Timken Co. v. Simon

• Decision Date: 07 July 1976
• Docket Number: No. 75-1177,75-1177
• Citation: 176 U.S.App.D.C. 219,539 F.2d 221
• Parties: , 176 U.S.App.D.C. 219 The TIMKEN COMPANY v. William E. SIMON, Secretary of the Treasury, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 221

539 F.2d 221

1 ITRD 1541, 176 U.S.App.D.C. 219

The TIMKEN COMPANY v. William E. SIMON, Secretary of the Treasury, et al., Appellants.

No. 75-1177.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 20, 1976.

Decided July 7, 1976.

Ronald R. Glancz, Atty., Dept. of Justice, Washington, D. C., with whom Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellants. Paul M. Tschirhart, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellants.

Frederick L. Ikenson, Washington, D. C., for appellee. Eugene L. Stewart, Washington, D. C., was on the brief for appellee.

Before McGOWAN and WILKEY, Circuit Judges, and ALBERT V. BRYAN, Jr., ^* United States District Judge for the Eastern District of Virginia.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

The District Court enjoined the Secretary of the Treasury from refusing to impose an "antidumping duty" on certain imported goods. On appeal, the Secretary challenges both the jurisdiction of the District Court over this customs-related matter and its view of his responsibilities under the Antidumping Act of 1921. For the reasons set forth below, we affirm.

I

The Antidumping Act of 1921, 19 U.S.C. §§ 160-73 (1970 and Supp. IV, 1974), was enacted "to prevent actual or threatened injury to a domestic industry resulting from the sale in the United States market of merchandise at prices lower than in the home market (country of origin)." J. C. Penney Co. v. Department of the Treasury, 319 F.Supp. 1023, 1024 (S.D.N.Y.1970), aff'd, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). Upon receiving a complaint that foreign goods are being "dumped," the Secretary is required to determine whether that class of foreign merchandise is being sold or is likely to be sold in the United States or elsewhere at less than its fair value (LTFV) the price on the home market. 19 U.S.C. § 160(a) (Supp. IV, 1974). If the Secretary makes an affirmative LTFV determination, he is required to advise the International Trade Commission (Commission), which in turn must notify the Secretary within three months whether an industry in the United States is being or is likely to be injured by reason of the LTFV sales. ¹ Id. If the Commission reaches an affirmative determination, the Secretary must publish in the Federal Register both his own and the Commission's determinations, which together comprise a "dumping finding" for purposes of the Act. Id.

Once a dumping finding has been published, all imported unappraised ² merchandise described in that finding, and entered, or withdrawn from warehouse, for consumption not more than 120 days before the question was presented to the Secretary, is subject to a special antidumping duty in the approximate amount of the difference between the price of the imported merchandise sold in the United States and the price of comparable merchandise sold in the home market. Id. § 161(a) (1970).

To prevent importations during the pendency of the dumping complaint from being appraised by customs officials and thus escaping subsequent imposition of an antidumping duty, Congress enacted a provisional remedy known as withholding of appraisement. Whenever the Secretary has reason to believe or suspect that a class or kind of merchandise is being dumped, he is required to publish notice of that fact, called a withholding notice, in the Federal Register and to authorize the withholding of appraisement of such merchandise "until the further order of the Secretary, or until the Secretary has made public a (dumping) finding." Id. § 160(b) (Supp. IV, 1974). Merchandise covered by a withholding notice can be released by customs officials only if a bond is filed to assure payment of any antidumping duties subsequently assessed. Id. § 167 (1970); 19 C.F.R. §§ 153.50-.51 (1975).

On October 31, 1973, The Timken Co. submitted a complaint that tapered roller bearings from Japan were being or were likely to be imported into the United States under circumstances justifying imposition of antidumping duties. After investigating Timken's complaint, the Treasury Department published on June 5, 1974 a notice indicating that there was reason to believe or suspect that dumping was occurring and directed the appropriate customs officials to withhold appraisement of tapered roller bearings from Japan. 39 Fed.Reg. 19969 (1974). On September 6 of that year, the Treasury Department published a determination that tapered roller bearings from Japan were being, or were likely to be, sold at less than fair value, id. at 32337, and so advised the Commission. On January 23, 1975, the Commission rendered an affirmative determination to the effect that "an industry in the United States is likely to be injured" by reason of the importation of LTFV tapered roller bearings from Japan. 40 Fed.Reg. 4366.

If the Secretary of the Treasury had promptly published the dumping finding, all tapered roller bearings imported from Japan in the future and all unappraised tapered roller bearings from Japan, entered, or withdrawn from warehouse, for consumption not more than 120 days before October 31, 1973 (the date the Treasury Department received Timken's complaint) would be subject to imposition of antidumping duties. ³ Thus, tapered Japanese roller bearings entered, or withdrawn from warehouse, for consumption after June 4, 1974 the date the Secretary directed the withholding of appraisement would be subject to imposition of antidumping duties since though they may have been released by customs officials pursuant to a bond they nevertheless remained unappraised. This case arises precisely because the Secretary did not follow that course of action. Instead of publishing the dumping finding immediately after the Commission reached its affirmative determination, the Secretary instead directed customs officials to appraise all Japanese tapered roller bearings that had been covered by the withholding notice, thus removing those entries from potential imposition of antidumping duties.

Timken then filed a complaint in the District Court seeking injunctive and declaratory relief, ⁴ asserting that the Secretary acted without statutory authority in ordering appraisement prior to publication of the dumping finding of those tapered roller bearings that had been covered by the withholding notice (the "subject entries"). On February 19, 1975 the District Court entered a permanent injunction requiring the Secretary to publish a finding of dumping forthwith and to withhold appraisement of the subject entries until after publication. The Secretary appeals from this final order. ⁵

II

The Government first argues that the District Court lacked jurisdiction to enter the challenged order in that exclusive jurisdiction over the subject matter of Timken's complaint is vested by statute in the Customs Court. The statute upon which the Government relies is 28 U.S.C. § 1582(b) (1970), ⁶ which provides:

The Customs Court shall have exclusive jurisdiction of civil actions brought by American manufacturers, producers, or wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended.

Section 516(a) provides that an American manufacturer may file a petition with the Secretary to challenge either the failure of the Secretary to assess dumping duties or the amount of the duty actually assessed. 19 U.S.C. § 1516(a) (Supp. IV, 1974). The Government informs us that if Timken had filed such a petition the Secretary would have denied it, Brief at 31 n. 14, thus triggering the provisions of section 516(c), which authorizes American manufacturers to notify the Secretary that they desire to contest his denial of the petition. Id. § 1516(c). Upon receipt of that notice the Secretary is required "thereafter (to) furnish the petitioner with such information as to entries . . . of such merchandise, entered after the publication of the Secretary at such ports of entry designated by the petitioner in his notice of desire to contest, as will enable the petitioner to contest the . . . rate of duty imposed upon or failure to assess . . . antidumping duties upon . . . such merchandise in the liquidation of one such entry at such port." Id.

We think Timken is clearly correct in asserting that the case before us is not a civil action brought pursuant to section 516. That section is designed to enable American manufacturers to challenge substantive decisions by the Secretary with respect to the need for or the amount of antidumping duties. The section is structured to enable the petitioning manufacturer to challenge one entry per port, and to use that entry as a vehicle to obtain Customs Court review of the merits of the Secretary's determination. While the matter is pending before the Customs Court, duties are assessed according to the decision of the Secretary, id. § 1516(e), and the Customs Court decision has prospective effect only, id. § 1516(g).

Of course, in bringing this action Timken hopes to have antidumping duties assessed on the entries that have been covered by the withholding notice. But that fact does not magically convert this action into a civil action brought pursuant to section 516. The gravamen of Timken's complaint is that the Secretary has acted beyond his statutory authority in revoking the withholding of appraisement notice and ordering appraisement of the subject entries prior to his publication of a dumping finding. If section 516 enabled Timken to get judicial review of that issue in the Customs Court, we would not hesitate to reverse the District Court's assertion of jurisdiction in this case. But the Government has been unable, both in its written submissions and at oral argument, to indicate how it is that Timken can get relief under section 516.

As outlined above, it is clear that section 516...