Zenith Electronics Corp. v. US, Court No. 88-07-00488.

• Decision Date: 13 October 1988
• Docket Number: Court No. 88-07-00488.
• Parties: ZENITH ELECTRONICS CORPORATION, Plaintiff, v. The UNITED STATES, Defendant, Daewoo Electronics Co., Ltd., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

699 F. Supp. 296

12 CIT 932

ZENITH ELECTRONICS CORPORATION, Plaintiff, v. The UNITED STATES, Defendant, Daewoo Electronics Co., Ltd., et al., Defendant-Intervenors.

Court No. 88-07-00488.

United States Court of International Trade.

October 13, 1988.

Frederick L. Ikenson, P.C. (Frederick L. Ikenson, Washington, D.C., of counsel), for plaintiff.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Velta A. Melnbrencis, Atty., Commercial Litigation Branch, New York City, and Mark J. Sadoff Atty., Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C.), for defendant.

Oppenheimer Wolff & Donnelly (David A. Gantz and Timothy A. Harr, Washington, D.C., of counsel), for defendant-intervenors Daewoo Electronics Co., Ltd., et al.

MEMORANDUM OPINION AND ORDER

WATSON, Judge:

In this opinion the Court explains its decision that, when final administrative determinations are the subject of actions for judicial review, the Commerce Department must obtain the approval of the Court in order to make amendments to the final results. Under the authority of the All Writs Act, (28 U.S.C. § 1651) and to preserve all aspects of its jurisdiction over the pending actions, the Court issues a preliminary injunction to bar Commerce from publishing amended results to the third administrative review entitled Color Television Receivers From Korea; Final Results of Antidumping Duty Administrative Review.

The final results of the above-mentioned review have been contested in this and four other actions in this Court, namely, Independent Radionic Workers of America, et al. v. United States, Court No. 88-07-00568; Daewoo Electronics Co., Ltd., et al. v. United States, Court No. 88-07-00584; Samsung Electronics Co., Ltd., et al. v. United States, Court No. 88-07-00589; and Goldstar Co., Ltd., et al. v. United States, Court No. 88-07-00593.

On September 28, 1988, this Court issued a temporary restraining order barring Commerce from "rescinding, revising, or otherwise altering" the final results of the third review or from altering the cash deposit instructions issued by Commerce to the Customs Service following the final results. On September 29, following representations by plaintiff that publication of amended results was imminent, the Court amended the restraining order to bar publication in the Federal Register. The temporary restraining order was extended for an additional ten-day period on October 8, 1988.

On October 11, 1988 the Court heard oral argument on the motion for a preliminary injunction. At that time, the Court granted a motion to intervene by Daewoo Electronics Co., Ltd., Daewoo Electronics Corporation of America, Inc., and Daewoo Corporation ("Daewoo"), the interested parties whose assertions of error following the final determination led Commerce to conclude that three ministerial errors had been made, that certain dumping margins were actually lower than had been determined, and that related cash deposit rates should be lowered from 23.30% to 15.23%.

The basic issue in this motion for a preliminary injunction is whether the Commerce Department can amend the results of a final determination while it is the subject of a court action, without obtaining the approval of the Court. A secondary issue is whether plaintiff was given a fair and reasonable opportunity to present its views regarding the asserted errors. The Court finds that basic considerations of court jurisdiction, judicial authority and judicial economy dictate that alteration of an administrative result while it is under court review cannot be done without the approval of the Court. The Court further finds that plaintiff was not given a fair opportunity to present its views regarding the asserted errors.

The need to obtain the approval of the Court in order to change the administrative result is simply a recognition of the Court's jurisdiction over the action. One of the ways in which jurisdiction is exercised is by the power of the Court over the subject matter of the action. Cooper v. Reynolds, 10 Wall (77 U.S.) 308, 316, 19 L.Ed. 931 (1870). When a party to a judicial action contemplates doing anything to directly alter the subject matter of the judicial proceeding a proper regard for the authority of the Court requires that the permission of the Court be obtained.

This is a principle which governs the conduct of a Court with respect to its appellate tribunal and it should also govern the conduct of an agency which is subject to a comprehensive system of judicial review. For example, Rule 60(a) of the Federal Rules of Civil Procedure, following the ordinary grant of authority to a district court to correct its clerical errors "at any time" expressly provides that while an appeal is pending such errors may be corrected "with leave of the appellate court." This recognizes the jurisdiction and authority which the appellate tribunal has obtained over the matter.

The Commerce Department defends its intention to amend the results of the determination without the approval of the Court as a matter within its inherent authority and further, as justified by a specific provision for correction of clerical or ministerial error in 19 U.S.C. § 1675(f).¹ But this argument completely ignores the fact that the administrative authority to correct clerical errors is not absolute and does not operate in a vacuum once a judicial review has been commenced. At that point the authority of an administrative agency to correct its clerical errors must be exercised in a way that is consistent with the fundamental obligations which flow from subjection to judicial review.

Of course, the simplest case would be if the correction of clerical errors can be fairly accomplished before the necessity arises to invoke the jurisdiction of the Court. That would be a situation in which only the asserted clerical errors are in contention and correcting them might completely obviate the need for bringing an action in Court. This was the basic reason for the provision in 19 U.S.C. § 1675(f) requiring Commerce to "establish procedures for the correction of ministerial errors in final determinations within a reasonable time after the determinations are issued...." See, H.Rep. 100-40, Part 1, 100th Cong. 2nd Sess. 144. But even that simple state of affairs must operate under the unavoidable condition that under 19 U.S.C. § 1516a, an interested party has only 30 days within which to bring an action for judicial review of any determination, finding, or conclusion in the final determination. It is likely therefore, that in many cases, even when a party is only seeking correction of alleged ministerial or clerical errors it will have to start an action in court before the 30-day statute of limitation expires so as not to lose the protection of that action against a possible adverse result of the administrative correction process. Still more often, as here, the alleged ministerial errors will be part of a more complex dispute whose central issues cannot be resolved except by judicial decision. Once the final determination becomes the subject of an action in court, one way or another, allowing Commerce to take independent steps to alter the determination is in conflict with the authority of the Court.

This does not mean that Commerce cannot continue the process of identifying ministerial errors while...