ASG Industries, Inc. v. United States

657 F.2d 1226, 68 C.C.P.A. 136, 1981 CCPA LEXIS 181
CourtCourt of Customs and Patent Appeals
DecidedAugust 21, 1981
DocketAppeal No. 81-25
StatusPublished

This text of 657 F.2d 1226 (ASG Industries, Inc. v. United States) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ASG Industries, Inc. v. United States, 657 F.2d 1226, 68 C.C.P.A. 136, 1981 CCPA LEXIS 181 (ccpa 1981).

Opinion

Rich, Judge.

THE APPEAL

This appeal is from an “order” of The United States Court of International Trade (formerly the United States Customs Court), dated April 24, 1981, which was accompanied by a memorandum of even date. The order was entered after a hearing, both parties filing briefs, on March 18, 1981, on remand of the case from this court pursuant to its decision in ASG Industries, Inc. v. United States, 67 CCPA 11, C.A.D. 1237, 610 F. 2d 770 (1979), which will be referred to as the “first appeal.” The hearing was limited to consideration of the Government’s motion to dismiss.

The basic questions involved in the case are (1) whether the West German Government provided a bounty or grant to German manufacturers of float glass imported into the United States, so as to give rise to a countervailing duty requested by appellants who are domestic manufacturers and wholesalers of float glass, and (2) the net amount of such bounty or grant. On the first appeal, this court held that [137]*137certain benefits bestowed by West Germany upon float glass manufacturers were bounties or grants. However, the net amount of the bounty or grant, within the meaning of 19 USC 1303 (a) (1), upon which a countervailing duty, if any, would be based, had not been determined.

After much discussion in the opinion with respect to the proper procedure for determining the net amount of the bounty or grant, this court concluded

* * * that a trial de novo is indicated in this case so that the merits of the issue of the amount of the net bounty herein involved can be fully developed. [Emphasis ours.]

This court therefore ruled as follows:

In view of all the foregoing, we reverse the judgment of the Customs Court [which had affirmed an administrative decision that there was no bounty or grant] and remand for further proceedings consistent with this opinion.

In the proceedings on remand, appellants and the Government took different views as to the interpretation of this court’s opinion and of what should be done on remand. The Government position was that the only question to be decided was whether there were any “offsets” to the gross amounts of the West German Government’s payments to the German manufacturers, the amount of which payments appears not to be in dispute. Government counsel stated that the Government had no evidence of any offsets and would not attempt to prove any, wherefore there was nothing for the court to decide, and moved below to dismiss the case, requesting, however, that the court do so “with a judgment ordering the administering authority of the countervailing duty law (19 U.S.C. §1303) to determine, as certain or estimate the net amount of the bounties or grants * * * and to levy a countervailing duty equal to such net bounty or grant on such importation of float glass.”

In arguing against the Government’s aforesaid motion to dismiss, appellants’ counsel contended that the government position was not in harmony with this court’s remand for a trial de novo in C.A.D. 1237, the first appeal, asked denial of the motion to dismiss, and made two suggestions. The first was that the Court of International Trade should retain its control over the determination of net bounty and “remand” the case to the Commerce Department (to which jurisdiction had been transferred1 from Treasury) to determine or estimate the net bounties or grants consistently with C.A.D. 1237 and report back so that the court could consider the findings and issue its final [138]*138order. The second was that the court receive expert testimony and or supplemental briefing before determining the net amount. It submitted a proposed order embodying only the first suggestion.

In its April 24, 1981, order, here on appeal, the court wholly adopted the Government’s position that it had nothing to decide, granted the motion to dismiss and, at the same time, “remanded” the case to the Secretary of Commerce, directing that he or his delegate (1) ascertain and determine or estimate the net amount of the bounties or grants “without deducting any offsets” and (2) direct the Customs officers to assess countervailing duties “in the net amount equal to said bounties or grants.” Appellants’ present appeal from that order was filed in this court on June 22, 1981.

THE MOTIONS

The case is brought up at this time by three motions.

(1) June 29, 1981, appellants filed a “Motion for an Injunction Pending Appeal.” They ask this court

* * * for an order enjoining, pending the final resolution of this appeal, the Secretary of Commerce and his successors, agents, and assigns from issuing or publishing any countervailing duty order with respect to float glass from the Federal Republic of Germany or from complying with the directives contained in the order of the Court of International Trade of April 24, 1981 (Slip Op. 81-34).

(2) July 13, 1981, the Government, appellee, along with an opposition to appellants’ motion, countered with a motion to dismiss the present appeal “on the grounds that appellants obtained a favorable judgment from the court below and thus are not aggrieved parties.”

(3) In the alternative, the Government “requested”

* * * that the court summarily affirm the decision and judgment of the Court of International Trade, pursuant to Rule 5.12 [CCPA Rules], as this case is of such a character as not to require oral argument or briefs and may be decided on the record.

We treat that as a motion for a summary affirmance of the order now on appeal.

DECISION

In the course of arguing these three motions through extensive briefs and attached appendices, the parties have, inevitably, argued the merits of the underlying appeal, fully expounding their views, pro and con, on the correctness of the action taken on remand and complained of by appellants. We see no reason to review these argu[139]*139ments again at a later date, which course would delay final resolution of this litigation by at least several months. In the interests of justice, of judicial economy, and especially of the expeditious disposition of litigation, we accept the Government’s invitation to summarily decide the appeal2 at the same time that we decide the motions. For the further reasons hereinafter set forth, our disposition is as follows:

1. The appealed order of April 24, 1981, is vacated.
2. Appellants’ motion for an injunction is dismissed as moot.
3. The Government’s cross-motion to dismiss the appeal is denied.
4. The Government’s request for summary affirmance of the appealed order is denied.

OPINION

I

With respect to the order dismissing the action and “remanding” this matter to the Secretary of Commerce,3 we are vacating it because it is not in accord with this court’s decision and remand of November 29, 1979, C.A.D. 1237, to conduct a trial de novo

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Related

Clayton Chemical & Packaging Co. v. United States
383 U.S. 821 (Supreme Court, 1965)
ASG Industries, Inc. v. United States
610 F.2d 770 (Customs and Patent Appeals, 1979)

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Bluebook (online)
657 F.2d 1226, 68 C.C.P.A. 136, 1981 CCPA LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asg-industries-inc-v-united-states-ccpa-1981.