Nippon Steel Corp. v. U.S. International Trade Commission

Slip-Op. 01-153
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RICHARD K. EATON, JUDGE
__________________________________________
:
NIPPON STEEL CORP., KAWASAKI STEEL :
CORP., and ACCIAI TERNI S.p.A and :
ACCIAI TERNI (USA), :
:
Plaintiffs, :
:
v. : Consol. Court No. 01-00103
:
UNITED STATES INTERNATIONAL :
TRADE COMMISSION :
:
Defendant, :
:
and :
:
ALLEGHENY LUDLUM CORP., AK STEEL :
CORP., BUTLER ARMCO INDEPENDENT :
UNION, ZANESVILLE ARMCO :
INDEPENDENT UNION, and :
UNITED STEELWORKERS OF :
AMERICA, AFL-CIO/CLC, :
:
Defendant-Intervenors. :
__________________________________________:
Foreign producers of grain-oriented silicon electrical steel (“Plaintiffs”) filed complaints
contesting affirmative injury determination sustained by three-to-three vote in the context of
sunset review conducted by the International Trade Commission (“ITC”). Plaintiffs challenged,
among other things, validity of the ITC’s procedures in conducting vote sustaining affirmative
injury determination, and resulting antidumping duty orders; and sought discovery to obtain
evidence substantiating certain of their allegations. The ITC moved to have Counts One and
Two of Plaintiffs’ complaints dismissed asserting court lacked jurisdiction over matters alleged
therein or, in the alternative, that Plaintiffs lacked standing. In addition, the ITC moved to quash
Plaintiffs’ discovery requests. The Court of International Trade, Eaton, J.: (1) denied the ITC’s
motion to dismiss, finding court had jurisdiction pursuant to 28 U.S.C. 1581(c) (1994) and
Plaintiffs had standing; and (2) granted Plaintiffs’ discovery requests.
Consol. Court No. 01-00103 Page 2
[ITC’s motion denied; Plaintiffs’ discovery requests granted.]
Dated: December 28, 2001
Gibson, Dunn & Crutcher, LLP (Joseph H. Price, Douglas R. Cox, Gracia M. Berg,
Gregory C. Gerdes), for Plaintiff Nippon Steel Corporation.
Arent Fox Kintner Plotkin & Kahn, PLLC (Robert H. Huey, Matthew J. Clark, Nancy A.
Noonan, Steven F. Hill, Timothy D. Osterhaus), for Plaintiff Kawaski Steel Corporation.
Hogan & Hartson, LLP (Lewis E. Leibowitz, Steven J. Routh, David E. Leitch, T. Clark
Weymouth, David P. Kassebaum), for Plaintiffs Acciai Speciali Terni S.p.A. and Acciai Speciali
Terni USA, Inc.
Lyn M. Schlitt, General Counsel, United States International Trade Commission; James
M. Lyons, Deputy General Counsel, United States International Trade Commission (Gracemary
Rizzo), for the ITC.
Collier Shannon Scott, PLLC (Kathleen W. Cannon, Michael J. Coursey, Eric R.
McClafferty, John M. Herrmann, Grace W. Kim), for Defendant-Interveners Allegheny Ludlum
Corporation, AK Steel Corporation, Butler Armco Independent Union, Zanesville Armco
Independent Union, and the United Steelworkers of America, AFL-CIO/CLC.
OPINION AND ORDER
EATON, JUDGE: Before the court is the motion of the United States International
Trade Commission (“ITC” or “Commission”) to dismiss Counts One and Two of the complaints
filed by Nippon Steel Corporation (“Nippon”), Kawaski Steel Corporation, Acciai Terni S.p.A.
and Acciai Terni (USA) (collectively “Plaintiffs”) and to quash Plaintiffs’ related discovery
requests made pursuant to USCIT R. 33, 34, and 36.
By their complaints in this consolidated action, Plaintiffs challenge the ITC’s affirmative
material injury determination in the context of a five-year sunset review with respect to imports
Consol. Court No. 01-00103 Page 3
of grain-oriented silicon electrical steel from Italy 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. 26, 2001) (“Final Results”). Counts One and Two of these complaints claim that the ITC’s
final determination:
[W]as not in accordance with law because of the crucial deciding
vote of Dennis M. Devaney, who was not lawfully appointed to be
an ITC commissioner at the time of that vote.[1] Specifically,
Plaintiffs allege . . . that the attempted recess appointment of Mr.
Devaney was invalid because there was neither a Senate recess nor
a vacancy on the ITC at the time of the purported [recess]
appointment.
(Pls.’ Mem. Opp’n to Def.’s Mot. Dismiss at 2 (citation omitted); see also Nippon Compl. Count
One ¶¶ 18, 19; Count Two ¶¶ 27, 28.) Plaintiffs also seek discovery to obtain evidence to
substantiate their allegations.
The ITC moves2 to dismiss Plaintiffs’ Counts One and Two by asserting that this court
“lacks subject matter jurisdiction under both 28 U.S.C. § 1581(c) and (i); and plaintiffs lack
standing to challenge the President’s recess appointment of Commissioner Devaney . . . .”
(Def.’s Mem. Supp. Mot. Dismiss at 1–2.) In addition, the ITC seeks to quash Plaintiffs’
1
Each Plaintiff filed a complaint in this consolidated action. While Counts One
and Two of each complaint take issue with the manner of Mr. Devaney’s appointment as to: (1)
the validity of the recess 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.
2
Here, the ITC challenges the court’s jurisdiction pursuant to USCIT R.12(h)(3),
which states, “[w]henever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” However, since subsection
(h) preserves the defense of subject matter jurisdiction so that it might be raised at any time in an
action, the court understands the ITC to have intended to challenge the court’s jurisdiction
pursuant to USCIT R. 12(b)(1), “Defenses and Objections . . . By Pleadings or Motion . . . .”
Consol. Court No. 01-00103 Page 4
discovery requests. (Id. at 2.) For the reasons set forth below, the court denies the ITC’s motion
and grants Plaintiffs’ discovery requests.
STANDARD OF REVIEW
Where a party’s “12(b)(1) motion simply challenges the court’s subject matter
jurisdiction based on the sufficiency of the pleading’s allegations—that is, the movant presents a
‘facial’ attack on the pleading—then those allegations are taken as true and construed in a light
most favorable to the complainant.” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583
(Fed. Cir. 1993) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, “[a] ‘facial
attack’ on the complaint requires the court merely to look and see if plaintiff has sufficiently
alleged a basis of subject matter jurisdiction . . . .” Fed. Election Comm’n v. Nat’l Rifle Assoc.,
553 F. Supp. 1331, 1343 (D.D.C. 1983) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir. 1980)).
BACKGROUND
By its Final Results,3 the ITC sustained the existing antidumping duty orders on grain-
3
19 U.S.C. § 1675(c) reads as follows:
(1) In general . . .
5 years after the date of publication of—
(A) . . . . an antidumping duty order . . .
the administering authority and the Commission
shall conduct a review to determine . . . whether
revocation of the . . . antidumping duty order . . .
Consol. Court No. 01-00103 Page 5
oriented electrical silicon steel from Italy and Japan by finding that “revocation of the[se]
antidumping orders . . . would likely lead to continuation or recurrence of material injury to an
industry in the United States . . . .” See Final Results at 1 (footnote omitted). The ITC reached
this finding by a three-to-three—i.e., evenly divided—vote of its Commissioners and, thus, the
antidumping duty orders remained in effect pursuant to 19 U.S.C. § 1677(11).4 The three
persons voting in the affirmative were Stephen Koplan, Marcia Miller and Dennis M. Devaney.
According to the ITC,
Commissioner Devaney was appointed to the Commission by
President Clinton on the morning of January 3, 2001, before the
Senate returned to session later that same day.[5] Commissioner
Devaney was appointed to the Commission seat, which at the time
of his appointment was occupied by Commissioner Thelma Askey,
would be likely to lead to continuation or recurrence
of dumping . . . and of material injury.
19 U.S.C. § 1675(c)(1)(A) (1994). The antidumping duty orders that were the subject of the
sunset review were published on June 10, 1994, and August 12, 1994, respectively. See
Antidumping Duty Order: Grain-Oriented Elect. Steel From Japan, 59 Fed. Reg. 29,984 (June 10,
1994); Antidumping Duty Order: Grain-Oriented Elect. Steel From Italy, 59 Fed. Reg. 41,431(Aug. 12, 1993).
4
This subsection provides,
If the Commissioners voting on a determination . . . are evenly
divided as to whether the determination should be affirmative or
negative, the Commission shall be deemed to have made an
affirmative determination.
19 U.S.C. § 1677(11) (1994).
5
The President shall 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.
Consol. Court No. 01-00103 Page 6
a holdover commissioner. Commissioner Askey had been
appointed by President Clinton in 1998. Commissioner Askey’s
term had expired on December 16, 2000, but she continued to
serve at the Commission until her successor, Commissioner
designee Devaney, was qualified. Pursuant to 19 U.S.C.
1330(b)(2), “any commissioner may continue to serve as a
commissioner after an expiration of his term of office until his
successor is appointed and qualified.” Commissioner Devaney
took his oath of office on January 16, 2001.
(Def.’s Mem. Supp. Mot. Dismiss at 2–3 (citation omitted).)
Following publication of the Final Results Plaintiffs filed their actions, which, among
other things, challenge the legitimacy of the procedures by which Mr. Devaney assumed office
and, therefore, the lawfulness of his participation in the vote sustaining the affirmative injury
determination. In Count One of these complaints, Plaintiffs assert that the process by which Mr.
Devaney assumed office was not lawfully completed during a Senate recess and, therefore,
“[b]ecause Dennis Devaney’s alleged appointment to the ITC was invalid, his vote [on the Final
Results was] invalid.” (Compl. ¶ 18.) Plaintiffs further allege that “[a]s a result of Dennis
Devaney’s invalid vote and determination, the Commission’s determination . . . was not in
accordance with law.” (Id. ¶ 19.) In like manner, Plaintiffs’ Count Two alleges that, because no
vacancy existed at the time Mr. Devaney assumed office, Mr. Devaney was not lawfully
appointed and, thus, ineligible to vote on the Commission’s determination leading to the Final
Results. Because of these alleged irregularities, Plaintiffs ask the court to “[d]eclare unlawful
Dennis Devaney’s vote and determination with regard to the [Final Results]” and “[d]eclare that
the ITC shall instruct the U.S. Department of Commerce to revoke the antidumping
order[s] . . . .” (Compl. at 10, 11.)
Consol. Court No. 01-00103 Page 7
To substantiate their allegations, Plaintiffs seek discovery “to elicit information uniquely
in [the ITC’s] control concerning, inter alia, the legal and procedural aspects of the purported
appointment of Mr. Devaney on January 3, 2001, including information about the time at which
the President signed Mr. Devaney’s commission.” (Pls.’ Mem. Opp’n to Def.’s Mot. Dismiss at
2.)
By its motion, the ITC asserts that this court lacks subject matter jurisdiction over Counts
One and Two of Plaintiffs’ complaints. As to Plaintiffs’ claim that jurisdiction lies under 28
U.S.C. § 1581(c),6 the ITC contends:
[P]laintiffs are challenging the President’s exercise of his
constitutional powers of recess appointment with respect to the
Commission. The question of whether President Clinton properly
invoked his power to make a recess appointment is at the heart of
plaintiffs’ allegations . . . and the substance of those allegations
cannot be made to fit within the carefully tailored scope of the
Court’s subject matter jurisdiction under Section 1516a(a)1.[7]
6
The statute provides, in relevant part:
Civil actions against the United States and agencies and officers
thereof . . . .
(c) The Court of International Trade shall have
exclusive jurisdiction of any civil action
commenced under [19 U.S.C. § 1516a].
28 U.S.C. § 1581(c) (1994).
7
The ITC probably intended to cite a different subsection of 1516a which states:
The determinations which may be contested under subparagraph
(A) are as follows . . .
(iii) A final determination, other than a determination
Consol. Court No. 01-00103 Page 8
The exercise of the President’s recess appointment authority is
neither a factual finding nor a legal conclusion upon which the
instant sunset review determination is based.
(Def.’s Mem. Supp. Mot. Dismiss at 5.)
As to Plaintiffs’ alternative claim that the court has jurisdiction under 28 U.S.C. §
1581(i),8 the ITC similarly contends that Plaintiffs are asking “this Court to construe provisions
reviewable under [19 U.S.C. § 1516a(a)](1), by the
administering authority or the Commission under section
1675 of this title.
19 U.S.C. § 1516a(a)(2)(B)(iii) (1994); further, subparagraph (A) states that, in contesting such
determination,
[A]n interested party who is a party to the proceeding in connection
with which the matter arises may commence an action in the
United States Court of International Trade by filing . . . a
complaint . . . contesting any factual findings or legal conclusions
upon which the determination is based.
19 U.S.C. § 1516a(a)(2)(A). Judicially reviewable final determinations under this subparagraph
include five-year sunset reviews. See 19 U.S.C. 1675(c).
8
Section 1581(i) of Title 28, which provides for the court’s residual jurisdiction,
states:
(i) In addition to the jurisdiction conferred upon the Court of
International Trade by subsections (a)–(h) of this section and
subject to the exception set forth in subsection (j) of this section,
the Court of International Trade shall have exclusive jurisdiction of
any civil action commenced against the United States, its agencies,
or its officers, that arises out of any law of the United States
providing for . . .
(4) administration and enforcement with respect to
the matters referred to in paragraphs (1)–(3) of this
subsection and subsections (a)–(h) of this section.
Consol. Court No. 01-00103 Page 9
of the Constitution and to determine whether the President acted in accordance with its
provisions in making the contested recess appointment.” (Def.’s Mem. Supp. Mot. Dismiss at 7.)
In the alternative, the ITC questions Plaintiffs’ standing by asserting that, even if
Commissioner Devaney’s recess appointment were unlawful, Plaintiffs, nonetheless, do not have
an individually protected interest in the President’s exercise of his power of appointment under
the Constitution. (Id. at 8–9.)
Finally, the ITC contests Plaintiffs’ discovery requests on the grounds that “[i]n . . .
challenging [the] Commission’s final determinations, whether pursuant to [28 U.S.C. §§]
1581(c) or 1581(i), the scope of review is confined to information contained in the administrative
record.” (Def.’s Mem. Supp. Mot. Dismiss at 17–18.)
DISCUSSION
The court does not find the ITC’s arguments convincing. Rather than asking the court to
review the President’s exercise of his recess appointment power under the Constitution,
Plaintiffs, by their complaints, are merely seeking review of the ITC’s adherence to its
procedures in reaching its decision in the Final Results. In other words, Plaintiffs wish the court
This subsection shall not confer jurisdiction over an antidumping
or countervailing duty determination which is reviewable . . . by
the Court of International Trade under [19 U.S.C. § 1516a
(1994)] . . . .
28 U.S.C. § 1581(i)(4) (1994).
Consol. Court No. 01-00103 Page 10
to determine whether the Commissioners of the ITC allowed someone who was not a
Commissioner to cast a vote in the determination of the Final Results.9 That this court has the
jurisdiction to decide matters relating to the procedures employed by the ITC in reaching a final
determination is well settled. Koyo Seiko Co. v. United States, 13 CIT 461, 464, 715 F. Supp.
1097, 1099–100 (1989) (quoting PPG Indus. v. United States, 2 CIT 110, 113, 525 F. Supp. 883,
885 (1981) (“It is not disputed that the court under . . . § 1581(c) [has] jurisdiction . . . [and,
therefore,] ‘all procedural considerations should be decided by this Court [once] the final agency
determination is made.’”)); Montgomery Ward & Co. v. Zenith Radio Corp., 673 F.2d 1254,
1260 (C.C.P.A. 1982) (“‘[D]eterminations’ must be made in accordance with delineated
procedures . . . . Thus, the merits of a determination, as well as its procedural correctness, are
subject to judicial review.”). At no point does the ITC question the court’s authority to hear and
decide the merits of the substantive issues raised in Plaintiffs’ complaints; nor would there be
any basis for the ITC to do so, since the court clearly has jurisdiction to hear substantive issues
relating to a five-year sunset review. See, e.g., Chefline Corp. v. United States, 25 CIT __, Slip
Op. 01-118 (Sept. 26, 2001). As such matters are now properly before the court, so too are
matters of procedure relating to them. This being the case, as the question of who is entitled to
cast a vote on an ITC final determination is surely a question of procedure, it is surely within the
competence of this court to hear such question. Thus, the court finds that it has jurisdiction, in
9
Section 1330 states, inter alia, “The United States International Trade
Commission . . . shall be composed of six commissioners who shall be appointed by the
President, by and with the advice and consent of the Senate.” 19 U.S.C. § 1330(a) (1994);
section 1675a provides, inter alia, “In a review conducted under section 1675 . . . (c) of this title,
the Commission shall determine whether revocation of an [antidumping duty] order . . . would be
likely to lead to continuation or recurrence of a material injury . . . . ” 19 U.S.C. § 1675a(a)
(1994).
Consol. Court No. 01-00103 Page 11
the context of an affirmative finding of injury in a five-year sunset review, to hear procedural
questions relating thereto, including the claims found in Counts One and Two of Plaintiffs’
complaints.10 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(a)(2)(B)(iii).
It is worth noting that, should the court ultimately find for the Plaintiffs, complete relief
can be afforded them within the confines of the ITC itself. Compare Swan v. Clinton, 100 F.3d
973, 989 (D.C. Cir. 1996) (Silberman concurring) (“We could thus compel all officials at the
Board to treat Swan as the rightful incumbent and, consequently, to ignore Wheat, at least
officially.”).
Next, the court turns to the question of standing to sue. The ITC asserts that Plaintiffs
lack standing based on its argument that Plaintiffs:
[H]ave no individually protected interest that the President
properly exercise his appointment power with respect to the
Commission[] [and that] they do not have an individually protected
interest that only persons appointed by the President and confirmed
by the Senate make up the Commission.
(Id. at 8–9.) However, the court has found that the President’s appointment power is not at issue
in this case. Rather, at issue are the procedures employed by the ITC in reaching the final
determination contained in the Final Results.11 As a result, since the Plaintiffs may have suffered
10
As the court finds that it has jurisdiction to hear the matters raised in Counts One
and Two of the Plaintiffs’ complaints pursuant to 28 U.S.C. § 1581(c), it need not address the
question of whether it has subject matter jurisdiction under 28 U.S.C. § 1581(i).
11
Plaintiffs also satisfy the requirement that: (1) they be “interested parties,” within
the meaning of 19 U.S.C. 1677(9); and that (2) they participated in the proceedings before the
ITC leading to the Final Results. See 28 U.S.C. § 2631(c); Brother Indus., Ltd., v. United States,
Consol. Court No. 01-00103 Page 12
“injury in fact” from the ITC’s determination, and are “arguably within the zone of interest
sought to be protected” by a five-year sunset review, Plaintiffs have standing. Duty Free Int’l,
Inc. v. United States, 16 CIT 163, 163–64 (1992) (quoting Assoc. of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 152–53 (1970)); 19 U.S.C. § 1675(c); 5 U.S.C. § 702 (1994);
Moreover, despite the ITC’s arguments to the contrary, a constitutionally based
“individually protected right” is not a prerequisite for the Plaintiffs to have standing to contest
the issues raised by Counts One and Two of their complaints. Transcom, Inc. v. United States,
182 F.3d 876, 880 (Fed. Cir. 1999) (“[W]e need not address [plaintiff]’s argument that . . . the
scope of the administrative reviews violated [its] rights under the due process clause of the Fifth
Amendment to the Constitution, because we hold that Commerce’s conduct in this case violated
Commerce’s statutory and regulatory . . . obligations in connection with the administrative
reviews.”).
Finally, the court turns to the issue of discovery. While discovery is not normally
permitted in a case brought pursuant to 28 U.S.C. § 1581(c), see Saha Thai Steel Pipe Co., Ltd. v.
United States, 11 CIT 257, 259, 661 F. Supp. 1198, 1201 (1987) (citation omitted), it has been
allowed under other than normal circumstances. See NEC Corp. v. United States, 21 CIT 198,
205–06, 958 F. Supp. 624, 631–32 (1997); see also Atl. Sugar, Ltd. v. United States, 85 Cust. Ct.
16 CIT 150, 151–52, 787 F. Supp. 1454, 1455–56 (1992) (citing Citrosuco Paulista, S.A. v.
United States, 12 CIT 1196, 1199–1201, 704 F. Supp. 1075, 1081–82 (1988)) (“The statute
requires that [the] part[ies] must be interested and must have participated before the ITC.”); see
also 64 Fed. Reg. 41,433 (July 5, 2000); Final Results at 3, App. B-5.
Consol. Court No. 01-00103 Page 13
131, 131 (1980) (“Th[e] instances of review on the record in which interrogatories were
permitted were either cases of apparent incompleteness of the record . . . or clear failures to
articulate the administrative findings . . . .” (citations omitted)). “Plaintiffs may [, however,]
engage in discovery outside the administrative record if they demonstrate that there is a
reasonable basis to believe the administrative record is incomplete.” Saha Thai Steel Pipe Co.,
Ltd., at 261– 62, 661 F. Supp. at 1202 (citing Tex. Steel Co. v. Donovan, 93 F.R.D. 619, 621
(N.D. Tex. 1982); Natural Res. Def. Counsel, Inc. v. Train, 519 F.2d 287, 291–92 (D.C. Cir.
1975)).
Here, by offering to supplement the record with additional documents (see, e.g., Def.’s
Mem. Supp. Mot. Dismiss, Attach. 1 (Declaration of G. Timothy Saunders (“Saunders
Declaration”)), Attach. 2 (letter from Nash to Askey of 1/02/01 (“Nash Letter”))) the ITC
acknowledges that the record is incomplete. These documents, though useful, each answer some
questions while raising others. For instance, the Nash Letter indicates that Mr. Nash had the
authority to“reliev[e] [Ms. Askey, effective January 2, 2001,] of [her] position and
responsibilities as a member of the International Trade Commission.” (Nash Letter at 1.) In the
Saunders Declaration, Mr. Saunders appears to agree that the Nash Letter “served as notice to the
Executive Clerk’s Office that a vacancy existed in Ms. Askey’s former seat on the USITC.”
(Declaration at 1.) This, despite statutory language providing “any commissioner may continue
to serve as a commissioner after an expiration of his term of office until his successor is
appointed and qualified.” 19 U.S.C. § 1330(b)(2). Thus, there appears to be a certain amount of
uncertainty as to how the vacancy was created and when, since the earliest date claimed for Mr.
Consol. Court No. 01-00103 Page 14
Devaney’s appointment is January 3, 2001. (See Def’s Mem. Supp. Mot. Dismiss at 2–3.)
Plaintiffs also seek to supplement the record with the affidavit of Joseph H. Price, which raises
significant questions not put to rest by the ITC’s offered documents:
Plaintiffs have reason to believe that evidence in Defendant’s
control will likely rebut the Saunders Declaration’s contention that
something called a “recess appointment order” effectuated Mr.
Devaney’s purported recess appointment at 10:20 a.m. on January
3, 2001. As discussed in more detail in Plaintiffs’ Opposition,
established legal precedent shows that an appointment to the ITC
takes place when the President signs a commission — not when the
President approves a so-called “recess appointment order.”
[Moreover], the Saunders Declaration . . . does not mention the
time at which President Clinton signed Mr. Devaney’s ITC
commission — thus raising the distinct likelihood that the
commission was not signed during a recess of the Senate.
Plaintiffs therefore have reason to believe that discovery regarding
the exact time at which Mr. Devaney’s commission was signed by
President Clinton will likely lead to evidence that will rebut the
Saunders Declaration and create an issue of material fact
concerning the time at which the purported recess appointment was
completed.
(Pls.’ Mem. Opp’n Def.’s Mot. Dismiss, Ex. 4 ¶¶ 9, 10. (citation omitted; emphasis in original))
The court need not pass on the legal questions concerning the creation of a vacancy, or the
distinctions between a “recess appointment order” and a Presidential “commission” to find that
“there is a reasonable basis to believe the administrative record is incomplete.” Saha Thai Steel
Pipe Co., Ltd., at 261– 62, 661 F. Supp. at 1202. Here, an examination of the record reveals that
the facts needed to either substantiate or refute the allegations found in Counts One and Two of
the complaints are not present, nor would they normally be. Plaintiffs’ requests for discovery
are, therefore, granted.
Consol. Court No. 01-00103 Page 15
CONCLUSION
For the reasons set forth above, the court denies the ITC’s motion to dismiss Counts One
and Two of Plaintiff’s complaints, and grants Plaintiffs’ requests for discovery.
___________________________
Richard K. Eaton, Judge
Dated: December 28, 2001
New York, New York