Silver Reed America, Inc. v. United States

• Decision Date: 20 December 1984
• Docket Number: Slip Op. 84-137.,Court No. 80-6-00934
• Citation: 8 CIT 342,600 F. Supp. 846
• Parties: SILVER REED AMERICA, INC. and Silver Seiko, Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Smith-Corona Group, Consumer Products Division, SCM Corporation, Intervenor.
• Court: U.S. Court of International Trade

600 F. Supp. 846

8 CIT 342

SILVER REED AMERICA, INC. and Silver Seiko, Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Smith-Corona Group, Consumer Products Division, SCM Corporation, Intervenor.

Court No. 80-6-00934, Slip Op. 84-137.

United States Court of International Trade.

December 20, 1984.

Wald, Harkrader & Ross, Washington, D.C. (Christopher Dunn, William J. Clinton and William E. Shimer, Washington, D.C., of counsel), for plaintiffs.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., and Velta A. Melnbrencis, New York City, for defendant.

Stewart & Stewart, Washington, D.C. (Eugene L. Stewart, Terence P. Stewart and James R. Cannon, Jr., Washington, D.C., Edwin Silverstone, New York City and Robert E. Walton, Washington, D.C., of counsel), for intervenor Smith-Corona Group, Consumer Products Division, SCM Corporation.

Tanaka, Walders & Ritger, Washington, D.C., (H. William Tanaka and Lawrence R. Walders, Washington, D.C., of counsel) for applicants to intervene Brother Industries, Ltd. and Brother International Corporation.

Opinion and Order on Application for Intervention

NEWMAN, Senior Judge:

Introduction

Brother Industries, Ltd. and Brother International Corporation (collectively "Brother")¹ seek leave to intervene in this action as a matter of right pursuant to 28 U.S.C. § 2631(j)(1)(B) and Rule 24(a)(1) of the Rules of the Court of International Trade. Attached to Brother's motion to intervene is a proposed complaint contesting the application by the United States Department of Commerce, International Trade Administration ("ITA") of the exporter's sales price ("ESP") offset "cap" (19 CFR § 353.15(c)) in determining the foreign market value of Brother's portable electric typewriters ("PETs") from Japan in ITA's antidumping investigation. Brother seeks intervention solely for the purpose of enjoining liquidation of its entries of PETs pending a final decision in this case.²

The Government and Smith Corona Group, Consumer Products Division, SCM Corporation ("SCM") oppose Brother's motion to intervene. Silver Reed America, Inc. and Silver Seiko, Ltd. (collectively "Silver") have filed no response to Brother's motion.

Background

On March 21, 1980 ITA published its final affirmative determination of sales at less than fair value ("SLTFV") with respect to PETs from Japan exported by Brother Industries, Ltd., Silver Seiko, Ltd. and Nakajima All Co., Ltd. (45 Fed.Reg. 18416). Brother participated in the antidumping proceedings before ITA. On May 7, 1980 the United States International Trade Commission published its final affirmative injury determination respecting PETs from Japan (45 Fed.Reg. 30186). Subsequently, on May 9, 1980 ITA published an antidumping duty order (45 Fed.Reg. 30618).

Silver commenced this action on June 6, 1980 under section 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2), to contest ITA's final affirmative determination of SLTFV and antidumping duty order respecting PETs from Japan. Silver challenges ITA's determination primarily on the ground that the limitation upon the ESP offset or "cap" in 19 CFR § 353.15(c) is invalid, and therefore, in comparing foreign market value with the exporter's sales prices, ITA erred in limiting the deduction of home market selling expenses in Japan to the amount of the selling expenses incurred in the United States market. SCM, the sole domestic manufacturer of PETs, has intervened in this action as a party defendant.

On February 1, 1984 this Court sustained Silver's challenge to the March 21, 1980 LTFV determination, holding invalid the ESP offset cap in 19 CFR § 353.15(c) and remanded to ITA for redetermination of the offset adjustment in accordance with the Court's decision. 7 CIT ___, 581 F.Supp. 1290. By order of March 9, 1984, this Court granted defendant's motion for a stay of the remand order of February 1, 1984 (581 F.Supp. 1290); and on March 16, 1984 granted SCM's motion for certification of the question of the validity of the ESP offset cap for an immediate appeal. Thereafter, on April 5, 1984 the Court of Appeals for the Federal Circuit ("CAFC") granted SCM permission to file an immediate appeal; and on April 17, 1984 an appeal was filed by SCM (CAFC Appeal No. 84-1118), which is now pending.³

Following its successful litigation on the merits in the instant case, the stay of the remand, and pending SCM's interlocutory appeal, Silver sought to enjoin liquidation of all its entries covered by the May 9, 1980 antidumping duty order from January 4, 1980 (the date liquidation was first suspended) to the date notice of this Court's final judgment is published or until final disposition of this case on appeal. On June 21, 1984 this Court issued an opinion and order granting Silver's motion for injunctive relief. 7 CIT ___, 590 F.Supp. 1254.

On September 27, 1984 Brother filed its motion to intervene in this action. As noted supra, Brother's motion is opposed by the Government and SCM, but Silver has taken no position respecting Brother's application.

Contentions

Defendant argues: first, that the Court lacks jurisdiction to consider Brother's motion because this action is now pending before the CAFC; alternatively, defendant contends that even if this Court possesses jurisdiction, Brother's motion should be denied because it is untimely and would prejudice existing parties by enlarging the scope of the action.

Brother maintains that the Court possesses jurisdiction to permit intervention since the appeal to the CAFC is interlocutory and no final judgment has been entered in this case. Additionally, Brother emphasizes that pursuant to 28 U.S.C. § 2631(j)(1)(B) its intervention is a matter of right and must be granted, absent prejudice to the present parties. Brother insists that intervention at this juncture will not prejudice the parties to the litigation since no new issue has been raised by its proposed complaint.

The Court agrees with Brother's contentions, and its application to intervene is granted.

Jurisdiction

As mentioned supra, defendant contends that this Court lacks jurisdiction to consider Brother's motion for intervention in light of the pendency of SCM's appeal in this action. In support of that contention, defendant cites, inter alia, Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 927-929 (5th Cir.1983). There, the Court stated at 928:

This circuit follows the general rule that the filing of a valid notice of appeal from a final order of the district court divests that court of jurisdiction to act on the matters involved in the appeal, except to aid the appeal, correct clerical errors, or enforce its judgment so long as the judgment has not been stayed or superceded. Emphasis added.

A final order has not been issued in this case. SCM's appeal was filed in conformance with 28 U.S.C. § 1292(d)(1) which gives the CAFC jurisdiction of an appeal from an interlocutory order of this Court when such order includes "a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation." The foregoing statement was issued by this Court in response to SCM's request, and as previously mentioned, the CAFC granted SCM permission to file an interlocutory appeal.

Section 1292(d)(3) makes it clear that an interlocutory appeal does not divest the Court of International Trade of jurisdiction over further proceedings in the action. So far as pertinent, that subsection reads:

(3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade * * *, unless a stay is ordered by a judge of the Court of International Trade or * * * by the United States Court of Appeals for the Federal Circuit or a judge of that court.

Thus, by the terms of the statute, the granting of SCM's interlocutory appeal did not stay proceedings in this Court or divest the Court of jurisdiction. Indeed, this Court's stay of proceedings in its order of March 9, 1984 concerned only the remand order of February 1, 1984 (581 F.Supp. 1290). Consequently, this Court concludes that it still retains jurisdiction in this case and may consider Brother's motion to intervene.

Timeliness

Defendant contends that even if this Court has jurisdiction to consider Brother's motion, it should nevertheless deny the motion on the ground that it is not timely.

Initially, it should be observed that Brother has moved to intervene as a matter of right pursuant to 28 U.S.C. § 2631(j)(1)(B),⁴ and the statute imposes no definitive deadline on intervention. Nonetheless, under Rule 24(a) of the Rules of the Court, an application to intervene as of right must be "timely", and "timeliness is to be determined from all the circumstances". NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648 (1973).

In Sumitomo Metal Industries, Ltd. v. Babcock & Wilcox Co., 669 F.2d 703, 707 (CCPA 1982), Judge Nies, writing for our Appellate Court, cogently enumerated the relevant factors which must be considered in determining whether an application for intervention is "timely":

(1) the length of time during which the would-be intervenor actually knew or reasonably should have known of his right to intervene in the case before he applied to intervene; footnote omitted

(2) whether the prejudice to the rights of existing parties by allowing intervention outweighs the prejudice to the would-be intervenor by denying intervention. footnote omitted

(3) existence of unusual circumstances militating either for or against a determination that the application is timely. footnote omitted

In Sumitomo, the Appellate Court further stressed that "the question of timeliness is largely committed to the discretion of the trial court and...