United States Court of Appeals for the Federal Circuit
05-1384
GILDA INDUSTRIES, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Peter S. Herrick, of Miami, Florida, argued for plaintiff-appellant.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General;
David M. Cohen, Director; and Jeanne E. Davidson, Deputy Director. Of counsel was
William Busis, Attorney, Office of General Counsel, Executive Office of The President,
Office of the United States Trade Representative.
Appealed from: United States Court of International Trade
Judge Judith M. Barzilay
United States Court of Appeals for the Federal Circuit
05-1384
GILDA INDUSTRIES, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: July 6, 2006
___________________________
ON PETITION FOR REHEARING
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
BRYSON, Circuit Judge.
The government has filed a petition for rehearing in this case, seeking
clarification of our opinion, reported at
446 F.3d 1271. In our opinion, we ruled that “the
evidence of record falls short of establishing that the Trade Representative has
determined that resolution of the hormone beef dispute is imminent.” Such a
determination is a prerequisite for the statutory exception the government sought to
invoke in this case. See
19 U.S.C. § 2416(b)(2)(B)(ii)(I). Accordingly, we vacated the
trial court’s judgment to the extent that the trial court found that the Trade
Representative’s inaction was excused by the statutory exception.
In its petition, the government asks that we “clarify that, on remand, the scope of
the trial court’s review is limited to the administrative record developed by the United
States Trade Representative.” In making that request, the government seems to
suggest that evidence in the current administrative record would support a finding that
the Trade Representative has made the “imminent resolution” determination that is
required by the statutory exception. In fact, the record at present does not support such
a finding, which is why we have ordered a remand. As we explained, the only
documents offered to the trial court that had any bearing on the applicability of the
statutory exception suggested that the Office of the Trade Representative, at various
times in the last several years, has manifested its belief that resolution is not imminent.
Thus, had we been required to make a final determination based on the current state of
the record, there would have been no basis on which we could have concluded that the
statutory exception applies. However, because this case reached us on appeal from
the trial court’s dismissal for failure to state a claim, we concluded that the proper
disposition was to remand, thereby allowing the parties and the trial court to inquire
whether the Trade Representative has made the required “imminent resolution”
determination.
In its petition, the government cites Ammex Inc. v. United States,
341 F. Supp.
2d 1308 (Ct. Int’l Trade 2004), and Camp v. Pitts,
411 U.S. 138 (1973), in support of its
contention that the trial court’s review is limited to the administrative record and that the
trial court must remand to the Office of the Trade Representative for further
development of the administrative record if the current record is insufficient to facilitate
judicial review. We disagree that such a remand is required under the circumstances of
05-1384 2
this case. In Camp, the Supreme Court held that it was improper for a reviewing court
to conduct a trial de novo to determine whether an agency’s decision was capricious or
an abuse of discretion. In such a case, where there is a “failure to explain
administrative action as to frustrate effective judicial review,” the proper remedy is not to
conduct a de novo hearing, but “to obtain from the agency, either through affidavits or
testimony, such additional explanation of the reasons for the agency decision as may
prove necessary.” Camp,
411 U.S. at 142-43. Similarly, in Citizens to Preserve
Overton Park, Inc. v. Volpe,
401 U.S. 402, 420 (1971), the Supreme Court made clear
that where the administrative record does not disclose the reasons for particular
administrative action, “it may be necessary for the District Court to require some
explanation in order to determine if the Secretary acted within the scope of his authority
and if the Secretary’s action was justifiable under the applicable standard.”
In this case, our remand did not direct the trial court to conduct de novo review of
the Trade Representative’s determination. Instead, the question to be resolved on
remand is whether the Trade Representative actually made that determination, a
straightforward inquiry that would not seem to require a further remand to the agency.
Indeed, the government did not previously seem to think the “imminence” issue had to
be resolved based only on evidence in the administrative record. In the portion of its
original brief directed to that issue the government pointed not to the administrative
record but to a publication by the Trade Representative that postdated the
administrative proceedings and to a representation made by government counsel at oral
argument before the trial court.
05-1384 3
If the trial court concludes that the Trade Representative has made the required
determination, we agree with the government’s underlying contention that the
determination is due substantial deference, as we stated in our original opinion.
However, if the trial court concludes that the Trade Representative has not made that
determination, there is no basis for invoking the statutory exception. We leave it to the
trial court’s discretion to determine how to conduct the required inquiry. We merely note
that, to the extent the government raises the specter of lengthy and burdensome
proceedings on remand, that prospect seems unlikely, as the question whether the
Trade Representative has made the required determination is a very simple one that
would seem to be readily resolvable through a brief and unelaborate proceeding.
The petition for rehearing is denied.
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