PPG Industries, Inc. v. US, 85-02-00264.

• Decision Date: 20 April 1987
• Docket Number: No. 85-02-00264.,85-02-00264.
• Citation: 11 CIT 303,660 F. Supp. 965
• Parties: PPG INDUSTRIES, INC., Plaintiff v. UNITED STATES, Defendant. VITRO FLEX, S.A. and Cristales Inastillables De Mexico, S.A., Plaintiffs, v. UNITED STATES, Defendant, PPG Industries, Inc., L-N Safety Glass, S.A. De C.V., Defendants-Intervenors. PPG INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant, Vitro Flex, S.A. and Cristales Inastillables De Mexico, S.A., Defendants-Intervenors.
• Court: U.S. Court of International Trade

660 F. Supp. 965

11 CIT 303

PPG INDUSTRIES, INC., Plaintiff v. UNITED STATES, Defendant.

VITRO FLEX, S.A. and Cristales Inastillables De Mexico, S.A., Plaintiffs, v. UNITED STATES, Defendant, PPG Industries, Inc., L-N Safety Glass, S.A. De C.V., Defendants-Intervenors.

PPG INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant, Vitro Flex, S.A. and Cristales Inastillables De Mexico, S.A., Defendants-Intervenors.

No. 85-02-00264.

United States Court of International Trade.

April 20, 1987.

Stewart and Stewart (Terence P. Stewart, Washington, D.C. on the motion), for plaintiff, PPG Industries, Inc.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Division, Dept. of Justice (Platte B. Moring, III, Washington, D.C., on the motion), for defendant, United States.

Brownstein, Zeidman and Schomer (David R. Amerine and Irwin P. Altschuler, Washington, D.C., on the motion), for defendant-intervenors, Vitro Flex, S.A., et al.

Jones, Day, Reavis & Pogue (Jerome J. Zaucha, Washington, D.C., on the motion), for defendant-intervenors, L-N Safety Glass, S.A. de C.V.

MEMORANDUM OPINION

CARMAN, Judge:

Defendant United States moves for severance of the original Court No. 85-02-00264 and Court No. 84-09-01322 from this consolidated case, Court No. 85-02-00264, and dismissal of these two actions for mootness. The third case under consolidation, Court No. 85-02-00198, which challenges the validity of the original countervailing duty order, is not included in this motion to sever and dismiss. Defendant-intervenors Vitro Flex, S.A., et al, support the motion. Plaintiff PPG opposes the motion. Defendant-intervenor L-N Safety Glass, S.A. de C.V. takes no position on the motion. Defendant's motion is granted.

BACKGROUND

This consolidated case covers three separate actions challenging the countervailing duty investigation and determination of the International Trade Administration, United States Department of Commerce (ITA) concerning fabricated automotive glass from Mexico. In the first action, Court No. 84-09-01322, plaintiff PPG Industries, Inc. (PPG) challenges the ITA's decision not to initiate the investigation of two programs involving debt rescheduling and natural gas pricings alleged to constitute bounties or grants in the initiation of a countervailing duty investigation of automotive glass from Mexico. Initiation of Countervailing Duty Investigation; Fabricated Automotive Glass From Mexico. 49 Fed.Reg. 33919 (1984). The second action, Court No. 85-02-00264, involves PPG's challenge of certain aspects of the final affirmative countervailing duty determination of automotive glass from Mexico by the ITA. Final Affirmative Countervailing Duty Determination and Countervailing Duty Order: Fabricated Automotive Glass From Mexico. 50 Fed.Reg. 1906 (1985).

The third action, Court No. 85-02-00198, in which PPG is a defendant-intervenor, involves challenges to the final affirmative countervailing duty determination by Vitro Flex, S.A. and Cristales Inastillables De Mexico, S.A. (Vitro Flex and Cristales), two Mexican manufacturers, producers, and exporters of the fabricated automotive glass at issue. Vitro Flex and Cristales contest, among other things, the validity of the ITA's final affirmative determination in the countervailing duty investigation of the subject automotive glass. Both Vitro Flex and Cristales are also defendant-intervenors in Court No. 84-09-01322. Vitro Flex and Cristales also challenge the ITA's determination PPG had standing to file a countervailing duty investigation petition involving fabricated automotive glass from Mexico. Court No. 85-02-00198 is not the subject of defendant's motion to sever and dismiss and remains as a separate pending action before this Court.

The ITA published its final affirmative countervailing duty determination and order, Final Affirmative Countervailing Duty Determination and Countervailing Duty Order: Fabricated Automotive Glass From Mexico, 50 Fed.Reg. 1906 (1985), on January 14, 1985 and directed the United States Customs Service (Customs)

to suspend liquidation of all entries of fabricated automotive glass from Mexico (except that manufactured and exported by L-N Safety Glass) which are entered, or withdrawn from warehouse, for consumption, and to require a cash deposit or bond on this merchandise in the amounts equal to the estimated net bounty or grant.

50 Fed.Reg. at 1906. On January 2, 1986, Vitro Flex and Cristales "requested in accordance with § 355.10 of the Commerce Regulations an administrative review of the countervailing duty order of January 14, 1985." Fabricated Automotive Glass From Mexico; Final Results of Countervailing Duty Administrative Review, 51 Fed.Reg. 44,652 (1986). This requested administrative review applies to all three actions: Court Nos. 84-09-01322, 85-02-00198, and 85-02-00264.

These three actions, Court Nos. 84-09-01322, 85-02-00198, and 85-02-00264, were consolidated on July 19, 1985. All the parties submitted their briefs in these actions on or before April 7, 1986, and oral argument was scheduled for December 11, 1986. This Court rescheduled oral argument for February 5, 1986 to specifically address the present motion to dismiss upon notice of the ITA's issuance, on December 4, 1986, and subsequent publication, of the final results of the countervailing duty administrative review (751 review of automotive glass) and upon notice of defendant's intention to file the instant motion to sever and dismiss.

The results of the 751 review of automotive glass served as the basis for the actual assessment rate of the countervailing duties for the involved automotive glass entries and the cash deposits of estimated countervailing duties for the prospective entries pursuant to 19 U.S.C. § 1675(a). As a result of the 751 review of automotive glass, the ITA determined "the total bounty or grant during the period of review to be 2.45 percent ad valorem for 1984 and 0.17 percent ad valorem for 1985, the latter a rate the Department considers to be de minimis." 51 Fed.Reg. at 44,652. The ITA indicated it would instruct Customs "to assess countervailing duties of 2.45 percent of the f.o.b. invoice price on any shipments of this merchandise entered, or withdrawn from warehouse, for consumption on or after October 24, 1984, and exported on or before December 31, 1984." 51 Fed. Reg. at 44,655. The ITA further indicated it would "instruct ... Customs ... not to assess countervailing duties for shipments of this merchandise exported on or after January 1, 1985 and on or before December 31, 1985." Id.

DISCUSSION

The question presented is whether or not the issues, in an action challenging an ITA final affirmative countervailing duty determination, are rendered moot by the issuance of the ITA's final results of the countervailing duty administrative review (751 review)¹ before the Court has reviewed and determined the issues presented in the action challenging the original countervailing duty determination. This Court holds the issues presented in the actions challenging the original countervailing duty determination filed by PPG, were rendered moot upon the completion and the issuance of the results of the 751 review of automotive glass.

The doctrine of mootness is based upon the premise: "a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). Federal courts, established under Article III of the United States Constitution, such as this Court, "lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies ... ; a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (citation omitted).

Certain corollaries of the mootness doctrine have been established which bear direct application on the motion before this Court. One such corollary is "the federal courts will not give advisory opinions." Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968), quoting C. Wright, Federal Courts 34 (1963). Another corollary is "no justiciable controversy is presented ... when the question sought to be adjudicated has been mooted by subsequent developments...." Id. at 95, 88 S.Ct. at 1949 (footnote omitted). Yet, it must always be remembered "that `justiciability is ... not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures....'" Id. at 95, 88 S.Ct. at 1949 (quoting Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961)).

Defendant states that because the results of the 751 review will control the actual assessment of duties and rates of deposits for future entries of the merchandise in question, the challenge of the original countervailing duty determination could not result in this Court providing any presently effective or meaningful remedy. Any recalculated subsidy rate determined on a remand would not serve as the basis for actual duty assessments or deposits of estimated duties; these assessments and deposits will be based upon the 751 review results. Therefore, according to defendants, any decision rendered by this Court in favor of plaintiff would have only an advisory effect, clearly impermissible for a court established by Article III of the Constitution. Defendant-intervenors concur with this argument.

Plaintiff, on the other hand, argues the relief sought consists of more than a recalculation of duty rates: "the chief effect of judicial review of original agency determinations is the corrective effect the Court's review will have upon the agency's treatment of the issues involved in the subsequent 751 reviews, as well...