UST, INC. v. United States

• Decision Date: 10 October 1986
• Docket Number: No. 86-08-00993.,86-08-00993.
• Citation: 10 CIT 648,648 F. Supp. 1
• Parties: UST, INC., and Tsubakimoto Chain Co., Plaintiffs, v. UNITED STATES; Malcolm Baldridge, Secretary of Commerce; Bruce S. Smart, Jr., Under Secretary of Commerce for International Trade; Paul Freedenberg, Acting Assistant Secretary of Commerce for Trade Administration; Gilbert L. Kaplan, Deputy Assistant Secretary for Import Administration; Leonard M. Shambon, Director, Office of Compliance, Defendants.
• Court: U.S. Court of International Trade

648 F. Supp. 1

10 CIT 648

UST, INC., and Tsubakimoto Chain Co., Plaintiffs, v. UNITED STATES; Malcolm Baldridge, Secretary of Commerce; Bruce S. Smart, Jr., Under Secretary of Commerce for International Trade; Paul Freedenberg, Acting Assistant Secretary of Commerce for Trade Administration; Gilbert L. Kaplan, Deputy Assistant Secretary for Import Administration; Leonard M. Shambon, Director, Office of Compliance, Defendants.

No. 86-08-00993.

United States Court of International Trade.

October 10, 1986.

Barnes, Richardson & Colburn (David A. Riggle, Chicago, Ill., on the motion), for plaintiffs.

Covington & Burling (Douglas E. Phillips, Washington, D.C., on the motion), for the defendant-intervenor.

Richard K. Willard, Asst. Atty. Gen., Washington, D.C. (Velta Melnbrencis, New York City, on the motion), for defendants.

MEMORANDUM OPINION

CARMAN, Judge.

Plaintiffs filed their summons and complaint and an order to show cause from this Court seeking to expedite this action by shortening defendant's time to answer, accelerating discovery, setting an early trial date, and determining whether or not a writ of mandamus should issue directing the defendant, United States, to complete an administrative review pursuant to § 751 of the Trade Agreements Act of 1979 as amended, 19 U.S.C. § 1675 (1984) (section 751 review) up to the date of tentative revocation. The order further sought immediate issuance of liquidation instructions as to plaintiffs for all periods on or after the tentative revocation as to plaintiffs with regard to the antidumping finding on roller chain, other than bicycle, from Japan. Plaintiff also seeks a temporary restraining order and preliminary injunction alleging irreparable harm if it is required to answer questionnaires issued by the International Trade Administration (ITA or Commerce) pursuant to a section 751 review with respect to plaintiffs for the periods subsequent to August 31, 1983. On the return date, the parties agreed to a schedule approved by the Court, and the answer of defendant United States was duly filed. Defendant-intervenors were permitted to intervene on September 23, 1986. Plaintiffs' time to respond to the questionnaire issued by the ITA was ultimately extended to October 10, 1986.

BACKGROUND

The facts as stipulated by the parties are substantially as follows:

Defendant United States has undertaken section 751 antidumping administrative reviews for three separate periods: December 1, 1979 — March 31, 1981; April 1, 1981 — August 31, 1983; April 1, 1985 — March 31, 1986, the latter having been requested by defendant-intervenor. On September 1, 1983, the Commerce Department published the preliminary results of the administrative review for the period December 1, 1979 through March 31, 1981 which included a tentative determination to revoke the dumping finding as to plaintiff, Tsubakimoto. The Department of Commerce has not yet issued final determinations for any of the review periods.

At the time of oral argument counsel for defendant United States made the following representations:

With regard to the period December 1, 1979 — March 31, 1981, Commerce intends to complete its review and publish the final results by October 20, 1986; for the period April 1, 1981 — August 31, 1983, Commerce intends to publish the preliminary results by October 20, 1986, and the final results by January 15, 1987.

With regard to the period April 1, 1985 — March 31, 1986, Commerce intends to publish its preliminary results by March 1, 1987, and the final results by June 30, 1987, if Commerce receives the response to the questionnaire submitted to plaintiff by the deadline set of September 29, 1986. Insofar as its final decision on plaintiff Tsubakimoto's request for revocation of the antidumping finding is concerned, Commerce intends to publish its final decision 30 days after it completes its review for the period April 1985 through March 31, 1986.

DISCUSSION

I. Jurisdiction

Plaintiffs contend that the Court has jurisdiction pursuant to 28 U.S.C. § 1581(i). They argue because an application for a writ of mandamus to compel the ITA to complete a section 751 review of a dumping finding is not an action for which judicial review of a determination may be made under section 516A of the Tariff Act of 1930 as amended, 19 U.S.C. § 1516a¹ the Court must perforce exercise jurisdiction under 28 U.S.C. § 1581(i).

Defendant argues that nowhere in 19 U.S.C. § 1516a did Congress provide for interlocutory judicial review of administrative delays pertaining to section 751 reviews. Furthermore, contends defendant, Congress granted to this Court jurisdiction to conduct interlocutory reviews of only those interim agency decisions which, in its view, could not effectively be reviewed until after final agency action. Finally, 28 U.S.C. § 1581(i) was not intended to be utilized to circumvent the exclusive method of judicial review for countervailing and antidumping duty determinations listed at 19 U.S.C. § 1516a citing United States v. Uniroyal, Inc., 687 F.2d 467 (CCPA 1982).

The applicable section 28 U.S.C. § 1581(i) provides as follows:

(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for —

(1) revenue from imports or tonnage;

(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;

(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or

(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.

Id.

In Royal Business Machines, Inc. v. United States, 669 F.2d, 692, 701-02 (CCPA 1982) the Court said:

section 516A is not the `exclusive remedy for all grievances arising from the administration of the antidumping law.' A possible conflict between sections 1581(i) and 516A was forseen by Congress and specially addressed:

This section 1581(i) granted the court jurisdiction over those civil actions which arise directly out of an import transaction and involve one of the many international trade laws. The purpose of this section was to eliminate the confusion which currently exists as to the demarcation between the jurisdiction of the federal district courts and the Court of International Trade. This language made it clear that all suits of this type are properly commenced only in the Court of International Trade and not in a district court

....

Subsection (i) is intended only to confer subject matter jurisdiction upon the court, and not to create any new causes of action not founded on other provisions of law.

....

However, subsection (i), and in particular paragraph (4), makes it clear that the court 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. emphasis supplied

Id.

In Ceramica Regiomontana, S.A. v. United States, 5 CIT 23, 26, 557 F.Supp. 596, 600 (1983), Judge Newman of this Court said:

Since the contested ITA decision was made outside the scope of any administrative proceeding which ultimately would result in a determination reviewable under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c), obviously this is the circumstance in which Congress intended that the Court's residual jurisdiction could be invoked.

Id.

Judge Newman pointed out in Ceramica that the Court of Appeals in Royal Business Machines anticipated actions where the contested administrative decision might arise between the final determination and an administrative review. In these situations the plaintiff may invoke the Court's broad residual jurisdiction under 28 U.S.C. § 1581(i). Ceramica, 5 CIT at 27-28, 557 F.Supp. at 601.

If this Court did not have such broad jurisdictional powers, it is not too difficult to imagine circumstances where a possible recalcitrant ITA might determine never to complete a section 751 review simply to escape judicial scrutiny. This clearly would thwart the will of Congress and the entire administrative process.

Defendant's reliance upon United States v. Uniroyal, as also distinguished in Ceramica, is again misplaced "since Uniroyal did not involve the applicability of 28 U.S.C. § 1581(i) vis-a-vis 19 U.S.C. § 1516a." Ceramica, 5 CIT at 28, 557 F.Supp. at 601. Accordingly, the Court holds that it may exercise jurisdiction under section 1581(i) concerning the administration of section 751 reviews.

II. Preliminary Injunction

It is well established that whether or not a preliminary injunction should be granted depends upon an examination of four factors:

(1) the threat of immediate and irreparable harm;

(2) the likelihood of success on the merits;

(3) whether the public interest is better served by issuing rather than denying the injunction; and

(4) whether the balance of hardships to the parties favors the issuance of an injunction.

Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983); S.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30, 646 F.2d 522, 525 (1981); American Customs Broker Co. v. United States Customs Service, Slip Op. 86-56 (CIT May 27, 1986).

Irreparable injury is harm which cannot be reasonably redressed in a court of law. National Juice Products Association v. United States, ___ CIT ___, 628 F.Supp. 978, 984. What is critical is the immediacy of the harm not its magnitude. See S.J. Stile Associates v. Snyder, 68 CCPA 27, 30, 646 F.2d 522, 525 (1981). On the other hand,...