Nakajima All Co., Ltd. v. US

• Decision Date: 03 March 1988
• Docket Number: Court No. 88-02-00079.
• Citation: 682 F. Supp. 52
• Parties: NAKAJIMA ALL CO., LTD., and Nakajima U.S.A., Inc., Plaintiffs, v. UNITED STATES, Defendant, Smith-Corona Corp., Amicus Curiae.
• Court: U.S. Court of International Trade

682 F. Supp. 52

NAKAJIMA ALL CO., LTD., and Nakajima U.S.A., Inc., Plaintiffs, v. UNITED STATES, Defendant Smith-Corona Corp., Amicus Curiae.

Court No. 88-02-00079.

United States Court of International Trade.

March 3, 1988.

McDermott, Will & Emery (R. Sarah Compton and Kurt J. Olson, on the motions and the briefs; Patrick J. Cumberland, Washington, D.C., on the briefs), Patton, Boggs & Blow (Michael D. Esch, Washington, D.C., on the motions), of counsel, for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (M. Martha Ries, on the motions), and Office of the Chief Counsel for Intern. Trade, U.S. Dept. of Commerce (Lisa B. Koteen, Washington, D.C., on the motions, of counsel) for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, and James R. Cannon, Jr., Washington, D.C., for amicus curiae.

MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

Plaintiffs filed their summons and complaint and moved for an order to show cause from this Court seeking to expedite this action by shortening defendant's time to answer, accelerating discovery, and setting an early trial date for a trial on the merits. Plaintiffs' action prays for a writ of mandamus to be issued directing the defendant, United States Department of Commerce, International Trade Administration (Commerce), to complete and publish various preliminary and final administrative § 751 review (751 review) results pursuant to § 751 of the Tariff Act of 1930, as amended by the Trade and Tariff Act of 1984, 19 U.S.C. § 1675 (1987) in Commerce's antidumping investigation of portable electric typewriters from Japan.

On the return date, February 11, 1988, in open court, the Court directed the defendant to propose a schedule as to when the various section 751 reviews would be completed, directed the parties to confer and submit to the Court a proposed stipulation of facts, and continued the hearing until February 19, 1988. Thereafter, the plaintiffs withdrew their motion for an accelerated discovery and a trial de novo. On February 19, 1988, in open court, the Court reserved its decision on plaintiffs' action for a writ of mandamus and continued the case with certain requirements. Decision to grant applicant-intervenor's motion to intervene was also reserved by the Court but the Court granted applicant-intervenor amicus curiae status.

FACTS

Plaintiffs Nakajima All Co., Ltd. and Nakajima U.S.A., Inc. (plaintiffs) filed this action for a writ of mandamus directing Commerce to complete and publish four preliminary and final 751 administrative review results regarding Commerce's antidumping investigation of portable electric typewriters from Japan. Plaintiffs also filed a motion for an order to show cause why this action should not be expedited.

At issue are four annual 751 reviews of an antidumping investigation and order concerning portable electric typewriters (PETS) produced and exported from Japan. The antidumping order has been in effect since May of 1980. Commerce has conducted eight 751 reviews since the order, completing and publishing the preliminary and final results of only the first three. The 751 reviews at issue (the fourth, fifth, sixth and seventh) involve sales going back to 1982. The parties have submitted to the Court a proposed stipulation of facts concerning the several 751 reviews at issue. These facts are substantially set forth as follows:

Nakajima All Co., Ltd. is an exporter of PETS from Japan. Nakajima U.S.A., Inc. is the United States importer of PETS exported by Nakajima All Co., Ltd. from Japan.

On May 9, 1980, Commerce published its notice of an antidumping order issued for portable electric typewriters from Japan. Plaintiffs' merchandise was subject to this order. Portable Electric Typewriters From Japan; Antidumping Duty Order, 45 Fed.Reg. 30618 (1980). Subsequent to this order, eight different 751 reviews (Q1 through Q8) have been conducted on the subject merchandise sold or entered into the U.S. covering time periods from January 4, 1980 to April 30, 1987. The only preliminary and final 751 review results to have been completed and published up to the date of February 19, 1988 have been Q1, Q2 and Q3.¹ These are not at issue in this action.

Commerce is still conducting the remaining 751 reviews (Q4, Q5, Q6, Q7 and Q8), and has not published or completed any of the preliminary or final results for these reviews as of February 19, 1988. For the sake of convenience, the following table sets out the relevant chronology of the 751 reviews:

                                   Dates of Actions Taken
                                Initiation  Latest
                                of Admin.   Nakajima Data  Preliminary  Final
                                Review      Submitted      Results      Results
                Review Period   Published   to Commerce    Published    Published
                1/4/80-4/30/80
                  Q1            Unknown     N/A            4/24/81      8/2/82
                5/1/80-4/30/81
                  Q2            8/2/82      N/A            10/5/82      9/9/83
                5/1/81-4/30/82
                  Q3            1/83        N/A            7/1/86       1/14/87
                5/1/82-4/30/83
                  Q4            4/18/83     4/30/87        None         None
                5/1/83-4/30/84
                  Q5            6/22/84     4/30/87        None         None
                5/1/84-4/30/85
                  Q6            7/9/86      4/30/87        None         None
                5/1/85-4/30/86
                  Q7            6/23/86     4/30/87        None         None
                5/1/86-4/30/87
                  Q8            6/19/87     11/13/87       None         None
                

Plaintiffs' exhibit # 1, Nakajima All, Court No. 88-02-00079.

The fourth 751 review, Q4, covers the time period May 1982 through April 1983 and was initiated by sending a questionnaire to plaintiffs on April 18, 1983. Commerce indicated the final results of this review would be issued on July 31, 1987. Initiation of Antidumping Duty Administrative Reviews, 51 Fed.Reg. 24883 (1986).

The fifth 751 review, (Q5), covered the time period May 1983 through April 1984 and was initiated by Commerce sending a questionnaire to plaintiffs on June 22, 1984. This review was reinitiated on July 9, 1986. Id. Commerce stated the final results would be issued on July 31, 1987. Id.

The sixth administrative review, (Q6), covered the time period May 1984 through April 1985 and was initiated on July 9, 1986. Id. Commerce stated the final results would be issued on July 31, 1987. Id.

The seventh administrative review, (Q7), covered the time period May 1985 through April 1986, and was initiated on June 23, 1986. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 51 Fed.Reg. 22843 (1986). Commerce stated that it would issue the final results of this review by June 30, 1987. Id.

On December 12, 1986, Commerce requested supplemental sales and cost of production information from plaintiffs for Q4, Q5, Q6 and Q7. On January 9, 1987, plaintiffs submitted to Commerce the requested supplemental questionnaire responses for Q4, Q5, Q6 and Q7. On February 2, 1987 Commerce requested additional supplemental information from plaintiffs regarding sales responses filed in 1983 and 1984 for Q4 and Q5. Plaintiffs submitted this information on February 17, 1987.

Commerce last sought information from plaintiffs with regard to the pending 751 reviews in March of 1987. Thereafter, plaintiffs submitted the requested information on April 30, 1987. Plaintiffs' merchandise at issue has been subjected to a 16.40% cash deposit rate since January 14, 1987.

The eighth administrative review, (Q8), covered the time period May 1986 through April 1987 and was initiated on June 19, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews; Construction Castings From Brazil, etc., 52 Fed.Reg. 23330 (1987).

On July 17, 1987, plaintiffs advised Commerce of a clerical error regarding a difference in merchandise adjustment. Commerce, since the initiation of the original antidumping investigation, has conducted separate reviews for individual or several respondents.

At the first hearing, held in open court on February 10, 1988, defendant asserted Commerce would be completing the preliminary results for Q4, Q5, Q6, and Q7 by the end of March, 1988. Defendant also asserted Commerce intended to complete the final results for Q4, Q5, Q6 and Q7 by the end of June 1988. After all parties and amicus curiae had given their arguments, the Court directed the parties to stipulate as to the relevant facts of the case and submit a copy of the same to the Court. Any facts in dispute, the Court continued, should be submitted separately by each party. Amicus curiae was given leave to participate in such submissions. The Court also requested defendant to submit a proposed schedule to the Court as to when Commerce expected to complete and publish the preliminary and final results of the subject reviews (Q4-Q7).

The Court also reserved decision on applicant-intervenor's motion to intervene and the Court granted applicant-intervenor amicus curiae status in the case.

The Court continued the action until February 19, 1988, when all participants were directed to appear in open court. Plaintiffs thereafter withdrew their application to expedite discovery and for a trial on the merits.

On February 19, 1988, the parties submitted their proposed stipulation of facts. Defendant also submitted "Second Declaration of Timothy N. Bergen" to the Court. The declaration was that of the Director of the Office of Compliance of the International Trade Administration, Commerce, setting forth the proposed schedule for the completion of the subject 751 reviews. Mr. Bergen averred the preliminary results of the reviews at issue (Q4-Q7) would be completed by April 29, 1988. Mr. Bergen's declaration also set forth a report on the current status of the 751 reviews.

In open court on February 19, 1988, further argument by the parties was heard by the Court. It appears that concerning the 751 reviews in question (Q4-Q7) there are some factual issues and information encountered...