Jeannette Sheet Glass Corp. v. U.S.
| Citation | 803 F.2d 1576 |
| Decision Date | 23 October 1986 |
| Docket Number | Nos. 85-2455,86-609,s. 85-2455 |
| Parties | , 5 Fed. Cir. (T) 1 JEANNETTE SHEET GLASS CORP., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee, Crystal International Corp., et al., and Glaverbel, S.A., Defendants-Appellees. Appeal |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
James P. Cannon, Jr., Stewart and Stewart, Washington, D.C., argued for appellant. With him on the brief were Eugene L. Stewart, Terrance P. Stewart and Charles A. St. Charles.
Catherine R. Field, Office of the Gen. Counsel, U.S. Intern. Trade Com'n, Washington, D.C., argued for ITC and Crystal. With her on the brief were Lyn M. Schlitt, Gen. Counsel and Michael P. Mabile, Asst. Gen. Counsel. N. David Palmeter, David P. Houlihan, and Alan H. Price, Mudge Rose Guthrie Alexander and Ferdon, Washington, D.C., were on the brief for defendants-appellees Crystal Intern. Corp. and Flachglas A.G.
Morton L. Stone, Ulmer, Berne, Laronge, Glickman and Curtis, Cleveland, Ohio, argued for defendants/appellees. With him on the brief was Ronald H. Isroff.
Before SMITH and BISSELL, Circuit Judges, and SKELTON, Senior Circuit Judge.
Appellee Glaverbel S.A. ("Glaverbel") moves to dismiss on the ground that the appeal is from a non-final order. Appellee United States ("Commission") supports the motion and appellant Jeannette Sheet Glass Corp. ("Jeannette") opposes it. We grant the motion and dismiss the appeal.
On March 16, 1983, Jeannette filed a petition with the International Trade Commission ("ITC") and the Department of Commerce alleging that imports of thin sheet glass ("TSG") from Switzerland, Belgium, and the Federal Republic of Germany were materially injuring or threatening to injure materially the domestic industry. An antidumping investigation was initiated pursuant to 19 U.S.C. Sec. 1673b(a). Section 1673 prescribes imposing a duty on imports being sold in this country at less than fair value if, by reason of imports of the involved merchandise, (1) an industry in this country is either materially injured or threatened with material injury or (2) the establishment of an industry in this country is materially retarded.
The ITC conducted a preliminary investigation and made two negative preliminary determinations. It concluded that there is no reasonable indication that: (1) the domestic regular quality TSG industry (viz., Jeannette ) is materially injured or threatened with material injury by reason of imports of regular quality TSG from the three named countries allegedly sold at less than fair value ("LTFV"); and (2) the establishment of a high quality TSG industry in the United States is being materially Jeannette challenged the two negative preliminary determinations at the Court of International Trade. In an order dated March 22, 1985, that court affirmed the ITC's determination of no "material retardation" in high quality TSG, in effect terminating the matter on that issue pending any review by this Court. Jeannette Sheet Glass Corp. v. United States, 607 F.Supp. 123 (1985). Regarding material injury in the regular quality TSG industry, the court decided that the "reasonable indication" standard used by the Commission was inconsistent with that used in Republic Steel Corp. v. United States, 8 C.I.T. 29, 591 F.Supp. 640 (1984), reh'g. denied, 16 Cust. B. & Dec., No. 14 (March 11, 1985). Consequently, it remanded the action for the ITC to reconsider its preliminary "no injury" determination in light of Republic Steel and to report to the court within 30 days its findings and redetermination. Id., 607 F.Supp. at 133.
retarded by reason of high quality TSG from Belgium or the Federal Republic of Germany allegedly being sold at LTFV. (Thin Sheet Glass from Switzerland, Belgium and the Federal Republic of Germany, Inv. Nos. 731-TA-127, 128 and 129 (Preliminary), USITC Pub. No. 1376 (May 1983)).
On June 11, 1985, the Court of International Trade denied without opinion the ITC's motion to amend judgment by certifying the "reasonable indication" question for interlocutory appeal under 28 U.S.C. Sec. 1292(b).
On July 12, 1985, the ITC on remand applied the Republic Steel standard and reached an affirmative preliminary injury determination. On September 10, 1985, the Court of International Trade issued an order affirming that determination of the ITC.
Several appeals from the "injury" aspect of the March 22 remand order were filed by intervenors and docketed in this Court as Nos. 85-2554, 85-2555, and 85-2589. Jeannette moved to dismiss those appeals as interlocutory, and the motion was granted by order of June 2, 1986. That order also dismissed as interlocutory, sua sponte, Appeal Nos. 86-519 and 86-700. Those were appeals by the Commission and Glaverbel of the September 10 order.
On July 8, 1986, two petitions for rehearing of the June 2 order were denied by this Court without prejudice to the Court of International Trade amending its order to include a statement of certification under 28 U.S.C. Sec. 1292(d)(1) or changing its order if so inclined.
Jeannette's original appeal in this case (No. 85-2455) was an appeal of the same March 22, 1985 order involved in the dismissed appeals. Whereas those appeals focused on injury in the regular quality TSG industry, Jeannette's appeal focused on "material retardation" in the high quality TSG industry. Jeannette also filed a motion to dismiss or, in the alternative, to stay the appeal because "the order of March 22, 1985, is not final in all respects." Jeannette said that it filed the appeal only to safeguard its right to appeal but believed that its appeal was premature. It argued that Rule 54(b) 1 of the court's rules contemplates Jeannette's motion was successful; the appeal in 85-2455 was stayed by this Court pending resolution by the Court of International Trade of the remaining issues.
that a final judgment with respect to less than all the claims before the court will issue only where there is an express determination, which there is not in the March 22 order, that (1) there is no just reason for delay and (2) judgment should be entered. The order would become final, argued Jeannette, when the remand on "material injury" was complete.
After the Court of International Trade issued its order of September 10, 1985, Jeannette, who viewed that order as final, appealed from that portion of the order relating to material retardation. That appeal was filed here as No. 86-609. On Jeannette's motion, the two appeals (Nos. 86-609 and 85-2455) were consolidated and became No. 85-2455 to proceed in accordance with the briefing schedule previously established in No. 86-609. Briefs were filed and oral argument heard.
Glaverbel now moves to dismiss the consolidated appeal, arguing that the case involves separate judgments--one for affirmance (no material retardation) and one for remand (material injury). Under Fed.R.Civ.P. 58, alleges Glaverbel, "every judgment shall be set forth on a separate document," but that was not done here, and hence, there is no jurisdiction to hear the appeal. Glaverbel also argues that, if appeals from the March 22 and September 10 orders of the CIT upon which this appeal is based were already dismissed as interlocutory in other cases, dismissal here is likewise warranted. The Commission supports the motion.
Jeannette opposes the motion, urging that, despite the trial court's failure to certify the "material retardation" issue presented for review, this Court should consider the appeal under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
Not irrelevant to the motion is the rejection in American Lamb Co. v. United States, 785 F.2d 994 (Fed.Cir.1986) of the "reasonable indication" standard adopted by the Court of International Trade in Republic Steel and Jeannette Sheet Glass. Based on American Lamb, the Commission on August 19, 1986, filed in Jeannette a motion for reconsideration of the injury issue, which is still pending before the Court of International Trade.
Whether this Court will decide, without proper certification by the Court of International Trade, an appeal of a claim resolved by a decision of that court when there is another claim that is still being pursued at the agency level. 2
OPINIONTwo orders are involved here: an order of March 22, 1985 and one of September 10, 1985. Both have two aspects, the first of which is identical in each, i.e., the Court of International Trade affirming the preliminary determination at the ITC of no "material retardation" in the high quality TSG industry. That aspect is "final" in the sense that no further agency action is needed. However, the "material injury" aspect (in the regular quality TSG industry), though different in each order, is not final.
In the March 22 order, the "material injury" aspect involves a specific remand to the ITC for redetermination in light of a standard the Court of International Trade believed correct (but which has since been held incorrect by this Court). That clearly is non-final, as Jeannette and the Commission apparently concede, and as this Court held in its order dated June 2.
The June 2 order also held that the "material injury" aspect of the September 10 order was non-final, based on the authority of Cabot Corp. v. United States, 788 F.2d 1539 (Fed.Cir.1986). We are in agreement with that holding. In Cabot, an order of the Court of International Trade, which remanded the case to the ITC for further findings and redeterminations to be reported to the court within 90 days, was held to be interlocutory in nature. Though the September 10 order affirmed the ITC's preliminary "injury" determination, it was not final under Cabot because further proceedings at...
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