Silver Reed America, Inc. v. United States, Court No. 83-10-01522.
| Decision Date | 04 January 1985 |
| Docket Number | Court No. 83-10-01522. |
| Citation | 600 F. Supp. 852,9 CIT 1 |
| Parties | SILVER REED AMERICA, INC. and Silver Seiko, Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Smith-Corona Group, Consumer Products Division, SCM Corporation, Intervenor. |
| Court | U.S. Court of International Trade |
Wald, Harkrader & Ross, Washington, D.C. (Christopher Dunn, William J. Clinton and William E. Shimer, Washington, D.C., of counsel), for plaintiffs.
Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., and Velta A. Melnbrencis, New York City, for defendant.
Stewart & Stewart, Washington, D.C. (Eugene L. Stewart, Terence P. Stewart and James R. Cannon, Jr., Washington, D.C., Edwin Silverstone, New York City, and Robert E. Walton, Washington, D.C., of counsel), for intervenor Smith-Corona Group, Consumer Products Division, SCM Corporation.
Tanaka, Walders & Ritger, Washington, D.C. (H. William Tanaka and Lawrence R. Walders, Washington, D.C., of counsel), for applicants Brother Industries, Ltd. and Brother International Corporation.
Introduction
Brother Industries, Ltd. and Brother International Corporation (collectively "Brother")1 seek intervention as a matter of right in accordance with 28 U.S.C. § 2631(j)(1)(B) and Rule 24(a)(1) of the rules of the Court. Annexed to Brother's motion to intervene is a proposed complaint contesting the final determination of the United States Department of Commerce, International Trade Administration (ITA) in its administrative review pursuant to section 751 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675 (section 751), of the antidumping duty order covering portable electric typewriters (PETs) from Japan. 48 Fed.Reg. 40761 (September 9, 1983).2 Specifically, Brother claims that ITA erred in its administrative review by applying the exporter's sales price (ESP) "offset cap" of 19 CFR § 353.15(c) in determining the foreign market value of Brother's PETs. Brother now seeks to intervene "for the limited purpose of obtaining an injunction against liquidation of its entries pending a final decision on the validity of the ESP offset cap and for redetermination of its sic foreign market value if the ESP offset cap is finally held to be invalid." Brother's motion at 4.
The Government and Smith-Corona Group, Consumer Products Division, SCM Corporation (SCM) oppose Brother's application, while Silver Reed America, Inc. and Silver Seiko, Ltd. (collectively "Silver")3 have not responded to Brother's application.
On September 9, 1983 ITA published the final results of its administrative review conducted pursuant to section 751 covering PETs from Japan exported to the United States by Brother Industries, Ltd., Silver Seiko, Ltd. and Nakajima All Co., Ltd. (Nakajima), 48 Fed.Reg. 40761. Brother participated in the section 751 review proceedings before ITA.
Silver commenced an action on October 11, 1983 under Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended ("the Act"), 19 U.S.C. § 1516a(a)(2)(B)(iii), contesting the results of ITA's section 751 review in several respects. Included in Silver's complaint is the claim that in calculating foreign market value, ITA erred by limiting the deduction of home market selling expenses to the amount of selling expenses in the United States pursuant to the ESP "offset cap" in 19 CFR § 353.15(c). Silver contends that the offset cap prescribed by the regulation is invalid.
Silver raised the same issue respecting the validity of the offset cap in an earlier action, Court No. 80-6-00934, contesting ITA's final affirmative determination of sales at less than fair value and the antidumping duty order covering PETs from Japan (Silver I). In Silver Reed America, Inc. v. United States, 7 CIT ___, 581 F.Supp. 1290 (1984), CAFC Appeal No. 84-1118 pending, this Court sustained Silver's contention finding the ESP offset cap invalid and remanded to ITA for redetermination of the offset adjustment in conformance with the Court's decision. By order of March 9, 1984 this Court granted defendant's motion for a stay of the remand, and on March 16, 1984 granted SCM's motion for certification of the ESP offset cap question for immediate appeal. Thereafter, on April 5, 1984 the Court of Appeals for the Federal Circuit granted SCM permission to file an immediate appeal; on April 17, 1984 SCM filed its appeal (CAFC Appeal No. 84-1118), which is now pending.4
Following successful litigation on the merits in Silver I, the stay of the remand, and pending SCM's appeal, Silver sought to enjoin liquidation of its entries covered by the May 9, 1980 antidumping duty order from January 4, 1980 (the date liquidation was first suspended) to the date notice of this Court's final judgment in that action is published or until final disposition on appeal. In due course, Silver's motion for injunctive relief was granted by opinion and order dated June 21, 1984. 7 CIT ___, 590 F.Supp. 1254. On September 27, 1984 Brother moved to intervene in Silver I for the sole purpose of seeking to enjoin liquidation of its entries — the very reason that Brother has given in its present application. Recently, on December 20, 1984, this Court granted Brother's application to intervene in Silver I. 7 CIT ___, 600 F.Supp. 846.
SCM commenced its own action, Court No. 83-10-01463, to contest the results of ITA's section 751 review of the antidumping duty order covering PETs from Japan. The gravamen of SCM's complaint is that ITA erred in permitting adjustments for differences in circumstances of sales notwithstanding information that differences in prices in the United States and Japanese markets were not due to the claimed differences in circumstances of sale. Consequently, it is SCM's contention that ITA's determination was contrary to section 773(a)(4) of the Act, 19 U.S.C. § 1677b(a)(4) and 19 CFR § 353.15(a).
On December 14, 1983 Brother moved to intervene in SCM's action on the side of the Government to defend ITA's final results against the allegations in SCM's complaint to the extent that those allegtions affected Brother's PETs. Significantly, as more fully discussed below, Brother intervened in SCM's action well after the thirty days within which it could have challenged ITA's final results of September 9, 1983 had it contested those results in its own case under section 516A(a)(2), 19 U.S.C. § 1516a(a)(2). Hence, in SCM's action Brother did not — and could not — raise any issue respecting the ESP offset cap question which was not then raised by the existing parties. By order of January 5, 1984 Brother's motion to intervene in SCM's action was granted. Silver and Nakajima similarly intervened in SCM's case to uphold ITA's final results.
On November 28, 1983 Silver moved to consolidate SCM's action, Court No. 83-10-01463, with its own action, Court No. 83-10-01522. Silver's motion was granted on December 20, 1983 and both actions challenging the results of ITA's section 751 review are sub judice in Consolidated Court No. 83-10-01522.
By its motion of September 27, 1984, presently before the Court, Brother now seeks intervention in Silver's action. As noted above, Brother's application is opposed by defendant and SCM. Silver has not responded to Brother's application.
Defendant argues that Brother's motion should be denied because it is untimely and would prejudice the existing parties by enlarging the scope of the action to encompass entries of Brother's PETs. Moreover, defendant insists that Brother's proposed claim concerning the validity of the offset cap is barred since Brother failed to institute its own action contesting ITA's final results within the thirty day period provided by 19 U.S.C. § 1516a(a)(2). Lastly, defendant asserts that Brother has already intervened in the consolidated action on the side of the Government in defense of ITA's final results and must now be deemed to have waived its ground for challenging ITA's determination.
SCM agrees with defendant that Brother's motion should be denied to the extent that Brother seeks to extend the scope of the action to encompass entries of Brother's PETs not currently at issue.
Brother insists that its intervention under 28 U.S.C. § 2631(j)(1)(B) is a matter of right and must be granted absent prejudice to the present parties. Further, Brother maintains that intervention at this point will not prejudice the parties since no new issues are raised by its proposed complaint and because Brother does not seek to otherwise interfere with the progress of this case.
For the reasons that follow, Brother's motion to intervene is granted.
As mentioned above, defendant contends that Brother's motion should be denied as untimely. In this connection, defendant points up that Brother's motion was brought more than an entire year after the publication of ITA's final results that are challenged here.
Initially, it should be noted that Brother has moved to intervene as a matter of right pursuant to 28 U.S.C. § 2631(j)(1)(B)5 and that statute imposes no definitive deadline on intervention. Nevertheless, under Court of International Trade Rule 24(a), an application to intervene as of right must be "timely", and "timeliness is to be determined from all the circumstances". NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648 (1972).
Brother's application finds support in Sumitomo Metal Industries, Ltd. v. Babcock & Wilcox Co., 669 F.2d 703 (CCPA 1982) where Judge Nies writing for our Appellate Court observed that:
Prejudice to existing parties to the litigation is "perhaps the most important factor in determining timeliness of an application to intervene as of right." Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005, 1010 (CA 9, 1981). Accord, McDonald v. E.J. Lavino Co. 430 F.2d 1065, 1072 (CA 5, 1970) . Accordingly, the prejudice which existing parties to the litigation may...
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