Trent Tube Div. v. US, Court No. 87-12-01189.

• Decision Date: 27 November 1990
• Docket Number: Court No. 87-12-01189.
• Parties: TRENT TUBE DIVISION, Crucible Materials Corporation; Armco-Specialty Steel Division; Damascus Tubular Products; Allegheny Ludlum Corporation; Carpenter Technology Corporation; and United Steelworkers of America, AFL-CIO-CLC, Plaintiffs, v. UNITED STATES, Defendant, and Avesta Sandvik Tube, AB and Avesta Stainless, Inc., Defendants-Intervenors.
• Court: U.S. Court of International Trade

752 F. Supp. 468

14 CIT 780

TRENT TUBE DIVISION, Crucible Materials Corporation; Armco-Specialty Steel Division; Damascus Tubular Products; Allegheny Ludlum Corporation; Carpenter Technology Corporation; and United Steelworkers of America, AFL-CIO-CLC, Plaintiffs, v. UNITED STATES, Defendant, and Avesta Sandvik Tube, AB and Avesta Stainless, Inc., Defendants-Intervenors.

Court No. 87-12-01189.

United States Court of International Trade.

November 27, 1990.

Collier, Shannon & Scott, David A. Hartquist, Kathleen Weaver Cannon and Nicholas D. Giordano, Washington, D.C., for plaintiffs.

Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Com'n, William T. Kane, Washington, D.C., for defendant.

Freeman, Wasserman & Schneider, Jack Gumpert Wasserman and Patrick C. Reed, New York City, for defendants-intervenors.

MEMORANDUM OPINION

CARMAN, Judge:

Defendant-intervenors, Avesta Sandvik Tube, AB (AST), contest the remand results in Welded Stainless Steel Pipes and Tubes From Sweden, Inv. No. 731-TA-354 (Final) (Remand), USITC Pub. 2304 (Aug. 1990). Defendant, United States International Trade Commission (Commission or ITC), opposes AST's challenge and seeks to sustain the remand determination as supported by substantial evidence on the record and as otherwise in accordance with law. Plaintiff (Trent) joins defendant.

I. BACKGROUND

This case grew out of plaintiff's challenge to the final determination of defendant, that an industry in the United States was not materially injured by reason of welded stainless steel pipe and tubes from Sweden. See Stainless Steel Pipes and Tubes from Sweden, Inv. No. 731-TA-354 (Final), USITC Pub. No. 2033 (Nov.1987). On June 20, 1990, this Court issued Trent Tube Div. v. United States, 14 CIT ___, 741 F.Supp. 921, Slip Op. 90-58 (1990), modified, 14 CIT ___, 741 F.Supp. 227, Slip. Op. 90-66 (1990), which remanded to the ITC the determination of Chairman Liebeler with instructions to evaluate the determination under the proper statutory test.¹

On August 6, 1990, pursuant to the remand, the ITC issued Welded Stainless Steel Pipes and Tubes From Sweden, Inv. No. 731-TA-354 (Final) (Remand), USITC Pub. 2304 (Aug.1990). By a two-to-two vote, the Commission determined that:

An industry in the United States is materially injured by reason of imports of welded stainless steel pipes and tubes from Sweden, that have been found by the Department of Commerce to be sold in the United States at less than fair value.

See Tariff Act of 1930 § 735(b), 19 U.S.C. § 1673d(b) (1988). Commissioner Lodwick, who reached an affirmative determination, readopted his original views in their entirety on the remand.² Acting Chairman Brunsdale and Commissioner Rohr made negative determinations on the remand and readopted their respective views in their entirety. Commissioner Newquist, who replaced Chairman Liebeler since the original final negative determination, made an affirmative determination of injury on the remand based upon the record before the Commission in its original investigation. As a result of Commissioner Newquist's determination, the final determination of the ITC on the remand became affirmative. See 19 U.S.C. § 1677(11) (1988).³ Defendant-intervenors AST challenge the remand determination.

On August 22, 1990, this Court heard Trent's motion requesting that defendant and AST show cause why the remand determination should not be summarily affirmed and the action dismissed or, in the alternative, seeking to enjoin the liquidation of entries of the subject merchandise pending affirmance of the ITC's determination.⁴ At the close of that hearing, this Court allowed a brief comment period directed to the narrow question of whether the ITC complied with the remand instructions issued by this Court. On September 28, 1990, this Court invited further briefing directed to the question of whether the ITC's remand determination was supported by substantial evidence on the record and otherwise in accordance with law.

The Court is now presented with the question of whether the remand determination of August 6, 1990, complied with the order of the Court as to its remand instructions and whether the remand determination is supported by substantial evidence on the record and otherwise in accordance with the law. See 19 U.S.C. § 1516a(b)(1)(B) (1988).

II. CONTENTIONS OF THE PARTIES

AST asserts that the August 6, 1990, remand determination does not comply with this Court's specific remand instructions as provided for in Slip Opinions 90-58, 741 F.Supp. 921 and 90-66, 741 F.Supp. 227. AST contends that Commissioner Newquist, who did not participate in the original proceedings, explicitly ignored this Court's instructions that the Commission explain Chairman Liebeler's analysis of the impact of imports on the domestic industry in relation to the factors outlined in 19 U.S.C. § 1677(7)(C)(iii) and 1677(7)(B)(iii) See Views of Commissioner Don E. Newquist on Remand (Newquist's Views), USITC Pub. 2304, at 1 n. 4.⁵

According to AST, Slip Opinions 90-58, 741 F.Supp. 921 and 90-66, 741 F.Supp. 227 constitute the so-called "law of the case", which requires Commissioners Lodwick and Newquist on remand to adopt the views of those Commissioners whose determinations were addressed by this Court in Slip Opinions 90-58, 741 F.Supp. 921 and 90-66, 741 F.Supp. 227 and found to have been supported by substantial evidence.⁶ AST concludes that since the Commission's original determination was sustained in all respects except a portion of Chairman Liebeler's views, the remand instructions were naturally limited to providing an adequate explanation of those views. As previously pointed out, Commissioner Newquist did not endeavor to explain the analysis of Commissioner Liebeler, but rather applied his own analysis, keeping in mind the statutory test, to the facts as they appeared in the record. See supra note 1 and accompanying text.

Defendant maintains that the Commission was under no obligation to explain Chairman Liebeler's views and properly supplied a corrected determination. Defendant urges that AST's reliance upon the law of the case doctrine is misplaced because the Commissioners present on remand need not concur with the earlier views of their colleagues which this Court has found to have been based upon substantial evidence. See SCM, 2 CIT at 7, 519 F.Supp. at 916 (a remand order does not require individual responses by each of the Commissioners, but rather an "institutional response").⁷ Defendant maintains that Slip Opinions 90-58, 741 F.Supp. 921 and 90-66, 741 F.Supp. 227 dispose of AST's claim that the views of the original Commission majority constituted the only legally valid interpretation of the evidence. Defendant further urges that this Court's finding that a portion of the original majority's views was supported by substantial evidence does not preclude other views from meeting that standard.

III. DISCUSSION

In Slip Opinion 90-58, 741 F.Supp. 921, this Court held that the negative determinations of Vice-Chairman Brunsdale and Commissioner Rohr were supported by substantial evidence and were otherwise in accordance with law. This Court sees no reason to disturb these determinations. Furthermore, the Court notes that both Commissioners reaffirmed their previous determinations based upon the same record. Since the Lodwick determination was previously in the minority, this Court in Slip Opinion 90-58, 741 F.Supp. 921 declined as unnecessary to examine whether the statutory requirements for making a determination as to material injury had been met by Commissioner Lodwick. Commissioner Lodwick reaffirmed his views on the remand in their entirety.

This Court must examine the individual views of each Commissioner who made an affirmative determination on remand for compliance with this Court's remand instructions and to see if these determinations are supported by substantial evidence on the record or otherwise in accordance with law.

A. The Legal Standard

This Court possesses the power to remand cases to the ITC pursuant to 28 U.S.C. § 2643(c)(1) (1988). The appropriate standard of review on remand is whether the ITC's remand determination is based upon substantial evidence on the record or otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1988). See Washington Red Raspberry Comm'n v. United States, 11 CIT 640, 670 F.Supp. 1004, 1005 (1987), aff'd, 859 F.2d 898, 902 (Fed.Cir. 1988).⁸ Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). It is "some evidence, more than a mere scintilla, in light of the record as a whole." Kenda Rubber Indus. Co. v. United States, 10 CIT 120, 125, 630 F.Supp. 354, 358 (1986).

As a general proposition, an ITC determination is presumed correct by this Court and the burden rests on the party challenging it to show otherwise. 28 U.S.C. § 2639(a)(1)(1988). Moreover, when applying the substantial evidence standard, "the court may not substitute its judgment for that of the agency when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo ....'" American Spring Wire, 8 CIT at 22, 590 F.Supp. at 1276 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)).

B. The Remand Instructions

This Court's remand instructions called on the Commission to correct the error of one of its members, Chairman Liebeler, that operated to taint the entire resulting negative determination. Slip Opinion 90-58 at 12, 741 F.Supp. at 927. Further, to guide the Commission in its efforts on remand, this Court in Slip Opinion 90-58, 741 F.Supp. 921,...