BMT Commodity Corp. v. US

• Citation: 11 CIT 854,674 F. Supp. 868
• Decision Date: 19 November 1987
• Docket Number: No. 85-7-00915.,85-7-00915.
• Parties: BMT COMMODITY CORP., and Delca Distributors, Inc., Plaintiffs, v. The UNITED STATES, Defendants, and Codfish Corp., Defendant-Intervenor.
• Court: U.S. Court of International Trade

674 F. Supp. 868

11 CIT 854

BMT COMMODITY CORP., and Delca Distributors, Inc., Plaintiffs, v. The UNITED STATES, Defendants, and Codfish Corp., Defendant-Intervenor.

No. 85-7-00915.

United States Court of International Trade.

November 19, 1987.

Freeman, Wasserman & Schneider (Jack G. Wasserman and Jerry P. Wiskin), New York City, for plaintiffs.

Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel and Judith M. Czako, U.S. International Trade Com'n, Washington, D.C., for defendants.

Patton, Boggs & Blow (Bart S. Fisher, Michael D. Esch, and Daniel E. Waltz), Washington, D.C., for defendant-intervenor.

OPINION

RESTANI, Judge.

Plaintiffs, BMT Commodity Corp. and Delca Distributors, Inc., pursuant to Rule 59 of the Rules of this court, move for a rehearing of this court's opinion and judgment in this action. BMT Commodity Corp. v. United States, 11 CIT ___, 667 F.Supp. 880 (1987). That opinion and judgment denied plaintiffs' motion for judgment based upon the administrative record challenging the International Trade Commission's (Commission) final affirmative dumping determination in Certain Dried Salted Codfish from Canada, USITC Pub. No. 1711, Inv. No. 731-TA-199 (July 1985) (ITC Determination).

In their motion for rehearing, plaintiffs argue that: (1) the court misconstrued the opinions of the Commission regarding "viability at inception" and "viability in the future," and (2) the court misinterpreted or overlooked evidence of record. For the following reasons, plaintiffs' motion for rehearing is denied in all respects.

A motion for rehearing is addressed to the sound discretion of the court. United States v. Gold Mountain Coffee, Ltd., et al., 8 CIT 336, 601 F.Supp. 212 (1984). The exceptional circumstances for granting a rehearing were clearly enunciated in W.J. Byrnes & Co. v. United States, 68 Cust.Ct. 358, C.R.D. 72-5 (1972) as follows:

A rehearing may be proper when there has been some error or irregularity in the trial, a serious evidentiary flaw, a discovery of important new evidence which was not available, even to the diligent party, at the time of trial, or an occurrence at trial in the nature of an accident or unpredictable surprise or unavoidable mistake which severely impaired a party's ability to adequately present its case. In short, a rehearing is a method of rectifying a significant flaw in the conduct of the original proceeding.

68 Cust.Ct. at 358 (footnote omitted).

The purpose of a rehearing is not to retry a case. Brookside Veneers, Ltd. v. United States, 11 CIT ___, 661 F.Supp. 620 (1987), appeal docketed, No. 87-1379 (Fed.Cir. June 4, 1987).

With regard to their first argument, plaintiffs assert specifically that the court wrongly inferred that the Commission majority explored Codfish Corporation's viability at inception. In addition, plaintiffs allege that the court incorrectly concluded that Codfish Corporation filed a petition under the bankruptcy laws in late 1984 and that this error "colors the relevant time frames which all parties (and the Court) recognize as critical and bears directly on the sufficiency of the evidence relied on by the Commission's majority." Plaintiffs' Memorandum at 4-5.

These grounds possess none of the criteria upon which a rehearing may be granted. Plaintiffs argued at length in their motion for judgment on the administrative record that the Commission failed to focus its material retardation analysis on Codfish Corporation's "viability at inception." They are not now entitled to a rehearing simply because the court rejected those arguments. This court has consistently denied motions for rehearing premised solely on the moving party's dissatisfaction with the trial court's decision. E.g., V.G. Nahrgang Co. v. United States, 6 CIT 210 (1983); Industrial Fasteners Group v. United States, 3 CIT 104 (1982); Gold Mountain Coffee, 8 CIT 336, 601 F.Supp. 212.

There appears to be some confusion between the date of bankruptcy and the date operations of Codfish Corporation first ceased. In fact, the bankruptcy petition appears not to have been filed until November, 1985, several months after the Commission's final determination of July, 1985 and approximately a year after Codfish Corporation first discontinued its operations. Any error as to the date of official filing is not, however, a "significant flaw" which gives rise to the right for rehearing. In fact, such an error would in no way affect the substance of the court's decision. Because this court concluded, and plaintiffs agree, that the appropriate focus of analysis of viability of the domestic industry in this material retardation case was at its inception, the precise date at which the bankruptcy petition was filed is inconsequential. Furthermore, to the extent the court discussed viability other than based on analysis of initial feasibility, it was concerned with plans for future operations, not change in legal status under the bankruptcy laws.

Plaintiffs' second argument in support of their motion is that the court misinterpreted or overlooked evidence of record. Specifically, they claim that the court erroneously concluded that plaintiffs did not contest the raw data contained in Codfish Corporation's initial feasibility study; and that the court misconstrued the record in determining that there was substantial evidence to establish that Codfish Corporation had sufficient working capital and that the market for dried salted codfish was not declining.

Plaintiffs assert now, as they did in their original brief, that the two documents on which the Commission relied, the initial feasibility study prepared on behalf of Codfish Corporation and the break-even analysis prepared by the Commission staff, are "a mass of obviously incomplete data, demonstrably faulty assumptions and half-baked accounting techniques." Plaintiffs' Memorandum at 12. In support of this general condemnation, plaintiffs claim that transportation costs utilized in the initial feasibility study were flawed and that the study's reliance on the procurement of raw materials from traditional source countries was misplaced. Plaintiffs' Memorandum at 13.

In making its determination, the Commission concluded that any disadvantages Codfish Corporation may have had vis-a-vis Canadian producers in the areas of transportation costs or in procuring raw materials were offset by advantages gained in reduced labor costs and easy access to local markets. ITC Determination at 7. The court found this conclusion to be supported by substantial evidence in the record. 667 F.Supp. at 885-86.

Plaintiffs' present assertion that "the raw data in the initial feasibility study regarding Codfish Corporation's...