United States v. Watson

• Decision Date: 26 July 1979
• Docket Number: Appeal No. 79-17.
• Citation: 603 F.2d 192
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: The UNITED STATES, Petitioner, v. James L. WATSON, Judge, United States Customs Court, Respondent; Michelin Tire Corporation, Respondent-Party-In-Interest.

603 F.2d 192

The UNITED STATES, Petitioner, v. James L. WATSON, Judge, United States Customs Court, Respondent Michelin Tire Corporation, Respondent-Party-In-Interest.

Appeal No. 79-17.

United States Court of Customs and Patent Appeals.

July 26, 1979.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Joseph I. Liebman, Sidney N. Weiss, New York City, for the United States.

Paul Windels, Jr., John Y. Taggart, New York City, attorneys of record, for appellee; Windels, Marx, Davies & Ives, New York City, of counsel.

Before MARKEY, Chief Judge, RICH, BALDWIN and MILLER, Associate Judges, and LUMBARD,^* Circuit Judge.

MARKEY, Chief Judge.

The importer, Michelin Tire Corporation (Michelin) challenged a Treasury Department decision to assess countervailing duties against X-radial steel belted tires manufactured by Michelin Tire Manufacturing Company of Canada, Ltd. (Michelin of Canada).

The Government here seeks writs of mandamus and prohibition, (1) requiring the Customs Court to limit its review of the decision to the administrative record and (2) prohibiting the conduct of a trial de novo. The Government also appeals, in effect, from the denial of its motion for summary judgment.

We deny the writs, as inappropriate in the present circumstances, and dismiss the appeal for lack of jurisdiction.

Background

In 1972, the Rubber Manufacturers Association filed a then-anonymous complaint with the Treasury Department, asserting that certain benefits received by Michelin of Canada under a regional development program of the Canadian government, necessitated imposition of countervailing duties under section 303 of the Tariff Act of 1930, 19 U.S.C. § 1303 (1970).¹ Neither an unfair competitive advantage nor an injury to domestic interests was asserted. Treasury instituted a countervail proceeding, described by Michelin as the first against a specified company and its product rather than against all recipients of a benefit, the first concerned with a regional development program of general applicability, the first in which a complainant's constituents participated in that very program, and the first in which complainants' identity was initially secret.

On January 4, 1973, the Secretary of the Treasury (Secretary) assessed the requested countervailing duties, having determined that Michelin of Canada received bounties or grants under section 303. T.D. 73-10. On September 26, 1975, Michelin filed suit in the Customs Court, contesting the denial of its protest against the assessment. Michelin alleged that the Secretary erred, because Michelin of Canada had not received a bounty or grant, and that the Secretary's decision was improperly influenced by illegal contributions of domestic tire manufacturers to the Committee to Reelect the President.²

Claiming that Michelin was not entitled to a trial de novo on the Secretary's decision, but was limited to a review of the administrative record, the Government moved for summary judgment, saying there were no material facts in issue.³ Michelin responded that the "administrative record" was a fabrication, created long after the Secretary's decision by Justice Department lawyers responding to a motion to produce,⁴ and that there were material fact issues. The court denied the motion, Michelin Tire Corp. v. United States, 82 Cust.Ct. ___, C.R.D. 79-6, 469 F.Supp. 270 (1979), and the Government filed the present petition.

Issues

The issues are (1) whether there is a necessity for writs prohibiting the conduct of a trial de novo and limiting the scope of review to consideration of the administrative record in this case, and (2) whether this court should at this time issue an order directing grant of the Government's motion for summary judgment.⁵

OPINION

(1) The Extraordinary Writ

(a) Basic Considerations

Neither the general rule limiting the appellate function to review of final judgments, nor the statute so limiting our appellate function, 28 U.S.C. § 2601(a) (1976)⁶, can be evaded by use of an extraordinary writ in order to avoid delay entailing hardship, inconvenience, or an unnecessary trial. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383-84, 74 S.Ct. 145, 98 L.Ed. 106 (1953). The drastic nature of the writ dictates that it be issued only in extraordinary circumstances.

Traditionally, the writs here sought have been employed only when it appeared incumbent upon an appellate court "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). A writ may be the only available antidote to an attempted exercise of a non-existent jurisdiction, United States v. Boe, C.A.D. 1177, 543 F.2d 151, 64 CCPA 11 (1976), or it may be a needed and necessary remedy under circumstances amounting to a judicial "usurpation of power." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).⁷

Though a narrowly or technically defined "jurisdiction" may not foreclose mandamus, Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976), the writ will not issue to cure the mere commission of reversible error, Banker's Life & Casualty Co. v. Holland, supra, 346 U.S. at 382-83, 74 S.Ct. 145; and a petitioner must demonstrate (1) the absence of any other adequate means to obtain relief, and (2) a "clear and indisputable" right to the writ, Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. 2119.

The Supreme Court has recently cast doubt on use of the writ of mandamus to cure a mere abuse of discretion:

Although the District Court's exercise of its discretion may be subject to review and modification in a proper interlocutory appeal, cf. Landis v. North American Co., 299 U.S. 248, at 256-259, 57 S.Ct. 163, 81 L.Ed. 153, we are convinced that it ought not to be overridden by a writ of mandamus.7 Where a matter is committed to the discretion of a district court, it cannot be said that a litigant's right to a particular result is "clear and indisputable."

7 Although in at least one instance we approved the issuance of the writ upon a mere showing of abuse of discretion, La Buy v. Howes Leather Co., 352 U.S. 249, 257, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), we warned soon thereafter against the dangers of such a practice. "Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as `abuse of discretion' and `want of power' into interlocutory review of nonappealable orders on the mere ground that they may be erroneous." Will v. United States, 389 U.S. 90, 98 n.6, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

* * * * * *

Will v. Calvert Fire Insurance Co., 437 U.S. 655, 665-66 & n.7, 98 S.Ct. 2552, 2559, 57 L.Ed.2d 504 (1978) (footnote 8 omitted).

Concerning the applicability of statutory and common law jurisdictional standards, this court recently expressed the view that a writ may issue only when the challenged action is "so plainly wrong as to indicate failure to comprehend or refusal to be guided by unambiguous provisions of a statute or settled common law doctrine. If a rational and substantial legal argument can be made in support of the questionable jurisdictional ruling, the case is not appropriate for mandamus * * *." Formica Corp. v. Lefkowitz, 590 F.2d 915, 921, 200 USPQ 641, 646 (CCPA), cert. denied, ___ U.S. ___, 99 S.Ct. 2838, 61 L.Ed.2d 284, 202 USPQ 159 (1979) (quoting American Airlines, Inc. v. Forman, 204 F.2d 230, 232 (3rd Cir.), cert. denied, 346 U.S. 806, 74 S.Ct. 54, 98 L.Ed. 336 (1953)).⁸

(b) The Present Case

Application of the foregoing considerations to the present record reflects the absence of a basis for exercise of our discretion to grant the requested writs. That the Government may suffer hardship, inconvenience, or an unusually complex trial, provides no such basis. There is no challenge to the jurisdiction of the Customs Court over either persons or subject matter, and thus no need to confine that court to its prescribed jurisdiction or to order an exercise thereof.⁹ If de novo conduct of the trial herein be error, that procedural error would not alone support mandamus. The Government has not demonstrated absence of other means to obtain relief from an action so extraordinary as to give it a clear and indisputable right to the writs. An abuse of discretion, if it had here occurred, would not alone warrant mandamus. There are no statutory provisions and no common law doctrines setting forth the nature or scope of the review of countervailing duty assessments in the Customs Court; hence there can be no failure to comprehend or refusal to be guided by statute or legal doctrine.

Finally, if it be assumed that an election between review de novo and review on the administrative record constitutes a questionable "jurisdictional ruling," the case would remain inappropriate for mandamus. Congress having supplied no guidelines or criteria for determining what constitutes a "bounty" and what does not, having made no requirement that the Secretary hold a hearing or make a record for review, or that the Administrative Procedure Act be applied, and having provided no definition of the nature of the judicial review to be conducted in countervailing duty cases, "rational and substantial legal arguments" can be made in support of both review de novo and review on an administrative record. The briefs before us on this petition contain numerous such arguments.

We indicate no view respecting the merit or propriety of either scope of review. Our limited holding is that mandamus will not lie, in the present unsettled state of the law, to prevent review of a countervailing duty determination through the mechanism of a trial de novo in this case.¹⁰

(2) Motion For Summary Judgment

The Government incorporates in its petition for...