Border Brokerage Co., Inc. v. United States

• Citation: 646 F.2d 539
• Decision Date: 16 April 1981
• Docket Number: Appeal No. 80-17.
• Parties: BORDER BROKERAGE CO., INC., Appellant, v. The UNITED STATES, Appellee.
• Court: United States Court of Customs and Patent Appeals

646 F.2d 539

BORDER BROKERAGE CO., INC., Appellant, v. The UNITED STATES, Appellee.

Appeal No. 80-17.

United States Court of Customs and Patent Appeals.

April 16, 1981.

Michael J. Horton, San Francisco, Cal., for appellant, George R. Tuttle, San Francisco, Cal., of counsel.

Alice Daniel, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Velta A. Melnbrencis, New York City, for appellee.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and NIES, Associate Judges.

MILLER, Judge.

This appeal is from a judgment of the United States Customs Court (now the United States Court of International Trade), 83 Cust.Ct. 97, C.D. 4825, 484 F.Supp. 901 (1979), dismissing appellant's action (challenging an administrative dumping finding) "for failure of proof." We affirm.

BACKGROUND

The involved merchandise consists of steel reinforcing bars manufactured in and exported from Canada between February 19, 1963, and March 6, 1964, by Western Canada Steel, Limited, through its subsidiary, Vancouver Rolling Mills, Limited, of Vancouver, Canada. Pursuant to proceedings under section 201(a) of the Antidumping Act of 1921, as amended (19 U.S.C. § 160(a)),¹ the Secretary of the Treasury ("Secretary") determined that the steel reinforcing bars were being, or were likely to be, sold at less than fair value ("LTFV") in the United States.² After being so advised by the Secretary, the United States Tariff Commission, now the United States International Trade Commission ("Commission"), conducted an investigation and hearing and determined that an industry in the United States was being or was likely to be injured by reason of importation and sale of the steel reinforcing bars.³ The vote of the six-member Commission was evenly divided. Thus, there was "an affirmative determination" of injury for purposes of 19 U.S.C. § 160(a). The Secretary was so notified, and a "finding of dumping" was published on behalf of the Secretary in the Federal Register.⁴

Appellant unsuccessfully appealed to the Customs Service for reappraisement⁵ and then brought an action in the Customs Court contesting the Secretary's LTFV determination and the Commission's injury determination. Regarding the injury determination, appellant's allegations in its complaint and the Government's answers were as follows:

Allegation

16. Plaintiff claims the imposition of anti-dumping duties is illegal, null and void on the ground that the Tariff Commission exceeded its statutory authority and denied the rights of the plaintiff to a fair and partial sic adjudication as guaranteed by the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act by finding the likelihood of injury to an American industry to exist when the evidence failed to support the finding that an injury was likely to be caused to an American industry by importations at less than fair value.

Answer

16. Admits that paragraph 16 sets forth plaintiff's claims, but denies the correctness thereof; further answering, defendant avers that plaintiff has not suffered any legal wrong cognizable under the due process clause of the Fifth Amendment and the Administrative Procedure Act. Emphasis added.

Allegation

17. Plaintiff claims the imposition of anti-dumping duties is illegal, null and void on the ground that the Tariff Commission violated its statutory authority and denied the plaintiff the right to a fair and impartial administrative adjudication as guaranteed by the Due Process Clause of the Fifth Amendment and Administrative Procedure Act by basing its likelihood of injury determination in part on the mere presence of sales at less than fair value.

Answer

17. Admits that paragraph 17 sets forth plaintiff's claim, but denies the correctness thereof; incorporates and re-alleges paragraph 16, supra. Emphasis added.

In its post-trial brief, appellant apparently abandoned the above allegations, prompting the Court of International Trade to find —

that plaintiff's disenchantment with the "finding of dumping" lies not with the Treasury Secretary's LTFV determination per se nor with the Commission's injury determination per se in the particulars as set out in its complaint, but rather with the manner in which the Commission voted its injury determination. In the brief plaintiff contends that the provision in 19 U.S.C.A., section 160(a) (section 201(a), Antidumping Act of 1921, as amended) which allows the Commission to make a finding of likelihood of injury upon a divided vote of the commissioners voting, as in this case, is in violation of Parliamentary Law, the Rules of Congress, the Tenth Amendment to the federal constitution, the Due Process Clauses of the Fifth and Fourteenth Amendments to the federal constitution, Fundamental Rights, and the concept of Ordered Liberty....

The court then said:

None of these belated contentions advanced in plaintiff's brief are even remotely connected with allegations of the complaint. Moreover, the due process claims set forth in paragraphs 16 and 17 of the complaint are addressed to evidentiary considerations, while the due process contention in plaintiff's brief is not addressed to evidentiary matters or to the underlying administrative record at all. Consequently, the court fully agrees with defendant that the matters discussed in plaintiff's brief are wholly outside of the parameters of the pleadings, and, as such, are not properly before the court. Cf. Charberjoy Distributors, Inc. v. United States, 65 Cust.Ct. 459, 462, C.D. 4123 (1970), aff'd on other grounds, 59 CCPA 207, C.A.D. 1068, 465 F.2d 922 (1972). And since plaintiff has in effect abandoned its claims as pleaded, the regularity of the challenged administrative determinations are sic presumed, the court not being persuaded of the existence of evidence in the record to the contrary.... In view of the 14-year lifespan of the case during which plaintiff has had ample opportunity to develop a plenary record for meaningful judicial review of the administrative determinations herein, the court is constrained to and does dismiss this action for failure of proof....

83 Cust.Ct. 97, 484 F.Supp. 901, 903.

OPINION

Appellant argues that "due process in all forms was raised by the Government" in its responses to paragraphs 16 and 17 in plaintiff's complaint. However, we are persuaded that the Government's answers are to be read in light of the allegations, which specify a failure of evidence "to support the finding of likelihood of injury" and the Commission's "basing its likelihood of injury determination in part on the mere presence of sales at less than fair value."⁶ Therefore, we agree with the Court of International Trade that appellant's Fifth Amendment due process claims set forth in paragraphs 16 and 17 are addressed only to evidentiary considerations and that the matters discussed for the first time in appellant's post-trial brief are wholly outside the pleadings.

The question remains whether appellant's Fifth Amendment due process argument should, nevertheless, have been considered by the court below.⁷ In deciding that this argument was not properly before it, the court cited Charberjoy Distributors, Inc. v. United States, supra, in which the Customs Court held that the issue of illegality of item 927.53, TSUS, was not before the court because the protests did not contain any claim of illegality. This court affirmed, but the issue of illegality was not involved in the appeal. In Aronoff Galleries, Inc. v. United States, 1 Cust.Ct. 225, C.D. 51 (1938), the Customs Court held that where the pleadings contained no statement that the suit was one which involved a controversy over a constitutional right (under Article 1, section 8, paragraph 1, and section 9, paragraphs 5 and 6), this being the sole question raised by plaintiff's post-trial brief, the question was not before the court. It cited three Supreme Court cases: Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933), which held that the question of whether a state law violates the contract clause of the Federal Constitution could not be considered on appeal where there was no reliance on that clause in the pleadings; Montana Catholic Missions v. Missoula County, 200 U.S. 118, 26 S.Ct. 197, 50 L.Ed. 398 (1906), which held that the lower court was correct in dismissing a complaint for lack of jurisdiction where the complaint did not set forth any question involving the construction or application of the Federal Constitution, or the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority; and Defiance Water Co. v. Defiance, 191 U.S. 184, 24 S.Ct. 63, 48 L.Ed. 140 (1903), which held that the lower court erred in retaining jurisdiction on the ground that the case arose under the Constitution of the United States where it did not appear in the pleading that the suit was one which substantially involved a controversy over a right depending on construction of the Constitution or some law or treaty of the United States.

This court has ordinarily followed a practice of not considering issues raised for the first time on appeal. See, e. g., American Mail Line, Ltd. v. United States, 34 CCPA 1, C.A.D. 335 (1946) (holding that protests, claiming that articles and repairs assessed did not fall within the meaning of the term "equipment and repairs," did not support argument on the issue that the involved ship was not of U.S. registry, and citing requirements of section 514 of the Tariff Act of 1930 for filing protests); International Seaway Trading Corp. v. United States, 61 CCPA 20, 24-25, C.A.D. 1112, 488 F.2d 544, 547 (1973); Anderson Organization v. United States, 46 CCPA 47, 50, C.A.D. 694 (1958); Lloyd's Subagent v. United States, 19 CCPA 408, 410, T.D. 45576 (1932); United States v. Sheldon & Co., 5 Ct.Cust.Appls. 427, T.D. 34946 (1914). On the other hand, in City Lumber Co. v. United States, supra 59 CCPA at 96, 457 F.2d at 997, where the point...