The opinion of the court was delivered by: WADDY
Plaintiff is an American manufacturer and seller of portable electric typewriters and portable manual typewriters.
The defendants are The United States International Trade Commission (the "Commission") and the several members thereof, the Secretary of the Treasury (the "Secretary"), the Assistant Secretary of the Treasury responsible for supervising the operation of the United States Customs Service, and the Commissioner of Customs. They are sued in their individual and official capacities.
In this action plaintiff seeks (1) to compel the Commission to set aside a negative determination of injury under the Antidumping Act of 1921 (19 U.S.C. § 160 et seq.) and to enter an affirmative determination thereunder; (2) to require the Secretary, the Assistant Secretary and the Commissioner of Customs to instruct the officials of the Customs Service to withhold appraisement and liquidation of certain portable electric typewriters from Japan; and (3) to enjoin the Secretary, Assistant Secretary and the Commissioner of Customs from authorizing or permitting officials of the Customs Service to appraise or liquidate certain entries of portable electric typewriters from Japan.
The case is currently before the Court on motion of plaintiff for a preliminary injunction seeking to restrain the appraisement and liquidation of the challenged typewriters, pendente lite, the motion of defendants to dismiss for lack of subject matter jurisdiction, and the respective oppositions of the parties to said motions. Also before the Court are motions of proposed intervenors (exporters and importers of Japanese portable electric typewriters) seeking leave to intervene in the action. Their intervention is opposed by plaintiff. The Court has held the motions to intervene in abeyance pending its determination of the jurisdictional issue but has permitted the proposed intervenors to file briefs as amici curia.
The Antidumping Act and the procedures applicable thereunder are accurately described in paragraphs 13 and 14 of plaintiff's Complaint as follows:
"The Antidumping Act is intended to prevent imported merchandise from being sold in the United States at a price less than that at which it is sold at the same level of trade in the country of origin (the 'home market'), or third countries, if an industry in the United States is being or is likely to be injured or is prevented from being established by reason of the above-described importations. The Secretary is charged with the duty of determining whether such sales at less than fair value (hereinafter sometimes referred to as 'LTFV') have occurred. If the Secretary decides that LTFV sales have occurred, he is required to notify the Commission, which must then determine whether those sales have injured, or are likely to injure an industry in the United States or will prevent an industry in the United States from being established. If the Commission finds the evidence of any of the three (injury, likelihood of injury, or prevention of establishment), it so advises the Secretary. He thereupon is required to publish both his own and Commission's determinations which collectively comprise a 'finding' within the meaning of the Antidumping Act. Once a finding of dumping is published, all imported 'unappraised' merchandise described in that finding, and not entered, or withdrawn from warehouse, for consumption, more than 120 days before the question of dumping was raised by or presented to the Treasury Department is subject to a special dumping duty in the amount of the dumping 'margin'. This margin equals the difference approximately between the price of the imported merchandise sold in the United States and the price of comparative merchandise sold in the home market (or in third countries).
"The Antidumping Act also contains a provisional remedy, to wit, whenever the Secretary has reason to believe or suspect that a class of merchandise is being dumped, he is required to publish notice of that fact in the Federal Register and to authorize the withholding of appraisement as to such merchandise. Appraisement means the ascertainment or determination of value of imported merchandise. Since the enactment of the Customs Administrative Act of 1970, Pub. L. 91-271, § 204(a), which amended 19 U.S.C. § 1500, appraisement merged into liquidation. Liquidation means the final computation or ascertainment of Customs duties on an entry. The withholding of appraisement must continue until the publication of a dumping finding or of a final negative injury determination."
Thus, before a finding of dumping can be made and published by the Secretary pursuant to his duty under 19 U.S.C. § 160(a), two preliminary findings are necessary: (1) a finding by the Secretary that a class or kind of imported merchandise is being sold in the United States at less than its fair value ("LTFV"); and (2) a finding by the Commission that an American industry is being injured, or is likely to be injured, or is prevented from being established by reason of such sales at LTFV ("injury determination"). Only after the publication of such a finding may Customs agents proceed to assess individual entries of merchandise of the class or kind covered by the dumping finding in order to ascertain whether a dumping "margin" exists and thereafter to levy dumping duties accordingly. 19 U.S.C. § 161(a).
The following events led up to the present litigation: On February 14, 1974, plaintiff submitted a complaint to the defendant Commissioner of Customs in which it was alleged that portable electric typewriters from Japan were being sold at LTFV within the meaning of the Antidumping Act. On March 20, 1974, an "Antidumping Proceeding Notice," relating to portable electric typewriters from Japan, was published by the Secretary in the Federal Register.
On December 20, 1974, the Secretary published a "Withholding of Appraisement Notice," involving portable electric typewriters from Japan,
pursuant to his authority under 19 U.S.C. § 160(b). This application required the withholding of appraisement reports as to the subject typewriters entered or withdrawn from warehouse for public consumption not more than 120 days before the question of dumping was presented to the Secretary or until his further order, or until he published a dumping finding pursuant to 19 U.S.C. § 160(a). On March 20, 1975, a "Determination of Sales at Less Than Fair Value," involving portable electric typewriters from Japan, was published by the Secretary.
The Secretary thereupon notified the Commission of his initial affirmative determination. On April 3, 1975 the Commission published a "Notice of Investigation and Hearing," involving portable electric typewriters from Japan.
Pursuant thereto, hearings were held on May 13 and 14, 1975. On June 19, 1975, the Commission determined by a 3 to 2 vote, with one abstention, that an industry in the United States was not being nor likely to be injured nor prevented from being established by reason of portable electric typewriters from Japan sold at LTFV within the meaning of the Antidumping Act.
This negative injury determination by the Commission effectively ended the dumping proceedings under 19 U.S.C. § 160 et seq. Failing an affirmative injury determination by the Commission, the Secretary cannot make and publish a finding of dumping and the merchandise under investigation then becomes available for immediate appraisement and liquidation without the assessment for dumping duties. However, plaintiff herein requested that the Secretary not withdraw his "Withholding of Appraisement Notice," or that he otherwise prevent the appraisement and liquidation of the subject merchandise, pending the outcome of litigation involving the negative injury determination. The Secretary denied plaintiff's request and notified plaintiff of his intention to order appraisement and liquidation. Plaintiff thereupon brought this suit and filed its motion for preliminary injunction. Argument on the instant motions was heard by this Court on August 4, 1975 at which time the Court took said motions under advisement. At the Court's request, the Secretary has consented to refrain from ordering appraisement and liquidation of the challenged merchandise pending determination of the instant motions.
The threshold issue herein is whether this Court has jurisdiction over the subject matter of this action. Plaintiff, in its complaint, has alleged several jurisdictional statutes in support of its position that this Court possesses jurisdiction. However, it is well-settled that the jurisdiction of the district courts over customs matters must first be established under 28 U.S.C. § 1340. J. C. Penney Co. v. United States Department of Treasury, 319 F. Supp. 1023 (S.D.N.Y. 1970), aff'd, 439 F.2d 63 (CA2 1971), cert. denied, 404 U.S. 869, 30 L. Ed. 2d 113, 92 S. Ct. 60 (1971); Eastern States Petroleum Corp. v. Rogers, 108 U.S. App. D.C. 63, 280 ...