United Engineering & Forging v. US
Decision Date | 18 November 1991 |
Docket Number | Court No. 87-10-01046. |
Citation | 779 F. Supp. 1375 |
Parties | UNITED ENGINEERING & FORGING, Plaintiff, v. The UNITED STATES of America, Defendant. |
Court | U.S. Court of International Trade |
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Fried, Frank, Harris, Shriver & Jacobson, David E. Birenbaum and Alan Kashdan, Washington, D.C., for plaintiff.
Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Sheila N. Ziff and Jane E. Meehan, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Stephanie J. Mitchell, of counsel, and Office of the Gen. Counsel, U.S. Intern. Trade Com'n, Lyn M. Schlitt, James A. Toupin and George W. Thompson, Washington, D.C., for defendant.
Collier, Shannon & Scott, David A. Hartquist, Michael R. Kershow, Kathleen Weaver Cannon, Nicholas D. Giordano and Robin H. Gilbert, Washington, D.C., for intervenor-defendant Wyman-Gordon Co.
In this action, the plaintiff challenges the Final Determination of Sales at Less Than Fair Value, Certain Forged Steel Crankshafts From the United Kingdom, 52 Fed.Reg. 32,951 (Sept. 1, 1987), reached by the International Trade Administration, U.S. Department of Commerce ("ITA"); the material-injury determination of the U.S. International Trade Commission ("ITC") sub nom. Certain Forged Steel Crankshafts From the Federal Republic of Germany and the United Kingdom, 52 Fed.Reg. 35,004 (Sept. 16, 1987); and the antidumping-duty order entered thereon.1
The plaintiff United Engineering & Forging ("UEF") has interposed a motion for judgment upon the agency records. On its part, the intervenor-defendant served a motion for judgment on the ITA record and more recently a motion to dismiss the entire action, including its consolidated, contingent claim for relief, on the ground that subsequent administrative proceedings carried out by the ITA pursuant to 19 U.S.C. § 1675 have made matters herein moot.
No guidance has been forthcoming, whereupon the court concludes that, while dismissal of an action pursuant to CIT Rule 41(a)(1)(B) which has been consolidated with other action(s) is properly effectuated by way of prior motion to sever therefrom, at a minimum, the intervenor-defendant no longer desires resolution of its motion for judgment on the agency record. On the other hand, the motion to dismiss on the ground stated has not been automatically dispelled.
Indeed, the issue of whether or not this action has become moot must still be discussed and first. E.g., North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971); Nuove Industrie Elettriche di Legnano v. United States, 14 CIT ___, ___, 739 F.Supp. 1567, 1568 (1990). The intervenor-defendant summarized its motion as follows:
The plaintiff claims that this action challenges the validity of the antidumping-duty order itself and also that, "since the margin of dumping is relevant to the injury determination, the LTFV counts continue to raise live issues, even assuming that this Court were to determine that the margin was reduced but the antidumping duty order should remain in effect."4
The intervenor-defendant refers to this court's decision in Nuove Industrie Elettriche di Legnano v. United States, supra, to the effect that subsequent administrative reviews usually moot existing lawsuits based on prior such reviews or administrative determinations, citing cases like McKechnie Brothers (N.Z.) Ltd. v. U.S. Dep't of Commerce, 14 CIT ___, 735 F.Supp. 1066 (1990), Fabricas El Carmen, S.A. de C.V. v. United States, 12 CIT 129, 680 F.Supp. 1577 (1988), 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), and that the exception to this result is where the validity or applicability of the underlying antidumping or countervailing duty order is challenged, which was the situation, for example, in PPG Industries, Inc. v. United States, 11 CIT 303, 660 F.Supp. 965 (1987). As stated in Nuove Industrie, 14 CIT at ___, 739 F.Supp. at 1570, mootness "occurs when the relief sought, and the issues raised thereby, are tied inextricably to duties on particular entries."
This is not the case here. As indicated above, plaintiff's complaint contests the antidumping-duty order, which UEF claims is predicated upon faulty determinations by both the ITA and the ITC. That the issues raised are still live is evident to the court after careful consideration of the entire records, and this conclusion is further buttressed by comparing UEF's complaint with the one it has recently filed, challenging the results of the ITA's second administrative review, CIT No. 91-03-00219.
The goods covered by the contested order are forged carbon or alloy steel crankshafts with a shipping weight between 40 and 750 pounds, whether machined or unmachined, and classified during the period of investigation under items 660.6713, 660.6727, 660.6747, 660.7113, 660.7127 or 660.7147 of the Tariff Schedules of the United States. The ITC staff report describes this merchandise as follows:
In its final determination, the ITA concluded that the foreign-market value of such crankshafts from the United Kingdom exceeded the United States price by a weighted-average amount of 14.67 percent.
The motion of the plaintiff U.K. manufacturer contests this determination on a number of counts, including (1) the ITA's choice of a home-market comparison model crankshaft was erroneous; (2) the agency erred in using a quarterly exchange rate to convert home-market sales prices into dollars; (3) the ITA made errors in the adjustment process; and (4) the agency erroneously included shipments past the period of investigation in calculating the weighted-average margin. In addition, the plaintiff complains that (5) the ITC should have examined the relevant imports on a transaction-by-transaction basis; (6) the...
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