the comm

ission app ointing M

r. Deva ney to office during the recess of the Senate that ended on January 3, 2001. I n light of this invali d appointment, Plain tiffs re spectfu

lly request that this Court find that Mr. Devaney ’s vote in the [ Final Results ] was ultra vires and, accordingly , direct that the subject orders be revoked pursuant to the three-to-two vote of lawful ITC commissioners in favor of a negative deter mination. (Pls.’ Me m. at 1–2 ( citation omitted); see also NipponCompl. Count One at ¶¶ 18, 19; Count Two at ¶¶ 27, 28.)

The I TC dispute s Plaintiff s’ claims and asse rts that Mr . Devane

y w as validly

appointe d: On the morning of January 3, 2001, before the end of the intersession recess that preceded the 107 th Congress, former President Clinton appointed Dennis M. Devaney to the International Trade

Commission (“ITC” or “Commission”), replacing Thelma Askey . Ms. Askey had bee n serving on theConsol. Court No. 01-00103 Page 8 Commission in a “holdover” capacity since the expiration of her statutory term of off

ice in December 2000. Commissioner Devane y’ s reces s appointment was p erfected by a rece ss appointme

nt order , which wa s routine ly u sed to mak e rece ssappointments, and executed prior to the end of the abovementione d reces s. (Def.’s Mem. Supp. Cross-Mot. Summ. J. (“Def.’s Mem.”) at 1.)

DISCUSSION
A. Mr. Dev aney Was Va lidly Appointe d
1. The Distinction Between an Appointment and a Commission The court first turns to the question of whether Mr. Devaney was lawfully a

ppointed pursuant to the Recess Appointments Clause. On this issue, Plaintiffs’ primary argument is that

a rece ss appoint

ment req uires the preside nt to sign a commissi on to make

it complet

e. Thus, Plaintiff s argue that, sinc e Mr. De

vaney ’s forma

l commission was not s igned prior to 12 :01 p.m. on January 3, 2001, his appointment was not completed during a recess of the Senate and thus he was not validly appointed.

At the outset it is worth noting that, although Article I I, Section 2, Clause 3 of the Constitution is commonly called the Recess Appointments Clause, the word “a ppointment” is not found in the text of the clause itself. Rather, the President is empowered “during the Recess of the Senat e” to “f ill up all Va

cancie s . . . by

granti ng Commiss ions.” As

there is n o reason to assume that “filling up Vacancies” constitutes any thing other than the presidential act of appointment, however, the court will refer to it as such here after. See The Federalist No. 67Consol. Court No. 01-00103 Page 9

10 Justice Marshall ultimately found that the Supreme Court did not have jurisdiction to hear the case, thus establishing the doctrine of judicial r eview. Hence, his discussion of the appoi ntmen t its elf mi ght be d escri bed as dicta . Nume rous c ourts havin g relie d on i ts rea soni ng, however , the cour

t is confid

ent in usin

g the op inion as pe

rsuasive preced ent.

11 The Appointments Clause reads: “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judg es of the

supreme Court, and all othe

r Offic ers of th e United S tates . . . .” U.S. Const. art. II , § 2, cl. 2. (Alexander Hamilton) (The Recess Appointments Clause authorizes the President to make “temporary

appointments.”).

In or der to de termine w

hether Pr esident Cl inton prop erly

exercise d his authority

with respect to Mr. Devaney, Marbury v. Ma dison , 5 U.S. 137 (1803), is instructive. While important for othe r reasons, 10 this case was a dispute over the appointment, with the advice and conse nt of the Senate, of a justice of the peace for the “county of Washing

ton.” Id . at 155. A s such, it involved the exercise of a president’s power of appointment under the “Appointments Clause,” Article II , Section 2, Clause 2 of the Constitution. 11 While the particular matter at issue was the delivery of Mr . Marbury’ s commission, Justice Marshall examined matters relating to the appointment that are pertinent to the case at bar.

Throughout his opinion, Justice Marshall makes explicit the distinction between the presidential act of appointment, and the granting of a commission. See Marbury , 5 U.S. at 156 (“The acts of appointing to office, a nd commissioning the person appointed, can scarcely be considered as one in the same . . . .”). As such, the appointment and the commission serve functions independent of one another: the appointment being the a ct of conferring the office ; andConsol. Court No. 01-00103 Page 10

the commission being evidence of the appointment. Thus, the act of a ppointment by the president is “a voluntary

act,” id. at 155, that demonstrates the president’s will to appoint. The commission, on the other hand, serves as conclusive evidence of the exercise of that presidential will. See id. at 157 (in

dicating that eve n when the

appointme

nt and the commission

are, in practi ce, in dist ingui shabl e, “st ill, the co mmis sion is no t neces saril y the appo intm ent; t hough conclusive evidence of it.”). This distinction has been followed in other ca ses. See Kilburn v. United States , 15 C t. Cl . 41, 4 7 (187 9) (ci ting Marbury and statin

g “The acts of a ppointing to office and commi ssioning

the pers on appoin

ted are two sepa rate an d distinct a

cts . . . .” ); O’Shea v. United States , 28 Ct. Cl. 392, 401 (1893) (“The commission, whatever its form, is but evidence of the fact that the President has exercised his c onstitutional power of appointment . . . .”).

2. The Pre sidential Act of Appoint ment What constitutes an act of appointment sufficient to create rights to an of fice is an “open and unequivocal act” on the part of an appointing authority. Bennett v. United States , 19 Ct. Cl. 379, 3 85 (18 84) (ci ting Marbury , 5 U.S. at 3 85); see Horner v. Acosta , 803 F.2d 687, 694 (Fed. Cir. 1986) ; see also Nat’l Treasury Employees Union v. Reagan , 663 F.2d 239, 244–4 6 (D.C. Cir. 1981) (holding that notification sent to plaintiffs of their selection to federal jobs was a n unconditional appointment, even though the required appointment forms had not y et been completed). The requirement of an open and une quivocal act may be met through various

means. See Watts v. Of

fice of Pers. Mg mt. , 814 F.2d 1576, 1580 (Fed. Cir. 1987) (recog nizing regula r appoint ing proc edures “ do not nec essarily exclude ot

her ritua ls that may

be devise d toConsol. Court No. 01-00103 Page 11

signalize an appointment . . . .”). Here, the essence of Mr. Nash’s declaration is that President Clinton performed the necessary open and unequivocal act by communicating directly

to Mr. Nash that he, i.e., President Clinton, had “personally approved” (Nash Decl. at ¶ 2) the appointme

nt of Mr. D evaney . In a

ddition, th e other a

ctivities that occ urred pr ior to the S enate reconvening on January

3, 2001, including the various notations on the Nash Memorandum and the autopenned signing of the Recess Appointment Or der, demonstrate that the President perfor med the “ open and

unequivo cal act

” neces sary

for an a ppointmen

t.

3. The Com mission a s Evidence of the Appointment Next, the question arises as to the role of the commission. Plaintiffs urge that the execution of the commission is part of an appointment process and is “the last act that must be completed to vest an individual with a right to office . . . .” (Pls.’ Mem. at 22 (citing 12 Op. Att’y Gen . 304, 306 (1 867); Dep’t of Ju stice , Off. Legal Cou nsel M em. fo r Fred F. Field ing, Counsel to t

he Presid ent, of Ma

rch 22, 1 984).) Pla

intiffs po int to the la

nguag e of the Re cess Appointments Clause that a president may “ fill up Vacancies . . . by granting Commissions” as proof tha t the gr anting o f the com

mission is a

necessa ry part of a n act of a ppointmen

t.

This contention, however, is at odds with Justice Marshall’s conclusion that an appointment and a commission “can scarcely be considered as one and the same,” Marbury , 5 U.S. at 156, and that the commission, while evidence of the appointment, is not necessarily the appointment itself. As such, it would appear that the Framers used the wor ds “by g ranting Commissions, ” not to ma ke the ac t of appoi ntment and the sig

ning of t he commiss ion a singleConsol. Court No. 01-00103 Page 12

12 Article

II , Section 3 of the Con stitution sta tes that the Preside

nt “shall Commission all the Officers of the United States.” deed, but: (1) to distinguish appointments made under the Appointments Clause from those made pursuant to the Rec ess Appoi

ntments Cla

use; and (2) to prov

ide for the tempor

ary nature o f these recess appointments. First, in order to put the distinction between the two appointments clauses into relief, the Framers put the power of g ranting commissions (the receipt of which, in the ordinary c ourse, would be the right of any “Officer of the United States,” in any event, see Article II , Section 3 of the Constitution, 12 ) solely in the hands of the pr esident. The Fed

eralist
No. 67 (Alexander Hamilton) (“The relation in which that clause stands to the other , which declares the genera

l mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointme

nt, in cas es to whic

h the ge neral me thod was in

adequa te.”). Wh ile the Se nate is in session th e presid

ent norma

lly d oes appo int by

means of signing the commis sion. This i s because such appointment comes at the end of a proc ess: nomination; confirmation; and appointment. During a recess, however, there is no equivalent process, merely the sole act of appointment by the President. See id. (“[T]he su cceedi ng clau se is evid

ently intended to authorize the President, SINGL Y, to make temporary

appointments . . . .”). Thus, the provision allowing the president to “fill up Vacancies . . . by granting Commissions” does not add a requirement that a commission be granted to make an a ppointment complete. Rather, it makes clear that the president may act alone in making these appointments, without rely ing on any

other person or body to per

form a necessary

preliminary ac

t. Second, the phrase “by granting Commissions, ” must be r ead tog ether wi

th the wor

ds that fo llow them, making t he entir e phraseConsol. Court No. 01-00103 Page 13

“by g ranting Commissions which shall expire at the End of their [the Senate’s] next Session.” By using these words the Framers limited recess appointments to a fixed term ending with the closure of the next Senate session. The Federalist No. 67 (Alexande r Hamilton

) (“The time within whic

h the powe

r is to ope rate . . . ‘to the e

nd of the next session’ of that bo dy, conspire to elucida te the se nse of the provision

. . . .”). Thus, whil e commissi ons evide ncing a ppointmen

ts made pursuant to the Appointments Clause may de monstrate entitlements to office of vary ing duration, those made pursuant to the Recess Appointments Clause cannot extend bey ond the Senate’s next session. Id. (“[T]he succeeding clause is evidently intended to authorize the President . . . to make temporary appointments.”). Therefore, the court finds that the g ranting of a commission is not necessary to c omplete a presidential act of appointment made pursuant to the Recess Appointments Clause and, thus, Mr. Devaney ’s recess appointment did not require a commission to make it complete.

4. Means Other Than a Commission May Show That the President’s Power Wi

th Respec

t to Confer ring Office is at an End Finding that the commission is not the appointment itself, but rather, evidence of it does not end the inquiry, howeve r, for as evidence of an appointment the commission serves two purposes. First, it proves an official’s right to office and to the powers and duties the office affords. Second, and this is particularly noteworthy with respe ct to officials not removable at will, it demonstrates that the president’s authority w ith respect to the office is at an end. See Marbury , 5 U.S. at 157 (“Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be . . . the signa ture ofConsol. Court No. 01-00103 Page 14

13 Plaintiffs also contend that, although Mr. Devaney ’s formal commission was signed on January 18, 2001, this writing would not serve as an appointment pursuant to the Recess Appointments Clause, because the Senate was not then in rec ess and because the document was “ba ckdated ” to Januar

y 3, 2001. How ever, w ere the court to a

ccept Pla intiffs’ argument that a formal commission is necessary to complete an appointment, Mr. Devaney would still validly be appointed as his formal commission was signe d on January 18, 2001, during a Senate recess. The c ourt is aware that the making of appointments during a n intrases sion rec ess is not w ithout con

troversy. T

he long history of the pr actice (since a t least 1867) with

out serio us object ion by the Senat e, howev er, demonstrates the leg itimacy

of these appointments. See gener ally Michael A. Carrier, When is the Senate in Recess for Purposes of the Recess Appointments Clause? , 92 Mich. L. Rev. 2204 (1994). I n addition, the date inscribed on the commission would not change its effective date from its date of execution, i.e., January 18, 2001. See also Bennet t , 19 Ct. Cl. at 386.

14 Had the court found that a commission is needed to complete an appointment, the Recess Appointment Order would suffice. The Constitution does not prescribe any form for a commission, nor does it require that a commission have a manual signature. Thus, the the commission.”). 13 In keeping with the distinction betwee n the appointment and the commission, though, Justice Marshall recognized that a commission is not the sole means of proving an appointment. Id. at 156 (“ [I]f an appointme

nt was to be

evidenc ed by

any public act, other than the commission , the performance of such public act would cr eate the officer; and if he was not removable at the will of the President, would either give him a r ight to his commission, or enabl e him to pe

rform the duties wit

hout it.” ( emphasis

added)) ; see also Bennet t , 19 Ct. Cl. at 385. Where, as with a commissioner of the ITC, the pr esident may not remove

an office holder at will, there must be some point at which the office is placed bey ond the president’s power. Here, there is ample evidence of public a cts sufficient to put Mr. Devaney ’s appointment as an
ITC c ommissione

r bey ond the au

thority of the pr esident to remove h

im. First, and most significant, is the Recess Appointment Order which unequivoca lly states: “I

hereby a ppoint Dennis M. Devaney

. . . to be a Member of the United States I nternational Trade Commission,” and bea rs the au thorized a utopenne d signat

ure of the presid

ent. 14 In addition, the variousConsol. Court No. 01-00103 Page 15

autopenned signature on the Recess Appointment Orde r would appear to satisfy

any requir

ement for the “granting of a

Commission.” Plaintiffs object that the recess appointment order does not fulfill the require ments of 5 U.S.C. § 290 2. There is, howev er, no re ason why the Rece ss Appointment Order could not fulfill the constitutional requirement of a “Commission” and another writing fulfill the requirements of 5 U.S.C. § 2902. notations made by White House personne l demonstrate that the act of appointment was revealed to others. These things having been done while the Senate was still in recess, the office was put beyond President Clinton’s power to re scind Mr. Devaney ’s appointment. As a result, sufficient open and unequivocal acts were perf ormed to give Mr. Devaney “a right to his commission, or enable him to perform his duties without it.” Marbury , 5 U.S. at 156.

B. Mr. Devaney’s Appointment Filled a Vacancy
1. Under the ITC’s Holdover Provision, the Vacancy and the Filling of the Vaca ncy Occur

Simultane ously Plaintiffs’ next argument is that since Ms. Askey continued in office as a holdover, no
vacancy existed to which Mr. Devaney c ould be appointed. (Pls.’ Mem. at 5 (“On the date of Mr. Devaney ’s purported recess appointment, all six of the positions provided by law for ITC commissioners wer

e occup ied by

incumben

ts. Althoug

h the fixed

term of of

fice of one of tho se incumbents had previously expired, that commissioner continued to hold her office pursuant to a statute that was specifically enacted to prevent the creation of vac ancies upon the expiration of ITC commissioners’ terms of office.” ).) Plaintiffs, however, read too little into the ITC’s holdover statute. Rather than providing that the presence of a holdover commissioner eliminates the possibility of a successor a ssuming the holdover’s place, the statute specifically provides for the end of the holdover’s service upon a succe ssor being “appointed and qualified.” The statute,Consol. Court No. 01-00103 Page 16

15 This holding is at odds with that found in Staebler v. Carter , 464 F. Supp. 585 (D.D.C. 1979). The court in Staebler found that a vacancy

occurs on the expiration of an office holder’ s term: to the extent that “vacancy ” is defined in the statute, it is defined as occurring at the conclusion of the statutory six-year term of off

ice, rather than as coming about by the termination of a . . . holdover entitleme nt. Clause (a)(2)(C), while not directly defining the term “vacancy ,” comes close to doing so. That clause mandates that a “ vacancy occurring other than by

expiration of a term of office” shall be filled onl y f or the re mainder of the une

xpired ter m. The pla

in implication of that language is that a vaca ncy does indee d occur as a result of and contemporaneously with the expiration of the term of office—not some subsequent time. . . . Id. 589–590. Here, the ITC holdover pr ovision contains language similar to that the Staebler court fo und persu asive. Sub section 1 330(b), p rovides f or stag gered

nine-y ear ter ms for the

six commissioners. See 19 U.S.C. § 1330(b)(1). The statute further provides that: “any commissioner appointed to fill a vacancy occurring prior to the expiration of the term for which his prede cessor was appoin ted shall b e appoint

ed for the remain

der of su ch term. . . .” 19 U. S.C. § 1330(B)(1). Under the reasoning in Staebler , this language indicates that a vac ancy oc curs at the end of a term. While this court generally agrees with the analy

sis found in Staebler , it parts company with that court in its conclusion that “a vacancy does indeed occur as a result of and contemporaneously

with the expiration of office—not some subsequent time . . . .” Staebler , 464 F. Supp. a

t 590. Altho

ugh ano ther the ory

may not be nee ded here , since the result w ith respe ct to Mr. Devaney

would remain the same, it seems to the court that the plain meaning of the words “a ny c om mi ss io ne r m ay c on ti nu e t o s er ve as a c om mi ss io ne r a ft er an ex pi ra ti on of hi s [ st at ut or y] term until his successor is appointed and qualified,” 19 U.S.C. § 1330(b)(2), is that the vacanc y occurs simultaneously with the appointment and qua lification of a successor. then, both provides for the continuance in office of a c ommissioner, and for the termination of that officer’s service upon a new c ommissioner taking office. Thus, Plaintiffs’ assertion that no
vacancy existed for Mr. Devaney

to fill is refuted by the plain lang uage of the holdover statute. The court having found that President Clinton completed the presidential act of a ppointment during a Senate recess, a va cancy was created and simultaneously filled with the completion of that act. 15 As such, Ms. Askey’s c ontinuance in service ended and a vac ancy on the I TC wasConsol. Court No. 01-00103 Page 17

16 Plaintiffs also insist that because Ms. Askey c ontinued to perform the duties of an ITC commissioner until at least January 12, 2001, and received the salary and the other perquisites of office until January 16, 2001, no vacancy

existed on January 3, 2001, to which Mr. Devaney could be appointed. Without in any way passing on the legitimacy or illegitimacy of their behavior, the court finds that (absent a resig nation by Ms. Askey

) neither Ms. Askey

nor the ITC had the authority

to determine the term of office of any commissioner, or determine when a vacancy existed. This being the case, the matters cited by Plaintiffs are irrelevant to the question of whether a vacancy

existed to which Mr. Devaney c ould be lawfully appointed within the meaning of the Con stitution a

nd relev ant statut

es. I t is to these

that the c ourt must lo ok to determine if he was lawfully serving as an I TC commissioner on February 23, 2001, when the vote on the Final Results was taken. create d concur

rently with Mr. D evaney ’s appoin tment.

2. The Requir ement That an ITC C ommi ssioner be “Qualified” Plaintiff s furthe r conten d that Mr. Devane

y c ould not re

place Ms . Askey

during a Senate recess because of the statutory language allowing he

r to hold over until a successor was “appointed and qualified.” Under Plaintiffs’ theory , Ms. Askey rema

ined in office throughout the intersession recess because Mr. Deva ney could only

be “qualified” by

Senate confirmation. 16 In support of this contention Plaintiffs rely on Mackie v. Clinton , 827 F. Supp. 56 (D.D.C. 1993), where, pursuant to 39 U.S.C. § 202(b), a member of the Boa rd of Governors of the United States Postal Service was continued in office after expiration of his term for a period not to exceed one
year or until his “successor has qualified.” Id. at 57. In Mackie the court found that the purported successor was not entitled to office beca use he was not confirmed by the Senate and had thus not “qualified.” Id. at 57–58 ( “It s eems pla in from the

express la

nguag e of the s tatute that Governor Nevin holds and occupies the office of Governor through December 8, 1993, unless he dies, resigns, is lawfully removed or some ‘successor has qualified,’ i.e., ha s been nominated by the President and c onfirmed by the Sena te.”). The Mackie

court provided noConsol. Court No. 01-00103 Page 18

17 The Circuit Court goes to some lengths to point out that the statute being construed had been amended in 1978, and the phrase “successor has been appointed and qualified” was changed to rea d “successor has been qualified.” See Swan , 100 F.3d at 986. As there is n o legisl ative hist

ory or other reason t o suppose that the c hange was inten

tional, it s eems likely that the words “be en appointed and” were inadvertently omitted. See House Rep. No., 95- 1383 at 26, reprinte d in

1978 U.S.C.C.A.N. 9260, 9298.

18 An even more natural reading of “qualified” would find that the word means that the appointee has fulfilled the requirements for assuming office by , for example: being a member analysis, rea son, or citation for its conclusion that “qualified” meant “confirmed.” I n like manner, Plaintiffs also rely on Wilkinson v. Legal Services Corporation , 865 F. Supp. 891 (D.D.C. 1994), rev’d and remanded on other g rounds , 80 F.3d 535 (D.C. Cir. 1996), cert. denied , 519 U.S. 927 (1996), where that court found a rece ss appointment to the Board of the Le gal Services Corporation to be invalid. See id. at 900 (“The plain meaning of this langua ge is that each member of the Board re mains as a Director after the person’s te rm has expired until the new Director has been ‘appointed’ by the President and ‘qualified,’ i.e., confirmed by the Senate.”). As in Mackie , the Wilkinson court at no point explains why the word “qua lified” should be found to mean “confirmed.” While neither of these opinions make its reasoning explicit, it can be presumed that these courts believed that only through the process of Senate confirmation could the qualifications of a prospective officeholder be examined and found adequate.

On the express point of the meaning of the word “qualified,” however, the court agree s with the holding in Swan v. Clinton , 100 F.3d 973 (D.C. Cir. 1996) , where the Court o f Appea

ls for the District of Columbia Circuit found that the word “qualified,” in the context of a holdover statute, a llows for the fillin g of off ices both by means of t

he Appoin

tments Clau se and the

Recess Appointments Clause. 17 Id. at 986 (“Rat her, a m ore nat ural r eadin g[ 18 ] ofConsol. Court No. 01-00103 Page 19

of the bar, attaining a certain age, or having passed an exam or taking the oa th of office. An examination of dictionary source s tends to support this as the natural reading, e.g.: “To ma ke oneself compete nt for something, or capable of holding some offic e, exercising some function, etc., by fulfilling some nec essary

condition ; spec. by taking a n oath, and hence U.S. : To make oath, to swear to something (Bartlett, 1848). Also, to become eligible f or an old-age pension.” Oxford English Dictionary, available at http://dic tionary .oed.com/cgi/e ntry /00194218 (last visited Au

g. 30, 20 02); “ qualified adj. 1. Possessing the necessary qualifications; capable or competent <a qualified medical examiner>. 2. L imited; restricted. . . .” Black’s Law Dictionary , at 1254 (7th ed. 1999). This view is further supported by usage of “qualified” in other leg al contexts. See , e.g. , Office of Le gal Counsel, United States Department of Justice, Presiden tial Appoi

ntees— Resignation Subject to the Appointment and Qualification of a Successor , 3 U.S. Op. Off. Leg al Counsel 152, 155, 162 n.2 (1979), 1979 OLC L exis 25, 1979 WL 16555 (“The terms of Chief Justice War

ren’s r etireme nt, estab lished in the corre spondenc e betwe en him and the Presi dent, are that the Chief Justice’s retirement will take effect upon the qua lification of his successor . . . . The term ‘qualification’ or ‘qualifies’ ref ers in this context to the taking of the two oaths prerequisite to holding Federal judicial offic e, (1) the oath to support the Constitution required by Article VI, Clause 3 of the Constitution of all officers of the United States, and (2) that required by 28 U.S.C. 453 of each Justice or judg e before performing the duties of his off ice.”). Indee d, 19 U.S.C. § 1330(a) sets out the qualifications for an I TC commissioner:

The United States International Tra de Commission . . . shall be composed of six commissioners who shall be appointed by the President, by and with the advic e and consent of the Senate. No person shall be eli gible f

or appoin tment as a

commissioner unles s he is a citizen of the United States, and, in the judgment of the President, is possessed of qualifications requisite for developing expert knowledge

of intern ational tr ade prob lems and e fficien cy in administering the duties and functions of the Commission. A person who has served as a commissioner for more tha n 5 years (excludin g servi ce as a c ommissione r befor e January 3, 1975) shall not be eligible for reappointment as a commissioner. Not more than thre e of the c ommissione rs shall be

members o f the same political party, and in making appointments members of different political parties shall be appointed alternately as nearly as may be practicable. While the history of the phrase “ appointed and qualified” supports the conclusion in Swanthat either the Senate (in the context of the Appointments Clause) or the president (in the context of the Rece ss Appointments Claus e) must pa ss upon a prospect ive offic eholder ’s qualif

ications, under this alternate interpretation Mr. Devaney would nevertheless still be qualified for office asConsol. Court No. 01-00103 Page 20

a result o f his politi cal par ty e nrollment ( see Nash Memorandum (containing hand written notation of “R” next to Mr. Devaney ’s name); Def.’s Mem. Ex. 5 (containing “R” desig nation next to Mr. Devaney’s na me)) and his having taken the oath of offic e on January 16, 2001. ( See Def.’s Mem., Ex. 6 (“Appointment Affidavits”).)

19 The relevant portion of the Tenure of Off ice Act reads: “every

person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every pe rson who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified.” 14 stat. 430 (1867). ‘qualified’ on its own would have it mean that the requirements for assuming office have been fulfilled, which co

uld be eit her by nomination

with Sena

te confi rmation or

by r ecess appointment .” (emphasis added)). Thus, under Swaneither the Senate or, when appropriate, the president acting alone, can pass on the a dequacy of a prospective officeholder’s qualifica tions. Further evidence to support this view can be found in the statute tha t was the genesis of the phrase “appointed and qualified”—the Tenure of Office Act of 1867 19 : The giv e-and- take bet

ween ea rly Presiden ts and Cong

resses r eveals the historic tension between the legislature and the executive ove r the power to make recess appointments. . . . The tension ultimately spawned the A rmy Appropriation Act of 1863, whic

h was re enacte d as part

of the Te nure of O ffice A ct in 1867. The Tenure of Office Act e ntitled all civil government employ ees “to hold such of

fice unt il a succ essor sha

ll have be en in like manner [by and with the advic e and consent of the Senate] appointed and qualified.” Wilkinson , 865 F. Supp. at 897–98 (footnotes and citations omitted; bracketing in original) ( “The
Tenure of Offic e Act . . . was the precurs or of nume rous fed eral ‘holdover’ provision s. In fact, there may be

as many as sixty

such provisions in the current United States Code.”). By enacting the Tenure of Office Act, Cong ress intended to prevent a president from appointing succ essor officials unless they we

re confirmed by

the Senate. This intention is evidenced by the statute’sConsol. Court No. 01-00103 Page 21

requirement that successor officeholders be “qualified” only by

Senate confirmation. Myers v. United States , 272 U.S. 52, 166 (1926) (“But the chief legislation in support of the re construction policy of Congr

ess was the Tenure of Office Ac t, . . . providing that all officers appointed by and with the consent of the Senate should hold their offices until their successors should have in like manner b een app ointed an d qualifie d . . . .”) . Had Cong ress inte nded the word “qua

lified” t o refer to Senate confirmation only, the phrase “in like manner” would be surplusag e. Moreover, by providing

that a suc cessor o fficial

be qualif ied “in lik

e manner ”—i.e., by Se

nate confirmation—Congress recognized the leg itimacy of another

Constitutional means of qualific ation (by

the pres ident thro

ugh the Recess A ppointmen

ts Clause) and soug ht explicitly

to proscribe its use. In the ca se at bar, because the words “in like manner ” or other words requiring Senate confirmation are absent, there is no rea son to conclude that Congress sought to curtail the preside nt’s powe r to appoi nt IT C commissioners using the Rece ss Appointments Claus e. Thus, it appears that the word “qualified,” in the context of the ITC’s holdover provision, means that the qualifications of prospective officeholders ca n be examined and found to be adequate either by the Senate pursua

nt to the Appointments Clause, or by the president in ac cordance with the Recess Appointments Clause.

This conclusion is an accord with both Staebler v. Carter , 464 F. Su pp. 585 (D .D.C. 1979) and McCalpin v. Dana , Civil Action No. 82-542 (D.D.C. Oct. 5, 1982) (unpublished decision). In Staebler

the court rejected the argume nt that Senate confirmation was required for seating a successor to a member of the Federal Election Commission. At issue was a statutory provision allowing a commissi on member

to hold ove

r until “hi s succes sor has ta ken offi ce as aConsol. Court No. 01-00103 Page 22

20 The court in Staebler dismissed the notion that the holdover clause it construed was different from the standard “appointed a nd qualified” one at issue here: One mi ght wel l conc lude t hat, b y omitti ng the u sual l anguage “until a su

ccessor is appoint

ed and qu alified, ” Congr

ess contemplated the recess appointment problem and explicitly meant to authorize such appointments. But that, too, would be reading too much into Chairman Hays’ stateme nt. It appears to the Court that he, and the Congress gener ally intended by

the inclusion of the holdover provision ultimately adopted to do no more nor le ss than to follow the customary law a nd practice with respect to holdovers and their success ors. Staebler , 464 F. Supp. at 592. member of the Commission” pursuant to 2 U.S.C. § 437c(a)(2)(B). Staebler , 464 F. Supp. at 588 (“Plaintiff argues that these provisions entitle him to hold office as a membe r of the Commission until a successor has been nominated and confirmed by the Senate . . . .”). The Staebler court rejected the idea that the word “qualified” meant “confirmed” based, in part, on its examination of legislative history . While the statute in Staebler was not identical to the one at issue here, the analysis is larg ely the same. 20 First, the Staebler court found no evidence in legislative history, or in the plain reading of the statute itself, that Congress intended to pr event the president from filling vacancies by

using the Recess Appointments Clause. Id. at 591 (“Moreover, there is no basis either in the language of the statute or in its legislative history to support the conc lusion that Congress meant to rein in the President in such an unprecede nted manner. In the abse nce of a clearly -express ed legi slative in

tent, the Court will n

ot specul ate that t

he Congr ess soug ht to achieve a result which would be both unusual and probably beyond its constitutional power.”). As with the provisions examined in Staebler , the legislative history of the “appointed and qualified” language f

ound in the conference report dea ling with ITC’s holdover provision, makesConsol. Court No. 01-00103 Page 23

21 Because the mechanism for deter mining what constituted an appropriate remedy for injur y to domestic i

ndustrie s was see

n by some as no t function

ing as a nticipate d, Congr

ess considered adding a seventh commissioner to the ITC in order that there would be a “tiebreaking” vote for remedy determinations. See S. Rep. No. 94-938, Pt. II , at 58, reprinte d in 1976 U.S.C.C.A.N. at 4083. The proposed additional commissioner was not added, however, and an evenly-divided vote of commissioners is now “deemed” to be an “af firmative determination” pursuant to 19 U.S.C. § 1677(11). no re fe re nc e t o r es tr ic ti ng th e p re si de nt ’s au th or it y:

The Committ

ee’s amendment would incr ease the probabil ity t

hat if there is a majority vote for injury , there would be a majority finding on a remedy . The Committee’s amendment would: . . . (5) Provide that a commissioner whose term has expired may continue in office until his successor has been nominated by

the President and confirmed by the Senate . . . . In the past, there has ofte

n been a delay

between the time of the expiration

of a comm

issioner’ s term and

the takin g of off ice of hi s successor. Because any

such periods of delay

would leave the Commission without an odd number of commissioners and, therefore, without a tie-breaker, the Committee’s amendment would continue in office the Commissioner whose term has expired until his successor is confirmed by the Sena te and takes office. S. Rep. No. 94-938, Pt. II , at 58–59 (1976) to accompany the Tax Reform Act of 1976, reprinted in1976 U.S.C.C.A.N. 1, 4083–84. While the conference report uses the words “c onfirmed by the Senat e” it doe s so in desc

ribing t he norma l course of event s—what The Federalist No. 67 referred to as the “ge

neral mode.” There is no indication that Congress intended to re strict use of the Rece ss Appointments Claus e or, in f act, tha t Congre ss took the

Recess A ppointmen

ts Clause into account. Indeed, the e ntire import of the conference report’ s words is that the enactment of the holdover provision would help ensure an odd number of commissioners 21 so as to avoid tie votes. Without more, it is doubtful that Congress intended the result urged by Plaintiffs. SeeConsol. Court No. 01-00103 Page 24

22 Many

holdover statutes o f regu

latory agenc ies employ

nearly identica l langua ge to that of the ITC’s holdover provision found in 19 U.S.C. § 1330(b)(2). See Wilkinson , 865 F. Supp. at 89 8 (listing

various holdover s tatutes of regula tory agenc ies: 5 U.S. C. § 1202(b ) (Merit Systems Protection Board membe r “may c ontinue to serve until a successor has been appointed and has qualified”); 16 U.S.C. § 792 (member of the Feder al Power Commission “shall be appointe d . . . until h

is succe ssor is ap

pointed a nd has qua

lified”) ; 49 U.S.C. § 10301 (I nterstat e Commerce Commission member “may c ontinue to serve until a successor is appointed and qualified”); 15 U.S.C. § 41 (Federal Trade Commission member “upon the e xpiration of his term of office . . . shall continue to serve until his successor shall have bee n appointed and shall have qualifie d”); 15 U .S.C. § 78d( a) (memb er of the Securitie s and Excha

nge Comm

ission “sh all hold office . . . until his successor is appointed and has qualified”)). Staebler , 464 F. Su

pp. at 592(“The Co

urt finds i t difficu lt to belie ve that, had the Con

gress intended to take th e signif

icant ste p of atte mpting to curtail t he Presid ent’s constitutiona

l reces s appointment power, or even to legislate in the are a of that power, it would [not] have considered the matter with more deliberation or failed to declare its purpose with greater directness and precision.”). Indee d, the court in Staebler —as has this court—examined several instances where statutes had similar legislative histories to the statute at issue here, and found in none of them evidenc e that the

Congre ss intende d to restr ict rece ss appoint

ments by requirin g Senat e confirmation. Id. at 592–93 (“However, in none of these repor ts is there any indication that the Committees considered, much less that they intende d to rule out, the constitutionally-prescr ibed

recess appointme

nt option. T

he thrust of all the comments i s that con

tinuity in office is important and that the disruption caused by prolonged vacancies should be avoided.” ).

Finally, the I

TC cites the Staebler

court for the proposition that added legitimacy is given recess appointments “by

the fact that presidents have consistently construed holdover language as raising no bar to their recess appointment power .” (Def.’s Mem. at 12); 22 see Staebler , 464 F. Supp. at 594 (“[T]he history of prior practice demonstrates primarily that various Presidents haveConsol. Court No. 01-00103 Page 25

acted on the assumption that they ha ve the power to make the appointments, and that the Congress did not challenge this Presidential practice , such as by fa ilure subsequently to confirm the successor or by

amendment of the relevant laws. . . . [T]he lack of a challeng e, either in the courts by someone with standing to complain, or by the Cong ress if it felt its prerogatives had been invaded, lends some, albeit not decisive, weight to defe ndants’ ultimate position that
McGarr y’ s nomination is valid. ”); see also United States v. Midwest Oil Co. , 236 U.S. 459, 473 (1915) (“[D]etermining the meaning of a statute or the existence of a power, weight shall be given to the usage itself—even whe n the validity of the prac

tice is the subject of investigation.”); McLaren v. Fle ischer , 256 U.S. 477, 481 (1921) (“It theref ore comes within the rule that the practical construction given to an act of Cong ress, fairly susc eptible of different constructions, by those charged with the duty of executing it is entitled to great respect and, if a cted upon for a number of

ye ars, will

not be dist

urbed exc ept for c ogent r easons.” ); Stuart v. Laird , 5 U.S. 299 (“[I]t is sufficient to observe, that practice a nd acquiescence under [the act] for a per iod of several years . . . has indeed fixed the construction. I t is a contemporary

interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled.”). This being the case, the cour t agrees with the reasoning in Staebler that the long history of presidential appointments under the Recess Appointments Clause, without Congressional objection that these appointments violated holdover provisions, adds weight to the ITC’s case. Thus, the cour t holds that Dennis M. Devaney was “qualified” by the act of presidential appointment in compliance with the ITC’s holdover provision, and thus filled a
vacancy on the ITC within the meaning of the Rec ess Appointments Clause.Consol. Court No. 01-00103 Page 26

Therefore, the court finds that the appointment of Dennis M. De vaney a s a commissioner of the ITC was valid, and that Mr. De vaney law fully cast his vote with respec t to the Final Results

.

CONCLUSION For the reasons set forth above, the cour t denies Plaintiffs’ Motion for Summary Judgment a s to Counts O ne and Two of the c omplaints, and the c ourt gr ants the I TC’s Cross

Motion for

Summary

Judgment a s to Counts O ne and Two of the c omplaints.

___________________________ Richa rd K. E aton, Judge

Dated: August 30, 2002 New York, New York