Fundicao Tupy SA v. US, Court No. 86-06-00765.

• Decision Date: 13 January 1987
• Docket Number: Court No. 86-06-00765.
• Citation: 652 F. Supp. 1538
• Parties: FUNDICAO TUPY S.A. and Tupy American Foundry Corporation, Plaintiffs, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

652 F. Supp. 1538

FUNDICAO TUPY S.A. and Tupy American Foundry Corporation, Plaintiffs, v. The UNITED STATES, Defendant.

Court No. 86-06-00765.

United States Court of International Trade.

January 13, 1987.

Freeman, Wasserman & Schneider (Jack Gumpert Wasserman and Patrick C. Reed, New York City, on the motion), for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (J. Kevin Horgan, Washington, D.C., on the motion), for defendant.

MEMORANDUM OPINION AND ORDER OF ASSIGNMENT

RE, Chief Judge:

Plaintiffs, Fundicao Tupy S.A. and Tupy American Foundry Corporation, challenge a "final" injury determination made by the International Trade Commission (ITC). The ITC's determination pertained to the importation of malleable cast-iron pipe fittings from Brazil. Plaintiffs also challenge the affirmative less-than-fair-value determination which was made by the International Trade Administration (ITA) of the Department of Commerce.

This action is unassigned, and, pursuant to the provisions of 28 U.S.C. § 255(a)(1982) and USCIT Rule 77(d)(2), plaintiffs move before the chief judge for its assignment to a three-judge panel.

The question presented is whether the contentions and reasons set forth by the plaintiffs, taken together, warrant a finding that the action raises issues which justify the assignment of this action to a three-judge panel. Since the chief judge finds that the issues raised by plaintiffs in this action have "broad or significant implications in the administration or interpretation of the customs laws," the motion for a three-judge panel is granted.

In an antidumping proceeding, the ITC must determine whether an industry in the United States is materially injured, or threatened with material injury, by the imports of merchandise from a particular country. See 19 U.S.C. § 1673d(b)(1) (1982). Before making this determination, the ITC is directed by statute to consider (1) the volume of the imports, (2) the effect of the imports on prices in the United States for like products, and (3) the impact of the imports on domestic producers of like products. Tariff Act of 1930, § 771(7)(B), (C), 19 U.S.C. § 1677(7)(B), (C) (1982). When the imports are from two or more countries, for purposes of volume and price, the ITC is directed to

cumulatively assess the volume and effect of imports from two or more countries of like products subject to investigation if such imports compete with each other and with like products of the domestic industry in the United States market.

Trade and Tariff Act of 1984, § 612(a)(2)(A), 19 U.S.C. § 1677(7)(C)(iv) (Supp. III 1985) (cumulation statute).

In this case, the ITC cumulatively assessed the volume and effect of imports from Brazil, Korea, and Taiwan. The ITC entered a final affirmative injury determination for all three countries. Certain Cast-Iron Pipe Fittings from Brazil, the Republic of Korea, and Taiwan, 51 Fed. Reg. 18,670 (1986).

Plaintiffs contend that the ITC's finding of injury, as to the imports from Brazil, is based on an incorrect and improper interpretation of section 612, the cumulation statute, and raises issues of great significance in the administration of the nation's customs laws. In support of this contention, plaintiffs refer to the increasing number of antidumping and countervailing duty investigations from two or more countries which will be directly affected by the ITC's interpretation. Plaintiffs also note that the application of the cumulation statute in the context of a "final" injury determination presents a question of first impression for this Court.

In addition, plaintiffs contend that the ITC's interpretation of the cumulation statute is inconsistent with the international General Agreement on Tariffs and Trade (GATT) Antidumping and Subsidy Codes, to which the United States adheres. See 19 U.S.C. § 2503(a), (c)(6). Finally, plaintiffs contend that the ITC's determination "raises an issue of the constitutionality of an Act of Congress, as interpreted by the Commission." Specifically, plaintiffs contend that (1) under the ITC's interpretation of the cumulation statute, the provisions of the antidumping statute become unintelligible and vague; (2) the cumulation statute allows discrimination against imports of a particular country with no rational relation to the statutory purpose; and (3) the ITC's interpretation of the cumulation statute interferes with the President's constitutional authority to conduct foreign affairs.

Defendant opposes the motion which requests the assignment of this action to a three-judge panel. Defendant maintains that the issue of an individual country's causation, within the meaning of the cumulation statute, is not a sufficient reason to assign this case to a three-judge panel. Defendant also contends that, if after consideration of the merits, a single-judge court reverses the ITC's determination that the imports from Brazil compete with imports from Korea and Taiwan, the issue of the ITC's final determination would be rendered moot. Hence, the defendant submits that the granting of plaintiffs' motion "may result in an unnecessarily wasteful application of judicial resources."

Defendant stresses that this court has acted through a single judge in previous judicial review of the cumulation statute. Furthermore, issues of first impression, or those that involve possible conflicts with the GATT, "routinely" have been assigned for determination to a single-judge court. See, e.g., Bingham & Taylor v. United States, 10 CIT ___, 627 F.Supp. 793 (1986); United States Steel Corp. v. United States, 9 CIT ___, 618 F.Supp. 496 (1985). Finally, defendant characterizes the constitutional issue which plaintiffs raise as "no more than a claim that the ITC's interpretation of an act of Congress is erroneous." This issue, defendant asserts, is "routinely" decided by a single-judge court, and does not warrant assignment to a three-judge panel. See, e.g., Mast Industries, Inc. v. Regan, 8 CIT 214, 596 F.Supp. 1567 (1984).

The authority of the chief judge to designate a three-judge panel of the Court to hear and determine a case is found in Title 28 U.S.C. §§ 253(c), 255(a) (1982).

Section 253(c) of Title 28 provides:

The chief judge, under rules of the court, may designate any judge or judges of the court to try any case, and when the circumstances so warrant, reassign the case to another judge or judges.

28 U.S.C. § 253(c).

Section 255 provides:

(a) Upon application of any party to a civil action or upon his own initiative, the chief judge of the Court of International Trade shall designate any three judges of the court to hear and determine any civil action which the chief judge finds:

(1) raises an issue of the constitutionality of an Act of Congress, a proclamation of the President or an Executive order; or

(2) has broad or significant implications in the administration or interpretation of the customs laws.

(b) A majority of the three judges designated may hear and determine the civil action and all questions pending therein.

28 U.S.C. § 255(a), (b) (1982).

It is well established that the decision to designate a three-judge panel lies within the sound discretion of the chief judge. See, e.g., Barnhart v. United States, 5 CIT 201, 204-205, 563 F.Supp. 1387, 1390 (1983); Farr Man & Co. v. United States, 1 CIT 104, 106 (1980); see also SCM Corp. v. United States, 79 Cust.Ct. 163, 166, CRD 77-6, 435 F.Supp. 1224, 1227 (1977). In exercising this discretion, the chief judge must find that the issues presented satisfy either of the two statutory criterion set forth in section 255(a). See 28 U.S.C. § 255(a)(1), (2). The chief judge must also consider whether the benefits and advantages of a decision by a three-judge panel outweigh the benefits derived from the "more efficient utilization of judicial resources" provided by a single judge. H.R.Rep. No. 1067, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Admin. News 3188, 3200.

Congress, in the Customs Court Act of 1970, determined that, in all cases, except as provided in section 255, the judicial power of the court "shall be exercised by a single judge." See 28 U.S.C. § 254. The legislative purposes for granting this authority to a single judge were "to permit more efficient utilization of judicial manpower," and to "speed up the final resolution" of disputes. H.R.Rep. No. 1067, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Admin.News at 3200. Section 255 authorizes the chief judge, in exceptional cases, to designate or convene a three-judge panel. See 28 U.S.C. §§ 254, 255(a). The legislative history of sections 254 and 255 makes clear the intent of Congress to conserve judicial resources, and reduce procedural delays by limiting three-judge panels to specified, exceptional situations which raise important issues that would warrant a collegial and broader judicial consideration. See National Corn Growers Ass'n v. Baker, 10 CIT ___, 643 F.Supp. 626, 630 (1986); H.R.Rep. No. 1067, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 3188, 3200-01. As explained in the legislative history, the purpose of the authority conferred upon the chief judge in section 255(a) "is to permit broader representation of the court in deciding landmark or other important issues." H.R.Rep. No. 1067, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin. News at 3201. The statute and its legislative history leave no doubt that the convening of a three-judge panel should be based upon significant questions of law, and that questions of fact, regardless of their complexity or importance, would not justify the designation of a three-judge panel to hear and determine the case.

An important congressional objective of the Customs Courts Act of 1980 was to provide greater uniformity and consistency in the interpretation and application of the nation's international trade laws. See, e.g., H.R.Rep....