Freeport Minerals Co. v. U.S.
| Decision Date | 03 April 1985 |
| Docket Number | No. 84-1068,84-1068 |
| Citation | 758 F.2d 629 |
| Parties | , 3 Fed. Cir. (T) 114 FREEPORT MINERALS COMPANY (Freeport-McMoran, Inc.), Appellant, v. The UNITED STATES, Appellee, and Chevron Canada Resources Ltd. and Chevron Chemical Corp., Intervenors. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Harvey M. Applebaum, Covington & Burling, Washington, D.C., argued for appellant. With him on the brief were David R. Grace and Richard E. Neff, and Albert F. Rothwell, Freeport Minerals Company of New York City, of counsel.
Sheila N. Ziff, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With her on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., and Velta A. Melnbrencis, Asst. Director, New York City.
John M. Peterson, Donohue & Donohue, New York City, argued for intervenors; Joseph F. Donohue, New York City, was on brief.
Before SMITH, NIES and BISSELL, Circuit Judges.
In this antidumping case, the United States Court of International Trade dismissed as untimely the action of appellant Freeport Minerals Company (Freeport), seeking judicial review of the revocation of an antidumping finding on elemental sulphur from Canada manufactured and exported by Chevron Canada Resources Ltd. and imported by Chevron Chemical Corp., intervenors (Chevron). We reverse.
The first issue before this court is whether the lower court erred, as a matter of law, in holding that Freeport's action challenging the determination by the International Trade Administration (ITA) of the Department of Commerce to revoke part of an antidumping finding as to Chevron was untimely. 1 The second issue is whether the trial court erred in holding that Freeport's action constituted a collateral attack on that court's order of June 10, 1983, 2 and hence was precluded. Finally, we examine whether Freeport's action was precluded under a theory of laches.
On July 23, 1982, there appeared in the Federal Register an ITA notice entitled: "Elemental Sulphur from Canada; Final Results of Administrative Review of Antidumping Finding." 3 In this notice ITA announced the final results of its administrative Chevron challenged the ITA's determination to postpone revocation and the lower court held that ITA's postponing action on the revocation request was "based on a ground neither reasonable nor related to the subject matter of plaintiffs' application." 5 Accordingly, the trial court remanded the case, with an order that ITA submit within 30 days a new "determination * * * in accordance with the * * * findings previously made." 6 Freeport did not participate in Chevron's challenge in any way.
review, pursuant to law, 4 of an antidumping order on elemental sulphur from Canada, which order had been outstanding since 1973. Although ITA's findings with regard to three Canadian companies, one of which was intervenor Chevron, were that these companies had not been selling elemental sulphur at less than fair value in this country for the relevant period, ITA exercised its discretion not to issue a determination to revoke the antidumping order with regard to these three companies. Instead, ITA postponed action on these companies' requests for revocation in an attempt to "arm-twist" them into encouraging another Canadian company, of which they were significant shareholders, to provide ITA long-sought data concerning an unrelated issue.
On June 1, 1983, ITA transmitted to the clerk of the court below a brief letter entitled "Final Results of Redetermination of Partial Revocation Pursuant to Court Remand, Chevron Standard, Ltd., et al. v. United States, [563 F.Supp. 1381 (C.I.T.1983) ] Court No. 82-8-01175." In this letter ITA expressed its "intent to revoke the antidumping finding on elemental sulphur from Canada with regard to Chevron Standard, Ltd. without regard to Chevron's participation in [the unrelated issue]." ITA attached to the letter a 2-page statement entitled "Remand Determination * * * Pursuant to Remand Order * * * " in which it concluded:
Accordingly, in light of the fact that, (1) there have been no Chevron sales at less than fair value from the date of withholding, April 1, 1973, through the date of the last period of Departmental examination, February 8, 1979, (2) the appropriate representations have been filed with the Department as required by 19 CFR 353.54, and (3) the fact that the Department is aware of no other circumstance in respect to Chevron which might prompt the Department not to invoke its revocation discretion at this time, it is concluded that a partial revocation of the finding should be issued in respect to Chevron.
Upon receipt of appropriate authorization by the Court of International Trade in this matter, an appropriate Federal Register notice will be prepared and published containing the details of the Court's remand directive and our actions in respect thereto.
Shortly thereafter, on June 10, 1983, the trial court issued an order affirming this remand determination. 7
Finally, on September 9, 1983, ITA published in the Federal Register a notice entitled: "Elemental Sulphur from Canada; Partial Revocation of Antidumping Finding." 8 This notice explained in part that: "On June 10, 1983, the Court affirmed the remand determination of the Department." 9 It is this notice which is the basis for Freeport's challenge in the lower court, which dismissed Freeport's action as untimely and a collateral attack, as discussed further below.
OPINIONFreeport contends that the lower court erred in not holding that the September 9 1983, ITA notice of partial revocation was a determination made under the authority of section 1675 so as to start the time running under section 1516a(a)(2) for Freeport to commence an action contesting any factual findings or legal conclusions upon which ITA based the determination. Instead that court held that the determination which Freeport should have challenged to attack the underlying finding of no sales at less than fair value was that which ITA had made over a year previously, on July 23, 1982, when it published its "final results" of administrative review. We must first examine and set forth the relevant provisions of this complex statute.
Judicial review in antidumping proceedings is provided for in section 1516a which states in pertinent part:
Sec. 1516a. Judicial review in countervailing duty and antidumping duty proceedings
(a) * * *
* * *
* * *
(2) Review of determinations on record
an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade * * * contesting any factual findings or legal conclusions upon which the determination is based.
The determinations which may be contested under subparagraph (A) are as follows:
* * *
* * *
(iii) A determination * * * under section 1675 of this title.
Since neither the July 23, 1982, nor the September 9, 1983, ITA notices are antidumping or countervailing duty orders under section 1516a(a)(2)(A)(ii), we must look to section 1516a(a)(2)(A)(i) which provides for review of factual findings or legal conclusions within 30 days after publication of notice of a described "determination." The pertinent section 1516a(a)(2)(B)(iii) references a determination under section 1675. Thus, we must focus upon section 1675 to decide whether the Government and Chevron are correct that Freeport had to seek review of the 1982 determination in order to challenge any adverse factual findings or legal conclusions set out therein within 30 days of its publication, as held by the lower court.
Section 1675, "Administrative review of determinations," encompasses the following ITA actions:
Sec. 1675. Administrative review of determinations
(a) Periodic review of amount of duty
(B) review, and determine (in accordance with paragraph (2)), the amount of any antidumping duty, and
(C) review the current status of, and compliance with, any agreement by reason of which an investigation was suspended, and review the amount of any net subsidy or margin of sales at less than fair value involved in the agreement and shall publish the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed in the Federal Register.
For the purpose of paragraph (1)(B), the administering authority shall determine--
(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and
(B) the amount, if any, by which the foreign market value of each such entry exceeds the United States price of the entry.
The administering authority, without revealing confidential information, shall publish notice of the results of the determination of antidumping duties in the Federal Register, and that determination shall be the basis for the assessment of antidumping...
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