Verson, a Div. Of Allied Products Corp. v. U.S., Slip Op. 98-30.

• Citation: 5 F.Supp.2d 963
• Decision Date: 23 March 1998
• Docket Number: Court No. 96-11-02534.,Slip Op. 98-30.
• Parties: VERSON, A DIVISION OF ALLIED PRODUCTS CORPORATION, The United Autoworkers and United Steelworkers of America (AFL-CIO/CLC), Plaintiffs, v. The UNITED STATES, Defendant, and Aida Engineering, Ltd., Mitsui & Co. (U.S.A.), Inc. and Kurimoto, Ltd., Defendant-Intervenors.
• Court: U.S. Court of International Trade

5 F.Supp.2d 963

VERSON, A DIVISION OF ALLIED PRODUCTS CORPORATION, The United Autoworkers and United Steelworkers of America (AFL-CIO/CLC), Plaintiffs, v. The UNITED STATES, Defendant, and Aida Engineering, Ltd., Mitsui & Co. (U.S.A.), Inc. and Kurimoto, Ltd., Defendant-Intervenors.

Slip Op. 98-30.

Court No. 96-11-02534.

United States Court of International Trade.

March 23, 1998.

Collier, Shannon, Rill & Scott, PLLC, (Paul C. Rosenthal and David C. Smith, Jr.), Washington, DC, for Plaintiffs.

Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, (Randi-Sue Rimerman); Linda S. Chang, Of Counsel, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for Defendant.

Arent Fox Kintner Plotkin & Kahn, (Stephen L. Gibson), Washington, DC, for Defendant-Intervenor Aida Engineering, Ltd.

Barnes, Richardson & Colburn, (Brian F. Walsh), Chicago, IL, for Defendant-Intervenors Mitsui & Co. (U.S.A.) Inc. and Kurimoto, Ltd.

OPINION

WALLACH, Judge.

I INTRODUCTION

This matter is before the Court on the government's Motion To Dismiss for mootness ("Motion To Dismiss"). The Motion To Dismiss is granted.

II BACKGROUND

Aida Engineering, Ltd. ("Aida Engineering") is a Japanese producer and exporter of Mechanical Transfer Presses ("MTPs"). Defendant's Motion To Dismiss For Lack Of Jurisdiction As Moot And Motion To Stay Briefing Upon The Merits Of The Case Pending A Decision Upon The Motion To Dismiss at 2. On February 16, 1990, the Department of Commerce ("Commerce") published an antidumping duty order on MPTs from Japan. Antidumping Duty Order: Mechanical Transfer Presses From Japan, 55 Fed.Reg. 5,642. In response to Commerce's notice of opportunity to request an administrative review of the Antidumping Duty Order, Aida Engineering, Mitsui & Co. (U.S.A.) Inc. and petitioners requested that Commerce conduct a review for the period February 1, 1994 through January 31, 1995. Mechanical Transfer Presses From Japan; Preliminary Results and Termination in Part of Antidumping Administrative Review, 61 Fed.Reg. 15,034 (Apr. 4, 1996) ("Preliminary Results"). During that time period, Aida Engineering exported three MTPs to the United States. Id. at 15,035. Only two involved the sale of units for which an antidumping duty margin was calculated. Id. The third was excluded because it was returned after refurbishing. Id.

On April 4, 1996, the preliminary results of Commerce's review, conducted pursuant to the Uruguay Round Agreements Act amendments to the Tariff Act of 1930, were issued. Preliminary Results, 61 Fed.Reg. at 15,034. Because the units were built to each customer's specifications, a proper price-to-price comparison was not possible in either the home market or third countries. Id. at 15,035. Therefore, as in prior proceedings involving large custom-built equipment and MTPs from Japan, the agency based normal value for Aida Engineering and Kurimoto, Ltd. on constructed value ("CV"). Id. In the Preliminary Results, Commerce excluded below-cost sales in its calculations of CV profit. Mem. from Urfer to Flannery, Mar. 27, 1996, at App. 3 of Plaintiffs' Motion for Judgment on the Agency Record.

In the final determination, Commerce included below-cost sales in its calculations of CV profits. The agency based the profit element of the CV calculation on the overall profit realized by Aida Engineering on all of its sales in the home market during the 1994-1995 review period, including sales that were at prices below Aida Engineering's cost of production. Mechanical Transfer Presses From Japan; Final Results of Antidumping Administrative Review, 61 Fed.Reg. 52,910, 52,914 (Oct. 9, 1996) ("Final Results") (Comment 3); Mem. from Urfer to Flannery, Sept. 19, 1996, at Exh. 1 of Defendant's Proprietary Motion To Dismiss. Based on the comparison of CV to United States price, Commerce found that Aida Engineering had not been dumping MTPs during that period. Final Results, 61 Fed.Reg. at 52,916. The final dumping margin assigned to Aida Engineering on the two units sold to the United States was zero percent. Id.

On August 22, 1997, Plaintiffs, Verson, a division of Allied Products Corporation, the United Autoworkers, and the United Steelworkers of America, filed a motion for judgment on the agency record pursuant to C.I.T. Rule 56.2 to contest the methodology used by Commerce in its calculation of CV profit in its final margin calculations in the Final Results.¹

The Defendant responded with a Motion To Dismiss and a Motion To Stay Briefing Upon The Merits Of The Case Pending A Decision Upon The Motion To Dismiss ("Motion To Stay").²

For the reasons set forth below, Defendant's Motion To Dismiss for mootness is granted.

III DISCUSSION

A This Court Lacks Jurisdiction To Reach The Merits Of This Action Because It Is Moot

Defendant contends that this action is moot because there would be no practical effect on the dumping margin whether CV profits were derived by excluding below cost sales, as Plaintiffs seek, or including below cost sales, as Commerce did in the Final Results. According to Defendant, regardless of which methodology is used, the dumping margin would be zero. Therefore, Defendant claims that Plaintiffs suffered no harm from the methodology used by Commerce and there is no case or controversy to be addressed by the Court.

Pursuant to Article III of the U.S. Constitution, the federal judiciary is only empowered to decide live cases or controversies. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). In order to satisfy the case or controversy requirement, "a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow at 70, 104 S.Ct. 373. If "the issue[] presented [is] no longer `live' or the parties lack a legally cognizable interest in the outcome", the case is moot. PPG Industries, Inc. v. United States, 11 CIT 303, 306, 660 F.Supp. 965, 968 (1987) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)).

One corollary to the mootness doctrine is that federal courts will not issue advisory opinions. PPG Industries, Inc., 11 CIT at 303, 660 F.Supp. at 968 (quoting Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). For a federal court to have jurisdiction to consider a case, "a suit `must be definite and concrete, touching the legal relations of parties having adverse legal interests. * * * It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). In particular, a federal court does not have the "power to render an advisory opinion on a question simply because [it] may have to face the same question in the future." Nat'l Labor Relations Board v. Globe Security Services, Inc., 548 F.2d 1115, 1118 (3rd Cir.1977).

A narrow exception to the mootness doctrine exists for issues that are "`capable of repetition, yet evading review.'" Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). This exception is applicable in cases similar to Roe where "litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." Id.

In their Points and Authorities, Plaintiffs place the weight of their opposition to the Motion To Dismiss for mootness on the argument that the issue in this case falls within the "capable of repetition, yet evading review" exception. However, as Plaintiffs conceded at oral argument, this case "is not one that is inherently evasive of review." Unlike a human pregnancy that has such a short gestation period that it will come to term before the usual appellate process is complete, the issues in the instant case could be subject to judicial review in the future.³ An antidumping determination is not of too short a duration to prevent complete judicial review, and the issue raised is likely to be subject to agency action in the future. Therefore, although the issue presented is capable of repetition, it will not evade review.

The fact that an issue presented for review may need to be addressed in the future does not by itself create a live case or controversy.⁴ A case will be dismissed as moot when the challenge presented to the Court cannot result in a meaningful remedy. See NSK Ltd. v. United States, 17 CIT 488 (1993), SKF USA, Inc. v. United States Dep't of Commerce, 16 CIT 961, 806 F.Supp. 1021 (1992), McKechnie Brothers [N.Z.] Ltd. v. United States Dep't Of Commerce, 14 CIT 269, 735 F.Supp. 1066 (1990), and Alhambra Foundry v. United States, 10 CIT 330, 635 F.Supp. 1475 (1986).

As the government has demonstrated, the recalculation of CV profit based upon the methodology Plaintiffs seek would not alter the duty margin; it would remain at zero. Whichever methodology Commerce used Plaintiffs would not have been subjected to any monetary harm. Thus, no live case or controversy exists because there is no actual injury that can be redressed by a favorable judicial decision.⁵

Finally,⁶ Plaintiffs claim that the government has failed to meet the burden of proof for proving mootness applied in Daewoo Electronics Co. v. United States, 13 CIT 253, 278, 712 F.Supp. 931, 954 (1989), rev'd on other grounds, 6 F.3d 1511 (Fed.Cir.1993). In Daewoo, the Court applied the two prong test of County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), for determining mootness following voluntary cessation of...