Nuove Industrie Elettriche di Legnano v. US, Court No. 88-01-00030.

• Decision Date: 01 June 1990
• Docket Number: Court No. 88-01-00030.
• Citation: 739 F. Supp. 1567
• Parties: NUOVE INDUSTRIE ELECTRICHE di LEGNANO S.p.A., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

739 F. Supp. 1567

NUOVE INDUSTRIE ELECTRICHE di LEGNANO S.p.A., Plaintiff, v. UNITED STATES, Defendant.

Court No. 88-01-00030.

United States Court of International Trade.

June 1, 1990.

Barnes, Richardson & Colburn, Andrew P. Vance, Bruno R. Pavia, Matthew T. McGrath and Josephine Belli, for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ.Div., U.S. Dept. of Justice, Platte B. Moring, III, and Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Mary Patricia Michel, of counsel, for defendant.

OPINION

AQUILINO, Judge:

Unusual issues are presented in this action brought pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) for judicial review of the Final Results of Antidumping Duty Administrative Review; Large Power Transformers From Italy, 52 Fed.Reg. 46,806 (Dec. 10, 1987), of the International Trade Administration, U.S. Department of Commerce ("ITA"). They arise from a motion for judgment upon the agency record filed by the plaintiff and from papers filed by the defendant in opposition to this motion which include a motion to strike certain parts of plaintiff's motion. In addition, the defendant has interposed a motion to dismiss the action as moot.

I

It is necessary to discuss the question of mootness first. E.g., North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). The defendant summarizes its position as follows:

Since the date of the filing of the complaint in this action, two events have occurred which have rendered this case moot. First, the Customs Service ... has liquidated all entries covered by the final results of the antidumping duty administrative review in Large Power Transformers From Italy, 52 Fed.Reg. 46806 (December 10, 1987). Second, the ... International Trade Administration ... has published its final results of the subsequent antidumping duty administrative review in Large Power Transformers From Italy, 53 Fed.Reg. 29367 (August 4, 1988). The liquidated entries are beyond the reach of this Court and the cash deposit rate determined in the second administrative review has now been superseded by the actual duty assessment rate determined in the third administrative review. Consequently, the granting of plaintiff's prayer for relief in this action would have no practical effect on either the actual duty assessment rate or the cash deposit of estimated duties determined in the second administrative review. Since this Court no longer has the ability to provide some presently effective or meaningful remedy to any injury suffered by the plaintiff, this action has become moot and should be dismissed.¹

However, among other relief, the plaintiff seeks a ruling that it is not affected by the finding of dumping of large power transformers from Italy originally published at 37 Fed.Reg. 11,772 (June 14, 1972). Since that time, the finding has covered merchandise imported from Industrie Elettriche di Legnano S.p.A. ("I.E.L."). The administrative review which is the basis of this action established a margin of 17.13 percent for I.E.L. for the period May 1974 to May 1980 and a margin of 71.40 percent for the periods June 1980—May 1981 and June 1981—May 1986. See 52 Fed.Reg. at 46,811.

The record of that proceeding also shows that a decree of the Italian Ministry of Industry placed I.E.L. under "Extraordinary Administration"² in June 1981 by a government-appointed commissioner. In December 1981, Finanziaria per l'Industria Elettromeccanica S.p.A. was incorporated, which changed its name in April 1984 to Nuova Industrie Elettriche di Legnano S.p.A.³ ("N.I.E.L."), the plaintiff herein. Thereafter, the company entered into an agreement with the I.E.L. commissioner to acquire assets and certain liabilities from the estate. See R.Doc 337. As a result, the plaintiff now "engages in the business of manufacturing power transformers and operates with the facilities and at the location previously used by I.E.L."⁴, although it has not exported any of its products to the United States.

The action at bar seeks to avoid the consequences of I.E.L.'s prior exports at less than fair value. Plaintiff's position is that it did not assume them and that it is not I.E.L.'s successor in interest. The ITA, as discussed more fully hereinafter, reached a contrary determination.

There is no dispute that the plaintiff is an "interested party" within the meaning of 19 U.S.C. § 1677(9)(A), that it was a party to the administrative proceedings and that it therefore now has standing to bring this action pursuant to 19 U.S.C. § 1516a. It is axiomatic, however, that this court cannot adjudicate a matter that is moot, nor can it render an advisory opinion. The court can only exercise jurisdiction over an actual case or controversy and only where such exercise can redress some injury suffered by a litigant. E.g., Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374-75, 78 L.Ed.2d 58 (1983); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Simply stated, "a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969); Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982).

In this action, the court is unable to conclude that the issue(s) presented by the plaintiff are no longer live or that the parties lack a legally cognizable interest in the outcome. Stated another way, the position taken by the defendant, and the trade cases relied on for support, are inapposite. In United States Steel Corporation v. United States, 792 F.2d 1101 (Fed.Cir.1986), the appellant had failed to obtain suspension of liquidation of the entries at issue on judicial review. By the time of oral argument, all of them had been liquidated, whereupon the appeal was dismissed on the ground that it "would not redress the alleged injury of U.S. Steel because it could not reach the entries in question." Id. The injury alleged in that case, namely, liquidation at an erroneous rate of duty before completion of judicial review, stemmed from the ITA's termination of suspension thereof based on its interpretation of section 606 of the Trade and Tariff Act of 1984. See generally United States Steel Corp. v. United States, 9 CIT 453, 618 F.Supp. 496 (1985). This is not the injury the plaintiff complains of in this action, nor is its situation similar to that of U.S. Steel.

The defendant also attempts to rely on Fabricas El Carmen, S.A. v. United States, 12 CIT ___, 680 F.Supp. 1577 (1988); PPG Industries, Inc. v. United States, 11 CIT 303, 660 F.Supp. 965 (1987); Alhambra Foundry v. United States, 10 CIT 330, 635 F.Supp. 1475 (1986); and Silver Reed America, Inc. v. United States, 9 CIT 221, 1985 WL 25761 (1985). These cases indicate that subsequent administrative reviews conducted pursuant to 19 U.S.C. § 1675 usually moot existing lawsuits based on prior such reviews or administrative determinations. See, e.g., McKechnie Brothers (N.Z) Ltd. v. U.S. Department of Commerce, 14 CIT ___, 735 F.Supp. 1066 (1990). This occurs when the relief sought, and the issues raised thereby, are tied inextricably to duties on particular entries.

In this action, there were no entries of merchandise from the plaintiff for that part of the period reviewed by the ITA during which N.I.E.L. was in business in the place of I.E.L., June 1984 to May 1986.⁵ The agency stated, however:

Because N.I.E.L. is the successor company to I.E.L., we will instruct the U.S. Customs Service to apply the cash deposit rate of I.E.L. to any future entries of merchandise produced by N.I.E.L. and exported to the U.S. 52 Fed.Reg. at 46,806.

This is the determination primarily at issue in this action, and it is not time-restricted, a point which is reflected in the ITA's Final Results of Antidumping Duty Administrative Review; Large Power Transformers from Italy, 53 Fed.Reg. 29,367 (Aug. 4, 1988), for the subsequent period June 1986 to May 1987. This issue is live and causing injury to the plaintiff⁶. It is ripe for adjudication, and defendant's motion to dismiss therefore cannot be granted on the ground that this action is moot.

II

Plaintiff's motion for judgment upon the agency record is accompanied by a voluminous exhibit "A", which is comprised of an opinion of an Italian law firm, attached to which are some 28 Italian legal documents. The opinion concludes that

N.I.E.L. is not the successor of and therefore cannot be held liable for the liabilities of I.E.L. past or future to the United States of America nor sic the prospective liabilities for dumping duties of merchandise exported by N.I.E.L. to the United States be grounded on the determinations based on actions of I.E.L.

The plaintiff has also filed an exhibit B, which is a copy of the agreement between the I.E.L. commissioner and N.I.E.L. entered into on June 28, 1984, plus a translation thereof into English.

The defendant has moved to strike these exhibits in toto and also to strike those portions of plaintiff's motion relying on them. The claim is that they represent an impressible attempt to amend or supplement the administrative record. Ample precedent is cited in support of the rule that, absent exceptional or rare circumstances, matter not before the administrative agency and part of its record is inadmissible on judicial review thereof. E.g., McKechnie Brothers (N.Z.) Ltd. v. U.S. Department of Commerce, 10 CIT 707, 1986 WL 13131 (1986), and cases cited therein.

Although such circumstances do not exist here, grant of defendant's motion does not necessarily follow for it is not clear that the contested exhibits amount to an attempted expansion of the record or to information beyond that presented to the ITA and already contained in its record....