913 F.2d 933 (Fed. Cir. 1990), 90-1085, Borlem S.A.-Empreedimentos Industriais v. United States

Docket Nº:90-1085 to 90-1087.
Citation:913 F.2d 933
Party Name:BORLEM S.A.--EMPREEDIMENTOS INDUSTRIAIS and FNV--Veiculos E Equipamentos S.A., Plaintiffs/ Cross-Appellants, v. The UNITED STATES of America and U.S. International Trade Commission, and The Budd Company, Defendants-Appellants.
Case Date:September 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 933

913 F.2d 933 (Fed. Cir. 1990)

BORLEM S.A.--EMPREEDIMENTOS

INDUSTRIAIS and FNV--Veiculos E

Equipamentos S.A., Plaintiffs/

Cross-Appellants,

v.

The UNITED STATES of America and U.S. International Trade

Commission, and The Budd Company, Defendants-Appellants.

Nos. 90-1085 to 90-1087.

United States Court of Appeals, Federal Circuit

September 6, 1990

Rehearing Denied Oct. 25, 1990.

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Christopher Dunn, of Willkie Farr & Gallagher, Washington, D.C., argued for plaintiffs/cross-appellants. With him on

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the brief were William H. Barringer and Daniel L. Porter.

George Thompson, Lyn M. Schlitt, Gen. Counsel, and James A. Toupin, Asst. Gen. Counsel, of the U.S. Intern. Trade Com'n, Washington, D.C., argued for defendant-appellant, the U.S.

Matthew T. McGrath, of Barnes, Richardson & Colburn, Washington, D.C., argued for defendant-appellant, the Budd Co. Of counsel on the brief were James H. Lundquist and Peter A. Martin, of Barnes, Richardson & Colburn, and Herman Foster, Associate Gen. Counsel, the Budd Co.

Before MARKEY [*] and LOURIE, Circuit Judges, and BROWN, District Judge [**].

LOURIE, Circuit Judge.

This case is an interlocutory appeal from an order of the Court of International Trade; it concerns the authority and power of the International Trade Commission to reconsider a determination it has made under the federal antidumping laws when directed to do so by that court. Because we conclude that the court did not err as a matter of law, we affirm its decision.

BACKGROUND

The facts of this case have been more fully set forth in Borlem S.A.--Empreedimentos Industriais v. United States, 718 F.Supp. 41 (CIT 1989), and are partially repeated here for convenience. On May 23, 1986, the defendant-appellant Budd Company filed antidumping petitions with the Department of Commerce and the International Trade Commission on behalf of the United States industry producing tubeless steel disc wheel products (TSDWs). The petitions alleged that Brazilian manufacturers, of which there were only two, Borlem S.A.--Empreedimentos Industriais (Borlem) and FNV--Veiculos E Equipamentos S.A. V, were importing TSDWs into the United States and selling them at less than fair value (LTFV) within the meaning of the federal antidumping laws, 19 U.S.C. Sec. 1673 (1980) et seq., and that an industry in the United States was materially injured or threatened with material injury by reason of these imports.

On March 13, 1987, Commerce (International Trade Administration) found that the LTFV dumping margins were 15.25% for Borlem and 19.93% for FNV. The International Trade Commission (ITC) subsequently determined that an industry in the United States was threatened with material injury by reason of these imports. Commerce then issued an antidumping duty order and an amendment to its final LTFV determination correcting certain clerical errors.

Borlem and FNV commenced two actions on May 28, 1987, in the Court of International Trade, one challenging the final LTFV determination by Commerce and the other challenging the final injury determination by the Commission. The latter is this case. On June 15, 1988, the court, at the request of Commerce, remanded the final LTFV determination and antidumping duty order to Commerce with instructions to recalculate the dumping margins and to correct all clerical, methodological and transcription errors.

The remand resulted in a second-amended final LTFV determination and amended antidumping duty order. The second-amended final LTFV determination found Borlem to have an LTFV dumping margin of 10.84% and FNV, a margin of 0.04%. Commerce deemed FNV's margin to be de minimis and excluded it from its amended antidumping duty order.

On March 22, 1989, at the request of the Commission in this case, the court, pursuant to its power to remand under 28 U.S.C. Sec. 2643(c)(1) (1988) 1, remanded the matter

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to the Commission. The court instructed the Commission to decide whether it should reconsider its injury determination in light of Commerce's Second Amended Final Determination.

In accordance with that remand, the Commission reported to the court that it had no authority to undertake reconsideration of its decision except for the process provided for under 19 U.S.C. Sec. 1675 (1980) (Section 751 of the Tariff Act of 1930) which was not applicable in the circumstances. The Vice Chairman of the Commission, Ronald A. Cass, dissented from this determination noting that "[t]he error that has apparently been made, and rectified, by the Department of Commerce is by no means a trivial one," also indicating that the record suggests at least "a very strong possibility that the error was outcome determinative." Tubeless Steel Disc Wheels From Brazil, USITC Pub. No. 2179 (Views on Remand in Inv. No. 731-TA-355) at 22. The court subsequently held that the Commission, upon a remand from the court, has the power to reconsider its determination and that the exercise of such power is discretionary on the part of the Commission. The court, accordingly, remanded once more and instructed the Commission that if it decided not to reconsider its determination, it should set forth its reasons. Borlem S.A.--Empreedimentos Industriais v. United States, 718 F.Supp. at 42.

Subsequently, the Commission and Budd moved under 28 U.S.C. Sec. 1292(d)(1) (1982) 2 for an interlocutory appeal of that order. On September 1, 1989, the court granted the defendants' motions to amend and stay the order and plaintiffs' cross-motion to certify an additional question for appeal and certified the following interlocutory questions:

(1) whether or not the International Trade Commission has the authority and power to reconsider its final affirmative threat of injury determination, when directed to do so by this court pursuant to its remand authority under 28 U.S.C. Sec. 2643(c)(1) in light of the International Trade Administration's amended final determination of sales at less than fair value and amended antidumping duty order; and

(2) whether or not the exercise of such power or authority of reconsideration on remand by the Commission is discretionary.

In accordance with the requirements of the statute, Judge Carman included in his order of September 1, 1989, the necessary statement permitting this appeal, and this court permitted the appeal to be taken in its order of October 26, 1989.

DISCUSSION

This court has jurisdiction of this appeal under 28 U.S.C. Sec. 1292(d)(1). The issues in this case are those certified to this court by the trial court. We review the decision of the court as a question of law.

THE FIRST QUESTION

The first question before us is whether the trial court erred in deciding under 28 U.S.C. Sec. 2643(c)(1) that the International Trade Commission has the authority and the power on remand to reconsider its determination that the TSDW industry in the United States was threatened with material injury by reason of LTFV imports from Brazil in light of Commerce's Second-Amended Final Determination. As was stated by Judge Carman, the Court of International Trade has broad authority under 28 U.S.C. Sec. 2643(c)(1) to require the Commission to reconsider its actions. At the time of enacting 28 U.S.C. Sec. 2643(c)(1), the House Committee on the Judiciary stated that "[this subsection] is a general grant

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of authority for the Court of International Trade to order any form of relief that it deems appropriate under the circumstances." H.R.Rep. No. 96-1235, 96th Cong., 2d Sess. 44, 61 (1980), reprinted in U.S.Code Cong. & Admin. News 1980, 7088, 7114. The Committee went on to state further that "[i]t is the Committee's intent that this authorization be deemed to grant the Court of International Trade remedial powers co-extensive with those of a federal district court." Id.

This court recently stated in Rhone Poulenc, Inc. v. United States, 880 F.2d 401, 402 (Fed.Cir.1989) that "[the Court of International Trade] is a national court under Article III of the Constitution" and noted that the legislative history of 28 U.S.C. Sec. 1585 (1980) 3 provides the Court of International Trade "with all the necessary remedial powers in law and equity possessed by other federal courts established under Article III of the Constitution." Id. (citing H.R.Rep. No. 96-1235, 96th Cong., 2d Sess. 18-20 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 3729-3731).

Appellant ITC challenges this decision on several grounds. First, it asserts that its interpretation of the antidumping law is entitled to great judicial deference and is reasonable. It states that the question for the trial court was whether the Commission's interpretation is "sufficiently reasonable" to be acceptable to a reviewing court, Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978), and it argues that its interpretation was reasonable.

We believe that the trial court gave appropriate deference to the Commission, but arrived at the correct conclusion. It noted its obligation to give substantial weight to an agency's interpretation of a statute it administers, but felt it could not defer to an interpretation of the law where there are compelling indications that that interpretation is incorrect. 4 It concluded that the Commission's assertion that it lacks power to reconsider its final determination on judicial remand is unreasonable and an impermissible construction of the statute.

We agree with the trial court's interpretation of its powers and believe that Congress' desire for speedy determinations on dumping matters should not be interpreted as authorizing proceedings that are based on inaccurate data. The remand authority given to the court by 28 U.S.C. Sec. 2643(c)(1) demonstrates Congress' concern that the court have appropriate authority in trade cases to deal with the issues that come before it. The fact that, based on...

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