788 F.2d 1539 (Fed. Cir. 1986), 86-729, Cabot Corp. v. United States

Docket NºAppeal No. 86-729.
Citation788 F.2d 1539
Party NameCABOT CORPORATION, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant, Hules Mexicanos, S.A. and Negromex, S.A., Intervenors-Appellants.
Case DateApril 09, 1986
CourtUnited States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1539

788 F.2d 1539 (Fed. Cir. 1986)

CABOT CORPORATION, Plaintiff-Appellee,

v.

The UNITED STATES, Defendant-Appellant,

Hules Mexicanos, S.A. and Negromex, S.A., Intervenors-Appellants.

Appeal No. 86-729.

United States Court of Appeals, Federal Circuit

April 9, 1986

Page 1540

Sheila N. Ziff, Dept. of Justice, Washington, D.C., for defendant.

Eugene L. Stewart and Terence P. Stewart, Washington, D.C., for plaintiff-appellee.

Andrew Jaxa-Debicki, O'Connor & Hannan, Washington, D.C., for intervenors-appellants Hules Mexicanos, S.A., et al.

Before BALDWIN, SMITH and NIES, Circuit Judges.

ORDER

BALDWIN, Circuit Judge.

The court has before it the motion of appellee, Cabot Corporation (Cabot), a domestic producer of carbon black, 1 to dismiss this appeal. Appeal was taken by the United States from an October 4, 1985 order 620 F.Supp. 722, of the Court of International Trade which remanded the case to the International Trade Administration (ITA) for further findings, investigation, and redetermination with regard to a countervailing duty determination concerning carbon black imports from Mexico. We grant the motion.

Background

In 1982, the ITA published notice that it was initiating a countervailing duty investigation of carbon black imports from Mexico as a result of a petition filed by Cabot alleging that Mexican carbon black producers received certain bounties and grants.

Page 1541

In 1983, the ITA issued a final determination finding the net bounty or grant to be 0.88 percent ad valorem. 48 Fed.Reg. 29, 564 (1983). The ITA determined that some Mexican government programs conferred bounties or grants to Mexican producers while others did not.

Cabot challenged four of the ITA's determinations in an action brought in the Court of International Trade. These were: (1) the ITA's finding that the provision of carbon black feedstock and natural gas to Mexican carbon black producers did not constitute a countervailable subsidy; (2) the ITA's finding that one Mexican carbon black producer, Hules Mexicanos, had paid all applicable taxes and was therefore not subsidized; (3) the ITA's failure to determine whether the provision of low interest loans by a Mexican government agency (FONEI) to another Mexican carbon black producer, Negromex, constituted a countervailable subsidy; and (4) the ITA's calculation of the percentage ad valorem benefit of certain other preferential loans to Negromex.

In its order, the Court of International Trade reversed the ITA's finding that Mexico's provision of carbon black feedstock and natural gas at government set rates to Hules Mexicanos and Negromex did not constitute a countervailable subsidy and remanded the issue for "further investigation and redetermination" in light of the "competitive advantage" standard, which differed from the "generally available benefits" standard applied by the ITA.

The ITA was also directed to render a determination regarding the effect of low interest loan financing received by Negromex. The court sustained the ITA's determination that Hules Mexicanos had paid all applicable taxes, and therefore was not subsidized. 2 The court directed ITA to make findings and redeterminations, with a supplemented administrative record, and report them to the court "within 90 days after the [October 4, 1985] date of entry of this order."

The primary issue which the government wishes to raise on appeal is the Court of International Trade's rejection of the ITA's "generally available benefits" standard and substitution of a "competitive advantage" standard for the determination of what constitutes a countervailable bounty or grant. The government has stated that the portion of the order directing ITA to make a finding on the low interest loan issue to Negromex is "not in issue and is not a basis for the Government's appeal." Thus, the government does not contest remand on that issue nor the correction of the percentage ad valorem benefits calculation.

The question presented is whether the trial court's order is a final decision appealable to this court under 28 U.S.C. Sec. 1295(a)(5). 3

Cabot argues that, in the absence of interlocutory certification, the appeal is premature because "[o]n its face, this order requires further action by the agency prior to final action by the court."

The government argues that the remand order is final because the Court of International Trade "lost control over the agency action after remanding" and thus lacks "jurisdiction either to review the agency's new determination or to enter final judgment thereon" under the authority of Freeport Minerals Co. v. United States, 758 F.2d 629 (Fed.Cir.1985). Alternatively, the

Page 1542

government argues that the order should be accorded "pragmatic finality."

Analysis

The requirement of finality has been called "an historic characteristic of federal appellate procedure." Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984). The final judgment rule requires that "a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits." Id. The Supreme Court has consistently held that as a general rule an order is final only when it "ends the litigation on the merits and leaves nothing for the court to do but execute judgment." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945). The Court has identified several important interests served by the rule:

It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the prejudgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice.

Flanagan, 465 U.S. at 263-64, 104 S.Ct. at 1054; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981).

A corollary rule is that an order remanding a matter to an administrative agency for further findings and proceedings is not final. See, e.g., Memorial Hosp. System v. Heckler, 769 F.2d 1043 (5th Cir.1985) (district court remand to the Provider Reimbursement Review Board); Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.1984) (en banc) (Benefits Review Board remand to administrative law judge); Matter of Riggsby, 745 F.2d 1153, 1156 (7th Cir.1984) (district court remand to bankruptcy judge); United Transportation Union v. Illinois Central Railroad Co., 433 F.2d 566 (7th Cir.1970) (district court remand to the National Railroad Adjustment Board), cert. denied, 402 U.S. 915, 92 S.Ct. 1374, 28 L.Ed.2d 661 (1971); McCoy v. Schweiker, 683 F.2d 1138, 1141 n. 2 (8th Cir.1982) (en banc); Howell v. Schweiker, 699 F.2d 524, 526 (11th Cir.1983) (district court remand to the Secretary of Health and Human Services).

In Newpark Shipbuilding, for example, Newpark sought...

To continue reading

FREE SIGN UP
122 practice notes
  • 661 F.Supp. 1206 (CIT. 1987), 83-1-00107, Al Tech Specialty Steel Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • May 22, 1987
    ...enterprises." Cabot Corp. v. United States, 9 CIT 489, ---, 620 F.Supp. 722, 732 (1985), appeal dismissed on motion of appellee, 788 F.2d 1539, 1540 (Fed.Cir. The ITA verified that the bankruptcy was in accordance with Spanish law and that the receivership plan was approved by Page 121......
  • 781 F.Supp. 781 (CIT. 1991), 89-12-00678, PPG Industries, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • December 12, 1991
    ...which was rejected by this Court in Cabot Corp. v. United States, 9 CIT 489, 620 F.Supp. 722 (1985), appeal dismissed, 4 Fed.Cir. (T) 80, 788 F.2d 1539 (1986). PPG I, 11 CIT at 352-53, 662 F.Supp. at Plaintiff's persistent attack on Commerce's determinations not to reinvestigate certain gov......
  • 743 F.Supp. 870 (CIT. 1990), 84-5-00632, Roses, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • July 3, 1990
    ...rule as applied by Commerce in Cabot Corp. v. United States, 9 CIT 489, 620 F.Supp. 722 (1985) ( Cabot I ), appeal dismissed, 788 F.2d 1539 (Fed.Cir.1986). See also Cabot Corp. v. United States, 12 CIT 664, 694 F.Supp. 949 (1988) ( Cabot II In the underlying investigation in Cabot, ITA dete......
  • 906 F.2d 1579 (Fed. Cir. 1990), 89-1599, Teledyne Continental Motors, General Products Div. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • July 2, 1990
    ...are still pending before, the board. The decision to remand is not a final, appealable order. According to Cabot Corp. v. United States, 788 F.2d 1539, 1543 Where, as here, the trial court remands to the administrative agency for additional findings, determination and redetermination, the r......
  • Free signup to view additional results
122 cases
  • 661 F.Supp. 1206 (CIT. 1987), 83-1-00107, Al Tech Specialty Steel Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • May 22, 1987
    ...enterprises." Cabot Corp. v. United States, 9 CIT 489, ---, 620 F.Supp. 722, 732 (1985), appeal dismissed on motion of appellee, 788 F.2d 1539, 1540 (Fed.Cir. The ITA verified that the bankruptcy was in accordance with Spanish law and that the receivership plan was approved by Page 121......
  • 781 F.Supp. 781 (CIT. 1991), 89-12-00678, PPG Industries, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • December 12, 1991
    ...which was rejected by this Court in Cabot Corp. v. United States, 9 CIT 489, 620 F.Supp. 722 (1985), appeal dismissed, 4 Fed.Cir. (T) 80, 788 F.2d 1539 (1986). PPG I, 11 CIT at 352-53, 662 F.Supp. at Plaintiff's persistent attack on Commerce's determinations not to reinvestigate certain gov......
  • 743 F.Supp. 870 (CIT. 1990), 84-5-00632, Roses, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • July 3, 1990
    ...rule as applied by Commerce in Cabot Corp. v. United States, 9 CIT 489, 620 F.Supp. 722 (1985) ( Cabot I ), appeal dismissed, 788 F.2d 1539 (Fed.Cir.1986). See also Cabot Corp. v. United States, 12 CIT 664, 694 F.Supp. 949 (1988) ( Cabot II In the underlying investigation in Cabot, ITA dete......
  • 906 F.2d 1579 (Fed. Cir. 1990), 89-1599, Teledyne Continental Motors, General Products Div. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • July 2, 1990
    ...are still pending before, the board. The decision to remand is not a final, appealable order. According to Cabot Corp. v. United States, 788 F.2d 1539, 1543 Where, as here, the trial court remands to the administrative agency for additional findings, determination and redetermination, the r......
  • Free signup to view additional results