Metallverken Nederland BV v. US

• Decision Date: 18 December 1989
• Docket Number: Court No. 88-09-00711.
• Citation: 728 F. Supp. 730
• Parties: METALLVERKEN NEDERLAND B.V., and Outokumpu Metallverken, Inc., Plaintiffs, v. UNITED STATES, Defendant, and American Brass, et al., Defendants-Intervenors.
• Court: U.S. Court of International Trade

728 F. Supp. 730

METALLVERKEN NEDERLAND B.V., and Outokumpu Metallverken, Inc., Plaintiffs, v. UNITED STATES, Defendant and American Brass, et al., Defendants-Intervenors.

Court No. 88-09-00711.

United States Court of International Trade.

December 18, 1989.

Winthrop Stimson, Putnam & Roberts, New York City, Thomas V. Vakerics, Kenneth Berlin, Mark A. Monborne, James A. Meade, New York City, and Joni A. Laura, Arent, Fox, Kintner, Plotkin & Kahn, Stephen L. Gibson and Callie Georgeann Pappas, Washington, D.C., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., M. Martha Ries, Lyn M. Schlitt, Gen. Counsel, Judith M. Czako, Acting Asst. Gen. Counsel, U.S. I.T.C., Calvin H. Cobb, III, Washington, D.C., for defendant.

Collier, Shannon & Scott, David A. Hartquist, Jeffrey S. Beckington, and Kathleen Weaver Cannon, Washington, D.C., for defendants-intervenors.

DiCARLO, Judge:

Metallverken Nederland, a Dutch brass producer, and Outokumpu Metallverken, an importer of Japanese brass, move pursuant to Rule 56.1 of the Rules of this Court to challenge the final affirmative determination of the United States International Trade Commission that a domestic industry is being materially injured or threatened with material injury by reason of imports of certain brass sheet and strip from Japan and The Netherlands. Certain Brass Sheet and Strip from Japan and The Netherlands, Inv. Nos. 731-TA-379 and 380 (Final), USITC Pub. 2099 (July, 1988). The Court has jurisdiction under 28 U.S.C. § 1581(c) (1982).

Plaintiffs assert that in providing for an affirmative determination in the event of an evenly-divided vote of the Commission, 19 U.S.C. § 1677(11) (1988) is unconstitutional, or, in the alternative, that the Commission misapplied the statute because the Commission was not evenly divided. Plaintiffs also claim that the affirmative material injury determination of Commissioners Eckes and Lodwick and Commissioner Rohr's affirmative threat of material injury determination are unsupported by substantial evidence on the record and are otherwise not in accordance with law.

The Court holds that the tie-vote provision in 19 U.S.C. § 1677(11) is constitutional, and was properly applied by the Commission. The Court also finds that the material-injury determination of Commissioners Eckes and Lodwick is supported by substantial evidence on the record and is otherwise in accordance with law. The Court finds Commissioner Rohr's threat of material injury determination must be reconsidered because there is substantial doubt as to whether the determination was flawed by a mistake of fact. Therefore, the Court remands.

DISCUSSION

I. THE TIE-VOTE PROVISION

Two of the six commissioners cast affirmative votes based upon a finding of material injury. Of the four remaining commissioners, one cast an affirmative vote based upon a finding of threat of material injury. Since three of the six commissioners found either material injury or threat of material injury, the Commission reached an affirmative injury determination under the tie-vote provision of 19 U.S.C. § 1677(11).

The tie-vote provision states:

If the Commissioners voting on a determination by the Commission are evenly divided as to whether the determination should be affirmative or negative, the Commission shall be deemed to have made an affirmative determination. For the purpose of applying this paragraph when the issue before the Commission is to determine whether there is—

(A) material injury to an industry in the United States,

(B) threat of material injury to such an industry, or

(C) material retardation of the establishment of an industry in the United States,

by reason of imports of the merchandise, an affirmative vote on any of the issues shall be treated as a vote that the determination should be affirmative.

19 U.S.C. § 1677(11) (1988).

A. Constitutionality

Plaintiffs raise two arguments challenging the constitutionality of this provision: (1) by permitting the Commission to reach an affirmative injury determination in the event of an evenly-divided Commission vote, the statute violates the plaintiffs' right to due process of law, and (2) should the tie-vote procedure be constitutional, adding together the affirmative votes on the three separate injury issues to ascertain whether a determination is affirmative or negative constitutes an unconstitutional deprivation of due process.

In Border Brokerage Co. v. United States, 68 CCPA 32, 39-41, 646 F.2d 539, 545-47 (1981), the Court of Customs and Patent Appeals upheld the constitutionality of the Commission's tie-vote procedure under section 201(a) of the Antidumping Act of 1921, Pub.L. No. 85-630, 72 Stat. 583 (1958), the predecessor provision to 19 U.S.C. § 1677(11). Plaintiffs argue that Border Brokerage is not dispositive and that it was wrongly decided.

Our appellate court, the Federal Circuit, has held that the decisions of its predecessor, the Court of Customs and Patent Appeals, are binding upon it as precedent. South Corp. v. United States, 690 F.2d 1368, 1369 (Fed.Cir.1982). This Court is, therefore, compelled to follow the holding of Border Brokerage, until that decision is overturned by the Federal Circuit sitting en banc. Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1573 (Fed.Cir.1984); South Corp., 690 F.2d at 1370 n. 2. Accordingly, the Court holds that an affirmative determination in the event of an evenly-divided Commission vote is not an unconstitutional deprivation of due process.

Plaintiffs assert that the tie-vote provision under the present statute contains a material change from that in the statute considered in Border Brokerage, and, therefore, the holding in that case is distinguishable. Under section 201(a) of the Antidumping Act of 1921, a commissioner voted only once on the question of material injury. A commissioner could premise an affirmative vote on a finding of material injury, threat of material injury, or material retardation, but did not have to state upon which of these three injury issues his or her vote was based. In 19 U.S.C. § 1677(11), Congress added a requirement that the commissioners vote separately on material injury, threat of material injury, and material retardation. An affirmative vote on any one of these injury issues is then treated as an affirmative vote as to the final Commission determination. 19 U.S.C. § 1677(11) (1988). Plaintiffs claim this new provision is an

aggregation of the minority votes cast in ... different affirmative determinations by the Commissioners and the transformation through legislative fiat of the majority negative votes into a tie vote and then into an affirmative present injury determination....

Plaintiffs' Brief in Support of Their Rule 56.1 Motion for Judgment on the Agency Record, 128-29. They argue that addition of this "aggregation feature" in the tie-vote provision under 19 U.S.C. § 1677(11) constitutes a deprivation of due process of law.

19 U.S.C. § 1677(11) was intended to "carry forward under the new law the analogous provision under the existing law." S.Rep. No. 249, 96th Cong., 1st Sess. 91, reprinted in 1979 U.S.Code Cong. & Admin.News 381, 477. Under both the prior and present statutes, a commissioner casts an affirmative vote upon finding material injury, threat of material injury, or material retardation. Unlike the prior statute, the present statute merely requires the commissioners to vote upon the specific grounds of their determination. This additional requirement is an insufficient distinction to place 19 U.S.C. § 1677(11) outside the holding of Border Brokerage.

B. Applicability

Plaintiffs also submit that, because a majority of the participating commissioners made a negative finding on the separate issues of material injury and threat of material injury, the Commission's application of 19 U.S.C. § 1677(11) to reach an affirmative determination is not in accordance with law because the Commission was not "evenly divided." Plaintiffs claim that the tie-vote provision is triggered only when the Commission vote is evenly divided on any of the three separate injury issues.

At oral argument, plaintiffs agreed that according to their position, where two of the six commissioners find material injury, another two find threat of material injury, and the remaining two find material retardation, the Commission would be required to reach a negative determination because four commissioners cast negative votes on each injury issue. Yet, aside from their constitutional argument, plaintiffs concede that there would be a proper affirmative determination should three commissioners find only material retardation, which is the lowest level of injury recognizable under the statute. Plaintiffs' argument is illogical and contrary to the plain language of the statute, which unambiguously states that "an affirmative vote on any of the issues shall be treated as a vote that the determination should be affirmative." 19 U.S.C. § 1677(11) (1988) (emphasis added). Thus, in ascertaining whether a Commission vote is evenly divided, all commissioners voting affirmatively on material injury, threat of material injury, or material retardation are deemed to have voted affirmatively as regards the Commission determination.

Here, three different commissioners found either material injury or threat of material injury. These votes constitute an equal division of the Commission, which, in accordance with 19 U.S.C. § 1677(11), the Commission properly held to be an affirmative determination of the Commission.

II. MATERIAL INJURY DETERMINATION

Plaintiffs allege that the findings of Commissioners Eckes and Lodwick that the domestic industry was experiencing material injury by reason of imports of brass sheet and strip from The Netherlands and Japan are unsupported by substantial evidence on the record and are otherwise not in...