Cabot Corp. v. U.S.

• Decision Date: 09 April 1986
• Docket Number: No. 86-729,86-729
• Citation: 788 F.2d 1539
• Parties: , 4 Fed. Cir. (T) 80 CABOT CORPORATION, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant, Hules Mexicanos, S.A. and Negromex, S.A., Intervenors-Appellants. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1539

788 F.2d 1539

7 ITRD 2185, 4 Fed. Cir. (T) 80

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.

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. 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 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 review of an order of the federal Benefits Review Board with regard to the claim of a disabled former employee for benefits under a federal workers' compensation act. The board's order had affirmed part of an administrative law judge's (ALJ's) decision concerning the applicable wage basis, rejected the ALJ's method of determining annual earnings, vacated the award of compensation, and remanded for further findings and proceedings. The en banc majority held that the board's remand order was not a "final order," ⁴ rejecting a divided panel opinion, 698 F.2d 743 (5th Cir.1983), which accorded "pragmatic finality" to the board's order. The court reasoned that according pragmatic finality to board remand orders on a case-by-case basis was "in fundamental conflict with the values and purposes of the finality rule to avoid the delay and system-costs of piecemeal and multiple appeals, and to provide a relatively clear test of appealability so that needless precautionary appeals not be taken." 723 F.2d at 405. We think this reasoning applies as well to an order from the Court of International Trade remanding an action to the ITA for further findings and proceedings.

We conclude that the court's order is not a final appealable order. Where, as here, the trial court remands to the administrative agency for additional findings, determination, and redetermination, the remand order is not appealable even though the order resolves an important legal issue such as the applicable standard for countervailability. This result comports with the policies underlying the finality rule and in particular avoids unnecessary piecemeal appellate review without precluding later appellate review of the legal issue or any other determination made on a complete administrative record.

Citing our decision in Freeport Minerals Co. v. United States, 758 F.2d 629 (Fed.Cir.1985), the government advances the novel argument that unless the Court of International Trade retains jurisdiction over the particular case during remand, the remand order is final. On this argument we need only say that Freeport did not deal with the appealability to this court of a Court of International Trade order remanding to the ITA. With respect to that question, the authorities cited above provide the appropriate test for determining finality for purposes of appeal.

Next, the government asks us to consider a "practical rather than a technical" construction of the remand order, citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); and our decision in Maier v. Orr, 754 F.2d 973 (Fed.Cir.1985), arguing that the order is final and appealable because it finally determines the controlling issue...