 United States Court of Appeals for the Federal Circuit

                                         05-1384


                               GILDA INDUSTRIES, INC.,

                                                        Plaintiff-Appellant,

                                            v.


                                   UNITED STATES,

                                                        Defendant-Appellee.



      Peter S. Herrick, of Miami, Florida, argued for plaintiff-appellant.

       David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General;
David M. Cohen, Director; and Jeanne E. Davidson, Deputy Director. Of counsel was
William Busis, Attorney, Office of General Counsel, Executive Office of The President,
Office of the United States Trade Representative.

Appealed from: United States Court of International Trade

Judge Judith M. Barzilay
 United States Court of Appeals for the Federal Circuit


                                         05-1384


                               GILDA INDUSTRIES, INC.,

                                                 Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                 Defendant-Appellee.

                            ___________________________

                            DECIDED: July 6, 2006
                            ___________________________


                            ON PETITION FOR REHEARING

Before NEWMAN, BRYSON, and PROST, Circuit Judges.

BRYSON, Circuit Judge.

       The government has filed a petition for rehearing in this case, seeking

clarification of our opinion, reported at 446 F.3d 1271. In our opinion, we ruled that “the

evidence of record falls short of establishing that the Trade Representative has

determined that resolution of the hormone beef dispute is imminent.”              Such a

determination is a prerequisite for the statutory exception the government sought to

invoke in this case. See 19 U.S.C. § 2416(b)(2)(B)(ii)(I). Accordingly, we vacated the

trial court’s judgment to the extent that the trial court found that the Trade

Representative’s inaction was excused by the statutory exception.
       In its petition, the government asks that we “clarify that, on remand, the scope of

the trial court’s review is limited to the administrative record developed by the United

States Trade Representative.”       In making that request, the government seems to

suggest that evidence in the current administrative record would support a finding that

the Trade Representative has made the “imminent resolution” determination that is

required by the statutory exception. In fact, the record at present does not support such

a finding, which is why we have ordered a remand.              As we explained, the only

documents offered to the trial court that had any bearing on the applicability of the

statutory exception suggested that the Office of the Trade Representative, at various

times in the last several years, has manifested its belief that resolution is not imminent.

Thus, had we been required to make a final determination based on the current state of

the record, there would have been no basis on which we could have concluded that the

statutory exception applies. However, because this case reached us on appeal from

the trial court’s dismissal for failure to state a claim, we concluded that the proper

disposition was to remand, thereby allowing the parties and the trial court to inquire

whether the Trade Representative has made the required “imminent resolution”

determination.

       In its petition, the government cites Ammex Inc. v. United States, 341 F. Supp.

2d 1308 (Ct. Int’l Trade 2004), and Camp v. Pitts, 411 U.S. 138 (1973), in support of its

contention that the trial court’s review is limited to the administrative record and that the

trial court must remand to the Office of the Trade Representative for further

development of the administrative record if the current record is insufficient to facilitate

judicial review. We disagree that such a remand is required under the circumstances of




05-1384                                      2
this case. In Camp, the Supreme Court held that it was improper for a reviewing court

to conduct a trial de novo to determine whether an agency’s decision was capricious or

an abuse of discretion.       In such a case, where there is a “failure to explain

administrative action as to frustrate effective judicial review,” the proper remedy is not to

conduct a de novo hearing, but “to obtain from the agency, either through affidavits or

testimony, such additional explanation of the reasons for the agency decision as may

prove necessary.”     Camp, 411 U.S. at 142-43.         Similarly, in Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), the Supreme Court made clear

that where the administrative record does not disclose the reasons for particular

administrative action, “it may be necessary for the District Court to require some

explanation in order to determine if the Secretary acted within the scope of his authority

and if the Secretary’s action was justifiable under the applicable standard.”

       In this case, our remand did not direct the trial court to conduct de novo review of

the Trade Representative’s determination.        Instead, the question to be resolved on

remand is whether the Trade Representative actually made that determination, a

straightforward inquiry that would not seem to require a further remand to the agency.

Indeed, the government did not previously seem to think the “imminence” issue had to

be resolved based only on evidence in the administrative record. In the portion of its

original brief directed to that issue the government pointed not to the administrative

record but to a publication by the Trade Representative that postdated the

administrative proceedings and to a representation made by government counsel at oral

argument before the trial court.




05-1384                                      3
      If the trial court concludes that the Trade Representative has made the required

determination, we agree with the government’s underlying contention that the

determination is due substantial deference, as we stated in our original opinion.

However, if the trial court concludes that the Trade Representative has not made that

determination, there is no basis for invoking the statutory exception. We leave it to the

trial court’s discretion to determine how to conduct the required inquiry. We merely note

that, to the extent the government raises the specter of lengthy and burdensome

proceedings on remand, that prospect seems unlikely, as the question whether the

Trade Representative has made the required determination is a very simple one that

would seem to be readily resolvable through a brief and unelaborate proceeding.

      The petition for rehearing is denied.




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