Slip Op. 00 - 46

            UNITED STATES COURT OF INTERNATIONAL TRADE

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SAVE DOMESTIC OIL, INC.,
                                     :
                          Plaintiff,
                                     :
                 v.                         Court No. 99-09-00558
                                     :
UNITED STATES,                          :

                             Defendant. :

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                             Memorandum & Order

[Plaintiff's motion for supplemental briefing
 denied.]

                                            Dated:   April 26, 2000

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

     David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (A. David Lafer and Lucius B. Lau);
and Office of Chief Counsel for Import Administration, U.S. De-
partment of Commerce (Robert J. Heilferty), of counsel, for the
defendant.

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

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

     Barnes, Richardson & Colburn (Robert E. Burke and Brian F.
Walsh for intervenor-defendant BP Amoco.


          AQUILINO, Judge:    In accordance with the Joint Status

Report filed herein by the parties pursuant to CIT Rule 56.2(a),
the plaintiff has interposed a motion for judgment upon the rec-
Court No. 99-09-00558                                         Page 2


ord compiled by the International Trade Administration, U.S. De-

partment of Commerce ("ITA") sub nom. Dismissal of Antidumping

and Countervailing Duty Petitions: Certain Crude Petroleum Oil

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

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

are papers styled by the plaintiff as Motion for Supplemental

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

to Plaintiff's pending Freedom of Information Act ('FOIA') re-

quest."


           While the briefing schedule agreed upon in the Joint

Status Report does not yet call for responses to plaintiff's
motion for judgment, the defendant and intervenor-defendants

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

S.A. and CITGO Petroleum Corporation have timely filed papers
in opposition to the requested supplemental briefing which, in

turn, have led the plaintiff to attempt to file a reply memo-

randum2.


     1
       This company, and others originally denied leave to inter-
vene herein as parties defendant per Save Domestic Oil, Inc. v.
United States, 23 CIT    , Slip Op. 99-108 (Oct. 12, 1999), sub-
sequently persuaded this court to grant them such leave upon re-
newed motions, alleging, for example, that "failure to include
BP Amoco would result in serious prejudice because BP Amoco would
not be adequately represented" by intervenor-defendant API Ad Hoc
Free Trade Committee or other parties hereto. Consent Motion of
BP Amoco to Intervene as a Matter of Right and Points to Support
Thereof, second-third pages.
     2
       This memorandum will not be received, as the Rules of this
Court of International Trade, prima facie, do not permit the fil-
ing of replies in support of nondispositive motions. See Rule
Court No. 99-09-00558                                        Page 3

          Plaintiff's proffered reasons for the requested supple-

mental briefing are stated to be as follows:

          From the day Save Domestic Oil's petition was
     filed, Secretary of Energy Richardson made numerous
     statements of opposition. While Secretary Richard-
     son admitted that he and his department had no formal
     role in the Title VII investigations, Secretary Rich-
     ardson nevertheless stated that the "U.S. Government
     does not support the petitions" and that he was at-
     tempting to "fix" the problem.

          More than six months ago, Plaintiff properly sub-
     mitted a FOIA request to the Department of Energy re-
     garding the Secretary's involvement in the Commerce
     proceeding. This request has not been acted on, in
     contravention of the FOIA statute. Accordingly, Plain-
     tiff requests in the attached Motion for Supplemental
     Briefing the right to file additional arguments on this
     limited issue (with an appropriate opportunity to reply
     by Defendant) after this FOIA request is answered.
     . . .3


The sole authority offered for this relief is that "supplemental

pleadings are well within this Court's discretion, as set forth
in Rule 15(d)."   Plaintiff's Motion for Supplemental Briefing,

second page.

          But of course, the plaintiff seeks leave to file more

briefing, not pleadings, which CIT Rule 7(a) defines to be only



7(d) & (g).
     3
       Brief in Support of Plaintiff's Motion for Judgment on the
Agency Record, part IV. The plaintiff pleads a ninth cause of
action in its complaint, averring in addition to the foregoing:

          59. If the facts obtained through discovery reveal
     that Secretary Richardson interfered in the Commerce
     Department's proceeding in any way, Commerce's deter-
     mination not to initiate would be arbitrary, capricious
     and unlawful.
Court No. 99-09-00558                                        Page 4


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

U.S.C. §1581(c) and specifically states that "[n]o other plead-

ing shall be allowed". See also 5 Wright & Miller, Federal Prac-
tice §1183, n. 10 (1990)(a brief is not a pleading).   On the

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

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

of a party,

     the court may, upon reasonable notice and upon such
     terms as are just, permit the party to serve a sup-
     plemental pleading setting forth transactions or
     occurrences or events which have happened since the
     date of the pleading sought to be supplemented.

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

regarding events that occurred before the ITA's dismissal of

plaintiff's petition and thus before its complaint was filed
herein.   That is, plaintiff's instant motion is not in conform-

ity with the chronology contemplated by the rule.   E.g., Intrep-

id v. Pollock, 

(Fed.Cir. 1990)(Rule 15(d) autho-

rizes supplementation of a complaint based on later events).

Cf. Saarstahl AG v. United States, 

, 

(1996) (motion for supplemental briefing in conjunction with

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


           Furthermore, while the Supreme Court's rejection in

Conley v. Gibson, 

, 48 (1957), of the concept that

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


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

be overlooked, neither can the nature of this action be disre-

garded.   As plaintiff's own motion in chief signifies, it seeks
judgment upon the ITA's record, such as it may be.   In granting

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

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

     review of determinations subject to the provisions of
     subsection (a)(1) would proceed upon the basis of in-
     formation before the relevant decision-maker at the
     time the decision was rendered including any informa-
     tion that has been compiled as part of the formal rec-
     ord. The court is not to conduct a trial de novo in
     reviewing such determinations.


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

Sanyo Elec. Co. v. United States, 23 CIT     ,    , 

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

, 18-19, 

, 1471-72 (1997); Neuweg Ferti-

gung GmbH v. United States, 

, 726, 

,

1022 (1992):

          The case law of this court is very clear that
     the administrative record "is limited to the informa-
     tion that was presented to or obtained by the agency
     making the determination during the particular . . .
     proceeding for which section 1516 authorizes judicial
     review"[,]

quoting from Beker Indus. Corp. v. United States, 

, 316

(1984); Cabot Corp. v. United States, 

, 449, 664 F.-

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

the record for review to those matters considered in the partic-

ular determination challenged").
Court No. 99-09-00558                                         Page 6

          As with many rules, certain, limited exceptions have

been made.   Most notably, "[m]aterials outside the administra-

tive record may be discovered . . . where the party requesting
discovery makes a strong showing of bad faith or improper behav-

ior on the part of the officials who made the determination."

Saha Thai Steel Pipe Co. v. United States, 

, 259, 

, 1201 (1987) (emphasis in original), citing Citi-

zens to Preserve Overton Park, Inc. v. Volpe, 

, 420

(1971). See also Sanyo Elec. Co. v. United 

; Ammex,

Inc. v. United States, 23 CIT     ,    , 

, 1166
(1999) (only upon showing of bad faith or improper behavior

should courts allow a party to go behind the stated rationale

of agency decisionmakers to conduct discovery concerning what
may have been the "real" motives or considerations that led to

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

Martino S.P.A. v. United States, 

24, 1126, 

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

, 205-06, 

, 632 (1997)(where no adminis-

trative record or formal findings exist, a strong showing of

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


          While the plaintiff may have hoped to uncover that kind

of negative influence through its FOIA request to the Department

of Energy4, this court is not at liberty to grant any relief upon

     4
       The court notes in passing that FOIA, 5 U.S.C. § 552(a)-
(4)(B) & (a)(6) (1999), and its pertinent, governing regulation,
10 C.F.R. §1004.5(d)(4) (1999), offer applicants more expedi-

                                              (footnote continued)
Court No. 99-09-00558                                       Page 7


such hope alone.   Hence, even though evidence of "unlawful poli-

tical suasion . . . is seldom highlighted on dog-earred pages of

the administrative record"5, plaintiff's Motion for Supplemental
Briefing must be, and it hereby is, denied.

          So ordered.

Dated: New York, New York
       April 26, 2000

                               ________________________________
                                             Judge




tious resolution thereunder than apparently has been sought by
Save Domestic Oil, Inc. Be that as it may, however, this court
does not subscribe to the premise that any attempted resort to
FOIA in regard to an action such as this is out of bounds. Com-
pare, e.g., Defendant-Intervenor Saudi Arabian Oil Company's Op-
position to Plaintiff's Motion for Supplemental Briefing, p. 4
and Opposition of Petroleos de Venezuela, S.A. and CITGO Petro-
leum Corporation to Plaintiff's Motion for Supplemental Briefing,
p. 3 with Star-Kist Foods, Inc. v. United States, 

, 306,

, 215 (1984), and Nat'l Latex Prod. Co. v. United
States, 

, 50 n. 4 (1982).
     5
       Saha Thai Steel Pipe Co. v. United States, 

,
260, 

, 1202 (1987).