Haarman & Reimer Corp. v. United States, Court No. 81-1-00027.

• Citation: 1 CIT 148,509 F. Supp. 1276
• Decision Date: 02 February 1981
• Docket Number: Court No. 81-1-00027.
• Parties: HAARMAN & REIMER CORPORATION, Plaintiff, v. The UNITED STATES, Malcolm Baldridge, Secretary of Commerce; Paul O'Day, Acting Under Secretary of Commerce for International Trade, Department of Commerce; William T. Archey, Acting Commissioner of Customs; and, All District Directors of Customs, Defendants, China National Native Produce & Animal By-Products Import and Export Corporation, Intervenor.
• Court: U.S. Court of International Trade

509 F. Supp. 1276

1 CIT 148

HAARMAN & REIMER CORPORATION, Plaintiff, v. The UNITED STATES, Malcolm Baldridge, Secretary of Commerce; Paul O'Day, Acting Under Secretary of Commerce for International Trade, Department of Commerce; William T. Archey, Acting Commissioner of Customs; and, All District Directors of Customs, Defendants, China National Native Produce & Animal By-Products Import and Export Corporation, Intervenor.

Court No. 81-1-00027.

United States Court of International Trade.

February 2, 1981.

Eugene L. Stewart, Terence P. Stewart and Paul W. Jameson, Washington, D.C., on the memorandum brief (Eugene L. Stewart and Terence P. Stewart, Washington, D.C., at the hearing), for the plaintiff.

Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D.C., David M. Cohen, Director, Commercial Litigation Branch, New York City, on the memorandum brief (Velta A. Melnbrencis, New York City, with him on the brief and at the hearing), for the defendants.

Shearman & Sterling, New York City (Donald L. Cuneo, Charles B. Manuel, Jr. and Nancy Turck, New York City, on the memorandum brief and at the hearing), for China National Native Produce & Animal By-Products Import and Export Corp., New York City, intervenor.

Memorandum Opinion And Order Denying Application For Preliminary Injunction

BOE, Judge.

From an examination of the record in the instant proceedings, it appears that on June 9, 1980, the plaintiff herein filed a petition with the United States Department of Commerce seeking the imposition of antidumping duties on menthol imported from the People's Republic of China, alleging that such merchandise is being or is likely to be sold in the United States at less than fair value. On November 25, 1980, the plaintiff, by way of amendment to its original petition, asserted the existence of "critical circumstances" with respect to the said imports of menthol within the purview of 19 U.S.C. section 1671b(e)(1).

In its preliminary determination published in the Federal Register on January 14, 1981, the Department of Commerce held that (a) there is a reasonable basis to believe or suspect that exports of natural menthol from the People's Republic of China are being, or are likely to be, sold in the United States at less than fair value within the meaning of 19 U.S.C. section 1673; (b) critical circumstances as alleged in plaintiff's amended petition do not exist with respect to imports of menthol from the People's Republic of China and, accordingly, liquidations will not be suspended retroactively in accordance with the statute so made and provided.

In its complaint instituting the above-entitled action, the plaintiff seeks (1) to enjoin the defendants from liquidating any entries or withdrawals from warehouse for consumption of menthol imported into the United States from the People's Republic of China, which remain unliquidated, on or after ninety (90) days prior to the publication of the preliminary determination of the Department of Commerce, that is — October 16, 1980; (2) to determine that "critical circumstances" exist with respect to imports of menthol from the People's Republic of China within the meaning of 19 U.S.C. section 1671b(e)(1) or in the alternative, to remand the proceedings to the Department of Commerce for further investigation and consideration.

In a prior order of this court under date of January 15, 1981, the application of the plaintiff for a Temporary Restraining Order seeking to enjoin the liquidation of any and all unliquidated entries of menthol from the People's Republic of China entered, or withdrawn from warehouse for consumption, on or after October 16, 1980, was denied.

In the within proceeding duly and regularly brought on for hearing before this court pursuant to its prior order, the plaintiff seeks to restrain the defendants pendente lite from liquidation of the unliquidated entries of menthol from the People's Republic of China entered or withdrawn from warehouse for consumption, on or after October 16, 1980. In said proceeding the plaintiff appeared by and through its attorneys, Eugene L. Stewart and Terence P. Stewart, the defendants appeared by and through one of its attorneys, Velta Melnbrencis, and the intervenor, China National Native Produce and Animal By-Products Import and Export Corporation (CNEC), appeared by and through its attorneys, Donald L. Cuneo, Charles B. Manuel, Jr. and Nancy B. Turck of the law firm of Shearman & Sterling.

The court having heard the evidence adduced, the arguments of counsel and considered the memoranda submitted by respective counsel together with all the files, documents and papers contained in the record herein, accordingly enters its decision and order with respect to plaintiff's application for a preliminary injunction together with its memorandum opinion in connection therewith.

In considering the requisite standards that are a prerequisite to preliminary injunctive relief, the court initially turns its attention to the plaintiff's likelihood of success in the trial of the within action on the merits.

Plaintiff contends that inasmuch as section 516A of the Tariff Act of 1930 as added by the Trade Agreements Act of 1979 (19 U.S.C. section 1516a) does not provide in an anti-dumping proceeding for a judicial review of a negative preliminary determination by the administering authority with respect to "critical circumstances," such a review necessarily is properly predicated under the residual jurisdictional grant provided in section 201 of the Customs Court Act of 1980 (28 U.S.C. section 1581(i)). In sum, the plaintiff relies on a recognized legal principle that in the absence of a persuasive showing that the legislative authority did not intend judicial review of a final administrative determination, a review will be accorded under the general principles of administrative law and the Administrative Procedure Act.¹Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

Assuming for the purpose of argument that the challenged "critical circumstances" determination is a "final" agency action within the meaning of Abbott Laboratories, the judicial inquiry made must be as follows:

Whether in the context of the entire legislative scheme the existence of that circumscribed remedy evinces a congressional purpose to bar agency action within its purview from judicial review. 387 U.S. at 141, 87 S.Ct. at 1511.

For the reasons stated hereafter, this court finds that the entire legislative scheme, indeed, evinces a congressional intent to bar judicial review of the agency action in question.

The House Judiciary Committee Report, H.R.Rep.No.96-1235 at 47, clearly indicates that section 1581(i), under which plaintiff predicates its present proceeding, is intended to be solely a residual grant of jurisdictional authority. It likewise clearly and expressly renounces any intention of creating a new cause of action thereby.

Subsection (i) is intended only to confer subject matter jurisdiction upon the court, and not to create any new causes of action not founded on other provisions of law. Emphasis supplied.

As further stated in the Committee report, supra at 47:

The purpose of this broad jurisdictional grant is to eliminate the confusion which currently exists as to the demarcation between the jurisdiction of the district courts and the Court of International Trade. This provision makes it clear that all suits of the type specified are properly commenced only in the Court of International Trade. The Committee has included this provision in the legislation to eliminate much of the difficulty experienced by international trade litigants who in the past commenced suits in the district courts only to have those suits dismissed for want of subject matter jurisdiction. The grant of jurisdiction in subsection (i) will ensure that these suits will be heard on their merits.

It is noteworthy that in the enactment of the Customs Court Act of 1980, the Congress was particularly attentive to its predecessor act, the Trade Agreements Act of 1979. The two legislative statutes, serving as companion measures, not only broadened the jurisdictional scope of this court, but also redefined the scope and extent of the judicial review of this court particularly with respect to the administration of the countervailing duty and antidumping laws provided by earlier legislation. Thus, in broadening the jurisdictional authority of this court the Congress clearly has been ever mindful of the definitive extent, nature and time of the judicial review which it has authorized in the Trade Agreements Act of 1979. Again, this fact has been emphasized in the House Committee Report to the Customs Court Act of 1980, supra at 48:

As in the case of subsection (a) of proposed section 1581, it is the intent of the Committee that the Court of International Trade not permit subsection (i), and in particular paragraph (4), to be utilized to circumvent the exclusive method of judicial review of those antidumping and countervailing duty determinations listed in section 516A of the Tariff Act of 1930 (19 U.S.C. § 1516a), as provided in that section. Since subsection (i) merely confers jurisdiction on the court and does not create any new causes of action, H.R. 7540 does not change the rights of judicial review which exist under section 516A.

This court cannot conceive of any explanatory language on the part of a legislative authority with respect to its intent to be more explicit than the further words contained in the House Committee Report, supra at 48:

The Committee intends that any determination specified in section 516A of the Tariff Act of 1930, or any preliminary administrative action which, in the course of proceeding, will be, directly or by implication, incorporated in or superceded by any such determination, is reviewable exclusively as provided in section 516A. For example, a preliminary affirmative antidumping or countervailing duty

...