Smith Corona Group v. United States

• Decision Date: 07 August 1984
• Docket Number: Court No. 84-1-00046.
• Citation: 593 F. Supp. 415,8 CIT 100
• Parties: SMITH CORONA GROUP, SCM Corporation, Plaintiff, v. The UNITED STATES, Defendant, and Brother Industries, Ltd., and Brother International Corporation, Intervenors.
• Court: U.S. Court of International Trade

593 F. Supp. 415

8 CIT 100

SMITH CORONA GROUP, SCM Corporation, Plaintiff, v. The UNITED STATES, Defendant, and Brother Industries, Ltd., and Brother International Corporation, Intervenors.

Court No. 84-1-00046.

United States Court of International Trade.

August 7, 1984.

Stewart & Stewart (Eugene L. Stewart, Terence P. Stewart, and James R. Cannon, Jr.), Washington, D.C., for plaintiff.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, and Velta A. Melnbrencis, New York City, for defendants.

Tanaka, Walders & Ritger (H. William Tanaka and Lawrence R. Walders), Washington, D.C., for defendants-intervenors.

OPINION AND ORDER

RESTANI, Judge:

Defendants-intervenors, Brother Industries, Ltd. and Brother International Corporation ("Brother"),¹ move pursuant to Rule 12(b)(1) to dismiss plaintiff's action for review of a December 16, 1983 letter ruling in which the United States Department of Commerce Department ("Commerce") decided to exclude the Brother EP-20 personal electronic printer ("EP 20") from the scope of an antidumping duty order on personal electronic typewriters ("PETS"). Plaintiff, Smith Corona Group of SCM Corporation ("SCM"), a domestic manufacturer of PETS, instituted this action on January 13, 1984, predicating subject matter jurisdiction on section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (1982) and 28 U.S.C. § 1581(c) (1982), and alternatively upon 28 U.S.C. § 1581(i) (1982) and 5 U.S.C. §§ 701-706 (1982).

In this motion Brother challenges the existence of subject matter jurisdiction which would support judicial review of the disputed decisions. Defendant United States asserts that there is jurisdiction under 28 U.S.C. § 1581(i).

Facts

On April 9, 1979 SCM filed a dumping petition with the United States Department of the Treasury alleging the sale of PETS from Japan at less than fair value.² On May 9, 1980, Commerce published an antidumping order regarding PETS from Japan.³ On March 16, 1981, Commerce published a notice of intent to conduct administrative reviews of certain antidumping findings and orders pursuant to section 751 of the Tariff Act, as amended 19 U.S.C. § 1675 (1982),⁴ after which Commerce began a series of annual reviews ("751 reviews") concerning PETS exported by various Japanese producers.⁵ In these 751 reviews, Commerce considered whether certain Brother models other than the EP-20 were within the scope of the antidumping duty order.

On June 29, 1982, Brother requested a ruling from Commerce that their product model EP-20 was not covered by the out standing antidumping duty order covering PETS from Japan. Brother attached to its request a ruling by Customs⁶ holding that for purposes of classification, the EP-20 would not be considered a typewriter, but rather, would be classifiable under a tariff provision for calculating machines because it contained a calculating function. On July 7, 1982, Commerce responded by issuing a letter to Brother's counsel in which it held the model EP-20 to be "outside the scope of the antidumping duty order on PETS from Japan." Commerce issued its decision based upon a description of the EP-20 and Customs Service Ruling 803148, which Brother had attached to its letter requesting a Commerce ruling relating to the EP-20.

After discovery of Commerce's July 7, 1982 letter⁷ counsel for SCM requested on June 2, 1983 that Commerce re-open the issue of whether the EP-20 is within the scope of the outstanding antidumping duty order and permit submission of evidence and written views concerning the EP-20.⁸ On July 13, 1983, plaintiff submitted its written request for reconsideration of the decision by Commerce that the EP-20 was excluded from the outstanding dumping order. In its written submission, plaintiff specifically requested that Commerce consider the subject issue within the context of the then ongoing 751 review.⁹

Despite SCM's request, and despite the fact that the agency had considered the issue of coverage of the outstanding order with respect to several other machines in the context of 751 review proceedings, it did not issue the ruling on the EP-20 in the context of the then ongoing 751 review, which ruling has since been published.¹⁰

Thereafter, on September 30, 1983, plaintiff submitted additional evidence concerning the scope of the dumping order with respect to the EP-20.¹¹ Rather than holding its ruling on the issue until issuance of a determination in the May 1981 — May 1982 751 review,¹² Commerce issued a letter ruling on December 16, 1983, in which it reaffirmed its decision to exclude the Brother EP-20 from the scope of the antidumping duty order.

Jurisdiction

Plaintiff has the burden of demonstrating that jurisdiction exists. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 188-89, 56 S.Ct. 780, 784-85, 80 L.Ed. 1135 (1936) cited with approval in United States v. Biehl, 3 C.I.T. 158, 160, 539 F.Supp. 1218, 1220 (1982); see also Vivitar Corporation v. United States, 7 C.I.T. ___, 585 F.Supp. 1419 at 1422 (1984); 718 Fifth Avenue Corporation v. United States, 7 C.I.T. ___, Slip Op. 84-39 at 3 (April 13, 1984). For the following reasons, we find that SCM has met its jurisdictional burden.

The parties are in agreement that 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. 1516a(a)(2)(B)(iii) ("§ 516A") does not support subject matter jurisdiction in this matter. The contested letter is not a determination reviewable under § 516A because neither the decision nor a notice thereof has been published, and because the decision was neither made in nor directly or impliedly incorporated into a 751 review determination under 19 U.S.C. § 1675(a). Consequently, the decision cannot be challenged in this court pursuant to § 516A. Compare Smith-Corona Group, Consumer Products Division, SCM Corporation v. United States, 1 C.I.T. 89, 507 F.Supp. 1015 (1980). The end result is simply that, since Commerce's decision is not reviewable under § 516A, 28 U.S.C. § 1581(c)¹³ does not provide this court with jurisdiction.

In contrast, the court finds that jurisdiction of this action is supported by plaintiff's alternate basis, i.e. 28 U.S.C. § 1581(i).¹⁴ Brother argues that the letter at issue is not reviewable pursuant to 28 U.S.C. § 1581(i) because it is a "preliminary administrative action" which "will be, directly or by implication, incorporated in or superseded by" a 751 review determination. Brother relies on language from a House Committee Report,¹⁵ on various cases in which section 1581(i) jurisdiction was found to be inappropriate,¹⁶ and on distinctions it attempts to draw between those cases in which section 1581(i) successfully served as a basis for subject matter jurisdiction and the present case.

The facts before us present an appropriate case for subject matter jurisdiction under section 1581(i). As government counsel points out, since Commerce has decided that the EP-20 is outside the scope of the outstanding dumping order covering PETS from Japan,¹⁷ the agency is not including the EP-20 in its proceedings to review that order and is not ordering the Customs Service to suspend the liquidation of entries of the EP-20 pending the publication of any 751 review determination. It is true that the question of a dumping order's scope may be treated in 751 review proceedings. See, e.g., Diversified Products Corp. v. United States, 6 C.I.T. ___, 572 F.Supp. 883 (1983). However, the specific decision challenged here in all likelihood will not be considered by Commerce in a 751 review, so that there will not be a determination reviewable under § 516A.¹⁸

Because the parties agree that § 516A, as amended does not provide jurisdiction in the present case, and since plaintiff is left with an action concerning a final Commerce decision which relates to an antidumping order, which decision should be reviewable but which is not and will not be judicially reviewable by the traditional method, the court's broad residual jurisdiction under 28 U.S.C. § 1581(i) may be invoked. See Sacilor Acieries et Laminoirs de Lorraine v. United States, 3 C.I.T. 191, 193, 542 F.Supp. 1020, 1023 (1982), ("the specific grant in section 1581(c) of jurisdiction over actions commenced under section 516A of the Tariff Act of 1930, that is to say, those reviews specially provided for at various stages of the administration of the antidumping and countervailing duty laws, does not preclude jurisdiction over other actions which can arise from those laws ..."). In addition, the Court of Appeals for the Federal Circuit also has recognized the principle that § 516A is not the exclusive remedy for all grievances arising from the administration of the antidumping law. Royal Business Machines, Inc. v. United States, 69 C.C.P.A. 106, 669 F.2d 692, 701 (1982) (citing H.R.Rep. No. 1235, 96th Cong., 2d Sess. 33, 47, 48 (1980) (Subsection (i)(4) of 28 U.S.C. § 1581 makes it clear that "the court is not prohibited from entertaining a civil action relating to an antidumping or countervailing duty proceeding so long as the action does not involve a challenge to a determination specified in section 516A of the Tariff Act of 1930.")). Royal Business Machines dealt with § 1581(i) jurisdiction in the case of a challenge to a determination of the scope of an antidumping order. The court found the determination not reviewable because the merchandise at issue was specifically referenced in the final determination of the agency. Therefore, the appellant should have challenged the scope determination by properly seeking review of the original antidumping determination under § 516A instead of requesting clarification of scope and then seeking review of the agency's clarifying decision under § 1581(i). But in addressing § 1581(i) jurisdiction, the court stated at 669 F.2d 702, "unless there is an express factual finding or legal conclusion with respect to the...