634 F.2d 610 (Fed. Cir. 1980), 80-5, Pasco Terminals, Inc. v. United States

Docket Nº:Appeal No. 80-5.
Citation:634 F.2d 610
Party Name:PASCO TERMINALS, INC., Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 11, 1980
Court:United States Court of Customs and Patent Appeals

Page 610

634 F.2d 610 (Fed. Cir. 1980)

PASCO TERMINALS, INC., Appellant,

v.

UNITED STATES of America, Appellee.

Appeal No. 80-5.

United States Court of Customs and Patent Appeals.

Dec. 11, 1980

Page 611

J. Alan Galbraith, Washington, D.C., atty. of record, for Pasco Terminals, Inc., appellant.

Alice Daniel, Asst. Atty. Gen., David M. Cohen, Director Commercial Litigation Branch, Velta A. Melnbrencis, Asst., Branch Director, argued, for appellee.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and NIES, Judges.

BALDWIN, Judge.

This is an appeal from a judgment of the United States Customs Court, 83 Cust.Ct. ---, C.D. 4823, 477 F.Supp. 201 (1979), granting the United States' motion for summary judgment; denying the cross-motion for summary judgment of Pasco Terminals, Inc. (Pasco); and dismissing Pasco's action to recover dumping duties that were assessed on four entries of elemental sulfur exported from Mexico. We affirm.

Before the Customs Court (now the United States Court of International Trade) Pasco did not challenge the less than fair value (LTFV) determination of the Secretary of the Treasury nor the Customs Service's computation of dumping duties. Rather, Pasco claimed invalidity of the 1972 determination of the United States Tariff Commission 1 (Commission) that a domestic industry was being injured by reason of the importation of elemental sulfur from Mexico which was being, or was likely to be, sold at less than fair value within the meaning of section 201(a) of the Antidumping Act of 1921, as amended (19 U.S.C. s 160(a)). Pasco based its claim on the following contentions:

(1) The Commission proceeding was procedurally defective in that (a) the Commission failed to abide by its own Rules of Practice and Procedure by deciding to receive an exhibit on a confidential basis; and (b) the Commission violated due process rights when in the course of its investigation and fact-finding hearing it refused to permit inspection of a confidential exhibit for cross-examination purposes and restricted

Page 612

cross-examination of a witness; and

(2) The Commission determination of injury was arbitrary, capricious, an abuse of discretion, and not according to law.

The issue before us is whether or not the Customs Court was correct in rejecting Pasco's contentions and in upholding the Commission's injury determination.

Additional background and relevant facts are thoroughly presented in the Customs Court opinion and need not be repeated here. 2

OPINION

The Customs Court held that (1) the Commission's decision to receive Exhibit 2 on a confidential basis was in full compliance with its own Rules of Practice and Procedure; (2) no due process violation occurred in the course of the Commission's investigation and fact-finding hearing from its refusal to permit inspection of a confidential exhibit for purposes of cross-examination and its restriction of cross-examination of a witness; and (3) the Commission's injury determination was not arbitrary, capricious, or an abuse of discretion, nor was it contrary to law. After considering the arguments of the parties and after reviewing the record before us, we are persuaded that the Customs Court's holding is correct.

Accordingly, we affirm the judgment of the Customs Court, and adopt the court's opinion as our own.

AFFIRMED.

MILLER, Judge, concurring.

Although I agree with the majority opinion, appellant's due process arguments merit discussion.

The circumstances are as follows. Pasco was the only foreign producer heard from at a public hearing 1 during which certain "trade secrets" were introduced into evidence by Freeport (confidential exhibit 2). Exhibit 2 is a compilation of statements of shrewd, vigorously competitive, large-scale sulfur purchasers. 2 Pasco requested access to the exhibit and an opportunity for cross-examination of persons who compiled it. The Commission refused. Indeed, Pasco was not granted access until after the Commission's decision was rendered. "(T)he Commission, in its injury determination, relied on Freeport's examples (in exhibit 2) of offers assertedly made by (Pasco) to customers of Freeport at prices below the then prevailing market price." 3 This determination resulted in assessment against Pasco of a special dumping duty of $2.16 per long ton under 19 U.S.C. s 161.

Pasco asserts that some of the statements in the exhibit are false; that offers relied on by the Commission as allegedly originating with Pasco were in fact false representations by purchasers to Freeport, made in an effort to "lure" Freeport into lowering its price; that if it had been given access to the exhibit or had been permitted cross-examination, the truthfulness of the statements (labelled "hearsay" by Pasco) could have been proved false.

Pasco argues that its due process rights were violated by the Commission on two

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grounds. First, that the Commission had a long-established procedure permitting cross-examination on matters introduced at public hearings and that by its departure from this procedure Pasco's due process rights were violated. However, Pasco has failed to establish the existence of such long-established procedure. Both Norwegian Nitrogen Co. v. United States, 4 cited by Pasco, and the Commission's rules 5 indicate that cross-examination is not a matter of right.

The second ground advanced by Pasco is that the Commission proceedings were adversary in nature and that, therefore, Pasco was entitled to have access to the confidential exhibit...

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