SCM Corp. v. U.S. Intern. Trade Commission, 75-1816

• Decision Date: 12 January 1977
• Docket Number: No. 75-1816,75-1816
• Citation: 179 U.S.App.D.C. 110,549 F.2d 812
• Parties: , 42 A.L.R.Fed. 805, 179 U.S.App.D.C. 110 SCM CORPORATION, Plaintiff-Appellant, v. UNITED STATES INTERNATIONAL TRADE COMMISSION et al., Defendants-Appellees, Royal Typewriter Company and Brother Industries, Ltd., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 812

549 F.2d 812

1 ITRD 1594, 42 A.L.R.Fed. 805, 179

U.S.App.D.C. 110

SCM CORPORATION, Plaintiff-Appellant, v. UNITED STATES INTERNATIONAL TRADE COMMISSION et al Defendants-Appellees Royal Typewriter Company and Brother Industries, Ltd., Intervenors.

No. 75-1816.

United States Court of Appeals District of Columbia Circuit.

Argued May 21, 1976.

Decided Jan. 12, 1977.

Frederick L. Ikenson, New York City, with whom Eugene L. Stewart, Washington, D. C., was on the brief for appellant.

Glenn E. Harris, Atty., Civ. Div., Dept. of Justice, New York City, of the bar of the Supreme Court of Virginia, pro hac vice by special leave of court with whom Rex E Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Washington, D. C., Andrew P. Vance, Chief Customs Section, New York City, and Eric B. Marcy, Asst. U. S. Atty., Washington, D. C., were on the brief for appellees.

H. William Tanaka and Lawrence R. Walders, Washington, D. C., filed a brief on behalf of Brother Industries Ltd. and Brother International Corp. as amici curiae urging affirmance.

John A. Kennedy, Jr., Washington, D. C., filed a brief on behalf of Royal Typewriter Co. as amicus curiae urging affirmance.

R. Christian Berg, Washington, D. C., entered an appearance for intervenor Royal Typewriter Co.

Before TAMM and LEVENTHAL, Circuit Judges, and FRANK A. KAUFMAN, ^* United States District Judge for the District of Maryland.

Opinion for the Court filed by KAUFMAN, District Judge.

FRANK A. KAUFMAN, District Judge:

SCM Corporation (SCM), a domestic American manufacturer of portable electric and manual typewriters, appeals from the District Court's Order dismissing for lack of jurisdiction SCM's complaint in this case. Herein, SCM seeks to set aside a negative determination of injury made by the United States International Trade Commission (Commission) ¹ and to compel an affirmative injury determination by that Commission under the Antidumping Act of 1921. Appellees are the Commission; the six Commissioners of that body; the Secretary of the Treasury (the Secretary); the Assistant Secretary of the Treasury responsible for supervising the operation of the United States Customs Services; and the Commissioner of Customs.

I

This case arises under the Antidumping Act of 1921, 19 U.S.C. §§ 160-73 (1970 and Supp. IV, 1974). Recently, in The Timken Company v. Simon, Judge McGowan wrote:

The Antidumping Act of 1921, 19 U.S.C. §§ 160-73 (1970 and Supp. IV, 1974), was enacted "to prevent actual or threatened injury to a domestic industry resulting from the sale in the United States market of merchandise at prices lower than in the home market (country of origin)." J. C. Penney Co. v. Department of the Treasury, 319 F.Supp. 1023, 1024 (S.D.N.Y.1970), aff'd, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). Upon receiving a complaint that foreign goods are being "dumped," the Secretary is required to determine whether that class of foreign merchandise is being sold or is likely to be sold in the United States or elsewhere at less than its fair value (LTFV) the price on the home market. 19 U.S.C. § 160(a) (Supp. IV, 1974). If the Secretary makes an affirmative LTFV determination, he is required to advise the International Trade Commission (Commission), which in turn must notify the Secretary within three months whether an industry in the United States is being or is likely to be injured by reason of the LTFV sales. ² Id. If the Commission reaches an affirmative determination, the Secretary must publish in the Federal Register both his own and the Commission's determinations, which together comprise a "dumping finding" for purposes of the Act. Id.

Once a dumping finding has been published, all imported unappraised ³ merchandise described in that finding, and entered, or withdrawn from warehouse, for consumption not more than 120 days before the question was presented to the Secretary, is subject to a special antidumping duty in the approximate amount of the difference between the price of the imported merchandise sold in the United States and the price of comparable merchandise sold in the home market. Id. § 161(a) (1970).

To prevent importations during the pendency of the dumping complaint from being appraised by customs officials and thus escaping subsequent imposition of an antidumping duty, Congress enacted a provisional remedy known as withholding of appraisement. Whenever the Secretary has reason to believe or suspect that a class or kind of merchandise is being dumped, he is required to publish notice of that fact, called a withholding notice, in the Federal Register and to authorize the withholding of appraisement of such merchandise "until the further order of the Secretary, or until the Secretary has made public a (dumping) finding." Id. § 160(b) (Supp. IV, 1974). Merchandise covered by a withholding notice can be released by customs officials only if a bond is filed to assure payments of any antidumping duties subsequently assessed. Id. § 167 (1970); 19 C.F.R. §§ 153.50-.51 (1975). * * *

176 U.S.App.D.C. 219, at 221, 539 F.2d 221 at 223 (1976) (footnotes renumbered herein).

After a dumping finding is published, all entries of the merchandise in question are subject to antidumping duties. However, as Judge McGowan noted in Timken (176 at 222 n.3, 539 F.2d at 224 n.3):

To say that entries are subject to assessment of antidumping duties does not mean that antidumping duties will be assessed; after publication of a dumping finding, customs officials will assess antidumping duties only if they determine that the market value (or constructed value) of the particular entries is higher than the purchase price or exporter's sales price. 19 U.S.C. § 161(a) (1970). (Emphases in original.)

SCM filed a complaint with the Secretary on February 14, 1974 alleging that portable electric typewriters from Japan were being sold at lower than fair value (LTFV). On March 20, 1974, a notice of the pendency of a dumping investigation was published in the Federal Register, 39 Fed.Reg. 10456. After the investigation, a notice was filed in the Federal Register on December 20, 1974 by Assistant Secretary of the Treasury MacDonald in which notice that official stated that there were reasonable grounds to believe that portable electric typewriters from Japan were being or were likely to be sold at LTFV and which directed custom officials to withhold appraisement of that merchandise, 39 Fed.Reg. 44054. The Assistant Secretary published a notice on March 20, 1975 that sales of portable electric typewriters were being or were likely to be made at LTFV, 40 Fed.Reg. 12685, and so advised the Commission. The Commission held a hearing on May 13 and 14, 1975 and rendered a negative determination of injury on June 19, 1975, by a vote of 3-2 with one Commissioner abstaining. That negative determination was published in the Federal Register on June 26, 1975, 40 Fed.Reg. 27079. ⁴ As a result of that negative determination, the Secretary had no authority to publish a finding of dumping. The Secretary accordingly authorized the appraisement of the typewriters which appraisement had been withheld during the investigation.

SCM filed suit in the District Court seeking to have the Commissioner's negative determination of injury set aside and to obtain preliminary injunctive relief requiring the Secretary to withhold appraisement and liquidation ⁵ of the electric portable typewriters from Japan pending a determination of the merits of the action. The Secretary, at the District Court's request, consented to refrain from ordering appraisement of the merchandise pending determination upon the merits by the District Court. Appellees filed a motion to dismiss for lack of subject matter jurisdiction. The District Court, in a carefully worded opinion, granted appellees' motion to dismiss, holding that a remedy is available to SCM under section 516, 19 U.S.C. § 1516 (Supp. IV, 1974), and thus that exclusive jurisdiction rests in the Customs Court. The Court below also denied as moot SCM's motion for preliminary injunctive relief ⁶ and further denied as moot the motions for leave to intervene of two proposed intervenors, Brother Industries, Ltd. and Royal Typewriter Company. ⁷

II

28 U.S.C. § 1340 (1970) provides:

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.

28 U.S.C. § 1582(b) (1970) provides:

(b) The Customs Court shall have exclusive jurisdiction of civil actions brought by American manufacturers, producers, or wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended.

If the Customs Court has jurisdiction over SCM's claim pursuant to section 516, then jurisdiction in the Customs Court is exclusive under 28 U.S.C. § 1582(b). However, that exclusive jurisdiction is limited to those claims which can be brought pursuant to section 516. Where no adequate remedy exists in the Customs Court for actions concerning customs matters, the federal district courts have jurisdiction. See, e. g., The Timken Co. v. Simon, supra; J. C. Penney Co. v. Department of Treasury, 439 F.2d 63, 68 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). It follows that it is necessary to examine section 516 to determine whether SCM's claim is one which can be brought under that statute.

Pursuant to section 516(a), an American manufacturer may file a petition with the Secretary either challenging the non-assessment of antidumping duties, if there has been no assessment, or challenging the amount of the special antidumping duties which have been assessed. ⁸ If the Secretary agrees with the manufacturer's assertion, he determines that duty should be assessed, if none has been assessed, and, if appropriate, determines the proper rate of duty to be...