Alberta Gas Chemicals, Inc. v. Blumenthal, C.D. 4792. Court No. 78-8-01418.
| Decision Date | 02 April 1979 |
| Docket Number | C.D. 4792. Court No. 78-8-01418. |
| Citation | 467 F. Supp. 1245,82 Cust. Ct. 77 |
| Parties | ALBERTA GAS CHEMICALS, INC. v. W. Michael BLUMENTHAL, Secretary of the Treasury, Robert H. Mundheim, General Counsel of the Department of the Treasury, Robert E. Chasen, Commissioner of Customs, and The United States of America. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Freeman, Meade, Wasserman & Schneider, New York City (Bernard J. Babb, Washington, D. C., and Herbert Peter Larsen, New York City, of counsel), for plaintiff.
Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (Sheila N. Ziff, Trial Atty., New York City), for defendants.
Plaintiff, who inter alia is an importer of methyl alcohol (methanol or wood alcohol) from Canada, seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 declaring that the Secretary of the Treasury (Secretary) lacked authority to initiate an investigation under the Antidumping Act of 1921, as amended (19 U.S.C. §§ 160 et seq.) (Antidumping Act), and requiring that defendants should refrain from the prosecution of such investigation. Additionally, plaintiff requests "whatever ancillary relief may be necessary and proper pursuant to 28 U.S.C. § 2202".
Presently before the court are plaintiff's motion for summary judgment under rule 8.2 of the rules of this court, and defendants' cross-motion for dismissal under rule 4.7(b) on the ground that the court lacks jurisdiction of the subject matter of this action.
After careful consideration of both counsel's memoranda of law and affidavit of plaintiff's president, John J. LoPorto, filed in support of plaintiff's motion, I have concluded that defendants' motion for dismissal must be granted. Accordingly, I do not reach the issue of the validity of the Secretary's determination to initiate the antidumping investigation.
The material facts, which are not in dispute, may be briefly summarized:
On May 2, 1978, the Secretary received information "in proper form", in accordance with sections 153.26 and 153.27, Customs Regulations (19 CFR §§ 153.26, 153.27) from E.I. du Pont de Nemours & Company, alleging that methanol exported from Canada is being, or is likely to be, sold at less than fair value within the meaning of the Antidumping Act. On the basis of this information and subsequent preliminary investigation by the Customs Service, an "Antidumping Proceeding Notice", dated June 8, 1978, was published in the Federal Register of June 14, 1978 (43 FR 25758). This notice stated, inter alia, that the Customs Service was instituting an investigation "to verify the information submitted and to obtain the facts necessary to enable the Secretary of the Treasury to reach a determination as to the fact or likelihood of sales at less than fair value".
By a letter (captioned "Protest/Notice of Intent to Contest 43 FR 25758, June 14, 1978") dated June 23, 1978, to the Secretary, the Commissioner of Customs and the General Counsel of the Treasury Department, plaintiff contested the initiation of the antidumping investigation. In essence, the predicate of plaintiff's "protest" was that the Secretary's determination on June 8, 1978 to initiate the investigation was made more than 30 days after receipt of information (on May 2, 1978), and consequently the determination and investigation are void and ultra vires, since they contravene the time limit prescribed by 19 U.S.C. § 160(c)(1).1 In a reply letter dated July 7, 1978, the Treasury Department informed plaintiff that it was proceeding with the antidumping investigation notwithstanding that such investigation was initiated more than 30 days after the du Pont petition was filed, since assertedly the statutory time limit is directory rather than mandatory.
A "Withholding of Appraisement Notice" respecting methanol from Canada was published in the Federal Register of December 19, 1978 (43 FR 59196).
The gravamen of plaintiff's action is that under 19 U.S.C. § 160(c)(1) the Secretary's authority to initiate the full scale investigation of the information submitted by du Pont on May 2, 1978 terminated by operation of law 30 days after receipt of such information, viz., on June 1, 1978. Consequently, according to plaintiff, the Secretary's determination on June 8, 1978 to institute an investigation and the publication of the "Antidumping Proceeding Notice" on June 14, 1978 are illegal and ultra vires acts, as are all subsequent proceedings in the matter.
Initially, we must consider the threshold jurisdictional issue presented. In support of their cross-motion to dismiss, defendants insist that the statutory prerequisites for invoking the court's jurisdiction under 28 U.S.C. § 1582 have not been complied with.
Preliminarily, it should be observed that there is no dispute in this case that under section 1582 the Customs Court has subject matter jurisdiction over actions arising under the Antidumping Act. "In such cases the Customs Court may review the actions of the Secretary of the Treasury and the Tariff Commission now United States International Trade Commission to determine whether the procedures prescribed by Congress have been followed and whether the Secretary, the Tariff Commission, or their delegates have proceeded within the statutory authority or whether their actions are ultra vires and void". Matsushita Electric Industrial Company, Ltd. v. United States Treasury Department, 67 Cust.Ct. 328, 331, C.D. 4992 (1971), aff'd, 485 F.2d 1402, 60 CCPA 85, C.A.D. 1086 (1973), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). However, to borrow phraseology from Matsushita, the present case "is outside the framework of the general statutory scheme for customs litigation and the question is whether this court has any authority to entertain it". 67 Cust.Ct. at 331.
Prior decisions have stressed "the precise and narrow jurisdictional limits within which this court operates". Dexter v. United States, 424 F.Supp. 1069, 1070, 78 Cust.Ct. 179, C.R.D. 77-1 (1977). Accord, United States v. Boe, 543 F.2d 151, 64 CCPA 11, C.A.D. 1177 (1976); Matsushita, supra. See also Judge Richardson's well reasoned decision in Flintkote Company, Glens Falls Division v. United States (Independent Cement Co., Party-in-Interest), 467 F.Supp. 626, 82 Cust.Ct. ___, C.R.D. 79-5 (1979). Cf. Judge Foley's recent memorandum-decision and order in Flintkote Company, Glens Falls Division v. Blumenthal, Secretary of the Treasury, 469 F.Supp. 115 (N.D.N.Y.1979), aff'd, 596 F.2d 51 (C.A.2 1979). Indeed, our Court of Appeals has noted that 28 U.S.C. § 1582 "both establishes and limits the jurisdiction of the Customs Court". Boe, 543 F.2d at 154, 64 CCPA at 15-16.
Section 1582 provides, so far as pertinent herein:
As may be seen above, section 1582(c) explicitly confines this court's jurisdiction to actions in which: (1) either a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended (19 U.S.C. § 1514), and denied in accordance with section 515 of the Tariff Act of 1930, as amended (19 U.S.C. § 1515), or if the action relates to a decision under section 516 of the Tariff Act of 1930, as amended (19 U.S.C. § 1516), all remedies prescribed therein have been exhausted; and (2) all liquidated duties, charges or exactions have been paid at the time the action is filed, except in the case of an action relating to a decision under section 1516. The jurisdictional prerequisites under section 1582 are mandatory, "the statute having provided no room or opportunity for the exercise of discretion". Boe, 543 F.2d at 155, 64 CCPA at 16.
Plaintiff posits that it has fulfilled "all applicable conditions" under sections 1514 and 1515 (reply brief at 9). Section 1514 lists seven categories of administrative decisions which may be protested (including the legality of all orders and findings entering into the same). Thus, section 1514, so far as pertinent, reads:
To continue reading
Request your trial
-
National Juice Products Ass'n v. United States
...Inc., 296 F.2d 779, 48 CCPA 91 (1960), cert. denied, 368 U.S. 899, 82 S.Ct. 179, 7 L.Ed.2d 95 (1961) (antidumping); Alberta Gas Chemicals, Inc. v. Blumenthal, 82 Cust.Ct. 77, C.D. 4792 (1979) (antidumping) Energetic Worsted Corp. v. United States, 51 Cust.Ct. 55, C.D. 2413 (1963), rev'd on ......
-
National Corn Growers Ass'n v. Baker
...5 U.S.C. § 702, supra, with Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977), and Alberta Gas Chemicals, Inc. v. Blumenthal, 82 Cust.Ct. 77, 88, C.D. 4792, 467 F.Supp. 1245, 1253 II The court's foregoing reconsideration and necessary denial of defendant's moti......
-
Swisher Intern., Inc. v. U.S., Slip Op. 98-153.
...as "specific sums of money (other than ordinary customs duties) on imported merchandise." Alberta Gas Chemicals, Inc. v. Blumenthal, 82 Cust. Ct. 77, 82, 467 F.Supp. 1245, 1249-50 (1979) (emphasis added). Utex and Ataka are also reconcilable with Norfolk & Western Railway v. United States, ......
-
St. Paul Fire and Marine Ins. Co. v. US
...to actual assessments of specific sums of money (other than ordinary customs duties) on imported merchandise." Alberta Gas Chemicals, Inc. v. Blumenthal, 82 Cust.Ct. 77, 82, C.D. 4792, 467 F.Supp. 1245, 1247 (1979); see Puget Sound Freight Lines v. United States, 19 Cust.Ct. 70, C.D. 1070 (......