Sprague Elec. Co. v. United States

• Decision Date: 27 March 1980
• Docket Number: Court No. 77-9-03056.,C.R.D. 80-3
• Citation: 488 F. Supp. 910,84 Cust. Ct. 243
• Parties: SPRAGUE ELECTRIC COMPANY, Plaintiff, v. UNITED STATES (Capar Components Corp., Party-In-Interest), Defendant.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

488 F. Supp. 910

84 Cust. Ct. 243

SPRAGUE ELECTRIC COMPANY, Plaintiff, v. UNITED STATES (Capar Components Corp., Party-In-Interest), Defendant.

C.R.D. 80-3; Court No. 77-9-03056.

United States Customs Court.

March 27, 1980.

Frederick L. Ikenson, Washington, D. C., for plaintiff.

Alice Daniel, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, Commercial Litigation Branch, Joseph I. Liebman, Attorney in Charge, Customs Litigation, and Sidney N. Weiss, Trial Atty., New York City, for defendant.

NEWMAN, Judge:

INTRODUCTION

Plaintiff, an American manufacturer of tantalum electrolytic fixed capacitors, challenges the negative injury determination of the United States International Trade Commission ("Commission") in Investigation No. AA1921-159 (41 FR 47604 (1976)), under the Antidumping Act of 1921, as amended (19 U.S.C. § 160 et seq. (1970)). That investigation involved tantalum electrolytic fixed capacitors imported from Japan which the Department of the Treasury ("Treasury") had determined were being or were likely to be sold in the United States at less than fair value ("LTFV") within the meaning of the Antidumping Act, as amended. This suit has been brought under the provisions of 28 U.S.C. § 1582(b) (1976), 28 U.S.C. § 2632(a) (1976) and 19 U.S.C. § 1516(c) (1976).

Capar Components Corp., the party in interest, is the consignee in New York seaport consumption entry No. K XXXXXX-XX of August 5, 1977 who imported tantalum electrolytic fixed capacitors from Japan without assessment of antidumping duties, and who has been made a party pursuant to 19 U.S.C. § 1516(c) (1976). Under 19 U.S.C. § 1516(f) (1976), the consignee or his agent has the right to appear and be heard as a party in interest in an action brought by an American manufacturer pursuant to section 1516. However, Capar Components Corp. has not participated in the defense of this case.

Presently before the Court are plaintiff's motion and the Government's cross-motion for summary judgment. For the reasons that follow, proceedings in this action shall be stayed pending reconsideration by the Commission of its negative determination in Investigation No. AA1921-159.

BACKGROUND

The pertinent facts concerning the administrative proceedings leading to the initiation of this action are undisputed, and may be summarized chronologically:

1. On September 24, 1975 plaintiff, through counsel, submitted a complaint to the Commissioner of Customs alleging that tantalum electrolytic fixed capacitors from Japan were being sold at LTFV within the meaning of the Antidumping Act of 1921, as amended.

2. On October 17, 1975 Treasury issued a notice that an investigation had been instituted to determine whether tantalum electrolytic fixed capacitors from Japan were being or were likely to be sold at LTFV (40 FR 48702).

3. On April 23, 1976 a Withholding of Appraisement Notice covering tantalum electrolytic fixed capacitors from Japan issued by Treasury was published in the Federal Register (41 FR 16983).

4. On July 27, 1976 an affirmative Determination of Sales at LTFV covering tantalum electrolytic fixed capacitors from Japan (other than those produced and sold by Matsushita Electric Industrial Co., Ltd.) was issued by Treasury and published in the Federal Register (41 FR 31240).

5. On August 3, 1976 the Commission instituted Investigation No. AA1921-159 to determine whether an industry in the United States was being or was likely to be injured, or prevented from being established, by reason of the importation of tantalum electrolytic fixed capacitors from Japan at LTFV. Notice of the institution of the investigation and of the public hearing was published in the Federal Register on August 9, 1976 (41 FR 33337).

6. On October 22, 1976 the Commission, by a vote of 5 to 1, reached a negative determination, viz., the Commission majority determined that an industry in the United States was not being and was not likely to be injured, or prevented from being established by reason of the imports at LTFV. The decision, together with a Statement of Reasons, was published in the Federal Register on October 29, 1976 (41 FR 47604). The Commission stated that in arriving at its determination, it "gave due consideration to written submissions from interested parties, evidence adduced at the hearing, and all factual information obtained by the Commission's staff from questionnaires, personal interviews and other sources" (id).

7. During the Commission's investigation, counsel for plaintiff informed the Commission at the hearing held on September 8, 1976 of the likelihood that the import statistics for tantalum electrolytic fixed capacitors from Japan were inaccurate and underrepresented the true volume of such imports. Document No. 52 at 30-31, hearing transcript (PUBLIC).

8. On June 13, 1977, after the Commission announced its negative determination in this case, the Commission was informed by its Director of Industries that the investigation was "yet another example of substantially erroneous official import statistics being used by the Commission and its staff during the course of public investigations". The Foreign Trade Division of the Bureau of the Census conducted an investigation of the accuracy of import statistics for tantalum electrolytic fixed capacitors from Japan by calendar quarters for 1975 through mid-1977. The investigation showed that for 1975 the actual volume of such imports was 21,814,079 units, whereas the erroneously reported volume of such imports during 1975, upon which the Commission relied, was 14,948,243 units. This translates into an increase in market penetration from 4.6 percent to 6.6 percent. Further, the investigation showed that for the first half of 1976 the actual volume of such imports was 19,328,083 units, whereas the erroneously reported volume of such imports during this period upon which the Commission relied was 13,769,411 units.

9. On July 21, 1978 the Commission's General Counsel raised with the Commission the possibility of reconsidering its determination in light of the erroneous import statistics relied upon by the Commission and its staff.

10. On August 22, 1978 the Commission published in the Federal Register notice of the erroneous import statistics and invited the public to comment upon "whether the Commission's reliance on erroneous official statistics justifies further Commission action with respect to its determination in Investigation No. AA1921-159" (43 FR 37233).

11. On February 9, 1979 the Commission published notice in the Federal Register that no further action would be taken with respect to its negative determination in Investigation No. AA1921-159 (44 FR 8359). No reason was given by the Commission for not taking further action.

No question is presented concerning plaintiff's compliance with the administrative prerequisites to the initiation of a civil action prescribed by 19 U.S.C. § 1516(a) and (c).

During the discovery phase of this litigation, plaintiff sought, inter alia, production of "All documents and things in the files of the International Trade Commission and/or individual Commissioners, pertaining to the Commission Investigation No. AA1921-159 * * *". Defendant moved for a protective order prohibiting plaintiff from conducting discovery into matters beyond the Commission's notice of investigation and hearing (41 FR 33337-38 (1976)) and the Commission's negative injury determination and Statement of Reasons (41 FR 47604-07 (1976)). Defendant's motion was decided by this Court on June 27, 1978 culminating in an order which, in pertinent part, reads (80 Cust.Ct. 256, 257, C.R.D. 78-7 (1978)):

2. That the Secretary of the United States International Trade Commission, Kenneth R. Mason, shall prepare and transmit to Joseph E. Lombardi, Clerk of the United States Customs Court, on or before July 28, 1978, the following: (1) a certified copy of the transcript of proceedings and exhibits introduced before the Commission in investigation AA1921-159; (2) certified copies of all written submissions, questionnaires, reports and all other documents relating to investigation AA1921-159; and (3) all other things in the files of the Commission relating to the investigation. Cf. Judge Maletz' order in Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978), and also his unpublished order in the same case entered on May 8, 1978. See also my order in Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steelcraft Tools Division, Party-in-Interest), 80 Cust.Ct. 252, C.R.D. 78-5 (1978), entered concurrently herewith.

3. That denial of defendant's present motion for a protective order shall be without prejudice to renewal respecting any documents or things that were received by the Commission on a confidential basis or are otherwise privileged.

4. That the basis of this order is to enable the court to determine whether or not the Commission's finding of injury was, among other things, arbitrary, an abuse of discretion, or otherwise contrary to law. See, e. g., Camp v. Pitts, 411 U.S. 138 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Imbert Imports, Inc. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F.2d 1189 (1973); Suwannee Steamship Company v. United States, 79 Cust.Ct. 19, C.D. 4708, 435 F.Supp. 389 (1977); Cf. Dunlop v. Bachowski, 421 U.S. 560 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). See also questions and answers attached to the letter of Daniel Minchew, Chairman, United States International Trade Commission, November 16, 1977, reproduced in Hearing before the Subcommittee on Trade, House Committee on Ways and Means, on the Adequacy and the Administration of the Antidumping Act of 1921 (95th Cong., 1st Sess. 1977) pp. 65-66.

Pursuant to the foregoing order, as modified, the Secretary of the Commission transmitted what are represented to be all of the documents and...