author: SPRIZZO, District Judge.

text:
    Lydia CALLEJO, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83 Civ. 2192 (JES).
    United States District Court, S.D. New York.
    Aug. 2, 1985.

      MFY Legal Services, Inc., New York City, for plaintiff; Theodore W. Zeichner, New York City, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Frederick M. Lawrence, Neal Mann, Asst. U.S. Attys., New York City, of counsel.
   OPINION AND ORDER

SPRIZZO, District Judge.

Plaintiff Lydia Callejo commenced this action pursuant to 42 U.S.C. § 405(g) to review a decision of defendant Heckler, Secretary of Health and Human Services, terminating plaintiff’s receipt of supplemental security income on the ground that her disability had ceased. The parties stipulated and the Court so ordered that the action be remanded to the Secretary “pursuant to 42 U.S.C. § 405(g) for the holding of a de novo hearing, good cause for such remand having been shown,” and that “pending a final decision by the Secretary following said de novo hearing, plaintiff is entitled to receipt of continuing benefits ____”

On remand the Department of Health and Human Services Appeals Council decided that plaintiff was still disabled and therefore entitled to receive benefits. Plaintiff thereafter filed a motion pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), requesting an award of costs and attorneys’ fees in connection with the instant action.

Section 2412(d)(1)(A) provides that in certain civil actions a court shall award costs and attorneys’ fees to a party who prevails against the United States unless the court determines that “the position of the United States was substantially justified or that special circumstances make an award unjust.” That statute applies where, as here, an action is brought to review an administrative decision denying disability benefits. See, e.g., McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). The burden is on the Government to establish that its position was substantially justified, see, e.g., Boudin v. Thomas, 732 F.2d 1107, 1110 (2d Cir.1984); Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir.1983), which requires essentially a “strong” showing of reasonableness. See, e.g., Boudin, supra, 732 F.2d at 1116; Environmental Defense Fund, supra, 722 F.2d at 1085; H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11, 18, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4989, 4997.

Plaintiff argues that she is entitled to recover costs and attorneys’ fees because (1) the position of the United States in the original agency proceedings terminating benefits was not substantially justified, as demonstrated by the reversal on remand, and (2) the position of the United States prior to remand in the instant litigation was not substantially justified.

The first claim is foreclosed by the law in this circuit which establishes that “the position of the United States” referred to in the statute does not refer to the position of the Government in any underlying agency proceedings. See Boudin, supra, 732 F.2d at 1115-16; see also Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984). Therefore, to the extent plaintiff’s claim is based upon the position of the Secretary in the original agency proceedings, this cannot afford a proper basis for an award of costs and counsel fees.

To the extent that plaintiff seeks attorneys’ fees based upon the unreasonableness of the position of the United States in the present litigation, the Court also rejects that claim. The facts of this ease demonstrate that the Government’s litigation position was in all respects reasonable and consistent with its obligation to not litigate frivolous defenses.

Plaintiff filed her complaint on March 22, 1983. Service on defendant was made on May 12, 1983. While the parties stipulated to a number of extensions of time for defendant to answer, in fact the Government never filed an answer, or took any position with respect to either the merits of plaintiff’s claim or the Secretary’s decision. Rather, the parties stipulated to a remand, which was so ordered by the Court on December 6, 1983. At pre-trial conferences before this Court defendant explained that a remand was necessary due to the fact that the transcript of the agency proceedings could not be located, and the Secretary had been unable to reconstruct the file.

It is clear, therefore, that the Government never contested the merit of plaintiff’s claim and did the only thing it could reasonably do under the circumstances, i.e., it agreed to a remand because it was in no position to ascertain, given the condition of the file, what its position on the merits should be.

Moreover, this agreement to remand for reasons unrelated to the merits is not sufficient to justify an award of costs and counsel fees. The Second Circuit has held that a social security claimant who obtains a court ordered remand for further consideration by the Secretary is not entitled to recover an EAJA award because they are not yet a “prevailing party” under the statute. See McGill, supra, 712 F.2d at 31. Citing the Supreme Court’s decision in Hanrahan v. Hampton, 446 U.S. 754, 756-57, 100 S.Ct. 1987, 1988-89, 64 L.Ed.2d 670 (1980) (per curiam), the court noted that “fee awards are appropriate only where ‘a party ... has established his entitlement to some relief on the merits of his claims.’ ” 712 F.2d at 31; see also Roman v. Schweiker, 559 F.Supp. 304, 305 (E.D.N.Y.1983); cf. Environmental Defense Fund, supra, 722 F.2d at 1085 n.. 4. The Second Circuit stated that in the context of a social security case, the claimant generally “prevails” under the EAJA only “when it is determined that she is entitled to benefits.” McGill, supra, 712 F.2d at 31-32. The Court sees no reason why a different result should obtain merely because the Government has agreed to such a remand. Indeed, such a rule would encourage the Government to engage in precisely the type of litigious conduct which the statute is designed to avoid.

Plaintiff also appears to argue that because she ultimately did prevail on the merits on remand, and since she had to bring this action to secure her rights, a fee award is mandated. Such a broad holding, however, which fails to consider whether the Government in this litigation affirmatively or unreasonably opposed plaintiff’s claim, clearly distorts the meaning and intent of the statute. Cf. Spencer, supra, 712 F.2d at 555-56 & nn. 58 & 60; McGill, supra, 712 F.2d at 31-32. As the court noted in Boudin, the EAJA was not intended to be an “ ‘automatic fee-shifting provision.’ ” See 732 F.2d at 1115-16 (quoting Spencer, supra, 712 F.2d at 553). The United States is not an insurer of an agency’s action, and ultimately prevailing against the Government is not and should not be a guarantee that a claimant will recover an EAJA award. See, e.g., Asburn v. United States, 740 F.2d 843, 850 (11th Cir.1984); Spencer, supra, 712 F.2d at 550; Correa v. Heckler, 587 F.Supp. 1216, 1223-24 (S.D.N.Y.1984); H.R.Rep. No. 1418, supra, at 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News, supra, at 4989.

By obtaining a voluntary remand herein, plaintiff did not in any way establish her entitlement to benefits. See, e.g., McGill, supra, 712 F.2d at 31-32. Nor did the Government concede that plaintiff was correct on the merits and abandon its prior opposition to her claim, as in Environmental Defense Fund, supra, 722 F.2d at 1086. Therefore, the Court finds that the Government was entirely reasonable in taking no action to defend the Secretary’s decision and stipulating to a remand after concluding that the record of the agency proceedings could not be reconstructed. The absence of a record meant there was no basis either for the United States to form a litigation position with respect to the Secretary’s decision on the merits or for the Court to review the agency determination. It follows that plaintiff’s applieation for costs and attorneys’ fees must be denied.

It is SO ORDERED.

      . The Notice of Motion states that plaintiff seeks an award of attorneys’ fees to plaintiff's attorney. The law is clear that an EAJA award may only be made to a party. See, e.g., Oguachuba v. Immigration and Naturalization Service, 706 F.2d 93, 97-98 (2d Cir.1983); Eustache v. Secretary of the Dept. of Health and Human Services, 601 F.Supp. 176, 178 (E.D.N.Y.1985). Therefore, any award herein would be made to plaintiff herself, and not directly to her attorneys. See, e.g., Eustache, supra, 601 F.Supp. at 178; cf. Dubose v. Pierce, 579 F.Supp. 937, 940 n. 1 (D.Conn.1984).

      . 28 U.S.C. § 2412(d)(1)(A) provides, in pertinent part:
      Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ..., incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
      Section 2412(d) was repealed by Pub.L. 96-481, Title II, § 204(c), 94 Stat. 2329 (Oct. 21, 1980), effective October 1, 1984. However the repealing legislation provided that section 2412(d) would continue to apply to any action commenced before October 1, 1984.

      . Remand was further delayed because a dispute arose as to whether plaintiff was entitled to receive interim benefits during the remand. The Government ultimately agreed to an interim benefits award. At oral argument on this motion, counsel for plaintiff advised the Court that the motion for attorneys' fees was not based in any way upon this dispute, or the Government’s position on the interim benefits issue.

      . While nearly seven months elapsed between service and the stipulation to remand, the fact that during that period the Government was attempting to reconstruct the agency file distinguishes this case from Environmental Defense Fund, where a seven month delay from the time of a hearing on a TRO application until settlement was caused by the Government’s insistence on positions which it finally abandoned and which were excluded from the stipulation of settlement, and where in the stipulation of settlement the Government conceded the major points sought by plaintiff. See 722 F.2d at 1084, 1086. See also Ashburn, supra, 740 F.2d at 850-51; White v. United States, 740 F.2d 836, 842 (11th Cir.1984). In any event, it is difficult to see how this delay had any significant impact on plaintiff’s costs and counsel fees.

      . The cases cited by plaintiff in support of her claim for costs and counsel fees are not persuasive. In Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982), the action was settled by stipulation whereby the Government "acknowledged the Agency’s error.” Id. at 1321. Moreover, a subsequent Second Circuit case suggests that in view of the apparently immediate capitulation by the Government an EAJA award may not have been appropriate. See Environmental Defense Fund, supra, 722 F.2d at 1086 (quoting Spencer, supra, 712 F.2d at 555 n. 58).

        Vega v. Schweiker, 558 F.Supp. 52 (S.D.N.Y.1983), Coffman v. Heckler, 580 F.Supp. 67 (N.D.Calif.1984), and Ceglia v. Schweiker, 566 F.Supp. 118 (E.D.N.Y.1983), to the extent that they may hold that an EAJA award is merited simply because a case is remanded for further agency proceedings, are contrary to the law of this circuit. See McGill, supra, 712 F.2d at 31. Moreover, in both Vega and Ceglia, it is clear that prior to remand the Government took an active litigation position in opposition to the plaintiffs’ claim.
      In Cunningham v. Heckler, 587 F.Supp. 43 (D.Conn.1984), the court reversed the Secretary's decision on the merits, and found the Government’s active defense of that decision unreasonable. Finally, Gordon v. Heckler, 586 F.Supp. 805 (E.D.N.Y.1984), involved an award of attorneys’ fees pursuant to "equitable considerations,” and not under the EAJA.

      . It is therefore unnecessary to address defendant's argument that plaintiff's attorney has supplied insufficient documentation of the time spent and work done with respect to this case, to support an EAJA award.


source: Caselaw Access Project

author: GERALD J. WEBER, District Judge.

license: Public Domain

text:
    Charles MURPHY v. Margaret M. HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 84-1920.
    United States District Court, W.D. Pennsylvania.
    Aug. 5, 1985.
    David E. Harr, Greensburg, Pa., for plaintiff.
    Amy Reynolds Hay, Asst. U.S. Atty., Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

This is an appeal from the Secretary’s denial of plaintiff’s application for disability benefits and Supplemental Security Income. Plaintiff applied for benefits in April 1983, claiming that his disability began in June 1979, the date he last worked. For fifteen years prior to that, plaintiff worked as a pipe layer. His disability claim rests on alleged weakness and trembling in his legs which prevent him from any prolonged standing, walking or lifting.

Plaintiff was heard without counsel before an Administrative Law Judge in January 1984. In a decision dated March 23, 1984, the AU concluded that Mr. Murphy could not return to his former job as a pipe layer, but that he did have the residual functional capacity to perform light work. According to 20 C.F.R. § 404.1569 the AU followed the vocational grid at 20 C.F.R. § 404.1598, Appendix 2, Subpart P, Table No. 2, Rule 202.17 in making this determination. These grids apply when a claim is based on physical impairments. We believe plaintiff is entitled to have what may be a non-exertional limitation considered which would preclude application of the vocational grids to his case. See Burnam v. Schweiker, 682 F.2d 456 (3d Cir.1982).

Evidence of diminished function in plaintiff’s legs appears in the record. In July 1982 he was diagnosed by Dr. J. Parker as having a diseased right knee which could have been caused by calcification, pseudo gout, a tear, or a foreign body. Record at 209-10. Dr. J. Rosen noted in June 1984 that plaintiff had a stiff-legged gait and decreased pain sensation in his feet. Record at 264-65. This no doubt accounts for the AU’s finding that plaintiff could no longer return to his former job and was capable of only light work. But Dr. Rosen, Dr. R. Sandrowicz in July 1982, and Dr. B. Park in July 1983 also concluded that Mr. Murphy’s complaints were related to nerve damage caused by alcoholism. Record at 225 and 249.

The record supports diagnosis of this disease well into its degenerative stages. After admitting heavy alcohol consumption, he was hospitalized for a month from July to August 1980 suffering from gastric disturbances. He was diagnosed as having pancreatitis, a condition often associated with alcoholism, and had symptoms of alcohol withdrawal. Record at 171-72. While he has never been treated for alcoholism itself, plaintiff testified at the administrative hearing to drinking three six packs of beer a week despite the gastrointestinal and neuropathic damage he knows this causes. Record at 47. This is a strong indicator that plaintiff has lost the ability to control his alcohol consumption, a condition the Secretary must consider in making disability determinations. Plaintiff stated that before his 1980 hospitalization he drank a case of beer a day. Id. The AU recognized plaintiff’s obvious problems with alcohol consumption and he elicited some testimony about it. Record at 46. He also mentioned plaintiff’s alcohol related problems in his opinion. Record at 19-20. He nevertheless did not consider alcoholism in his opinion as a possible nonexertional impairment. “When the evidence of alcoholism raises an issue as to the plaintiff’s mental and psychological capacity to engage in substantial gainful activity, the AU should pursue the matter. He must develop a full and fair record.” McShea v. Schweiker, 700 F.2d 117, 119 (citations omitted) (3d Cir.1983). This examination is particularly important when the claimant is not represented by counsel.

In McShea the Court of Appeals recognized that alcoholism alone may be disabling. There, as in this case, the claimant did not allege alcoholism as the basis for his impairment. In Burnam v. Schweiker, supra, the Court held that it is error for an AU not to consider non-exertional impairments, a classification that includes alcoholism, in combination with exertional impairments. In addition, vocational grids should not be applied to such cases. We, therefore, will remand this case for rehearing before the AU so that he may consider the effect of Mr. Murphy’s alcoholic behavior on his capacity for substantial gainful employment.

Finally, we note the finding that plaintiff is not able to return to his former job as a pipe layer. We also note that plaintiff has very limited employment experience, no transferable skills, and has been found unsuitable for vocational rehabilitation. Record at 263. In such a case we would expect the Secretary to come forward with evidence on remand about the employment available, if any, for a person of plaintiffs limited abilities.


text:
    Raymond J. TARASI, an individual and Seal-Pac Controls, Inc. a corporation, Plaintiffs, v. DRAVO CORPORATION a corporation, Defendant.
    Civ. A. No. 83-404.
    United States District Court, W.D. Pennsylvania.
    Aug. 5, 1985.
    John T. Tierney, Pittsburgh, Pa., for plaintiffs.
    E.F. Welsh, Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

This is an action in which plaintiffs originally alleged antitrust, contract, and tort claims, but later amended their complaint adding unfair competition and Racketeer Influenced and Corrupt Organization (RICO) violations. Defendant now moves to dismiss the RICO count for failure to state a claim upon which relief can be granted giving the following reasons:

1. Plaintiffs’ failure to allege “person” and “enterprise” as distinct entities;

2. Plaintiffs’ failure to properly allege the existence of predicate acts upon which the “pattern of racketeering activities” is established;

3. Plaintiffs’ failure to set forth with specificity the allegations of a conspiracy;

4. Plaintiffs’ failure to allege racketeering injury.

The second and fourth bases of defendant’s arguments were considered and rejected recently by the United States Supreme Court in Sedima, S.P.R.L v. Imrex Co., Inc., et al., — U.S. ---, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), and in American National Bank and Trust Co. of Chicago et al v. Haroco, Inc., et al., — U.S. ---, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). The court decided that racketeering injury was not a requirement to state a RICO claim, and that injury caused by the predicate acts was sufficient. Since the latter injury is present in this case we need not give defendant’s fourth argument any further consideration.

As to the lack of allegations pertaining to the predicate acts, we note that the Sedima Court clarified what allegations are necessary. To state a claim under RICO, 18 U.S.C. § 1962(c) the plaintiff must allege (1) conduct, (2) of an enterprise (3) through a pattern, (4) of racketeering activity. Sedima, at --- - ---, 105 S.Ct. at 3284-86. Thus ostensibly, plaintiffs must simply allege that Dravo conducted an enterprise through a pattern of racketeering, and need not allege the elements of the predicate acts. We believe that plaintiffs’ amended complaint meets the Sedima requirements, and defendant’s second argument is therefore rejected.

In reviewing the amended complaint, we believe that defendant’s first argument is more troublesome. Plaintiffs’ allegations in this regard are somewhat confusing since they state that

1. Dravo is an enterprise;
2. Dravo in combination with others such as Marcel Bilodeau formed an enterprise;
3. Dravo conducted its business through a pattern of racketeering activity.

Amended Complaint at p. 26.

These allegations appear to cast defendant in the role of both “person” and “enterprise” for RICO purposes as the defendant has claimed.

Plaintiffs argue that they can maintain an action against any defendant which either is an enterprise or is part of an enterprise. In making this argument, they attempt to distinguish B.F. Hirsch v. Enright Refining Corp., 751 F.2d 628, 633 (3d Cir.1984), and rely on Sedima claiming that it “implicitly overruled” Hirsch.

We disagree with this argument since the Sedima Court did not have this issue before it, and in no way did the Court there purport to deal with this issue even in dicta. While we note the split in authority regarding the requirement that a RICO “person” (defendant) and a RICO “enterprise” be distinct entities; see Hirsch, 751 F.2d at 633; and while we acknowledge the Supreme Court’s inclination to broadly construe RICO’s statutory provisions; see Sedima, supra, and Haroco, supra; we nonetheless believe that the Hirsch ruling remains the controlling law on this issue in the Third Circuit. The Hirsch court held that a violation of Section 1962(c) by a corporate entity requires an association with an enterprise that is not the same corporation. Hirsch, 751 F.2d at 634. The Court’s holding is the logical conclusion of its statutory construction that a RICO “person” and a RICO “enterprise” must be distinct entities. Id. at 633-34.

Furthermore, we do not understand plaintiffs’ alternative claim that Hirsch is distinguishable in that the plaintiff there charged the corporation itself with the predicate acts. Plaintiffs argue that the difference in the present case is that the corporation’s employees are charged with the predicate acts. We find no support for this argument in the allegations of the amended complaint which appear to charge Dravo itself with the predicate acts. Amended Complaint at 26.

It is true that plaintiffs indicate in their brief that discovery has revealed that Roger Pellett, Randy Davis, Ken Anderson and Marcel Bilodeau perpetrated the predicate acts of fraud while acting within the scope of their authority as agents for Dravo. Plaintiff’s Brief further indicates that they have merely elected to sue the agents’ principal instead of suing the agents themselves. These attempts at factual distinctions do not make any real difference since a corporation cannot operate except through its officers and agents. Plaintiffs’ agency theory is not in keeping with the rule in Hirsch that the person charged with the RICO violation under Section 1962(c) cannot be the same entity as the enterprise with which it is associated. As it appears from plaintiffs’ arguments that their claim is based primarily on Section 1962(c), their RICO claim will be dismissed.

An appropriate order will issue.


author: RESTANI, Judge.

text:
    The MAINE POTATO COUNCIL, Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 84-1-00141.
    United States Court of International Trade.
    June 27, 1985.

      Heron, Burchette, Ruckert & Rothwell, Washington, D.C. (Thomas A. Rothwell, Jr., James M. Lyons and Alfred G. Scholle) Washington, D.C., for plaintiff.
    Lyn M. Schlitt, Gen. Counsel, Michael P. Mabile, Asst. Gen. Counsel, U.S. Intern. Trade Com’n, Washington, D.C., Stephen A. McLaughlin, Washington, D.C., for defendant.
   OPINION AND ORDER

RESTANI, Judge.

Plaintiff, the Maine Potato Council, challenges a final determination of the United States International Trade Commission (ITC or Commission) regarding its investigation of fall-harvested round white potatoes from Canada. The Commission, on December 19, 1983, pursuant to § 735(b)(1) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673d(b)(l) (1982), found that the domestic industry was not suffering from, or threatened with, material injury by reason of imports of fall-harvested round white potatoes from Canada sold at less than fair value (LTFV). Fall-Harvested Round White Potatoes from Canada, Inv. No. 731-TA-124 (Final), USITC Pub. No. 1463 (December 1983); 48 Fed.Reg. 57,381 (December 29, 1983). This negative injury determination followed affirmative findings by the International Trade Administration of the Department of Commerce (ITA) that fall-harvested round white potatoes from Canada were being sold in this country at LTFV. 48 Fed.Reg. 51,669 (November 10, 1983).

■ Jurisdiction in this action is predicated upon 28 U.S.C. § 1581(c) (1982). This matter is before the court, pursuant to Court of International Trade Rule 56.1, on plaintiff’s motion for review of administrative determinations upon the agency record.

For the reasons that follow, the court concludes that some of the ITC’s findings are supported by substantial evidence in the administrative record and other findings are remanded for further consideration not inconsistent with this opinion.

I. ITC Findings Regarding the Domestic Fall-Harvested Round White Potato Industry

In a final antidumping investigation, the ITC is required to determine whether:

(A) an industry in the United States—
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded,
by reason of imports of the merchandise with respect to which the administering authority [ITA] has made an affirmative determination under subsection (a)(1) of this section.

19 U.S.C. § 1673d(b)(l) (1982) (emphasis added). Thus, without both a finding of material injury, or threat thereof, and a finding that such injury was by reason of the subject imports, antidumping relief may not be granted.

The Commission unanimously found that the industry in the United States was not materially injured or threatened with material injury by reason of imports of fall-harvested round white potatoes from Canada at LTFV. Fall-Harvested Round White Potatoes from Canada, Inv. No. 731-TA-124 (Final), USITC Pub. No. 1463 at 3 (December 1983) (ITC Opinion). The Commission found that the regional domestic industry was “experiencing material injury, reflected primarily by irregular declines in acreage harvested, a decline in part-time employment, financial losses and difficulty in obtaining financial assistance.” ITC Opinion at 3. The Commission explained its conclusion that the Canadian LTFV imports were not a cause of the industry’s problems:

An analysis of the price and volume effects of the Canadian imports on the domestic industry indicates that changes in regional domestic production, rather than imports, determine prices of fall-harvested round white potatoes in the U.S. market. A causal link between the imports and the domestic industry’s injury is absent since most losses to the industry occurred when imports were lowest and domestic production was highest. Moreover, once in the U.S. market, the volume effect of Canadian potatoes on price was insignificant or non-existent; the increase in domestic production from 1980/81 to 1982/83 was the predominant factor affecting price.
Pricing data further demonstrate that both import and domestic prices rose and fell together, apparently in response to the same changes in domestic production; that prices in the Northeast market were highly correlated with prices in other sections of the country where imports were absent or less concentrated; and that Canadian potatoes did not undersell the domestic product. Also, other factors such as tighter size standards, a perceived' higher quality of the Canadian potato and more effective marketing organization among many Canadian growers were found to contribute to the competitiveness of the Canadian product.
No threat of injury was found to exist to the industry, since import penetration has fallen, Canadian inventories are down, and production of round whites in Eastern Canada is not expected to increase.

ITC Opinion at 4.

II. Evidence in the Record Regarding Material Injury by Reason of LTFV Imports

“Material injury” is defined as “harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A) (1982). The Commission found in this case that data for the domestic industry on regional acreage, employment, and financial condition indicated that potato growers in the Northeastern region have experienced material injury. Specific findings include the following: (1) acreage harvested fell 14.8% during the 5-year' period investigated; (2) full and part-time employment fell over 15.0% from 1980/81 to 1982/83; and (3) hours worked by persons engaged in potato operations declined 7.0% from 1980/81 to 1982/83. Available financial data indicated losses to the industry, particularly in 1980 and 1982.

As indicated previously, the Commission, however, concluded that such injury was not caused or predominantly caused by the LTFV imports. The Commission found that LTFV imports had no measurable effect on domestic prices in the regional market. The Commission noted that when domestic production increased, the average price for Maine potatoes decreased, and vice versa. The data showed that imports into the United States market increased when prices in this market were highest, and that losses to the domestic industry were greatest when regional domestic production was high and imports were relatively low.

The Commission also indicated that the volume effect of the LTFV imports on United States prices was insignificant. The Commission noted that in 1980/81 the average wholesale price of round white potatoes in the New York City terminal market increased even though LTFV Canadian imports increased. In comparison, the price fell between 1981/82 and 1982/83, even though imports into the region fell. In general, price data for domestic and imported potatoes rose and fell together.

Moreover, the Commission found that potato prices in the regional market were highly correlated with prices in United States cities where Canadian imports were absent or less concentrated. The Commission concluded that this suggests that the domestic potato prices were responding to changes in regional domestic production rather than the price of imports.

Price data also demonstrated that Canadian imports generally sold for higher prices than Maine potatoes. Every month from September 1979 to October 1983, Canadian imports sold in the New York City terminal market were higher priced than Maine round white potatoes. Similarly, Boston’s prices for the Canadian imports during all but two of these months were higher than for the domestic items. In Philadelphia, three of the four months examined in 1983 also showed Canadian imports selling at higher prices than Maine potatoes. Other data revealed that prices of New Brunswick potatoes tended to be higher than prices of Maine potatoes in January 1983 and that prices for Prince Edward Island potatoes tended to be substantially higher than Maine prices for the same period.

While the Commission stated that fall-harvested round white potatoes from New Brunswick, Canada, and Maine were generally considered equal in quality, nonprice factors were found to contribute to the competitiveness of the Canadian potatoes. Prince Edward Island potatoes are considered more appealing in appearance because they are grown in a reddish soil, and both Prince Edward Island and New Brunswick potatoes are preferred due to more uniform Canadian size requirements. Differences in Canadian and U.S. marketing also contributed to the competitiveness of Canadian potatoes.

III. Legality of the Commission’s Findings A. Consideration of LTFV Margins.

Plaintiff challenges the ITC’s negative injury determination on several grounds. First, plaintiff complains that the Commission’s causation analysis is flawed because the Commission failed to consider the effect of the dumping margins on the domestic industry. Plaintiff asserts that in certain cases the Commission is required to address explicitly the impact of the dumping margin on the domestic industry, and that the instant case falls in that category. Plaintiff, however, fails to offer convincing support for its proposition that the ITC must perform a margins analysis. Plaintiffs only authority is Carbon Steel Wire Rod from Brazil, Belgium, France, and Venezuela, Inv. Nos. 701-TA-148, 149, 150 and 731-TA-88 (Preliminary), 47 Fed.Reg. 13,927 (April 1, 1982). In that case, Commissioner Paula Stern argued that the Commission could make a negative final determination if “dumping has accounted for only a small portion of the margin of underselling____” 47 Fed.Reg. at 13,933. Plaintiff offers no authority in which the Commission has ever considered the margin of dumping in reaching an affirmative final determination. Chairman Alfred E. Eckes in Certain Welded Carbon Steel Pipes and Tubes from the Republic of Korea and Taiwan, Inv. Nos. 731-TA-131, 132 and 138 (Final), USITC Pub. No. 1519 at 11 n. 46 (1984), stated that:

[DJespite an ambiguous reference to margins in a Committee report, the law makes no reference to Commission consideration of LTFV margins, nor does it suggest that the size of such margins is dispositive of the causation issue.

The Commission further stated:

[T]he fact that the LTFV margins are more likely to be manifested in low prices in the U.S. market, in comparison to the amount of the subsidy, does not aid in interpreting the causality requirement of the statute. As currently written, there is no suggestion in the statutory definition of material injury, which applies both to countervailing and anti-dumping duty determinations, that the Commission should base its injury finding on the price effect of the subsidy or the LTFV margins. See 19 U.S.C. § 1677(7).

USITC Pub. No. 1519 at 11 n. 47. Thus, it appears that the Commission’s interpretation of the statute does not require consideration of LTFV margins. An agency’s interpretation of a statute it is charged with administering is entitled to great weight. Melamine Chemicals, Inc. v. United States, 732 F.2d 924, 928 (Fed.Cir. 1984) (citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978)).

Moreover, a recent Congress spoke on this issue. An early draft of the Trade and Tariff Act of 1984 contained a provision which would have given the Commission the authority to base decisions on the size of the dumping or subsidy margin found by the ITA. The House Ways and Means Committee voted to delete this provision. Language in a corresponding provision dealing with interlocutory appeals to this court, however, temporarily — and erroneously — survived. The following colloquy on the floor of the House explains:

Mr. JENKINS. Mr. Chairman, I would like to engage the chairman of the Trade Subcommittee in a brief colloquy. I understand that section 110 of the bill[,] which deals with interlocutory appeals[,] may still contain language which refers to determinations by the Commission based on the size of the dumping margin or net subsidy. In the Ways and Means Committee we voted to delete a provision which would have given the Commission authority to base its decision on the dumping margin or subsidy level. Therefore, I would assume that this language in section 110 should have been deleted. Can the gentleman assure me that this language does not authorize such determinations by the Commission and that at some future point the necessary conforming changes will be made?
Mr. GIBBONS. Mr. Chairman, will the gentleman yield.[?]
Mr. JENKINS. I yield to the chairman of the subcommittee.
Mr. GIBBONS. The gentleman is correct. Regrettably, we should have deleted this reference in section 110. Let me assure you that this language deals only with the time periods for filing appeals with the Court of International Trade and in no way does it confer authority on the Commission to base determinations on the subsidy level or dumping margin. I also want to assure you we will work with the Senate to modify the language and correct the problem, but since it is a very minor technical change, I do not see any need for us to deal with it at this time.

96 Cong.Ree. H7908-09 (daily ed. July 26, 1984).

The legislative history of the 1984 Act supports the court’s conclusion that the Commission is not required to consider dumping margins in reaching a decision on material injury by reason of LTFV imports. Although the court should not place too high a value on the views of one Congress as to the construction of a statute enacted by another Congress, United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001 (1968), the views of a subsequent Congress may be given some consideration in interpreting relevant Congressional intent. Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 356-57, 82 S.Ct. 424, 427, 7 L.Ed.2d 346 (1962); see Heckler v. Turner, — U.S. ---, ---, 105 S.Ct. 1138, 1152-53, 84 L.Ed.2d 138 (1985); Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). This is particularly true where the enacting Congress was silent and where the views found in the legislative history are in accord with the statutory language.

B. LTFV Imports as a Contributing Cause of Material Injury.

Second, plaintiff complains that the Commission’s causation analysis is flawed because the Commission stated that LTFV imports were not a “material cause” of the domestic industry’s injury. ITC Opinion at 3. The use of the term “material cause,” plaintiff argues, demonstrates that the ITC employed the wrong causation standard. Plaintiff correctly asserts that it is not necessary for plaintiff to show that the imports are the sole cause, nor even the major cause of injury, as long as the facts show that LTFV imports are more than a de minimis factor in contributing to the injury. See British Steel Corp. v. United States, 8 CIT ---, 593 F.Supp. 405, 413 (1984); Pig Iron from Canada, Finland and West Germany, Inv. Nos. AA 1921-72, 73, 74, T.C. Pub. No. 398 at 6 (1971); Elemental Sulphur From Mexico, Inv. No. AA 1921-92, T.C. Pub. No. 484 at 3 (1972). Plaintiff argues that the Commission failed to consider whether LTFV imports were a “contributing” cause, and that instead the Commission required evidence that the LTFV imports were a “material cause.” Plaintiff also argues that because the ITC determined that the LTFV imports were not a “material cause” of the domestic industry’s injury, it inferred that LTFV imports were a “contributing cause” of injury. Although the court will not rely solely on what might be a simple mistake in word usage, the court is concerned as to whether the Commission actually weighed causes and improperly discounted a contributing cause of injury.

In this regard, plaintiff contends that there is substantial evidence in the record to support a finding that imports were indeed a contributing cause of injury and that the ITC, therefore, must have improperly weighed causes. Plaintiff specifically argues that an econometric study prepared by the Commission’s staff establishes that the volume of LTFV imports found here would significantly reduce domestic prices, and that this study so detracts from the evidence supporting a negative injury determination as to eradicate it, or at least to render it insubstantial. In effect, plaintiff argues that the ITC’s determination is unsupported by substantial evidence in the record.

In reviewing the Commission’s determination, this court must sustain “a final negative injury determination by the ITC ... unless it is ‘unsupported by substantial evidence on the record, or otherwise not in accordance with law.’ 19 U.S.C. § 1516a(b)(l)(B) (1982).” American Spring Wire Corp. v. United States, 6 CIT ---, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), and Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); and quoted in American Spring Wire Corp., 590 F.Supp. at 1276. “The court may not substitute its judgment for that of the [agency] when the choice is ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo____’ ” American Spring Wire Corp., 590 F.Supp. at 1276 (<quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983), cert. denied, — U.S. ----, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983) (quoting Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464)). See also Sprague Electric Co. v. United States, 2 CIT 302, 310-11, 529 F.Supp. 676, 682-83 (1981). It is within the Commission’s discretion to make reasonable interpretations of the evidence and to determine the overall significance of any particular factor or piece of evidence. See S.Rep. 249, 96th Cong., 1st Sess. at 74-75 (1979), U.S.Code Cong. & Admin.News 1979, 381.

In this case, the Commission states that import volume effects on price were insignificant. The court understands this to mean that price levels were controlled by domestic factors, but the Commission also states that price was predominantly controlled by domestic production. In footnote 46 of its opinion the Commission cites the econometric study mentioned above in support of this proposition. It is one thing to say domestic factors caused the injury and quite another to say that such factors were the dominant ones in the causation of injury. In its opinion the Commission appears to say both. The court is left with the impossible task of deciding which of two conclusions was reached by the Commission. As indicated, it is not for the court to say in the first instance, which conclusion is best supported by the evidence. This is a determination which must be made by the Commission. If the Commission concludes that LTFV imports were anything but a de minimis cause of injury, it must make an affirmative injury finding. See British Steel Corp., 593 F.Supp. at 413.

C. Underselling: Levels of Comparison.

Third, plaintiff challenges the methods used by the ITC in reaching its decision that there was no price undercutting. Plaintiff argues that the Commission’s decision is flawed because it did not compare prices at an “optimum level.” That is, plaintiff argues that it was incumbent on the ITC to compare prices at levels closer to the potato growers before the Commission could properly conclude that the imports did not undersell the domestic product.

The record, however, shows that the Commission made its finding of no underselling by examining data from several sources. The ITC sent out questionnaires regarding actual price, but failed to receive adequate data in response to make a determination as to underselling based on this data alone. The Commission then proceeded to examine Customs invoices for price data, as well as to obtain information on relative prices and wholesale prices — all of which supported the ITC’s conclusion that Canadian imports generally did not undersell domestic potatoes. Thus, the Commission properly used the best available information.

Plaintiff also argues that before comparing Canadian prices to domestic prices, the ITC should have subtracted the additional transportation costs and duties from Canadian prices. When comparing the price of United States goods with the price of imports, the Commission must compare prices at the level of actual competition in the United States market. British Steel Corp., 593 F.Supp. at 412. Actual market price would include transportation costs for Canadian and Maine potatoes, as well as the ordinary duty for Canadian potatoes.

D. Quality Differences.

A final basis for attacking the Commission’s decision, plaintiff argues, is that the Commission, after finding that the perceived higher quality of the Canadian imports contributed to the effectiveness of the Canadian product, did not properly consider quality differences when evaluating lost sales data, price suppression, and underselling. The Commission is not required to make a perfect statement as to the reasons for its determination. Absent some showing to the contrary, the Commission is presumed to have considered all evidence in the record. Rhone Poulenc v. United States, 8 CIT ---, 592 F.Supp. 1318, 1326 (1984). If the Commission’s opinion, when read as a whole, is supported by substantial evidence, it must stand. See Sprague Electric Co., 2 CIT at 310, 529 F.Supp. at 682. Here, however, the Commission found quality to be a factor contributing to the competitiveness of the Canadian imports. Thus, quality was found to be a significant factor. Nonetheless, it is not clear from the Commission’s opinion how the Commission treated the issue of quality differences when evaluating price suppression, price comparisons, and lost sales and whether that treatment was proper.

Defendant’s counsel conceded at oral argument the possibility that the Canadian imports, notwithstanding their higher price, could theoretically have had a price suppressing effect on domestic prices due to the perceived higher quality of the imports, but counsel argued this factor was properly considered and accounted for. In addition, perceived quality differences were said to have been considered in the Commission’s price comparisons in its inquiry into underselling. Counsel’s post hoc rationalization cannot substitute for a clear statement by the Commission as to how it treated quality differences.

Plaintiff also argues that the Commission improperly disregarded lost sales due to quality factors. There is no statutory provision which requires the Commission to perform a particular type of analysis in order to draw a conclusion regarding lost sales per se. Although the Commission must assess the impact of imports on the domestic industry, the Commission may make such an evaluation on whatever rational basis it chooses. Here the Commission used lost sales to determine if sales were lost due to price factors, an important test of injury. What is of concern in regards to the lost sales analysis is what the Commission did after it concluded that sales were being lost because of quality factors, and that quality factors were important to the competitiveness of Canadian potatoes. At that point the Commission was compelled to treat this factor, particularly in regards to its analysis of price suppression. With regard to underselling, it is not clear that a consistently significant quality difference should not or could not be quantified.

Since the Commission’s findings on price suppression and underselling appear crucial to its decision, the Commission must clarify the basis for such findings. See SCM Corp. v. United States, 84 Cust.Ct. 227, C.R.D. 80-2 (1980), aff'd, 2 CIT 1, 519 F.Supp. 911 (1981), reaff'd, 4 CIT 7, 544 F.Supp. 194 (1982).

Accordingly, the ITC is instructed to explain how it treated the issue of quality differences when finding no price suppression by reason of LTFV imports and no underselling and how such findings led to the final decision regarding injury. If the Commission did not consider quality differences previously, it should do so now. In addition, the Commission shall state whether it finds overall that imports were a contributing cause of injury and how that finding relates to data on volume effects. The Commission’s opinion on remand will be delivered to this court and plaintiff no later than July 25, 1985. Plaintiff may respond by delivering papers to this court and to defendant no later than August 5, 1985. Defendant may reply by delivering its papers to this court and to plaintiff no later than August 15, 1985.

      . Plaintiff does not appear to challenge specifically the Commission's finding with regard to threat of material injury.

      . Additional evidence of the Maine growers’ financial difficulties was found in data provided by the Farmers Home Administration (FmHA), which finances over 50% of Maine's potato growers. The number of potato farms financed declined from 518 in 1979 to 428 in 1983, or by 17%, and the number of potato acres financed declined from 44,627 in 1979 to 35,249 in 1983, or by 21%. In 1983 alone, the FmHA dropped 88 potato farmers. Also in 1983, the FmHA financed 47 new farmers, most of whom were no longer able to secure financing from production credit associations or private banks. The percentage of loans collected by the FmHA declined substantially between 1980 and 1982.

      . In 1980/81, average prices for Maine potatoes (Maine prices) were $6.52 in New York City and $5.85 in Boston. In 1981/82, regional production increased 6.4% and average Maine prices fell to $4.33 in New York City and to $3.86 in Boston. In 1982/83, regional production increased 6.2%, and average Maine prices declined to $3.77 in New York City and to $3.38 in Boston. In 1983, regional production declined 18.8% and average Maine prices rose to $5.50 in New York and to $4.85 in Boston.

      . The Commission observed that imports increased from 787,000 hundredweight (cwt.) in 1979/80 to 1.8 million cwt. in 1980/81. Imports increased slightly in 1981/82 to 2.1 million cwt., declining in 1982/83 to 1.3 million cwt. The ratio of imports to apparent consumption in the regional market increased from 2.5% in 1979/80 to 6.4% in 1980/81 and to 6.7% in 1981/82. Import penetration then decreased to 4.0% in 1982/83.

      . Presumably taste was the main factor in this quality determination.

      . The court will refer to these particular non-price factors as quality factors in subsequent discussions.

      . Plaintiff argues that because the ITC found lesser degrees of import penetration significant in other cases, it should do so here. See Certain Carbon Steel Products from Spain, Inv. Nos. 701-TA-155, 157, 158, 159, 160, and 162 (Final), 48 Fed.Reg. 525 (January 5, 1983); Carbon Steel Wire Rod from Brazil and Trinidad and Tobago, Inv. Nos. 731-TA-113 and 114 (Final), USITC Pub. No. 1444 (October 1983). The problem with plaintiff's position is that the Commission must make its determinations on a case-by-case basis. H.R.Rep. 317, 96th Cong., 1st Sess. at 46 (1979); S.Rep. 249, 96th Cong., 1st Sess. at 88 (1979). The volume of potato production varies dramatically and is reflective of an industry very different from non-agricultural industries. While factual similarities with regard to dissimilar industries may be probative evidence, they do not require similar conclusions.

      . The court does not accept plaintiff's argument that the econometric study mandates an affirmative injury determination. Such a theoretical model, based on a set of assumptions, may be outweighed by real world data.

      . The court is not seeking the use of some magic words. Because of factors to be discussed in section "D", infra, there is considerable doubt in the court’s mind as to what the Commission will conclude on remand.

      . Of course, proper adjustment must be made for the effects of these proceedings, if any such effects exist.

      . Out of nineteen allegations of lost sales investigated by the Commission, "almost none” were due to a lower Canadian price. A number of buyers, however, stated that they purchased Canadian potatoes because of higher quality.

      . Certain affidavits indicated that sales were lost because of price. The ITC could not confirm the statements in the affidavits and exercised its discretion in disregarding them.

      . This case is factually distinguishable from Jeanette Sheet Glass Corp. v. United States, 9 CIT ---, 607 F.Supp. 123 (1985), appeal docketed No. 85-2455 (Fed.Cir. May 24, 1985), wherein quality was not found to be a consistently significant factor.


author: DiCARLO, Judge:

text:
    CAN-AM CORP., et al. Plaintiffs, v. The UNITED STATES, Defendant, and Industrias Quimicas De Yucatan, S.A., Intervenor.
    Court No. 84-10-01411.
    United States Court of International Trade.
    June 28, 1985.

      Squire, Sanders & Dempsey, Ritchie T. Thomas and William D. Kramer, Washington, D.C., for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., David M. Cohen, Director, Commercial Litigation Branch, Platte B. Moring, III, Washington, D.C., for defendant.
    Brownstein, Zeidman and Schomer, David R. Amerine and Irwin P. Altschuler, Washington, D.C., for defendant-intervenor.
   Memorandum Opinion and Order

DiCARLO, Judge:

Intervenor moves to sever and dismiss on jurisdictional grounds parts of plaintiffs’ complaint contesting the International Trade Administration’s (ITA) decision not to investigate an alleged first-level fuel oil subsidy (fuel subsidy) provided to Mexican lime producers. Defendant joins plaintiffs in opposing the motion.

In March 1984, plaintiffs, domestic lime producers and unions representing lime industry workers, filed a countervailing duty petition with the ITA alleging that the government of Mexico gives manufacturers, producers, and exporters of lime “bounties or grants” within the meaning of section 303 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1303 (1982), and requested that countervailing duties be imposed on imports of lime from Mexico.

In April 1984, the ITA began an investigation of seventeen programs and decided not to investigate four others, including the fuel subsidy. 49 Fed.Reg. 15,011 (Apr. 16, 1984).

In September 1984, the ITA published a final affirmative countervailing duty determination and order. The ITA stated that it did not investigate the fuel subsidy “because it has previously been found not to confer a bounty or grant, and petitioners did not allege new facts to justify a review of this finding.” Final Affirmative Countervailing Duty Determination and Countervailing Duty Order; Lime from Mexico, 49 Fed.Reg. 35,672, 35,677 (Sept. 11, 1984).

Plaintiffs brought this action under 19 U.S.C. § 1516a(a)(2)(A)(i)(II) within thirty days of publication of the countervailing duty order. Plaintiffs challenge six parts of the final affirmative determination, including the ITA’s failure to investigate the fuel subsidy.

The question presented by the motion is whether the ITA’s April 1984 decision not to initiate a fuel subsidy investigation was a final determination under section 1516a(a)(l)(A) that had to be challenged within thirty days of its publication in the Federal Register.

Reviewable under Section 1516a(a)(l)(A) is a determination not to initiate an investigation under 19 U.S.C. 1671a(c) (1982). Section 1671a(c) provides in part:

Within 20 days after the date on which a petition is filed ... the administering authority shall—
(2) if the determination is affirmative, commence an investigation to determine whether a subsidy is being provided with respect to the class or kind of merchandise described in the petition, and provide for the publication of notice of the determination to commence an investigation in the Federal Register, and
(3) if the determination is negative, dismiss the petition, terminate the proceeding, notify the petitioner in writing of the reasons for the determination, and provide for the publication of notice of the determination in the Federal Register.

(Emphasis added).

The plain meaning of the provision contemplates a single affirmative determination to begin or a negative determination not to begin an investigation with respect to the class or kind of merchandise described in the petition.

In this case, the petition was not dismissed or the proceeding terminated. Rather, the ITA published a notice titled Lime from Mexico: Initiation of Countervailing Duty Investigation, 49 Fed.Reg. 15,011. The ITA’s refusal to investigate the fuel subsidy was not a negative determination within the meaning of section 1671a(c)(3) but a negative part of an affirmative determination to commence an investigation pursuant to section 1671a(c)(2).

Since review under 19 U.S.C. § 1516a(a)(l)(A) requires a determination not to initiate an investigation, review was not available to the plaintiff under that section in April 1984.

Congress provided for review of any negative part of final affirmative determinations within thirty days after publication in the Federal Register of the final duty order. 19 U.S.C. § 1516a(a)(2)(A)(i)(II).

If there was any doubt as to whether an appeal from negative parts of an affirmative determination was permissible, Congress resolved it when it set forth as among the purposes of the 1984 Trade Act:

(1) Elimination of] all interlocutory judicial review by the U.S. Court of International Trade during the course of CVD [countervailing duty] and AD [antidumping] investigations. All challenges to agency determinations would be combined and reviewable by the court after final agency action has been taken [and the]
(2) Clarification of] when negative portions of affirmative determinations may be reviewed: any part of a final affirmative determination by the administering authority which specifically excludes any company or product may, at the option of the appellant, be treated as a final negative determination; and may be subject to appeal within 30 days of publication; other negative aspects of an affirmative determination would be appealable within 30 days after publication of a final order____

H.Rep. No. 1156, 98th Cong., 2d Sess. 178-79 (1984) U.S.Code Cong. & Admin.News 1984, 4910, 5295, 5296 (emphasis added).

The Court finds Congress clearly expressed its intention to permit judicial review of negative parts of affirmative determinations after publication of a final duty order, except for those final determinations excluding a company or product. Prior judicial review would be “interlocutory” and premature. Were the Court to require plaintiffs to appeal negative parts of a decision to initiate an investigation before issuance of the duty order, petitioners would have to prosecute an appeal and participate in an ongoing administrative proceeding at the same time. This is contrary to the intent of Congress.

Even before enactment of the 1984 Trade Act, Congress preferred all challenges to an administrative proceeding to be brought at one time. Under the Trade Agreements Act of 1979, which permitted some interlocutory appeals, a plaintiff was permitted to wait until the countervailing duty order to challenge negative aspects of affirmative determinations pursuant to 19 U.S.C. § 1671d (1982). See Bethlehem Steel Corp. v. United States, 742 F.2d 1405, 1411 (Fed.Cir.1984). Under the 1979 Act, Congress permitted interlocutory appeals only where delay “could make an ultimate resolution of an issue in a party’s favor irrelevant because of the irreversible damage suffered during the interim period.” S.Rep. No. 249, 96th Cong., 1st Sess. 245 (1979), U.S.Code Cong. & AdmimNews 1979, 381, 631. See Bethlehem, supra.

Plaintiffs have followed the statutory scheme. The motion is denied. So ordered.

      . Plaintiffs contend that the government of Mexico provides the heavy fuel oil used by Mexican lime producers to fire their kilns at a price that is about one-eighth of the market value of the fuel. Plaintiffs argue that fuel and power account for about 60% of the cost of producing lime, and that this practice confers an enormous subsidy on the Mexican lime industry.

      . Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a (1982), providing for judicial review in countervailing duty proceedings, was amended by the Trade and Tariff Act of 1984 (1984 Trade Act), Pub.L. No. 98-573, § 623(a), 98 Stat. 2948, 3040 (1984). The amendments made the 1984 Trade Act apply with respect to civil actions pending on October 30, 1984. 1984 Trade Act, § 626(b)(2), 98 Stat. at 3042. This action was initiated on October 11, 1984, and is, therefore, governed by the 1984 Trade Act.
      19 U.S.C. § 1516a(a)(2) provides for review: (A) In general. — Within thirty days after— (i) the date of publication in the Federal Register of—
      (II) an antidumping or countervailing duty order based upon any determination described in clause (i) of subparagraph (B)
      (B) Reviewable determinations. — The determinations which may be contested under sub-paragraph (A) are as follows:

        (i) Final affirmative determinations by the administering authority and by the Commission under section 1671d or 1673d of this title, including any negative part of such a determination (other than a part referred to in clause (ii) )-

      . Intervenor analogizes to Republic Steel v. United States, 4 CIT 17 (1982), which held that a preliminary finding that a particular program is not a subsidy was a “negative determination”, which may be appealed interlocutorily under 19 U.S.C. § 1516a(a)(2)(B)(ii), repealed by 1984 Trade Act § 623a, 98 Stat. at 3040-41. The Court found preliminary determinations under the former section 1671b(b) to be made up of a "series of discreet and severable determinations." 4 CIT at 19.

        Republic Steel is inapposite to the issue before this Court because: the provision heavily relied upon by the Court in Republic Steel as demonstrating Congressional intent to allow interlocutory appeals, the former section 1516a(a)(l)(B), was repealed by the 1984 Trade Act; the vitality of the holding may be questioned in light of Bethlehem Steel Corp. v. United States, 742 F.2d 1405, 1411 (Fed.Cir.1984) and; plaintiffs challenged a preliminary determination under section 1671b, not a decision to initiate an investigation under section 1671a.

      . 19 U.S.C. § 1516a(a) provides in part:
      (1) Within 30 days after the date of publication in the Federal Register of—
      (A) a determination by the administering authority, under section 1671a(c) ... of this title, not to initiate an investigation____
      Intervenor contends that the ITA's decision not to investigate this subsidy may not be reviewed under 19 U.S.C. § 1516a(a)(2)(A)(i)(II) and that the Court lacks jurisdiction pursuant to 28 U.S.C. § 1581(c) over that part of plaintiff’s complaint challenging this decision.


author: CARMAN, Judge:

text:
    KOKUSAI ELECTRIC CO., LTD., Plaintiff v. UNITED STATES, Defendant, and E.F. Johnson Co., Defendant-Intervenor.
    Court No. 85-2-00185.
    United States Court of International Trade.
    July 30, 1985.

      Pillsbury, Madison & Sutro, Washington, D.C. (Donald E. deKieffer and Frank J. Schuchat, Washington, D.C., on the motion) for AT & T Technologies.
    Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C. (Stephen L. Gibson and Margaret Ellen Roggensack), Washington, D.C., for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Shiela N. Ziff, Washington, D.C., on the motion) for defendant.
    Robins,, Zelle, Larson & Kaplan, St. Paul, Minn., Jann L. Olsten, St. Paul, Minn., for defendant-intervenor E.F. Johnson Co.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

Before the Court is the motion of AT & T Technologies (AT & TT) for leave to intervene in this antidumping duty action. Congress has provided statutory authorization for intervention by right in such a proceeding, which is brought under section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a (1982). The applicable statutes are 19 U.S.C. § 1516a(d) (1982), which provides:

(d) Standing
Any interested party who was a party to the proceeding under section 1303 of this title or subtitle IV of this chapter shall have the right to appear and be heard as a party in interest before the United States Court of International Trade. The party filing the action shall notify all such interested parties of the filing of an action under this section, in the form, manner, style, and within the time prescribed by rules of the court,

and 28 U.S.C. § 2631(j)(l)(B) (1982), which provides:

(j)(l) Any person who would be adversely affected or aggrieved by a decision in a civil action pending in the Court of International Trade may, by leave of court, intervene in such action, except that
(B) in a civil action under section 516A of the Tariff Act of 1930, only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right.

The Court may permit intervention, however, only if the proposed intervenor qualifies as “an interested party who was a party to the proceeding in connection with which the matter arose.” Id. AT & TT contends that it meets these qualifications, while the defendant United States opposes the motion to intervene on the basis that AT & TT was not the importer of record. Plaintiff, Kokusai Electric Company, has taken no position in response to this motion. Defendant-intervenor E.F. Johnson Company did not seek intervention until after the submission of AT & TT’s motion to intervene and therefore did not participate in the consideration of AT & TT’s motion.

FACTS

AT & TT first became involved in the administrative proceedings on March 23, 1984, by filing with the International Trade Administration (ITA) a notice of appearance and request to become a party to the proceeding, following publication on January 25,1984, of notice of the initiation of an antidumping duty investigation. 49 Fed. Reg. 3100 (1984). The petitioner, E.F. Johnson Company, objected to the release of confidential information to AT & TT under an administrative protective order and claimed that AT & TT was not an “interested party” as defined by the statutes or regulations. The petitioner argued that the term “the United States importer” as used in 19 U.S.C. § 1677(9)(A), which defines interested party, and 19 C.F.R. § 353.12(c)(1) (1982), refers to the importer of record. Although the merchandise was imported for the account of AT & TT, was manufactured to the specifications of AT & TT, and AT & TT was the sole consumer of the merchandise, the American subsidiary of Kokusai Electric Company, respondent in the administrative proceeding, was nevertheless the “importer of record”. Although AT & TT provided follow-up information and clarification to the ITA, it was denied party to the proceeding status on May 3, 1984.

On June 12, 1984, the ITA published notice of its preliminary determination of sales at less than fair value (LTFV). AT & TT then provided notification dated June 21, 1984, of its intent to participate in the ITA public hearing and submitted a prehearing brief on July 5, 1984, regarding clarification of a critical circumstances determination. This was followed by AT & TT’s request dated August 16, 1984, to participate in the rescheduled public hearing.

By letter of September 12, 1984, AT & TT again requested to become a party to the proceeding. This letter stated that under a new contract with Kokusai Electric Company, AT & TT became the importer of record as of August 1, 1984. Petitioner again objected to AT & TT gaining party to the proceeding status, but the ITA apparently never responded to AT & TT’s September 12 final request. Nevertheless, AT & TT did submit its final prehearing brief on September 9, 1984, and participated in the October 1, 1984 hearing.

This civil action was then commenced by Kokusai Electric Company on March 1, 1985.

DISCUSSION

The issue before the Court is whether or not AT & TT qualified as an “interested party who was a party to the proceeding” within the meaning of 19 U.S.C. § 1516a(d) and 28 U.S.C. § 2631(j)(l)(B). The term “interested party” is defined by statute and means in part:

A foreign manufacturer, producer, or exporter, or the United States importer, of merchandise which is the subject of an investigation under this subtitle or a trade or business association a majority of the members of which are importers of such merchandise.

19 U.S.C. § 1677(9)(A) (1982) (emphasis added). AT & TT claims under this provision that it is an interested party as the United States importer. AT & TT contends that at all times throughout the investigation it was the “beneficial importer” of the merchandise, since the merchandise was imported for the account of AT & TT, and that AT & TT became the actual importer of record as of August 1, 1985.

The defendant interprets “the United States importer” of section 1677(9)(A) as including only the importer of record. The defendant contends further that even after becoming the importer of record, AT & TT did not comply with the notice provision of 19 C.F.R. § 353.12(i)(4) in order to become a party to the proceeding. This regulation provides that an interested party (which under 19 C.F.R. § 353.12(c)(1) includes the United States importer) becomes a party to the proceeding by informing

the Secretary [of Commerce] in writing of his intent to become a party to the proceeding within 20 days after the preliminary determination or who demonstrates to the satisfaction of the Secretary good cause for intervention.

19 C.F.R. § 353.12(i)(4). Since AT & TT’s request of September 12, 1984, was more than 20 days after the June 12, 1984 preliminary determination, defendant argues that AT & TT was barred from becoming a party to the proceeding by 19 C.F.R. § 863.12(0(4).

The defendant has failed, however, to adequately address the second aspect of subsection (i)(4), which provides for party to the proceeding status upon a showing to the Secretary of good cause for intervention. In the absence of a denial by the Secretary of AT & TT’s final request to become a party to the proceeding, the Court finds AT & TT demonstrated good cause for intervention in the administrative proceedings.

Regardless of any initial questions as to whether AT & TT was the United States importer, AT & TT became the importer of record during the course of the investigation, therefore clearly satisfying the statutory requisite of being an interested party. See 19 U.S.C. § 1677(9)(A). Additionally, AT & TT was involved early in the investigation, when counsel for AT & TT filed a notice of appearance within 60 days of the published notice of the initiation of the investigation and went on to participate in the public hearing. AT & TT is not now attempting to interject itself in the civil proceeding after sitting out the administrative proceedings. See e.g., Matsushita Electric Industrial Co. v. United States, 2 CIT 254, 257-59, 529 F.Supp. 664, 668-69 (1981) (“interested party” failed to acquire right to intervene where its participation in the administrative proceeding was confined to membership in an association that participated); Miller and Co. v. United States, 8 CIT --- , 598 F.Supp. 1126 (1984) (motion to amend summons to include 19 U.S.C. § 1516a(a) claim where plaintiff had failed to show it had been represented in administrative proceedings or the ITA should have realized it was participating in those proceedings).

It is true that mere participation in the ITA hearing does not automatically make AT & TT a “party to the proceeding.” Nevertheless, since AT & TT was also the United States importer prior to the conclusion of the investigation, the Court holds that AT & TT has standing under 19 U.S.C. § 1516a(d) and 28 U.S.C. § 2631(j)(l)(B) to intervene in the judicial review.

Further, AT & TT timely notified the ITA of its intended participation as required by 19 C.F.R. § 353.12(i). ' Although it can be argued that AT & TT did not qualify as “the United States importer” and therefore was not an “interested party” at the original time of notification, AT & TT did meet this qualification during the course of the investigation. The time bar of 19 C.F.R. § 353.12(i) is also not absolute, providing good cause for intervention has been demonstrated. The Secretary did not formally respond to AT & TT’s final request, but it certainly would have been reasonable for the Secretary to have found good cause for intervention under these circumstances. Indeed, allowing AT & TT to submit briefs and to participate at the upcoming hearing in the absence of a response from the Secretary clarifying the basis upon which AT & TT was participating could be interpreted as implying that good cause for intervention had been demonstrated to the Secretary’s satisfaction.

CONCLUSION

AT & TT participated throughout the administrative proceeding prior to this action. Although there was some question as to whether AT & TT was “the United States importer” at all times during the antidumping duty investigation, the Court need not decide this precise issue since AT & TT did clearly become the importer of record during the course of the investigation. AT & TT is therefore an “interested • party” as defined by 19 U.S.C. § 1677(9)(A).

As the ITA was timely notified of AT & TT’s intention to participate, and actually permitted AT & TT to participate in the public hearing, AT & TT was a “party to the proceeding” within the meaning of 19 U.S.C. § 1516a(d) and 28 U.S.C. § 2631(j)(l)(B). The Court therefore finds that the motion of AT & TT to intervene must be granted.