
    (C.R.D. 78-6)
    Court No. 77-9-03056
    Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest)
    (Dated June 27, 1978)
    
      Stewart & Ikenson (Frederick L. Ikenson of counsel) for the plaintiff.
    
      Barbara Allen Babcock, Assistant Attorney General (Joseph I. Liebman and William F. Atkin, trial attorneys), for the defendant.
   Newman, Judge:

This is an American manufacturer’s action brought pursuant to 28 U.S.C. § 1582(b) (1970), 28 U.S.C. § 2632(a) (Supp. V 1975) and 19 U.S.C. § 1516(c) (Supp. V 1975), involving the Antidumping Act of 1921, as amended (19 U.S.C. §§ 160, et seq. (1970 & Supp. V 1975)) (hereinafter Antidumping Act).

Plaintiff challenges the negative injury determination of the United States International Trade Commission in investigation AA1921-159 relating to tantalum electrolytic fixed capacitors from Japan, as reported in 41 FR 47604-07 (1976). The jurisdictional uncertainty surrounding this action at the time issue was joined was recently resolved in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 80 Cust. Ct. 226, C.R.D. 78-2 (1978), wherein Chief Judge Re held that the Customs Court has jurisdiction to review a negative injury determination'by the Commission in an American manufacturer’s action pursuant to 19 U.S.C. § 1516(c). See also my recent opinion in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing Incorporated, Party-in-Interest) 80 Cust. Ct. 160, C.D. 4751 (1978), following the rationale of SCM.

Here, after issue was joined, defendant instituted discovery by serving plaintiff with interrogatories seeking, inter alia, "the facts” that constitute the bases for plaintiff’s assertions in its complaint that the Commission erred by misconstruing the relevant statutory language, misapplying the Antidumping Act, and rendering a decision that was arbitrary, unreasonable, not supported by substantial evidence, and without a rational basis. Plaintiff responded to these interrogatories by objecting on the ground that they call for “legal argumentation”. Defendant now seeks an order compelling answers to the interrogatories in question pursuant to rule 6.5.

It appears that neither party contemplates a trial, but rather a judicial review predicated upon the administrative record (although the perimeters of such “record” are disputed). Plaintiff’s position is that the Commission erred in reaching its negative injury determination as a matter of law. Further, plaintiff contends that when the “record” has been made available to it, plaintiff will in due course file a motion for summary judgment, at which time defendant will be apprised of the facts that defendant presently seeks in its discovery.

Under these circumstances, I see no useful purpose to be served in requiring plaintiff to analyze the administrative “record” made available to plaintiff at this juncture in order to simply give defendant a citation of those portions thereof upon which plaintiff in its motion for summary judgment, will rely in support of its legal contentions. Plainly, if discovery were compelled pursuant to defendant’s motion, plaintiff’s response would largely be argumentative and contentious. In light of these considerations, the proper objectives of discovery would not be served. See generally 4A Moore’s Federal Practice §33.17 (1975).

Accordingly, defendant’s motion for an order compelling discovery is hereby denied. See order of Judge Maletz entered on May 26, 1978, similarly denying defendant’s motion for an order compelling discovery in ASG Industries, Inc. et al. v. United States, Court No. 77-5-00879; and also my opinion and order in Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steelcraft Tools Division, Party-in-Interest), 80 Cust. Ct. 250, C.R.D. 78-4 (1978), promulgated concurrently herewith. 
      
       Interrogatory Nos. 2,3 and 4 (a), (b), (c) and (d) of defendant's first interrogatories directed to plaintiff.
     
      
       For the standard and scope of review applicable to the Commission’s injury determinations under the Antidumping A ct see the recent order of Judge Maletz in Pasco Terminals, Inc. v. United States, 80 Cust. Ct. 249, C.R.D. 78-3 (1978); and also his unpublished order in the same case dated May 8,1978, requiring transmittal to the Clerk of this Court of a certified copy of the transcript of proceedings and exhibits introduced before the Commission- And see my orders entered concurrently herewith in Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust. Ct. 256, C.R.D. 78-7 (1978), and Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steelcraft Tools Division, Party-in-Interest). 80 Cust. Ct. 252, C.R.D. 78-5 (1978).
     
      
       Plaintiff states that ‘‘parts of what plaintiff considers to be the record have not yet been made available to plaintiff” (memorandum 3). In this connection, plaintiff served upon defendant a set of interrogatories and a request for production of “All documents and things in the files of the International Trade Commission and/or individual Commissioners” relating to investigation AA1921-159, which was the basis for the Commission’s negative injury determination challenged in this action. Thereupon, defendant moved for aprotective order pursuant to rule 6.1(c) seeking to be relieved from responding to plaintiff’s interrogatories and request for production, and seeking to prohibit plaintiff from conducting discovery into matters beyond the Commission’s notice of investigation and hearing (41 FR 33337-38 (1976)) and the Commission's negative injury determination and statement of reasons (41 FR 47604-07 (1976)). In an order entered by this Court cv ncurrently herewith (C.R.D. 78-7), defendant’s motion for a protective order was denied, and citing Pasco Terminals Inc. v. United States, supra. n.2, and Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steelcraft Tools Division, Party-in-Interest), 80 Cust. 252, C.R.D. 78-5 (1978), decided concurrently herewith, the Secretary ofth6 Commission was directed to transmit to the Clerk of this Court on or before July 28,1978, the following: (1) a certified copy of the transcript of proceedings and exhibits introduced b jfore the Commission in investigation AA1921-159; (2) certified copies of all written submissions, questionnaires, reports and all other documents delating to investigation AA1921-159; and (3) all other things in the files of the Commission relating to the investigation.
     