Sharp Corp. v. US, 86-10-01299.

Decision Date15 November 1989
Docket NumberNo. 86-10-01299.,86-10-01299.
Citation13 CIT 951,725 F. Supp. 549
PartiesSHARP CORPORATION and Sharp Electronics Corporation, Plaintiffs, v. UNITED STATES, et al., Defendants.
CourtU.S. Court of International Trade

Donovan, Leisure, Newton and Irvine, Peter J. Gartland, Washington, D.C., and Thomas R. Trowbridge III, New York City, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Jeanne E. Davidson, for defendants.

OPINION

MUSGRAVE, Judge.

Plaintiff seeks a writ of mandamus compelling the International Trade Administration of the Department of Commerce to complete administrative reviews necessary to finalize a decision regarding revocation of an outstanding antidumping order. Defendant moves, pursuant to USCIT R. 12(b)(5), to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted.

Held: Plaintiff has not met the requirements for issuance of a writ of mandamus; the petition for writ of mandamus is dismissed. Plaintiff's complaint fails to state a claim; the complaint is dismissed.

Judgment for defendant.

BACKGROUND

This case represents another episode in the continuing saga of "Bar Wars" being waged between the International Trade Administration of the Department of Commerce (hereinafter "Commerce") and certain Japanese exporters concerning the proper administration of T.D. 71-76, an outstanding antidumping order. 36 Fed. Reg. 4597 (1971). The order covers television receiving sets, both monochrome and color, exported to the United States from Japan at less than fair value.

This case, like Matsushita Electric Industrial Co., Ltd. et al. v. United States, 12 CIT ___, 688 F.Supp. 617, aff'd, 861 F.2d 257 (Fed.Cir.1988), has a "long and tortuous history." 688 F.Supp. at 618. To summarize that history, Sharp Corporation and Sharp Electronics Corporation ("Sharp") have been seeking a final determination regarding the revocation of T.D. 71-76 as applied to their products. Pursuant thereto, Sharp and the governmental entities involved entered into a settlement agreement on April 28, 1980, in which the United States allegedly agreed to use the "traditional methodology" when conducting administrative reviews in calculating foreign market value and United States prices for the appraisement or liquidation of entries of television receivers from Japan after March 31, 1979. Defendant purportedly agreed to revoke T.D. 71-76 as soon as the circumstances warranted. In return, Sharp agreed to pay approximately $70 million (of which $9,124,000 was eventually paid) in settlement of all claims for duties assessed on television receivers on or before March 31, 1979.

Commerce then commenced annual reviews in accord with 19 U.S.C. § 1675(a)1, the results of which indicated no dumping on the part of Sharp for the first and second round reviews. Plaintiff then applied to have T.D. 71-76 revoked as to their imports. Pursuant to 19 C.F.R. § 353.54(e), Commerce published a notice of tentative revocation of T.D. 71-76 with respect to Sharp on August 18, 1983. 48 Fed.Reg. 37506, 37508.

Commerce also initiated administrative reviews for five subsequent periods between April 1, 1981 and February 28, 1986.

Plaintiff filed this complaint on October 20, 1986, seeking to compel Commerce to publish the results of the second, third, fourth and partial fifth administrative reviews; to enjoin Commerce from conducting reviews initiated subsequent to publication of the notice of tentative revocation; to compel Commerce to employ the "traditional methodology" in their reviews; and, to finalize the revocation of T.D. 71-76 with respect to Sharp.

This Court (Judge Rao) granted Sharp a preliminary injunction on March 5, 1987, barring Commerce from taking any steps to conduct administrative reviews under T.D. 71-76 as to the plaintiff for periods subsequent to August 18, 1983, taking any other actions inconsistent with finalizing revocation of T.D. 71-76 as to plaintiffs, and from altering the "traditional methodology" for reviews of periods up to August 18, 1983.

The government filed an appeal of this injunction to the Court of Appeals for the Federal Circuit on March 17, 1987, and then filed a motion with this Court to dismiss Sharp's complaint for lack of jurisdiction or, in the alternative, for failure to state a claim, on June 1, 1987. This motion is still pending before the Court.

The preliminary injunction was vacated by the Court of Appeals for the Federal Circuit on January 21, 1988, in Sharp Corp., et al. v. United States, 837 F.2d 1058 (Fed.Cir.1988).

On April 26, 1988, plaintiff filed with this Court a petition (which Sharp erroneously styled a "motion") for issuance of a writ of mandamus, seeking essentially the same relief as the preliminary injunction. Specifically, Sharp seeks to have Commerce:

1) Complete all administrative reviews of T.D. 71-76 as to Sharp, for periods prior to August 18, 1983,

2) Use the "traditional methodology" in conducting these reviews in accordance with the alleged terms of the 1980 settlement agreement,

3) Finalize revocation or deny revocation of T.D. 71-76 as to Sharp, and

4) Respond to Sharp's discovery request within 30 days.

This petition is still pending before the Court.

On April 27, 1988, Commerce initiated the ninth administrative review of Sharp. Commerce contends this review will constitute the "post gap update" review and provide them with the "recent data" needed to reach a final decision regarding revocation of T.D. 71-76.2 Defendants' Memorandum in Opposition to Plaintiff's Motion for Issuance of Writ of Mandamus at 16.

On August 28, 1989, Commerce issued the final results in the second administrative review (preliminary results of which were published on August 18, 1983—finding no dumping, 48 Fed.Reg. 37506—and again on August 30, 1988—finding a dumping margin of 3.37 percent, 53 Fed.Reg. 33164). The final results yield dumping margins of .86 per cent for Sharp. 54 Fed.Reg. 35517 (Aug. 28, 1989).

With this background in mind, the Court must now dispose of plaintiff's petition for writ of mandamus and evaluate the merits of their complaint.

DISCUSSION
A. Writ of Mandamus

Before examining the parties' arguments, a few preliminary observations about mandamus are in order. Courts are in agreement that mandamus is an extraordinary form of relief, to be used only if no other remedy is adequate. See Will v. Calvert Fire Ins. Co., 437 U.S. 655, 664, 98 S.Ct. 2552, 2558, 57 L.Ed.2d 504 (1978); Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Canadian Tarpoly Co. v. U.S. Int'l Trade Comm'n, 640 F.2d 1322, 1325 (CCPA 1981); Margolis v. Banner, 599 F.2d 435, 443 (CCPA 1979). As a general rule, courts are reluctant to grant petitions for writs of mandamus.

This Court has often deferred to such precedent. In UST, Inc. v. United States, 10 CIT 648, 648 F.Supp. 1 (1986), plaintiffs sought a writ of mandamus directing Commerce to complete an administrative review up to the date of tentative revocation of the antidumping order at issue. Noting that "mandamus is an extraordinary remedy which should be employed to compel the performance of a ministerial duty specifically enjoined by law where performance has been refused, and no meaningful alternative remedies exist," id. at 653, 648 F.Supp. 1, the Court felt it unnecessary to examine the merits of the petition since "defendant's proposed schedule appears to be such an alternative." Id. at 654, 648 F.Supp. 1.

Earlier this year, in Timken Co. v. United States and China Nat'l Machinery & Equip. Import and Export Corp., 13 CIT ___, 715 F.Supp. 373 (1989), the Court granted plaintiff's petition for writ of mandamus. That case involved Commerce's failure to publish in the Federal Register notice of the Court's decision in a related case within ten days of entry of such decision, as required by 19 U.S.C. § 1516a(e). The Court entered an order on May 26, 1989, directing Commerce to publish notice of the related decision, which Commerce failed to heed. The writ of mandamus followed.

Timken relied on the oft-cited three-part test for issuing mandamus: 1) Plaintiff must have a clear right to the relief sought; 2) There must be a clear duty on the part of the defendent to do the act in question; and 3) Adequate alternative remedies must be absent. See Kerr, 426 U.S. 394, 96 S.Ct. 2119; Maier v. Orr, 754 F.2d 973, (Fed.Cir.1985); 13th Regional Corp. v. U.S. Dep't of Interior, 654 F.2d 758 (D.C. Cir.1980).

The Court found that requisite grounds existed, based on this test, to provide the remedy of mandamus. However, Timken can easily be distinguished from this case, since (as Judge Aquilino noted in Smith Corona Corp. v. United States, 13 CIT ___, 718 F.Supp. 63 (1989)), the writ of mandamus in Timken was necessary "only after the ITA had rendered a final, reviewable administrative determination and after there had been judicial review and entry of final judgment." Id. at 8. Such circumstances are clearly not present in this case.

Because of the vast amounts of time and legal energy expended by the parties in the instant action, this Court feels obliged to deviate from the holding in UST and consider the merits of plaintiff's petition. After analyzing plaintiff's arguments, however, the Court reluctantly concludes that mandamus should not issue.

Plaintiff argues that this Court, under 28 U.S.C. § 1651(a), "has the power to issue a writ of mandamus directing Commerce to accomplish what it has already been ordered to do." Plaintiff's petition at 6. Plaintiff claims mandamus is necessary to effectuate the March 5, 1987 preliminary injunction granted by Judge Rao, since its terms were "largely undisturbed by the C.A.F.C.," id. at 6, when the Court of Appeals for the Federal Circuit vacated that order in Sharp Corp. v. United States, 837 F.2d 1058 (Fed.Cir.1988). In...

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