SCM Corp. v. United States

• Decision Date: 15 August 1977
• Docket Number: C.R.D. 77-6,Court No. 77-4-00553.
• Citation: 435 F. Supp. 1224,79 Cust. Ct. 163
• Parties: SCM CORPORATION v. UNITED STATES (Brother International Corporation, Party-in-Interest).
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

435 F. Supp. 1224

79 Cust. Ct. 163

SCM CORPORATION v. UNITED STATES (Brother International Corporation, Party-in-Interest).

C.R.D. 77-6; Court No. 77-4-00553.

United States Customs Court.

August 15, 1977.

Stewart & Ikenson, Washington, D. C. (Eugene L. Stewart and Frederick L. Ikenson, Washington, D. C., of counsel), for plaintiff.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (Glenn E. Harris, trial atty., New York City), for defendant.

Tanaka, Walders & Ritger, Washington, D. C. (H. William Tanaka, Washington, D. C., of counsel), for party-in-interest.

RE, Chief Judge:

Pursuant to the provisions of 28 U.S.C. § 255 (1970), plaintiff moves for the assignment of this action to a three-judge panel.

Section 255, which provides for "Three-judge trials" in the United States Customs Court, states:

"(a) Upon application of any party to a civil action, or upon his own initiative, the chief judge of the Customs Court shall designate any three judges of the court to hear and determine any civil action which the chief judge finds: (1) raises an issue of the constitutionality of an Act of Congress, a proclamation of the President or an Executive order; or (2) has broad or significant implications in the administration or interpretation of the customs laws.

(b) A majority of the three judges designated may hear and determine the civil action and all questions pending therein."

Since no issue of a constitutional dimension is presented, plaintiff's motion is based upon the contention that this action involves "broad or significant implications in the administration or interpretation of the customs laws."

Pursuant to 19 U.S.C. § 1516(a) (1970), plaintiff, an American manufacturer of portable electric and portable manual typewriters, filed a complaint charging that portable electric typewriters from Japan were being sold at less than fair value within the meaning of the Antidumping Act of 1921, as amended, 19 U.S.C. § 160 et seq. (1970). A broad sketch of the key provisions of this act may be helpful. See e. g., F. W. Myers & Co., Inc. v. United States, 376 F.Supp. 860, 862-63, 72 Cust.Ct. 219, 220-21, C.D. 4544 (1974).

Under the Antidumping Act of 1921 an American manufacturer may file a complaint with the Secretary of the Treasury to protest actual or threatened injury to an industry or the establishment of an industry. The Secretary has the duty to determine whether that class or kind of imported merchandise is being sold, or is likely to be sold in the United States or elsewhere, at less than fair value. The act also provides for the issuance of a notice withholding appraisement in advance of a finding of sales at less than fair value, or as soon as the Secretary has reason to believe or suspect the existence of such sales. This provisional remedy precludes importers, during the pendency of an investigation, from escaping a subsequent dumping duty assessment on the imported merchandise.

If the Secretary issues an affirmative finding of sales at less than fair value, the matter is referred to the International Trade Commission. The Commission must then determine whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the less than fair value sales. If the Commission makes an affirmative finding of injury or likelihood of an injury, the Secretary of the Treasury must publish in the Federal Register notice of his determination as well as the findings of the Commission. Under the Antidumping Act these administrative decisions comprise the "dumping findings." As a consequence of the finding of "dumping," the imported merchandise is assessed with additional duties.

Specifically, when a dumping finding has been published, all imported unappraised merchandise described in the finding, and entered or withdrawn from the warehouse for consumption not more than 120 days before the question was presented to the Secretary, is subject to assessment of a special dumping duty. The special dumping duty is about equal to the difference between the purchase price or exporter's sales price, and the foreign market values.

In this action, after receipt of the plaintiff's complaint, the Secretary of the Treasury initiated an investigation which resulted in the publication of a determination that sales of portable electric typewriters from Japan were being or were likely to be sold at less than fair value. Thereupon the International Trade Commission conducted its investigation and rendered a negative determination, i. e., that an industry in the United States is not being or likely to be injured, or prevented from being established, by reason of the less than fair value sales. In summary, the Commission reached a negative injury determination, and therefore no dumping finding was published.

One of the issues before the court is whether it has subject matter jurisdiction of an action brought by an American manufacturer challenging the correctness of a negative injury determination made by the International Trade Commission under the Antidumping Act of 1921, as amended.

This jurisdictional question, plaintiff's counsel asserts, is of "great significance not just to the plaintiff herein, but to the entire community of American manufacturers which have invoked or may invoke in the future the remedies provided by the Antidumping Act." Furthermore, plaintiff states that if the court decides affirmatively on the jurisdictional question, then a three-judge panel should also be impaneled to decide the substantive question whether the International Trade Commission, in reaching a negative injury determination, misconstrued and misapplied the pertinent statutes.

Defendant concurs in plaintiff's motion for a three-judge panel on the jurisdictional question, but it opposes assigning a three-judge panel to hear and determine the merits of the action. The party-in-interest, Brother International Corporation, the importer of record and consignee of the imported merchandise, agrees with defendant's position.

While defendant agrees that a three-judge panel should be designated by the chief judge to decide the jurisdictional issue, it emphasizes that plaintiff has made no showing that a decision on the merits would have "broad or significant implications in the administration or interpretation of the customs laws" within the statutory provision.

Apart from the assertion that the jurisdictional question is of great significance "to the entire community of American manufacturers," no other reason is stated in any of the briefs of the parties to support the request for a three-judge panel.

Under the provisions of section 255(a) the chief judge is authorized to designate a three-judge panel if he finds the conditions set forth in either of its two subdivisions. Pursuant to subdivision (1) the chief judge must find that the action raises an issue of constitutionality. Under subdivision (2) he must find that the case "has broad or significant implications in the administration or interpretation of the customs laws." Clearly, therefore, a party requesting a three-judge panel must establish the facts which warrant the finding.

An application for a three-judge panel under subdivision (2) should not be granted unless special or exceptional circumstances indicate that the action has "broad or significant implications in the administration or interpretation of the customs laws." Surely it is not a sufficient reason to designate a three-judge panel that a case, by virtue of its precedential value, will affect other parties similarly situated. Even if the request is unopposed, the chief judge still must determine if the circumstances warrant impaneling a three-judge panel. See United Merchants, Inc. v. United States, 328 F.Supp. 1403, 67 Cust.Ct. 601, C.R.D. 71-2 (1971).

It is to be noted that 28 U.S.C. § 255 (1970) which provides for "Three-judge trials" is an exception to a primary objective of the Customs Courts Act of...