Smith Corona Corp. v. US

• Decision Date: 31 December 1987
• Docket Number: Court No. 87-02-00157.
• Citation: 678 F. Supp. 285,11 CIT 954
• Parties: SMITH CORONA CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and Brother Industries, Ltd., Brother International Corp., Nakajima All Co., Ltd., Canon Inc., Canon U.S.A., Inc., Silver Seiko, Ltd., Silver Reed America, Inc., Matsushita Electric Industrial Co., Ltd., Kyushu Matsushita Electric Industrial Co., Ltd. and Panasonic Company and Panasonic Industrial Company, Divisions of Matsushita Electric Corporation of America, Intervenors-Defendants.
• Court: U.S. Court of International Trade

678 F. Supp. 285

11 CIT 954

SMITH CORONA CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and Brother Industries, Ltd., Brother International Corp., Nakajima All Co., Ltd., Canon Inc., Canon U.S.A., Inc., Silver Seiko, Ltd., Silver Reed America, Inc., Matsushita Electric Industrial Co., Ltd., Kyushu Matsushita Electric Industrial Co., Ltd. and Panasonic Company and Panasonic Industrial Company, Divisions of Matsushita Electric Corporation of America, Intervenors-Defendants.

Court No. 87-02-00157.

United States Court of International Trade.

December 31, 1987.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and John M. Breen (Robert E. Walton, Smith Corona Corp., of counsel), for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis, and Office of the Deputy Chief Counsel for Import Admin., U.S. Dept. of Commerce, Deborah A. Persico, for defendant.

Tanaka Ritger & Middleton, H. William Tanaka, Patrick F. O'Leary and Alice L. Mattice, for intervenors-defendants Brother Industries, Ltd. and Brother Intern. Corp.

McDermott, Will & Emery, R. Sarah Compton, Kurt J. Olson and John H. Walsh and Patton, Boggs & Blow, Frank R. Samolis, Michael D. Esch and Jeffrey L. Turner and Benjamin L. Irvin, for intervenor-defendant Nakajima All Co., Ltd.

Covington & Burling, Harvey M. Applebaum and David R. Grace and Delson & Gordon, Norman Moloshok and Jeffrey M. Samberg, for intervenors-defendants Canon Inc. and Canon U.S.A., Inc.

Willkie Farr & Gallagher, Christopher Dunn and Zygmunt Jablonski, for intervenors-defendants Silver Seiko, Ltd. and Silver Reed America, Inc.

Weil, Gotshal & Manges, A. Paul Victor, Stuart M. Rosen and Charles H. Bayar, for intervenors-defendants Matsushita Elec. Indus. Co., Ltd., Kyushu Matsushita Elec. Indus. Co., Ltd. and Panasonic Co. and Panasonic Indus. Co., div. of Matsushita Elec. Corp. of America.

MEMORANDUM AND ORDER

AQUILINO, Judge:

In this action seeking judicial review of the final results of an antidumping-duty administrative review conducted by the International Trade Administration, U.S. Department of Commerce and reported sub nom. Portable Typewriters From Japan, 52 Fed.Reg. 1,504 (Jan. 14, 1987), intervenor-defendants Brother Industries, Ltd. and Brother International Corp. have interposed a motion to dismiss part of this action, while the plaintiff has moved for partial judgment on the administrative record and also seeks suspension of liquidation of entries of certain portable electronic typewriters claimed to be within the ambit of the administrative proceeding.

Background

Facts outlining earlier history of this proceeding are set forth in Smith Corona Group, SCM Corp. v. United States, 8 CIT 100, 100-02, 593 F.Supp. 415, 416-17 (1984). That action, CIT No. 84-01-00046, in which the plaintiff challenges a December 1983 letter ruling by the Commerce Department that the Brother model EP-20 typewriter is "not within the class or kind of merchandise covered by the antidumping duty order on portable electric typewriters from Japan", has been consolidated with this one.

The first seven counts of plaintiff's amended complaint take issue herein with the January 14, 1987 results of the administrative review of a May 9, 1980 antidumping-duty order covering portable electric typewriters ("PETs") of the Brother intervenor-defendants and of intervenor-defendants Silver Seiko, Ltd. and Silver Reed America, Inc. ("Silver S/RA"). Counts 8-10 contest the "scope" of that order, as per the following allegations, among others:

34. In the context of the subject annual review proceeding, various respondents made requests to have particular typewriters excluded from the scope of the antidumping duty order. The ITA considered the specific requests for exclusion of 92 model typewriters and laid down general principles regarding the scope of the order for application in subsequent annual review proceedings. 52 Fed.Reg. at 1504-1506.

35. ITA held that "automatic typewriters and typewriters with a calculating mechanism" were excluded from the scope of the underlying antidumping duty order on the basis of classification of imports under the Tariff Schedules of the United States. 52 Fed.Reg. at 1505.

ITA found that the original petition filed by Smith Corona, the underlying less-than-fair-value investigation, and the underlying injury investigation had specifically and intentionally excluded from the antidumping investigation all automatic typewriters and typewriters with a calculating mechanism.

The court, over the opposition of the Brother intervenor-defendants but not of either the defendant or Silver S/RA, has enjoined liquidation of PET entries at issue in counts 1-7. The court has also granted a consent motion to "bifurcate the issues" pursuant to which the plaintiff has interposed a motion for judgment on counts 8-10 on the administrative record. Defendant's response to this motion has been to propose a remand to the International Trade Administration ("ITA") "for reconsideration of its determination and publication of a revised determination with regard to portable electric typewriters incorporating calculators or text memory"¹ based upon the following rationale:

After reviewing the administrative record in this case along with arguments advanced by plaintiff in support of its motion for judgment upon the agency record, the ITA concedes that its determination that PETs incorporating calculators or text memory were specifically excluded from the original investigation and order is not supported by substantial evidence in the administrative record. Furthermore, Commerce concedes that its prior conclusion to the effect that under the criteria established in Diversified Products v. United States, 6 CIT 155, 572 F.Supp. 883, PETs incorporating calculators or text memory should be excluded from the scope of the outstanding antidumping duty order on portable electric typewriters from Japan is not supported by substantial evidence. Therefore, the Department requests that that part of this consolidated case which deals with the scope issue (the entire Court No. 84-1-00046 and Count 8 of the complaint in Court No. 87-02-00157) be remanded so that it can reconsider its scope determination and publish a revised scope determination which would be supported by substantial evidence in the administrative record.²

The intervenor-defendants take the position that the record does support the ITA's ruling(s) regarding their products, and, save Silver S/RA, they therefore pray that plaintiff's motion for partial judgment be denied.

Subsequent to the filing of defendant's response, the plaintiff sought an order to show cause why there should not be an immediate (1) remand to the ITA of the scope issue and (2) suspension of liquidation of "entries of all portable electric typewriters incorporating calculating devices or text memory and entered under item 676.07 or 676.25, Tariff Schedules of the United States".³ The latter relief is requested on the alternative grounds of the agency's own initiative or a preliminary injunction. A hearing was held on plaintiff's application for injunctive relief, which is opposed by the defendant and the intervenor-defendants.

I

As indicated above, the Brother intervenor-defendants have filed a motion to dismiss counts 8-10 of the complaint on the ground of lack of subject-matter jurisdiction. This motion, which has not been joined in by the other intervenor-defendants, is opposed by both the plaintiff and the defendant.

The gist of the motion is that the May 9, 1980 antidumping-duty order, 45 Fed.Reg. 30,613, "expressly excluded automatic typewriters and machines incorporating a calculating mechanism".⁴ It relies on Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007 (1980), aff'd, 669 F.2d 692 (CCPA 1982), and Alsthom Atlantique v. United States, 787 F.2d 565 (Fed.Cir.1986).

Neither case, however, warrants dismissal of the contested counts due to lack of jurisdiction. While Royal involved a challenge to the scope of the very same May 1980 order underlying this action, and while that action was indeed dismissed for lack of jurisdiction, the result was predicated upon a finding, affirmed on appeal, that the plaintiff's typewriter had been "included in the administrative investigations from their commencement until their ... final determinations"⁵ and thus the conclusion of law that the action had been commenced beyond the pertinent period of limitation.

Similarly, the court of appeals in Alsthom concluded that the merchandise in question had been covered by the original antidumping determination and that the plaintiff's challenge to its scope was too late and thus properly dismissed.

Here, the lapse of more than seven years since entry of the underlying order, during which time technology has not stood still, makes the instant motion facially appealing, but the court cannot overlook the fact that the typewriters in question did not exist in 1980⁶ and therefore could hardly have been "explicitly excluded" that year from the antidumping order. Moreover, both courts in Royal foresaw that

certain grievances may arise between the final determinations and the administrative review of the final determinations, under 19 U.S.C. § 1675 for which 19 U.S. C. § 1516a would be manifestly inadequate. In those instances, the right of action under 5 U.S.C. § 702 and the Court's broad residual jurisdiction under 28 U.S.C. § 1581(i) will serve to maintain the comprehensive system of judicial review established by the legislature.⁷

This foresight was confirmed in the 1984 action consolidated herein, where the Brother intervenor-defendants sought, unsuccessfully, dismissal for lack of subject-matter jurisdiction over the issue of exclusion of their EP-20 from this proceeding. See Smith Corona Group, SCM Corp. v. United...