Nippon Steel Corp. v. United States International Trade Commission

Slip-Op. 02-100

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD K. EATON, JUDGE

__________________________________________

:

NIPPON STEEL CORP., KAWASAKI STEEL :

CORP., THYSSENKRUPP ACCIAI :

SPECIALI TERNI Sp.A and ACCIAI :

SPECIALI TERNI (USA), INC., :

:

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. :

__________________________________________:

[Plaintiffs’ motion for summary judgment as to Counts One and Two of the complaints denied;

ITC’s cross-motion for summary judgment as to Counts One and Two of the complaints

granted.]

Dated: August 30, 2002

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.

Consol. Court No. 01-00103 Page 2

Hogan & Hartson, LLP (Lewis E. Leibowitz, Steven J. Routh, David G. Leitch, T. Clark

Weymouth, David P. Kassebaum), for Plaintiffs ThyssenKrupp Acciai Speciali Terni Sp.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 Roth-Roffy, Mark B. Rees), for the ITC.

Collier Shannon Scott, PLLC (Kathleen W. Cannon, Michael J. Coursey, Eric R.

McClafferty, John M. Herrmann, Grace W. Kim, David A. Hartquist, R. Alan Luberda), 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: This matter is before the court on cross-motions for summary judgment

pursuant to USCIT R. 56, as to Counts One and Two1 of the complaints filed by Nippon Steel

Corporation (“Nippon”), Kawasaki Steel Corporation, ThyssenKrupp Acciai Speciali Terni Sp.A

and Acciai Speciali Terni (USA), Inc. (collectively “Plaintiffs”). On December 28, 2001, this

1

Each Plaintiff filed a complaint in this consolidated action. While Counts One

and Two of each complaint take issue with the manner of Dennis M. Devaney’s appointment as a

commissioner of the United States International Trade Commission with respect 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.

In Count One, Plaintiffs assert that the actions by which Mr. Devaney assumed office were 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. at ¶ 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. at ¶ 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. (Compl. at ¶¶ 25, 26.) 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 3

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 Trade Commission, Slip Op. 01-153,

25 CIT __ (Dec. 28, 2001), familiarity 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 antidumping

review the court will hold unlawful “any determination, finding, or conclusion found . . . to be

unsupported by substantial evidence on the record, or otherwise not in accordance with law . . . .”

19 U.S.C. § 1516a(b)(1)(B)(i). Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” 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

judgment is appropriate. Oral argument was heard on August 14, 2002. For the reasons set forth

below, the court finds that Dennis M. Devaney was validly appointed a commissioner of the

United States International Trade Commission (“ITC”) and that his vote with respect to the final

results was lawfully cast, and grants summary judgment as to Counts One and Two in favor of

the ITC.

2

This court held that “as the question of who is entitled to cast a vote on an

[International Trade Commission] 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, within 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.” Nippon, Slip Op. 01-153 at 10–11, 25 CIT at __.

Consol. Court No. 01-00103 Page 4

BACKGROUND

By their complaints in this consolidated action, Plaintiffs challenge the ITC’s affirmative

material injury determination in the context of the five-year sunset review of imports 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.

2001) (“Final Results”). Counts One and Two of these complaints claim that the vote by which

the Final Results were reached was not in accordance with law because Dennis M. Devaney, one

of those voting, had not validly been appointed an ITC commissioner.

The facts with respect to Mr. Devaney’s disputed appointment can be briefly stated. The

term of ITC Commissioner Thelma Askey expired on December 16, 2000, and she continued to

serve as a commissioner pursuant to the ITC’s holdover provision, 19 U.S.C. § 1330(b)(2), until

such time as her successor was “appointed and qualified.”3 The United States Senate, having

commenced an intersession recess on December 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 Director of

Presidential Personnel for President William J. Clinton, prepared a memorandum (“Nash

Memorandum”) “in a form routinely used for such purposes”4 by which he conveyed to the

Executive Clerk’s Office the “President’s approval of Mr. Devaney’s appointment” (Def.’s

3

The holdover provision provides: “any commissioner may continue to serve as a

commissioner after an expiration of his [statutory] term of office until his successor is appointed

and qualified.” 19 U.S.C. § 1330(b)(2).

4

This memorandum is designated as being “For the President” “Via the Executive

Clerk” and refers to documents for the President’s signature. (See Nash Decl. Attach.) At oral

argument counsel for the ITC could not confirm that there were, in fact, documents attached.

Consol. Court No. 01-00103 Page 5

Mem., Ex. 4 (“Nash Decl.”) at ¶ 4) pursuant to the “Recess Appointments Clause” of the

Constitution5 as a commissioner of the ITC. While Mr. Nash states that he “cannot recall . . .

whether the President conveyed his approval of the appointment directly to me orally or in

writing” he does state that he “would not have prepared this memorandum had Mr. Devaney’s

recess appointment to the ITC not received 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 the course of its processing, various White House personnel affixed their

initials to it, together with the time of day either manually or by stamp. Based on the

authorization provided by the Nash Memorandum, a “Recess Appointment Order”7 “in a form

5

The Recess Appointments Clause reads: “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.

6

On this point Mr. Nash also states:

The President’s personal approval was required of all presidential

appointments and my office would implement the President’s

decision. I never approved the preparation of an appointment

document for a particular appointee unless I had previously

ascertained that the President had personally approved the

appointment. I would receive such approval directly from the

President or, in rare instances (which did not occur here), through

the Chief of Staff when the Chief of Staff was specifically

instructed by the President to inform me of the President’s

approval of the appointment.

(Nash Decl. at ¶ 2.)

7

The “Recess Appointment Order” reads as follows:

I hereby appoint Dennis M. Devaney, of Michigan, to be a member

of the United States International Trade Commission for a term

Consol. Court No. 01-00103 Page 6

routinely used by then President Clinton to make recess appointments” was prepared, and

President Clinton’s autopenned signature was affixed thereto. (Def.’s Resp. to Pls.’ Third Set of

Req. for Admis., Interrogs., and Prod. of Docs. at 4–5; see Pls.’ Mem. Supp. Mot. Summ. 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 commenced an intrasession recess on

January 8, 2001, and reconvened on January 20, 2001. Ms. Askey participated in ITC business

until at least January 12, 2001, and received the salary and other perquisites of an ITC

commissioner until January 16, 2001. Mr. Devaney took the oath of office on January 16, 2001.

On January 18, 2001, President Clinton signed Mr. Devaney’s formal commission8 which was

dated January 3, 2001. Mr. Devaney cast his vote with respect to the Final Results at a meeting

of the commissioners of the ITC on February 23, 2001.

By its Final Results, the ITC sustained the existing antidumping duty orders on grain-

oriented electrical silicon steel from Italy and Japan by finding that “revocation of the[se]

antidumping duty orders . . . would be likely to lead to continuation or recurrence of material

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 WHITE 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 Secretary of State shall make

out and record, and affix the seal of the United States to, the commission of an officer appointed

by the President. The seal of the United States may not be affixed to the commission before the

commission has been signed by the President.”

Consol. Court No. 01-00103 Page 7

injury to an industry in the United States . . . .” See Final Results at 1. The ITC reached this

finding by a three-to-three—i.e., evenly divided—vote and, thus, the antidumping duty orders

remained in effect pursuant to 19 U.S.C. § 1677(11) (2000).9 The three persons voting in the

affirmative were Mr. Stephen Koplan, Ms. Marcia Miller and Mr. Dennis M. Devaney.

With respect to Mr. Devaney’s assumption of office and subsequent vote, Plaintiffs

claim:

Mr. Devaney’s purported recess appointment to the ITC on January

3, 2001 was invalid because (a) there was not a “vacancy” on the

ITC to which he lawfully could have been appointed, and (b) the

President did not sign the commission appointing Mr. Devaney to

office during the recess of the Senate that ended on January 3,

2001. In light of this invalid appointment, Plaintiffs respectfully

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 determination.

(Pls.’ Mem. at 1–2 (citation omitted); see also Nippon Compl. Count One at ¶¶ 18, 19; Count

Two at ¶¶ 27, 28.)

The ITC disputes Plaintiffs’ claims and asserts that Mr. Devaney was validly appointed:

On the morning of January 3, 2001, before the end of the

intersession recess that preceded the 107th Congress, former

President Clinton appointed Dennis M. Devaney to the

International Trade Commission (“ITC” or “Commission”),

replacing Thelma Askey. Ms. Askey had been serving on the

9

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).

Consol. Court No. 01-00103 Page 8

Commission in a “holdover” capacity since the expiration of her

statutory term of office in December 2000. Commissioner

Devaney’s recess appointment was perfected by a recess

appointment order, which was routinely used to make recess

appointments, and executed prior to the end of the above-

mentioned recess.

(Def.’s Mem. Supp. Cross-Mot. Summ. J. (“Def.’s Mem.”) at 1.)

DISCUSSION

A. Mr. Devaney Was Validly Appointed

1. The Distinction Between an Appointment and a Commission

The court first turns to the question of whether Mr. Devaney was lawfully appointed

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

a recess appointment requires the president to sign a commission to make it complete. Thus,

Plaintiffs argue that, since Mr. Devaney’s formal commission was not signed 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 II, Section 2, Clause 3 of the

Constitution is commonly called the Recess Appointments Clause, the word “appointment” is not

found in the text of the clause itself. Rather, the President is empowered “during the Recess of

the Senate” to “fill up all Vacancies . . . by granting Commissions.” As there is no reason to

assume that “filling up Vacancies” constitutes anything other than the presidential act of

appointment, however, the court will refer to it as such hereafter. See The Federalist No. 67

Consol. Court No. 01-00103 Page 9

(Alexander Hamilton) (The Recess Appointments Clause authorizes the President to make

“temporary appointments.”).

In order to determine whether President Clinton properly exercised his authority with

respect to Mr. Devaney, Marbury v. Madison, 5 U.S. 137 (1803), is instructive. While important

for other reasons,10 this case was a dispute over the appointment, with the advice and consent of

the Senate, of a justice of the peace for the “county of Washington.” Id. at 155. As 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, and 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 act of conferring the office; and

10

Justice Marshall ultimately found that the Supreme Court did not have jurisdiction

to hear the case, thus establishing the doctrine of judicial review. Hence, his discussion of the

appointment itself might be described as dicta. Numerous courts having relied on its reasoning,

however, the court is confident in using the opinion as persuasive precedent.

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, Judges of the supreme Court, and all other Officers of the United States . . . .” U.S.

Const. art. II, § 2, cl. 2.

Consol. Court No. 01-00103 Page 10

the commission being evidence of the appointment. Thus, the act of appointment 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 (indicating that even when the appointment and the commission are, in

practice, indistinguishable, “still, the commission is not necessarily the appointment; though

conclusive evidence of it.”). This distinction has been followed in other cases. See Kilburn v.

United States, 15 Ct. Cl. 41, 47 (1879) (citing Marbury and stating “The acts of appointing to

office and commissioning the person appointed are two separate and distinct acts . . . .”); 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 constitutional power of

appointment . . . .”).

2. The Presidential Act of Appointment

What constitutes an act of appointment sufficient to create rights to an office is an “open

and unequivocal act” on the part of an appointing authority. Bennett v. United States, 19 Ct. Cl.

379, 385 (1884) (citing Marbury, 5 U.S. at 385); 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, 244–46 (D.C.

Cir. 1981) (holding that notification sent to plaintiffs of their selection to federal jobs was an

unconditional appointment, even though the required appointment forms had not yet been

completed). The requirement of an open and unequivocal act may be met through various

means. See Watts v. Office of Pers. Mgmt., 814 F.2d 1576, 1580 (Fed. Cir. 1987) (recognizing

regular appointing procedures “do not necessarily exclude other rituals that may be devised to

Consol. 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

appointment of Mr. Devaney. In addition, the other activities that occurred prior to the Senate

reconvening on January 3, 2001, including the various notations on the Nash Memorandum and

the autopenned signing of the Recess Appointment Order, demonstrate that the President

performed the “open and unequivocal act” necessary for an appointment.

3. The Commission as 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 (1867); Dep’t of Justice, Off. Legal Counsel Mem. for Fred F. Fielding,

Counsel to the President, of March 22, 1984).) Plaintiffs point to the language of the Recess

Appointments Clause that a president may “fill up Vacancies . . . by granting Commissions” as

proof that the granting of the commission is a necessary part of an act of appointment.

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 words “by granting

Commissions,” not to make the act of appointment and the signing of the commission a single

Consol. Court No. 01-00103 Page 12

deed, but: (1) to distinguish appointments made under the Appointments Clause from those made

pursuant to the Recess Appointments Clause; and (2) to provide for the temporary nature of these

recess appointments. First, in order to put the distinction between the two appointments clauses

into relief, the Framers put the power of granting commissions (the receipt of which, in the

ordinary course, 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 president. The Federalist

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

declares the general 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

appointment, in cases to which the general method was inadequate.”). While the Senate is in

session the president normally does appoint by means of signing the commission. This is

because such appointment comes at the end of a process: 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 succeeding clause is evidently intended to

authorize the President, SINGLY, 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 appointment complete. Rather, it makes

clear that the president may act alone in making these appointments, without relying on any other

person or body to perform a necessary preliminary act. Second, the phrase “by granting

Commissions,” must be read together with the words that follow them, making the entire phrase

12

Article II, Section 3 of the Constitution states that the President “shall

Commission all the Officers of the United States.”

Consol. Court No. 01-00103 Page 13

“by granting 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 (Alexander Hamilton) (“The time

within which the power is to operate . . . ‘to the end of the next session’ of that body, conspire to

elucidate the sense of the provision . . . .”). Thus, while commissions evidencing appointments

made pursuant to the Appointments Clause may demonstrate entitlements to office of varying

duration, those made pursuant to the Recess Appointments Clause cannot extend beyond 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 granting of

a commission is not necessary to complete 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 With Respect to Conferring Office is at an End

Finding that the commission is not the appointment itself, but rather, evidence of it does

not end the inquiry, however, 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 respect to officials not removable at

will, it demonstrates that the president’s authority with 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 signature of

Consol. Court No. 01-00103 Page 14

the commission.”).13 In keeping with the distinction between 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 appointment was to be evidenced by any public act,

other than the commission, the performance of such public act would create the officer; and if he

was not removable at the will of the President, would either give him a right to his commission,

or enable him to perform the duties without it.” (emphasis added)); see also Bennett, 19 Ct. Cl. at

385. Where, as with a commissioner of the ITC, the president may not remove an office holder

at will, there must be some point at which the office is placed beyond the president’s power.

Here, there is ample evidence of public acts sufficient to put Mr. Devaney’s appointment as an

ITC commissioner beyond the authority of the president to remove him. First, and most

significant, is the Recess Appointment Order which unequivocally states: “I hereby appoint

Dennis M. Devaney . . . to be a Member of the United States International Trade Commission,”

and bears the authorized autopenned signature of the president.14 In addition, the various

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 recess and because the

document was “backdated” to January 3, 2001. However, were the court to accept Plaintiffs’

argument that a formal commission is necessary to complete an appointment, Mr. Devaney

would still validly be appointed as his formal commission was signed on January 18, 2001,

during a Senate recess. The court is aware that the making of appointments during an

intrasession recess is not without controversy. The long history of the practice (since at least

1867) without serious objection by the Senate, however, demonstrates the legitimacy of these

appointments. See generally Michael A. Carrier, When is the Senate in Recess for Purposes of

the Recess Appointments Clause?, 92 Mich. L. Rev. 2204 (1994). In 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 Bennett, 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

Consol. Court No. 01-00103 Page 15

notations made by White House personnel 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 rescind Mr. Devaney’s appointment. As a result, sufficient

open and unequivocal acts were performed 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 Vacancy Occur Simultaneously

Plaintiffs’ next argument is that since Ms. Askey continued in office as a holdover, no

vacancy existed to which Mr. Devaney could 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 were occupied by incumbents. Although the fixed term of office of one of those

incumbents had previously expired, that commissioner continued to hold her office pursuant to a

statute that was specifically enacted to prevent the creation of vacancies 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 assuming the holdover’s place, the statute specifically provides for

the end of the holdover’s service upon a successor being “appointed and qualified.” The statute,

autopenned signature on the Recess Appointment Order would appear to satisfy any requirement

for the “granting of a Commission.” Plaintiffs object that the recess appointment order does not

fulfill the requirements of 5 U.S.C. § 2902. There is, however, no reason why the Recess

Appointment Order could not fulfill the constitutional requirement of a “Commission” and

another writing fulfill the requirements of 5 U.S.C. § 2902.

Consol. Court No. 01-00103 Page 16

then, both provides for the continuance in office of a commissioner, and for the termination of

that officer’s service upon a new commissioner taking office. Thus, Plaintiffs’ assertion that no

vacancy existed for Mr. Devaney to fill is refuted by the plain language of the holdover statute.

The court having found that President Clinton completed the presidential act of appointment

during a Senate recess, a vacancy was created and simultaneously filled with the completion of

that act.15 As such, Ms. Askey’s continuance in service ended and a vacancy on the ITC was

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

officeholder’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 office,

rather than as coming about by the termination of a . . . holdover

entitlement.

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 only for the remainder of the unexpired term. The plain

implication of that language is that a vacancy does indeed 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 provision contains language similar to that the Staebler

court found persuasive. Subsection 1330(b), provides for staggered nine-year terms 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 predecessor was appointed shall be appointed for the remainder of such term. . . .” 19 U.S.C.

§ 1330(B)(1). Under the reasoning in Staebler, this language indicates that a vacancy occurs at

the end of a term. While this court generally agrees with the analysis 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. at 590. Although another theory may not be needed here, since the result with respect to

Mr. Devaney would remain the same, it seems to the court that the plain meaning of the words

“any commissioner may continue to serve as a commissioner after an expiration of his [statutory]

term until his successor is appointed and qualified,” 19 U.S.C. § 1330(b)(2), is that the vacancy

occurs simultaneously with the appointment and qualification of a successor.

Consol. Court No. 01-00103 Page 17

created concurrently with Mr. Devaney’s appointment.

2. The Requirement That an ITC Commissioner be “Qualified”

Plaintiffs further contend that Mr. Devaney could not replace Ms. Askey during a Senate

recess because of the statutory language allowing her to hold over until a successor was

“appointed and qualified.” Under Plaintiffs’ theory, Ms. Askey remained in office throughout

the intersession recess because Mr. Devaney 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 Board 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 because he was not confirmed by the Senate and

had thus not “qualified.” Id. at 57–58 (“It seems plain from the express language of the statute

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., has been

nominated by the President and confirmed by the Senate.”). The Mackie court provided no

16

Plaintiffs also insist that because Ms. Askey continued 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 resignation 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 could be lawfully appointed within the

meaning of the Constitution and relevant statutes. It is to these that the court must look to

determine if he was lawfully serving as an ITC commissioner on February 23, 2001, when the

vote on the Final Results was taken.

Consol. Court No. 01-00103 Page 18

analysis, reason, or citation for its conclusion that “qualified” meant “confirmed.” In 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 grounds, 80 F.3d 535 (D.C. Cir. 1996), cert. denied,

519 U.S. 927 (1996), where that court found a recess appointment to the Board of the Legal

Services Corporation to be invalid. See id. at 900 (“The plain meaning of this language is that

each member of the Board remains as a Director after the person’s term 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 “qualified” 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 agrees

with the holding in Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), where the Court of Appeals

for the District of Columbia Circuit found that the word “qualified,” in the context of a holdover

statute, allows for the filling of offices both by means of the Appointments Clause and the Recess

Appointments Clause.17 Id. at 986 (“Rather, a more natural reading[18] of

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 read “successor has been qualified.” See Swan, 100 F.3d at 986. As

there is no legislative history or other reason to suppose that the change was intentional, it seems

likely that the words “been appointed and” were inadvertently omitted. See House Rep. No., 95-

1383 at 26, reprinted 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

Consol. Court No. 01-00103 Page 19

of the bar, attaining a certain age, or having passed an exam or taking the oath of office. An

examination of dictionary sources tends to support this as the natural reading, e.g.: “To make

oneself competent for something, or capable of holding some office, exercising some function,

etc., by fulfilling some necessary condition; spec. by taking an oath, and hence U.S.: To make

oath, to swear to something (Bartlett, 1848). Also, to become eligible for an old-age pension.”

Oxford English Dictionary, available at http://dictionary.oed.com/cgi/entry/00194218 (last

visited Aug. 30, 2002); “qualified adj. 1. Possessing the necessary qualifications; capable or

competent <a qualified medical examiner>. 2. Limited; restricted. . . .” Black’s Law Dictionary,

at 1254 (7th ed. 1999).

This view is further supported by usage of “qualified” in other legal contexts. See, e.g.,

Office of Legal Counsel, United States Department of Justice, Presidential Appointees—

Resignation Subject to the Appointment and Qualification of a Successor, 3 U.S. Op. Off. Legal

Counsel 152, 155, 162 n.2 (1979), 1979 OLC Lexis 25, 1979 WL 16555 (“The terms of Chief

Justice Warren’s retirement, established in the correspondence between him and the President,

are that the Chief Justice’s retirement will take effect upon the qualification of his successor . . . .

The term ‘qualification’ or ‘qualifies’ refers in this context to the taking of the two oaths

prerequisite to holding Federal judicial office, (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 judge before performing the duties of his office.”). Indeed,

19 U.S.C. § 1330(a) sets out the qualifications for an ITC commissioner:

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. No

person shall be eligible for appointment as a commissioner unless

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 international trade problems and efficiency in

administering the duties and functions of the Commission. A

person who has served as a commissioner for more than 5 years

(excluding service as a commissioner before January 3, 1975) shall

not be eligible for reappointment as a commissioner. Not more

than three of the commissioners shall be members of 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 Swan that

either the Senate (in the context of the Appointments Clause) or the president (in the context of

the Recess Appointments Clause) must pass upon a prospective officeholder’s qualifications,

under this alternate interpretation Mr. Devaney would nevertheless still be qualified for office as

Consol. Court No. 01-00103 Page 20

‘qualified’ on its own would have it mean that the requirements for assuming office have been

fulfilled, which could be either by nomination with Senate confirmation or by recess

appointment.” (emphasis added)). Thus, under Swan either the Senate or, when appropriate, the

president acting alone, can pass on the adequacy of a prospective officeholder’s qualifications.

Further evidence to support this view can be found in the statute that was the genesis of the

phrase “appointed and qualified”—the Tenure of Office Act of 186719:

The give-and-take between early Presidents and Congresses reveals

the historic tension between the legislature and the executive over

the power to make recess appointments. . . .

The tension ultimately spawned the Army Appropriation Act of

1863, which was reenacted as part of the Tenure of Office Act in

1867. The Tenure of Office Act entitled all civil government

employees “to hold such office until a successor shall have been in

like manner [by and with the advice 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 Office Act . . . was the precursor of numerous federal ‘holdover’ provisions. In fact,

there may be as many as sixty such provisions in the current United States Code.”). By enacting

the Tenure of Office Act, Congress intended to prevent a president from appointing successor

officials unless they were confirmed by the Senate. This intention is evidenced by the statute’s

a result of his political party enrollment (see Nash Memorandum (containing hand written

notation of “R” next to Mr. Devaney’s name); Def.’s Mem. Ex. 5 (containing “R” designation

next to Mr. Devaney’s name)) and his having taken the oath of office on January 16, 2001. (See

Def.’s Mem., Ex. 6 (“Appointment Affidavits”).)

19

The relevant portion of the Tenure of Office 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 person 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).

Consol. 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 reconstruction

policy of Congress was the Tenure of Office Act, . . . 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 been appointed and qualified . . . .”). Had Congress intended the word “qualified” to

refer to Senate confirmation only, the phrase “in like manner” would be surplusage. Moreover,

by providing that a successor official be qualified “in like manner”—i.e., by Senate

confirmation—Congress recognized the legitimacy of another Constitutional means of

qualification (by the president through the Recess Appointments Clause) and sought explicitly to

proscribe its use. In the case at bar, because the words “in like manner” or other words requiring

Senate confirmation are absent, there is no reason to conclude that Congress sought to curtail the

president’s power to appoint ITC commissioners using the Recess Appointments Clause. Thus,

it appears that the word “qualified,” in the context of the ITC’s holdover provision, means that

the qualifications of prospective officeholders can be examined and found to be adequate either

by the Senate pursuant to the Appointments Clause, or by the president in accordance with the

Recess Appointments Clause.

This conclusion is an accord with both Staebler v. Carter, 464 F. Supp. 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 argument 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 commission member to hold over until “his successor has taken office as a

Consol. Court No. 01-00103 Page 22

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 member 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 largely 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 prevent 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 conclusion that

Congress meant to rein in the President in such an unprecedented manner. In the absence of a

clearly-expressed legislative intent, the Court will not speculate that the Congress sought 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 found in the conference report dealing with ITC’s holdover provision, makes

20

The court in Staebler dismissed the notion that the holdover clause it construed

was different from the standard “appointed and qualified” one at issue here:

One might well conclude that, by omitting the usual language

“until a successor is appointed and qualified,” Congress

contemplated the recess appointment problem and explicitly meant

to authorize such appointments. But that, too, would be reading

too much into Chairman Hays’ statement. It appears to the Court

that he, and the Congress generally intended by the inclusion of the

holdover provision ultimately adopted to do no more nor less than

to follow the customary law and practice with respect to holdovers

and their successors.

Staebler, 464 F. Supp. at 592.

Consol. Court No. 01-00103 Page 23

no reference to restricting the president’s authority:

The Committee’s amendment would increase the probability that 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 often been a delay between the time of the

expiration of a commissioner’s term and the taking of office of his

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 Senate and takes

office.

S. Rep. No. 94-938, Pt. II, at 58–59 (1976) to accompany the Tax Reform Act of 1976, reprinted

in 1976 U.S.C.C.A.N. 1, 4083–84. While the conference report uses the words “confirmed by

the Senate” it does so in describing the normal course of events—what The Federalist No. 67

referred to as the “general mode.” There is no indication that Congress intended to restrict use of

the Recess Appointments Clause or, in fact, that Congress took the Recess Appointments Clause

into account. Indeed, the entire import of the conference report’s words is that the enactment of

the holdover provision would help ensure an odd number of commissioners21 so as to avoid tie

votes. Without more, it is doubtful that Congress intended the result urged by Plaintiffs. See

21

Because the mechanism for determining what constituted an appropriate remedy

for injury to domestic industries was seen by some as not functioning as anticipated, Congress

considered adding a seventh commissioner to the ITC in order that there would be a “tie-

breaking” vote for remedy determinations. See S. Rep. No. 94-938, Pt. II, at 58, reprinted 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 “affirmative

determination” pursuant to 19 U.S.C. § 1677(11).

Consol. Court No. 01-00103 Page 24

Staebler, 464 F. Supp. at 592 (“The Court finds it difficult to believe that, had the Congress

intended to take the significant step of attempting to curtail the President’s constitutional recess

appointment power, or even to legislate in the area of that power, it would [not] have considered

the matter with more deliberation or failed to declare its purpose with greater directness and

precision.”). Indeed, 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

evidence that the Congress intended to restrict recess appointments by requiring Senate

confirmation. Id. at 592–93 (“However, in none of these reports is there any indication that the

Committees considered, much less that they intended to rule out, the constitutionally-prescribed

recess appointment option. The thrust of all the comments is that continuity in office is

important and that the disruption caused by prolonged vacancies should be avoided.”).

Finally, the ITC 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 have

22

Many holdover statutes of regulatory agencies employ nearly identical language to

that of the ITC’s holdover provision found in 19 U.S.C. § 1330(b)(2). See Wilkinson, 865 F.

Supp. at 898 (listing various holdover statutes of regulatory agencies: 5 U.S.C. § 1202(b) (Merit

Systems Protection Board member “may continue to serve until a successor has been appointed

and has qualified”); 16 U.S.C. § 792 (member of the Federal Power Commission “shall be

appointed . . . until his successor is appointed and has qualified”); 49 U.S.C. § 10301 (Interstate

Commerce Commission member “may continue to serve until a successor is appointed and

qualified”); 15 U.S.C. § 41 (Federal Trade Commission member “upon the expiration of his term

of office . . . shall continue to serve until his successor shall have been appointed and shall have

qualified”); 15 U.S.C. § 78d(a) (member of the Securities and Exchange Commission “shall hold

office . . . until his successor is appointed and has qualified”)).

Consol. Court No. 01-00103 Page 25

acted on the assumption that they have the power to make the appointments, and that the

Congress did not challenge this Presidential practice, such as by failure subsequently to confirm

the successor or by amendment of the relevant laws. . . . [T]he lack of a challenge, either in the

courts by someone with standing to complain, or by the Congress if it felt its prerogatives had

been invaded, lends some, albeit not decisive, weight to defendants’ ultimate position that

McGarry’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 when the validity of the practice is the subject of investigation.”);

McLaren v. Fleischer, 256 U.S. 477, 481 (1921) (“It therefore comes within the rule that the

practical construction given to an act of Congress, fairly susceptible of different constructions, by

those charged with the duty of executing it is entitled to great respect and, if acted upon for a

number of years, will not be disturbed except for cogent reasons.”); Stuart v. Laird, 5 U.S. 299

(“[I]t is sufficient to observe, that practice and acquiescence under [the act] for a period of

several years . . . has indeed fixed the construction. It 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 court 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 court 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 Recess Appointments Clause.

Consol. Court No. 01-00103 Page 26

Therefore, the court finds that the appointment of Dennis M. Devaney as a commissioner

of the ITC was valid, and that Mr. Devaney lawfully cast his vote with respect to the Final

Results.

CONCLUSION

For the reasons set forth above, the court denies Plaintiffs’ Motion for Summary

Judgment as to Counts One and Two of the complaints, and the court grants the ITC’s Cross-

Motion for Summary Judgment as to Counts One and Two of the complaints.

___________________________

Richard K. Eaton, Judge

Dated: August 30, 2002

New York, New York