author: RE, Chief Judge:

text:
    NEC AMERICA, INC., Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 83-3-00419.
    United States Court of International Trade.
    Sept. 25, 1984.
    Glad, White & Ferguson, Los Angeles, Cal. (Edward N. Glad, Los Angeles, Cal., at trial and on brief), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Office, Commercial Litigation Branch, New York City (Michael P. Maxwell, New York City, at trial and on brief), for defendant.
   RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Japan, and described on the customs invoice as “paging receivers.”

The merchandise was classified by the Customs Service as “other solid-state (tubeless) radio receivers” under item 685.24 of the Tariff Schedules of the United States (TSUS). Consequently, the merchandise was assessed with duty at a rate of 8.8 per centum ad valorem.

Plaintiff protests this classification and contends that the merchandise is properly classifiable under item 685.70, TSUS, as “indicator panels and other sound or visual signalling apparatus” dutiable at a rate of 3.5 per centum ad valorem.

The pertinent statutory provisions of the tariff schedules are as follows:

Classified under:
Schedule 6, Part 5:
Radiotelegraphic and radiotelephonic transmission and reception apparatus; radiobroadcasting and television transmission and reception apparatus, and television cameras; record players, phonographs, tape recorders, dictation recording and transcribing machines, record changers, and tone arms; all of the foregoing, and any combination thereof, whether or not incorporating clocks or other timing apparatus, and parts thereof:
Radiotelegraphic and radiotelephonic transmission and reception apparatus; radio-broadcasting and reception apparatus, and parts thereof:
Other:
Solid-State (tubeless) radio receivers:
685.24 Other ...........8.8% ad val.
Claimed under:
Schedule 6, Part 5:
685.70 Bells, sirens, indicator panels, burglar and fire alarms, and other sound or visual signalling apparatus, all of the foregoing which are electrical, and parts thereof ..........................3.5% ad val.

The question presented is whether, within the meaning of the tariff provisions, the imported merchandise is dutiable as “other solid-state (tubeless) radio receivers,” as classified by Customs, or as “indicator panels and other sound or visual signalling apparatus,” as claimed by plaintiff. In order to decide this issue, the court must consider “whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984), reh’g denied, No. 83-1108 (Fed.Cir. July 17, 1984).

After an examination of the merchandise, relevant case law, lexicographic definitions, and testimony of record, it is the determination of the court that the plaintiff has not overcome the presumption of correctness that attaches to the government’s classification. 28 U.S.C. § 2639(a)(1) (1982); Jarvis Clark Co. v. United States, 733 F.2d 873, 876, reh’g denied, 739 F.2d 628 (Fed.Cir.1984); E.R. Hawthorne & Co. v. United States, 730 F.2d 1490, 1490 (Fed.Cir.1984).

The imported paging receivers are small electrical devices which are pre-set to a certain radio frequency channel. The pagers are battery-powered and have liquid crystal diode visual display (LCD) units with a ten digit capacity. They are activated by means of a 3-motion switch. When the switch is turned, the pager emits a tone and the liquid crystal display is illuminated to indicate that it is operational.

When reset, the pager is activated by a binary digital code transmitted over the pre-set radio channel. The radio signal is received by the pager, detected, and sent, to a decoding device which activates the pager. When activated, the pager generates a tone and presents numerical information on a visual display LCD. The device converts binary information received through the radio frequency into digital information on the LCD. The pager can thereby receive information such as telephone numbers, stock quotations, or coded messages. It also has a memory capability which allows it to store and recall messages.

In attacking the Customs Service’s classification of the paging receivers, it is plaintiff’s principal contention that a radio receiver necessarily requires a tuner, that is, a device that enables the user to select more than one frequency, as well as an audio amplifier.

In order to determine whether the imported paging devices are radio receivers, the court must ascertain the precise meaning of “radio receivers,” as used by Congress in the tariff schedules. The meaning of a tariff term “is presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary.” Bentkamp v. United States, 40 CCPA 70, 78, C.A.D. 500 (1952), quoted with approval in Rohm & Haas Co. v. United States, 727 F.2d 1095, 1097 (Fed. Cir.1984). It is well established that the “common meaning of a tariff term is not a question of fact but a question of law.” Schott Optical Glass, Inc. v. United States, 67 CCPA 32, 34, C.A.D. 1239, 612 F.2d 1283, 1285 (1979).

The tariff schedules are written in the language of commerce, and the terms used are to be given their commercial or common meaning. See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA 71, 73, C.A.D. 1167, 530 F.2d 949, 951 (1976). Accordingly, the court must examine the lexicographic definitions, as well as the testimony given at trial, to determine whether the paging devices are radio receivers.

“Radio receiver,” as used in item 685.24, is an eo nomine designation. In the absence of a demonstrated legislative intent to the contrary, an eo nomine designation of an article will include all forms of the article. See, e.g., Pistorino & Co., Inc. v. United States, 82 Cust.Ct. 168, 177, C.D. 4799 (1979), quoting Nootka Packing Co. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935). It must also be remembered that the tariff statutes were enacted “not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to commerce at the time of the enactment____” Corporacion Sublistatica, S.A. v. United States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); see also Davies Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669 (1957).

In the McGraw-Hill Encyclopedia of Science and Technology, Vol. 11 (5th ed. 1982), radio receiver is defined as “[t]hat part of a radio communication system which abstracts the desired information from the radio frequency (rf) energy collected by the antenna. All radio receivers must perform three basic functions: selectivity, amplification, and detection.” Id. at 282.

The Institute of Electrical and Electronics Engineers Standard Dictionary of Electrical and Electronics Terms (2d ed. 1977) defines radio receiver as a “device for converting radio-frequency power into perceptible signals.” Id. at 554.

Radio receiver is defined in Cooke & Markus, Electronics and Nucleonics Dictionary (1960) as a device “that converts radio waves into intelligible sound or other perceptible signals.” Id. at 380.

At trial, plaintiff offered the testimony of Mr. Michael J. McLaughlin, its Manager of Pager Engineering. Mr. McLaughlin has been employed by the plaintiff for six years since his discharge from the Air Force, and holds a third-class F.C.C. license with broadcast endorsement. Although he has taken some courses in radio communications, Mr. McLaughlin does not have a college degree and is not a member of any professional organization in the radio communications industry. On cross-examination, he testified that a radio receiver is a device “which has external tunability, receives radio frequency, and detects them, and puts them through an audio amplifier to an audio output of some type.” Although Mr. McLaughlin took issue with most of the lexicographic definitions read to him, he agreed that the paging receivers perform the functions of selection, amplification, and detection, as those terms are defined by the McGraw-Hill Encyclopedia of Science and Technology.

Mr. Gerald M. LeBow, owner of Technical Marketing Consultants, Inc., a company that provides technical marketing and sales information pertaining to the consumer and professional electronics industries, testified for the government. He has extensive and varied experience in the radio broadcasting industry and is a member of a number of professional or trade associations. In addition, he has written papers on radio technology and has a first-class radio telephone license and an amateur radio license from the F.C.C. Mr. LeBow defined radio receiver as a device which performs selection, amplification and detection, and stated that the pagers perform all three of these functions. He further testified that, in his opinion, the receiving pagers would be considered radio receivers within the radio communications industry.

Selectivity is defined as the ability to select a particular frequency from the many radio signals in the atmosphere. The paging devices that are the subject matter of this action perform this function. They are pre-set to receive a particular frequency-

Amplification is the process of increasing the radio frequency energy received by the antenna so that it can be used to generate a signal. Both parties admit that the display paging receivers perform this function.

Detection is the process whereby the radio frequency waves are converted into a signal that can be utilized. The paging units convert radio frequency input, in the form of a binary code, into output in the form of a digital display on the LCD.

Mr. McLaughlin, plaintiffs witness, acknowledged that the paging device performed the three essential functions of selectivity, amplification, and detection. He testified, however, and the plaintiff contends, that a radio receiver must also have a tuner and an audio amplifier. In support of this contention, the plaintiff cites Audiovox Corp. v. United States, 1 CIT 136, 141 (1981). In Audiovox, plaintiff challenged the classification of imported PM converters as solid-state (tubeless) radio receivers designed for motor vehicle installation under item 685.24 of the tariff schedules. The converters were used to adapt motor vehicle AM radios so as to permit PM reception.

The Audiovox court found that “[t]he sole function of the PM converter is to receive and then convert PM radio signals into AM radio wave signals.” Id. at 142. In normal use, the converters could not produce an audio signal by attachment to a loudspeaker. Emphasizing that the converter by itself would be “commercially impractical for use as a radio receiver,” the court found that the converters were merely accessories to existing AM receivers in motor vehicles, and not “radio receivers” unto themselves. Id. at 143. The holding in Audiovox was limited to radio receivers designed for automobile installation which, as the court found, must have audio capability to be commercially practical.

In Symphonic Electronics Corp. v. United States, 72 Cust.Ct. 211, C.D. 4543 (1974) (Symphonic I), AM/PM tuners were classified under item 685.23 as “solid-state (tubeless) radio receivers.” Id. at 213. Plaintiff claimed that the tuners were “more than” a radio receiver since they were to be used in combination with a phonograph and tape player. The court determined that the common meaning of radio receiver included “tuner-amplifiers which, in addition to receiving radio signals ..., are capable of controlling and amplifying signals from a record changer and tape player connected by wires to the tuner-amplifier.” Id. at 217.

In Symphonic Electronics Corp. v. United States, 77 Cust.Ct. 147, C.R.D. 76-5 (1976) (Symphonic II), the court had before it merchandise that was “the same in all material respects” as that considered in Symphonic I. On cross-motions for summary judgment, plaintiff alleged that radio chassis were improperly classified as radio receivers because they were lacking a cabinet and loudspeaker, which were urged to be the essential components. The Sym phonic II court held that there existed a triable issue “concerning the essential components of a radio receiver, as that term is commonly understood in the electronics industry; and concerning whether a stereo ‘chassis’ or tuner-amplifier of the type represented by the Model R860 was commonly regarded and sold within the trade as a ‘radio receiver.’ ” Id. at 153.

All the foregoing cases dealt with products or components of systems designed to receive commercial radio stations that broadcast to the public at large. The factual context of the present case is quite different. To be commercially practical, a receiver designed for commercial entertainment broadcasts requires a tuner in order to select among the frequencies of various radio stations. The class of “radio receivers,” however, is not limited to entertainment broadcast receivers, and as an eo nomine designation, includes all forms of radio receivers.

At trial, there was uncontradicted expert testimony that other types of radio receivers, such as industrial receivers for use by police and fire departments, or taxis, or “Musak” receivers, are pre-set to one frequency, and have no variable tuning capability. Similarly, commercial broadcast receivers, of course, are designed with an audio capability. Again, however, the class of “radio receivers” is broader than simply commercial broadcast receivers.

There was testimony that other types of radio receivers emit signals other than audio signals. ' For example, receivers, in radar systems convert radio signals into visual, rather than audio, signals. In addition, utility load management systems and remote control devices convert radio frequency into coded control signals without an audio output. Moreover, the lexicographic definitions do not limit output to sound or audio signals, but refer to “perceptible signals.” Thus, a careful reading of Audiovox, Symphonic I, and Symphonic II reveals that those cases are limited to devices designed to receive radio broadcasts transmitted to the public at large.

In the most recent case on point, General Electric Co. v. United States, 2 CIT 84, 525 F.Supp. 1244 (1981), affd, 69 CCPA 166, 681 F.2d 785 (1982), plaintiff challenged the classification of three types of electronic packs (chassis) as unfinished solid-state (tubeless) radio receivers. Plaintiff argued that, since the chassis were missing significant parts such as a power transformer, power cord, and loudspeaker, the chassis were inoperable as radio receivers and, thus, improperly classified. Defendant argued that the classification was proper since “the chassis were capable of performing the basic functions of a ‘radio receiver’ within the common meaning of that term.” Id. at 87, 525 F.Supp. at 1246. Therefore, the General Electric court stated that “central to the dispute between the parties is a determination of the common meaning of the term ‘radio receiver.’ ” Id. at 90, 525 F.Supp. at 1248. The court reviewed the pertinent lexicographic definitions and relevant case law and determined that “the basic functions of a radio receiver are selection, amplification and detection.” Id. Accordingly, the chassis were held to be unfinished radio receivers as classified by Customs. On appeal, adopting the opinion authored by Judge Newman for the Court of International Trade, the United States Court of Customs and Patent Appeals affirmed. 69 CCPA 166, 167, 681 F.2d 785, 786 (1982).

This Court agrees with the holding in General Electric Co. v. United States, 2 CIT 84, 525 F.Supp. 1244 (1981), affd, 69 CCPA 166, 681 F.2d 785 (1982) in which the court defined the basic functions of a radio receiver as selectivity, amplification, and detection. The paging receivers here are self-contained units that select a frequency, amplify it, and convert radio signals into perceptible signals, i.e., visual digital indications on the LCD.

It is also significant to note that the plaintiff’s marketing literature, operations and service manuals, invoices and its personnel regularly refer to various display pagers as paging receivers. For example, one N.E.C. service manual describes a similar device as “an all solid state double superheterodyne FM receiver.” While such descriptions are not conclusive, they are relevant evidence of industry usage, particularly when they contradict the plaintiff’s present position in this litigation. See Lukas American, Inc. v. United States, 7 CIT —, slip op. 84-55, at 5 (May 24, 1984); Nomura (America) Corp. v. United States, 62 Cust.Ct. 524, 532-33, C.D. 3820, 299 F.Supp. 535, 542 (1969), affd, 58 CCPA 82, C.A.D. 1007, 435 F.2d 1319 (1971).

Expert testimony as to the common meaning of a tariff term is, of course, merely advisory. E.g., Package Machinery Co. v. United States, 41 CCPA 63, 66, C.A.D. 1200 (1953). It is, however, considered probative when supported by lexicographic and technical sources. In this case, the court finds the testimony of Mr. LeBow, the defendant’s expert, both credible and persuasive. Mr. LeBow had sound academic credentials, and wide-ranging, practical experience in the radio industry. On the other hand, even apart from academic training, Mr. McLaughlin’s experience is limited to working with non-commercial radio equipment in the Air Force and the California Air National Guard, and his civilian experience with the plaintiff. Mr. McLaughlin seemed to be straining at times, and was forced to quibble or disagree with the definitions read to him. For example, he testified that a radio receiver must directly convert radio signals, rather than convert them indirectly as the paging receivers do. There is no support for this assertion in any of the sources cited. It is well established that conclusory statements by a witness which are based solely on his own opinion have little or no probative value. See, e.g., Keer, Maurer Co. v. United States, 46 CCPA 110, 115, C.A.D. 710 (1959); Schott Optical Glass, Inc. v. United States, 82 Cust.Ct. 11, 22-23, C.D. 4783, 468 F.Supp. 1318, 1325, affd, 67 CCPA 32, C.A.D. 1239, 612 F.2d 1283 (1979).

Mr. LeBow was forthright and straightforward in his testimony, and his opinions were supported by lexicographic and scientific sources. In short, the defendant did not simply rely on the statutory presumption of correctness. Rather, it has submitted competent, reliable and credible affirmative evidence, which the court has found persuasive, to support the Customs Service’s classification of the imported merchandise. See Schott Optical Glass, Inc., supra, 82 Cust.Ct. at 24, 468 F.Supp. at 1326; Ameliotex, Inc. v. United States, 77 Cust.Ct. 72, 84, C.D. 4673, 426 F.Supp. 556, 564 (1976), affd, 65 CCPA 22, 565 F.2d 674 (1977).

The court has considered the plaintiff’s contention that the merchandise should be classified under item 685.70, TSUS, which covers electrical “[b]ells, sirens, indicator panels, burglar and fire alarms, and other sound or visual signalling apparatus,” and finds it without merit.

It is axiomatic that merchandise which constitutes more than a particular article is not classifiable as that article. E.g., United States v. Flex Track Equipment Ltd., 59 CCPA 97, 100, C.A.D. 1046, 458 F.2d 148, 151 (1972); E. Green & Son (New York), Inc. v. United States, 59 CCPA 31, 34, C.A.D. 1032, 450 F.2d 1396, 1398 (1971). As the Court of Customs and Patent Appeals stated, the rules applying to the “more than” doctrine are general, and “each case must in the final analysis be determined on its own facts.” E. Green & Son (New York), Inc. v. United States, supra, 59 CCPA at 34, 450 F.2d at 1398.

The display paging receivers clearly perform more than a signalling function. Indeed, the device’s primary marketing feature that distinguishes it from the tone-only pager, is its superior communication capability. Clearly, signalling is one form of communication and a great many products or articles of commerce are capable of signalling in some way or another. Classification under item 685.70, TSUS, as “other visual or sound signalling apparatus,” however, is limited to those articles whose sole purpose and function is merely signalling. This court has held that “other sound or visual signalling apparatus” must “call attention to temporary or abnormal conditions,” Oxford Int’l Corp. v. United States, 75 Cust.Ct. 58, 68, C.D. 4608 (1978); see Amersham Corp. v. United States, 5 CIT —, 564 F.Supp. 813, 825 (1983), or to “a special circumstance,” A & A International, Inc. v. United States, 5 CIT —, Slip op. 83-42, at 12 (1983).

The capabilities of the imported paging receivers, however, transcend mere signal-ling. The information that can be received is not limited to temporary or abnormal conditions, or any set of special circumstances. Rather, the device has the capacity to receive any information that can conceivably be reduced to digital form. In addition, the product’s ability to store and recall messages also constitutes something more than a signalling function. Thus, a careful analysis of the receiver’s capabilities clearly indicates that the article is not properly classifiable under 685.70, TSUS.

Since the imported paging receivers perform the functions of selectivity, amplification and detection, and convert radio waves into perceptible signals, they fall within the accepted definition of radio receivers. It is, therefore, the determination of the Court that the presumption of correctness that attaches to the government’s classification has not been overcome.

Since the Court holds that the paging receivers are properly classified as “other solid-state (tubeless) radio receivers” under item 685.24 of the tariff schedules, plaintiff’s claim is denied and the action is dismissed. Judgment will issue accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    R.E. ABBOTT, et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Defendant.
    Court No. 81-1-00028.
    United States Court of International Trade.
    Oct. 11, 1984.

      Bruce M. Frey, Marion, Ind., for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Sheila N. Ziff, Washington, D.C., on brief), for defendant.
   RE, Chief Judge:

Plaintiffs, on behalf of the former employees at the Dana Corporation’s Marion, Indiana plant (Marion plant), challenge a determination of the Secretary of Labor denying certification of eligibility for trade adjustment assistance benefits under the Trade Act of 1974. 19 U.S.C. §§ 2101-2487 (1982).

The Secretary’s denial is part of a multiple determination on the petition for certification filed by the Marion plant employees, in which only the employees in Departments 225 and 230, the departments that produced journal crosses and bearing races, were certified. Abbott v. Donovan, 6 CIT —, 570 F.Supp. 41, 43, 44 (1983), (Abbott I), and Abbott v. Donovan, 7 CIT —, 588 F.Supp. 1438 at 1439 (1984), (Abbott II). The Secretary denied certification to the remaining production workers at the plant, and to the service workers, who provided ancillary and support services to the various production departments, because they failed to satisfy the requirements set out in section 222(3) of the Trade Act of 1974, 19 U.S.C. § 2272(3) (1982). Abbott II 588 F.Supp. at 1439. Having been twice remanded, this action is before the Court for the third time.

The background of this action is detailed in Abbott I and Abbott II, and need not be restated. After careful review in Abbott I, this Court affirmed the Secretary’s determination denying certification to production workers other than those in Departments 225 and 230. The court agreed with the Secretary that “only those production workers in Departments 225 and 230 were adversely affected by increased imports of like or directly competitive articles, as contemplated by section 222(3) of the Act.” 570 F.Supp. at 43.

In Abbott I, the Secretary found that increased imports did not “contribute importantly” to the service workers separation from employment. The court remanded to the Secretary that part of the action relating to the service workers because his determination had not been “supported by any substantial evidence.” 570 F.Supp. at 51. In addition, the court noted that the imposition of the Secretary’s 25% standard would only be valid if the activities of the service workers were evenly distributed throughout the plant, and provided that some production departments were not more “service intensive” than others. The Secretary was instructed to take these factors into account when making his redetermination.

Pursuant to the court’s order in Abbott I, the Secretary conducted a further investigation of the service workers at the Marion plant, and submitted his redetermination to the court. The Secretary also submitted a supplemental administrative record. In his redetermination, once again, the Secretary concluded that increased imports did not contribute importantly to the service workers’ separation from employment. 48 Fed. Reg. 48876, 48877 (1983).

The Secretary based this second denial of certification on new data which compared the relationship of hours worked by the employees of the twenty-five service departments to production Departments 225 and 230. The data revealed an uneven distribution of support services between Departments 225 and 230. The data, however, did not reveal the relationship of the service departments to the remaining production departments. Nor did the Secretary submit evidence showing that he considered the possibility that some production departments could be more service intensive than others.

Thus, in Abbott II, the court concluded that the denial of certification was still not supported by substantial evidence, and the action was again remanded to the Secretary. The court instructed the Secretary to produce comparative data showing the relationship of the activities of the service workers in the various service departments to all production departments, to determine which production departments, if any, were more service intensive than others.

Pursuant to the court’s order in Abbott II, the Secretary has filed his latest determination, which reaffirms the two prior determinations, denying certification of eligibility for trade adjustment assistance benefits to the service workers at the Marion plant. Plaintiffs again contest the Secretary’s determination, contending that the administrative record establishes the existence of an “important causal nexus” between increased imports of journal crosses and bearing races, and their separation from employment.

This Court is empowered to review a decision by the Secretary of Labor which denies certification of eligibility for trade adjustment assistance benefits to assure that the Secretary’s determination is in accordance with law, and is supported by substantial evidence in the administrative record. Trade Act of 1974, § 284, 19 U.S.C. § 2395(b) (1982). Legislative enactments are seldom, if ever, neutral. They either promote or foster certain activities, policies or goals, or discourage or frustrate others. The pertinent statute which governs this case, The Trade Act of 1974, is no exception. Although fully cognizant of the benefactory animating purpose of the legislation, the court must nevertheless give effect to the plain language of the statute.

Pursuant to section 222 of the Act, in order to certify plaintiffs as eligible for trade adjustment assistance benefits, the Secretary of Labor’s investigation must disclose:

(1) that a significant number or proportion of the workers in such workers’ firms or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated,
(2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and
(3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production.

19 U.S.C. § 2371(c) (emphasis added).

If any one of these three statutory conditions does not exist, the Secretary must deny certification.

Neither section 222, nor any other section of the adjustment assistance provisions of the Trade Act of 1974 expressly mentions service workers. The accompanying legislative history is similarly silent. Hence, the court must accord some deference to the interpretation of the statute by the agency charged with its administration. Woodrum v. Donovan, 5 CIT —, 564 F.Supp. 826, 829 (1983), affd, 737 F.2d 1575 (Fed.Cir.1984) (quoting Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31-32, 102 S.Ct. 38, 41-42, 70 L.Ed.2d 23 (1981)).

After a careful review of the original and supplemental administrative records, the briefs of the parties, and the Secretary’s analysis of the service workers’ relationship with the production departments at the Marion plant, this Court holds that the Secretary’s most recent determination, denying certification of eligibility for trade adjustment assistance benefits to the service workers, is supported by substantial evidence, and is in accordance with law.

The record reveals that the service workers who provided ancillary and support services to the certified departments were tool makers, tool and cutter grinders, laborers, millwrights, electricians, machine repairers, stock chasers (fork-lift drivers), salvage inspectors, oilers, metal lab technicians, central storekeepers, inspectors, quality control inspectors, garage mechanics, and those employed in the shipping department. The record further discloses that, of the twenty-five service departments at the Marion plant, the two highest levels of service activity to Departments 225 and 230 came from millwrights and electricians. Millwrights spent 3.9% and 6.6% of their job activity supporting Departments 225 and 230, respectively. The range of millwright activity in all production departments was 2.6% to 6.6%. Electricians spent 5.0% and 10.0% of their job activity in Departments 225 and 230, respectively. The range of electrician activity in all production departments was 2.5% to 10.0%.

In Abbott I, this Court stated that it would defer to the Secretary’s interpretation of the statute as long as it had a “rational basis in law,” was not “inconsistent with the legislative purpose of the statute,” and did not frustrate Congressional intent. 570 F.Supp. at 49 (citing John V. Carr & Son, Inc. v. United States, 69 Cust.Ct. 78, 86, 347 F.Supp. 1390, 1396 (1972), affd, 61 CCPA 52, 496 F.2d 1225 (1974), and Woodrum v. Donovan, 5 CIT —, 564 F.Supp. 826, 829 (1983), affd, 737 F.2d 1575 (Fed.Cir.1984)). The Secretary has interpreted section 222(3) of the Trade Act of 1974 to authorize trade adjustment assistance benefits for service workers only if they can establish an important causal nexus between increased imports and their separation from employment. Abbott I, 570 F.Supp. at 49. A causal nexus is established when service workers can demonstrate that a “substantial amount” of their activities are directly related to the production of the import-impacted article. Id.

When we speak of an important causal nexus we essentially refer to the term “contributed importantly,” the causation standard found in the Trade Act of 1974. Section 222 of the Act provides that “the term ‘contributed importantly’ means a cause which is important but not necessarily more important than any other cause.” The relevant legislative history also reveals that Congress intended that “a cause ... be significantly more than de minimus to have contributed importantly.” S.Rep. No. 93-1298, 93rd Cong., 2d Sess. 133, reprinted in 1974 U.S.Code Cong. & Admin.News 7186, 7275. Thus, as a threshold substantial amount sufficient to establish an important causal nexus, the Secretary requires that at least 25% of the service workers activity be expended in service to the subdivision which produces the import-impacted article. Id. On this record the Court need not consider whether that standard is reasonable. The record clearly shows that the amount of service worker activity expended in support of certified departments at Dana Corporation was, in no instance, higher than 10%, a percentage which the Court agrees is insufficient for purposes of certification.

Since the data establishes that the percentage of service worker activity related to production at the Marion plant was not “significantly more than de minimus,” the Court holds that the Secretary’s determination is both reasonable and consistent with the purpose of the Act. Unlike the data submitted in Abbott II, the court finds support for the Secretary’s conclusion that the service workers did not, in the language of the statute, “contribute importantly” to the production of journal crosses and bearing races.

Therefore, it is the determination of the court that, as to the service workers who provide ancillary and support services to both certified and non-certified departments within the Marion plant, the Secretary’s denial of certification of eligibility for trade adjustment assistance benefits is based on substantial evidence, and is in accordance with law. Accordingly, the Secretary’s determination is affirmed, and the action is dismissed.


author: CARMAN, Judge:

text:
    BLAW KNOX CONSTRUCTION EQUIPMENT CO., A DIVISION OF WHITE CONSOLIDATED INDUSTRIES, INC., Plaintiff, v. UNITED STATES, et al., Defendant, and Fortress Allatt Limited, Intervenor.
    Court No. 84-6-00846.
    United States Court of International Trade.
    Oct. 4, 1984.

      Barnes, Richardson & Colburn, Chicago, 111. (Robert E. Burke, Chicago, 111., on memoranda and David A. Riggle, Chicago, 111., on memoranda and at oral argument), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Velta A. Melnbrencis, New York City, on memoranda and Kevin C. Kennedy, on memoranda and at oral argument), for defendant.
    Cameron, Hornbostel, Adelman & Butterman, Washington, D.C. (Williams K. Ince, Washington, D.C., on motion), for intervenor.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

This matter is before the Court on plaintiffs motion for a preliminary injunction, defendants’ motion for summary judgment, and plaintiff’s cross-motion for summary judgment. Intervenor Fortress Allatt Limited, filed memoranda in opposition to plaintiff’s motion for a preliminary injunction and in support of defendants’ motion for summary judgment.

Plaintiff initiated its motion for a preliminary injunction alleging that the International Trade Administration (ITA) of the Department of Commerce (Commerce) acted unlawfully in unilaterally modifying a Final Notice of Administrative Review concerning the antidumping finding for Replacement Parts for Self-Propelled Bituminous Paving Equipment from Canada. Plaintiff requests relief restraining the defendants from enforcing the alleged unlawful notice and ordering the defendants to enforce the final notice of annual review as published in the Federal Register. Plaintiff has argued it will suffer immediate and irreparable injury through lost sales due to import competition.

Defendants oppose plaintiff’s motion for a preliminary injunction arguing plaintiff has not made the requisite showing and defendants have responded with a motion for summary judgment. Plaintiff agrees there are no material facts at issue and has cross-moved for summary judgment. A brief summary of the facts is noted here.

Plaintiff, a United States manufacturer of self-propelled bituminous paving equipment and parts, was the petitioner in the antidumping investigation regarding replacement parts for self-propelled bituminous paving equipment from Canada and participated as an interested party in the administrative review conducted pursuant to Section 751 of the Trade Agreements Act of 1979, 19 U.S.C. § 1675 (1982). The result of this administrative review was that the weighted average dumping margin for Fortress Allatt Limited, a Canadian manufacturer, was determined to be 4.2 percent ad valorem, the notice of which is published at 49 Fed.Reg. 1263 (1984), as amended by 49 Fed.Reg. 2131 (1984). The 4.2 percent rate does not reflect the actual dumping margin found to exist during the review period for the merchandise sold by Fortress Allatt to nonrelated U.S. firms, a margin equal to 0.0 percent ad valorem.

The margin of 4.2 percent was the weighted average of two major components. The first component comprised Fortress Allatt’s sales to a related company in the United States, which were exporter’s sales price (ESP) transactions and for which a dumping margin of 14.43 percent was found by the ITA to exist. The second component was Fortress Allatt’s purchase price transactions which, in contrast to ESP sales, involved sales in the United States to unrelated buyers such as wholesalers or end users of the product. As noted above, a margin of 0.0 percent was established for Fortress Allatt Limited’s purchase price sales. The 4.2 percent weighted average margin was the result of the above two components. Plaintiff participated fully in all stages of the administrative review with respect to these results and did not seek judicial review pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i) and 28 U.S.C. § 1581(c).

On March 21, 1984, Fortress Allatt submitted a memorandum to the ITA urging that the single 4.2 percent weighted average margin be broken into two separate margins, one for ESP sales and the other for purchase price transactions. This determination was important to Fortress Allatt Limited because it had closed its ESP operation in the United States and all future exports to the United States would consist of purchase price transactions which were determined to have an anti-dumping duty margin of 0.0 percent. Absent a separation of the margins by the ITA, the purchase price sales would still be subject to a 4.2 percent duty deposit requirement.

On May 5, 1984, Commerce issued instructions to the United States Customs Service (Customs) to collect antidumping duty deposits on imports of merchandise manufactured by Fortress Allatt Limited at the rate of 14.43 percent on its sales in the United States to any related company and of 0.0 percent on its sales to unrelated purchasers thereby granting Fortress Allatt Limited the relief it requested. Plaintiff, Blaw Knox, filed a summons and complaint in this Court challenging the May 5 directive.

It is argued by defendants in their motion for summary judgment, as well as by the intervenor, that the ITA acted within its statutory authority in issuing the corrected instructions to Customs regarding the cash deposit requirement on the imports in question. Plaintiff argues that the ITA cannot change the final results of a section 751 antidumping review, specifically the estimated duty deposit rate, once it is published.

This Court finds the ITA has the authority to issue corrected instructions to Customs regarding the cash deposit requirement on imports. Plaintiff, however, should have been given notice of these corrected instructions and an opportunity to respond.

Plaintiff appears to indicate in its memoranda that the ITA is committed to the language of the notice of the final results published in the Federal Register as opposed to the determination itself. On this point the Court cannot agree. Section 751(a)(2), 19 U.S.C. § 1675(a)(2), provides that it is the “determination [that] shall be the basis for ... deposits of estimated duties.” Id. In the ease at hand, there exists within the ITA’s determination a basis for establishing the amount of estimated antidumping duty deposits to be collected and this Court cannot find any prohibition against referring back to this determination to make a correction.

Both defendants and intervenor cite Gilmore Steel Corp. v. United States, 7 CIT —, 585 F.Supp. 670 (1984). In Gilmore, the Court held that if the ITA has incorrectly initiated an antidumping investigation, it has the authority to reconsider and correct that decision. 7 CIT at —, 585 F.Supp. at 674. Although not determinative in the case at hand, the Court finds Gilmore helpful in its indication that remedial steps by the ITA are not only possible but necessary in certain instances. It is noted, however, that nowhere in Gilmore does the Court state that notice of the remedial measures taken is not required.

Finally, plaintiff reflects that “[tjhe action of the Commerce Department beyond its legal authority which denied the opportunity to Blaw Knox to participate meaningfully in the cash deposit review is the very core of the controversy.” Plaintiff’s Memorandum in Response, at 7. With this statement, the Court agrees. Plaintiff has made a variety of arguments with respect to broader matters as well as to jurisdiction. These arguments need not be addressed. The question is should the plaintiff have had notice of the corrections made by the ITA. This Court finds notice should have been forthcoming. As noted by the parties, the Senate Report states: “The Secretary would be required to publish a summary of the results of his review, together with the notice of any duty to be assessed, estimated duty to be deposited, or investigated [sic] to be resumed.” S.Rep. No. 249, 96th Cong., 1st Sess. 80, reprinted in 1979 U.S.Code Cong. & Ad. News 381, 466. It follows that if the requirement exists to publish a notice of the duty to be deposited, a notice of any change in that duty should also be published.

Although this Court finds that the ITA had the authority to make remedial corrections, it also finds notice to the plaintiff as an interested party should have been made. This case, therefore, shall be remanded to the ITA so that the plaintiff may have its opportunity to respond to the corrections made by the ITA.

With respect to plaintiff’s motion for a preliminary injunction, this Court cannot find that plaintiff has made the requisite showing necessary to prevail. Plaintiff asserts that absent a preliminary injunction ordering the defendants to enforce the final notice of the review published in the Federal Register it will suffer lost sales and thereby be immediately and irreparably harmed.

In order for the plaintiff to prevail on its motion for a preliminary injunction, it must make the requisite showing of the following four elements: (1) that they will be immediately and irreparably injured; (2) that there is a likelihood that they will succeed on the merits; (3) that the public interest would be better served if the relief requested was granted; and, (4) that the balance of hardships on all the parties favors the moving party. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983).

This Court cannot, based on the assertions made by the plaintiff, find the showing of immediate and irreparable harm required by the preliminary injunction standard. Plaintiff has relied on the affidavit of Thomas Skinner to show lost sales. This statement, however, is not enough. Protection against lost sales is not an avowed purpose of the antidumping statute; the purpose is rather to afford protection from unfairly traded items. Usually, pending a section 751 review covering current entries, the liquidation of entries is suspended. At the end of a section 751 review, actual dumping margins, if any, are determined and utilized in the liquidation of entries. None of the entries made by intervenor will escape assessment of antidumping duties if applicable. Furthermore, as noted by the plaintiff, the core of plaintiff’s complaint is that it did not get the opportunity to meaningfully participate in the cash deposit review. Since this Court has determined that a remand is in order, plaintiff is receiving more than its day in court. Not only has the plaintiff had its day before this Court, but will also have a chance to put forth its arguments on remand. Furthermore, the balance of hardships on all parties does not favor the plaintiff but rather the intervenor, Fortress Allatt Limited. Given that Fortress Allatt has represented that it has terminated its ESP sales operations in the United States, it would appear to be a grave hardship to apply a weighted average dumping margin of 4.2 percent to fairly traded imports at this point.

CONCLUSION

For the reasons set forth in this opinion, plaintiff’s motion for a preliminary injunction must be denied and this case must be remanded to the ITA. On remand, plaintiff shall have an opportunity to respond to the remedial corrections made by the ITA, that is, the separation of the antidumping duty margins.

It is so ordered.

      . The weighted average margin was determined pursuant to a policy of the Commerce Department stated in the final results as follows:

        Department’s Position: The Department’s practice is to publish one weighted average percent margin for determining estimated antidumping duties cash deposit rates. We see no reason to deviate from that practice here.

      . The final notice of the review in essence would require Customs to collect estimated anti-dumping duty deposits on imports of the merchandise involved at a rate of 4.2 percent ad valorem, which represents the weighted average margin previously determined.


author: JOHN GARRETT PENN, District Judge.

text:
    I.A.M. NATIONAL PENSION FUND, BENEFIT PLAN A, et al., Plaintiffs, v. ALLIED CORPORATION, Defendant. ALLIED CORPORATION, Plaintiff, v. I.A.M. NATIONAL PENSION FUND, BENEFIT PLAN A, et al., Defendants.
    Civ. A. Nos. 82-1624, 84-1609.
    United States District Court, District of Columbia.
    Oct. 31, 1984.
    See also 97 F.R.D. 34.
    Robert T. Osgood, Joseph Martocci, Denis F. Gordon and David M. Ermer, Washington, D.C., for I.A.M. Nat. Pension Fund, petitioner.
    A. Neal Barkus and Mary Ann Geeker Hunton & Williams, Washington, D.C., for Allied Corp.
   MEMORANDUM OPINION

JOHN GARRETT PENN, District Judge.

The I.A.M. National Pension Fund Benefit Plan A (the Fund) filed Civil Action 82-1624 in June 1982 in order to collect a withdrawal liability imposed by the Employee Retirement Income Security Act of 1974 (ERISA) 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. § 1381 et seq., from the Allied Chemical Corporation (Allied). Ultimately, the Court ordered the parties to submit “all factual and statutory disputes to arbitration.” See Civil Action No. 82-1624, Order filed June 22, 1983. The Court then dismissed that case “subject to motion by either party to reopen within 30 days following the issuance of the arbitrator’s award.” Id. The arbitrator entered an Award of Arbitration on April 23, 1984 which was generally in favor of the Fund, and on May 23, 1984, the Fund filed a motion to modify in part and enforce the arbitration award. On the same date, Allied filed a Notice of Civil Filing noting that it had filed Civil Action No. 84-1609. In that case, Allied sought a declaratory judgment that the MPPAA unconstitutionally deprived employers who withdrew from multiemployer pension plans prior to September 26, 1980, the date of its enactment, of their right to due process of law under the Fifth Amendment to the Constitution of the United States insofar as the MPPAA authorized the “withdrawal liability” to be imposed retroactively. In the alternative, Allied asked the Court to vacate the April 23, 1984 arbitration award. The two cases were eventually consolidated.

The cases are now before the Court on cross motions for summary judgment filed in Civil Action No. 82-1624.

I

When Congress enacted the MPPAA, which was signed by the President on September 26, 1980, it provided that the effective date of the withdrawal liability provision for the multiemployer pension plan was April 29, 1980. Thus, even though Allied withdrew from the Fund’s plan on May 8, 1980, it was still liable under the MPPAA provided that the retroactive provision of that act was constitutional. Allied argued in this case that the provisions of the MPPAA were unconstitutional. However, this Court was not required to address that issue because on June 18, 1984, the Supreme Court put that issue to rest in upholding the constitutionality of the retroactive provisions of the act. Pension Benefit Guaranty Corp. v. R.A. Gray, — U.S. -, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). Based upon that decision, the Fund would be entitled to prevail on the major issues in these cases. The Supreme Court was not to have the last word, however, because Congress enacted, and the President signed on July 18, 1984,. the Tax Reform Act of 1984 (1984 Act) which included a provision “eliminating” the retroactive application of the MPPAA. Pub.L. No. 98-369, § 558, 98 Stat. 494, 899 (1984). Section 558 of the 1984 Act provides in part:

(a) In General.—
(1) Liability. — Any withdrawal liability incurred by an employer pursuant to part 1 of subtitle E of title IV of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1381 et seq.) as a result of the complete or partial withdrawal of such employer from a multiemployer plan before September 26, 1980, shall be void.
(2) Refunds. — Any amounts paid by an employer to a plan sponsor as a result of such withdrawal liability shall be refunded by the plan sponsor to the employer with interest (in accordance with section 401(a)(2)), less a reasonable amount for administrative expenses incurred by the plan sponsor (other than legal expenses incurred with respect to the plan) in calculating, assessing, and refunding such amounts.

The effect of the 1984 Act is to moot the decision in Gray.

Allied argues that the 1984 Act forecloses any further consideration of the claims made by the Fund in these cases. Allied requests the Court to order the Fund to return the $85,708 paid by Allied to the Fund pursuant to the now eliminated provisions of the MPPAA. The Fund argues that Section 558 of the 1984 Act is unconstitutional.

II

“It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in arbitrary and irrational way.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976) (citations omitted). See also Gray, 104 S.Ct. at 2717-18. In Turner Elkhorn, the Supreme Court noted that the legislation under consideration in that case had some retrospective application but observed that “our cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.” 428 U.S. at 16, 96 S.Ct. at 2893.

The Supreme Court in Gray reaffirmed the above ruling and noted that the “strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively” provided “the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches.” 104 S.Ct. at 2718. Employers, anticipating the enactment of the MPPAA, thought they could escape a withdrawal liability by withdrawing from plans before the enactment of the act, however, the retroactive application of the legislation prevented many employers from accomplishing that goal. The Supreme Court found that it was “emminently rational for Congress to conclude that the purposes of the MPPAA could be more fully effectuated if its withdrawal liability provisions were applied retroactively.” Gray, 104 S.Ct. at 2718. The Court noted that Congress was “properly concerned that employers would have an even greater incentive to withdraw if they knew that legislation to impose more burdensome liability on withdrawing employers was being considered.” Id. Congress made the MPPAA retroactive to prevent employers from taking advantage of the “lengthy legislative process and withdrawing while Congress debated necessary revisions in the statute.” 104 S.Ct. at 2719. Finally, as the legislation “progressed through the legislative process, Congress advanced the effective date chosen so that it would encompass only that retroactive time period that Congress believed would be necessary to accomplish its purpose.” Id.

Congress, the Court found, had “legitimate legislative purposes furthered by a rational means” in making some provisions of the MPPAA retroactive; thus its action was constitutional.

Ironically, the Fund, which supported the argument ultimately adopted by the Supreme Court in Gray, now finds itself in the opposite corner. It contends that the facts in Gray are distinguishable from those here because, while Congress gave “in depth” consideration to the reasons for making the MPPAA retroactive, it has failed to undertake a similar consideration in “eliminating” those retroactive provisions in its enactment of the 1984 Act.

To be sure, it does appear that Congress did not give “in depth” consideration to Section 558 of the 1984 Act; but, the Supreme Court did not specify the quantum of the study which must be undertaken. The Court merely observed that the retroactive application of the statute must be supported by a “legitimate legislative purpose furthered by a rational means.” 104 S.Ct. at 2718. Indeed, the court in Gray observed that “[w]e have doubts, however, that the retroactive application of the MPPAA would be invalid under the Due Process Clause for lack of notice even if it was suddenly enacted by Congress without any period of deliberate consideration, as often occurs with floor amendments or ‘riders’ added at the last minute to pending legislation. ” 104 S.Ct. at 2719 (emphasis this Court’s). Those comments in Gray seem to have anticipated the very issue before this Court.

Here, Section 558 was not merely added to the 1984 Act by amendment on the floor. It was considered by a committee of the Senate. See Senate Committee on Finance, 98th Cong., 2d Sess., Deficit Reduction Act of 1984: Explanation of Provisions Approved by the Committee on March 21, 1984 at 337. The matter was also debated on the House floor by Congressman William L. Clay, Chairman of the House Subcommittee on Labor-Management Relations. See 130 Cong.Rec.H 7091-94 (daily ed. June 27, 1984).

The Court concludes that the challenged provisions of the 1984 Act, § 558, pass constitutional muster. Clearly, Congress had a legitimate legislative purpose, namely, to reverse its earlier action making the MPPAA retroactive which it has now determined was unnecessary. Moreover, the method undertaken to accomplish that goal is rational. While there may be those who would quarrel with the wisdom of Congress in taking such action, “judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches.” Gray, 104 S.Ct. at 2718. The decision to eliminate the retroactive provisions of the MPPAA seem little more than a congressional reconsideration of an action already upheld by the Supreme Court.

Finally, the Court observes that from the time of its enactment, the MPPAA has been under attack. The constitutionality of those sections which would have retroactive application were upheld only 30 days before the enactment of the 1984 Act which effectively withdrew the retroactive provisions. Thus, it is unlikely that either party has been misled or suffered severe disadvantage. Everyone involved knew of the pending legislation and the pending decision by the Supreme Court.

In sum, this Court concludes that Section 558 of the 1984 Act is constitutional. Having so decided, it follows that Allied’s motion for summary judgment must be granted and the Fund’s motion for summary judgment must be denied.

An appropriate Order has issued.

       So much of the motion as requested modification is not relevant to the consideration of the pending motions.


author: RICHARD L. WILLIAMS, District Judge.

text:
    Victor Howard VAN SANT, Petitioner, v. James GONDLES, Sheriff of Arlington County, Respondent, and The Attorney General of the Commonwealth of Virginia, Additional Respondent.
    Civ. A. No. 82-1142-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Feb. 1, 1983.

      Irving Starr, Arlington, Va., for petitioner.
    William S. Fields, Asst. Com. Atty., Arlington, Va., for respondent Gondles.
    Jacqueline G. Epps, Senior Asst. Atty. Gen., Richmond, Va., for respondent Atty. Gen.
   MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter comes before the court on petitioner’s application under 28 U.S.C. § 2254 for a writ of habeas corpus. See Rules Governing Section 2254 Cases in United States District Courts, Rule 2. Respondents have answered, as required under Rule 5. The matter is now ripe for this court’s determination. See Rule 8(a). The court finds that an evidentiary hearing is not required, and for reasons stated below, concludes that the petition is meritorious. Accordingly, petitioner’s application for a writ of habeas corpus is granted.

I. FACTUAL BACKGROUND

The events surrounding this case began October 1, 1980, when a police officer visited petitioner’s home in response to a vandalism incident allegedly involving petitioner’s son. The officer involved had not previously known or heard of petitioner or his family. Petitioner’s wife invited the police officer into their home, but petitioner intervened and ordered the officer to leave. Petitioner allegedly threatened the officer with a knife and a shotgun. When the officer departed, the petitioner allegedly followed the departing officer into the yard. The officer testified that the petitioner was yelling, and that the petitioner continued to yell curses and threats even after the officer had entered his vehicle and begun backing down the driveway. The officer concluded that petitioner represented a threat to public peace. The officer radioed for assistance and got out of his vehicle to arrest petitioner.

The officer attempted to inform petitioner he was under arrest for being drunk in public. A scuffle ensued, in which the officer was apparently burned on his neck by petitioner’s lit cigar. The officer found it necessary to strike petitioner on the head with his nightstick to subdue the petitioner. After petitioner was subdued, he was arrested and charged with being drunk in public, obstructing justice, and assault and battery.

On December 17, 1980, petitioner appeared with retained counsel for trial in the General District Court for the County of Arlington, Virginia. Petitioner was found not guilty of the drunk in public charge, but guilty of obstructing justice and assault and battery. On January 9, 1981, petitioner was sentenced to 90 days in jail, with 85 days suspended. Petitioner noted his appeal. His appeal was set for April 28, 1981.

Following petitioner’s trial in General District Court, petitioner became dissatisfied with the attorney who represented him in General District Court. On February 17, 1981, the petitioner appeared before Judge Brown to ask the court for appointment of counsel on the grounds of indigency. Judge Brown apparently did not have petitioner supply an affidavit of indigency, but asked petitioner a series of questions about his financial condition. Judge Brown ordered petitioner to locate four Arlington County attorneys and submit to the Judge the attorneys’ stated fees.

Petitioner followed Judge Brown’s instructions and consulted with various Arlington County Attorneys. On April 17, 1981 petitioner filed a motion for a 60-day continuance on the grounds that he had been unable to find counsel he felt he could afford, that he desired to represent himself, and that he was unprepared to present his defense.

On April 24, 1981, Judge Russell heard petitioner’s motion for a continuance. Judge Russell observed there was no affidavit of indigence in the record, but petitioner continued to assert his indigence. Petitioner acknowledged that he had previously retained an attorney to represent him throughout the case and that he had paid the attorney $1000. Petitioner explained that he was unable to communicate with his attorney, and that he was dissatisfied with his attorney’s services. He then told the court that he felt “adequately capable of representing [himjself in this case ... I feel I am just as competent as any counsel in this room...” The petitioner also stated that he had represented himself before the Fourth Circuit in a civil case, and that he felt competent to handle this criminal case. He added that he did not want a court-appointed lawyer. On inquiry from the judge, petitioner stated that he had not formally discharged his attorney.

Judge Russell ignored both petitioner’s expressions of dissatisfaction with the retained counsel (a dissatisfaction actively manifest since at least February 17th), and petitioner’s expressions of desire to represent himself. Instead, Judge Russell denied the petitioner’s motion for a continuance, and directed the petitioner to contact his retained attorney and have that attorney appear at trial. Judge Russell made no attempt to discover whether petitioner had good cause for dissatisfaction with his attorney, or even to determine the attorney’s level of preparedness.

On April 28, 1981, petitioner appeared without counsel before Judge Russell for trial in the Circuit Court for the County of Arlington. The Judge did not ask whether petitioner had communicated the court’s order to his attorney. The Judge apparently did not even ask where petitioner’s attorney was. Judge Russell made no attempt to determine whether petitioner was prepared to represent himself, or, indeed, whether petitioner really wanted to represent himself. The Judge simply asked if petitioner was ready to proceed, to which the petitioner replied “as ready as I’ll ever be with three days preparation.”

The jury convicted petitioner of both charges, and sentenced petitioner to nine months for assault and battery and 6 months for resisting arrest, and to payment of fines. On June 26, 1981, Judge Russell imposed the jury’s sentence for resisting arrest, but suspended the sentence for assault and battery.

Petitioner employed new counsel and filed a motion to set aside the verdict and grant a new trial. The trial judge denied the motion. Petitioner’s newly retained counsel appealed his conviction to the Supreme Court of Virginia. On October 15, 1982, the Supreme Court of Virginia affirmed his conviction, 224 Va. 269, 295 S.E.2d 888, and on December 3, 1982, denied his motion for rehearing. Petitioner was ordered to begin serving his sentence at the Arlington County Detention Center on December 13, 1982.

On December 9, 1982, petitioner brought the present application for a writ of habeas corpus. Petitioner also moved for a stay of execution of the state court criminal judgment under 28 U.S.C. § 2251. On December 10, 1982, this court denied petitioner’s motion for a stay. On December 13, 1981, Judge Murnaghan of the United States Court of Appeals for the Fourth Circuit affirmed the court’s ruling. However, on January 7, 1983, a panel of three Fourth Circuit judge’s granted petitioner’s motion staying further incarceration and continuing bail pending resolution of petitioner’s application for a writ of habeas corpus.

II. LEGAL ANALYSIS

Petitioner’s principal claim before this court relates to his ability to mount an adequate criminal defense in the April 28, 1981 trial in the Arlington County Circuit Court. The Sixth Amendment, as applied to the states by the Fourteenth Amendment, guarantees a defendant in a state criminal proceeding the right to assistance of counsel before he can be validly convicted and punished with imprisonment. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, the state may not compel a defendant to accept a lawyer he does not want. Faretta v. California, 422 U.S. 806, 833, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). A criminal defendant has the affirmative right to represent himself at trial; but the decision to proceed pro se must be knowingly and intelligently made. Id. at 836, 95 S.Ct. at 2541.

When petitioner appeared before Judge Russell on April 24th, 1981, to ask for a continuance and to ask permission to proceed pro se, he was effectively asserting his undoubted constitutional right to represent himself in his own defense. But Judge Russell, possibly sensing misconduct on petitioner’s lawyer’s part, refused to permit the lawyer’s dismissal. While Judge Russell’s concern for the lawyer’s conduct appears well-founded, his actions do not seem to have been calculated to either remedy the lawyer’s apparent lack of industry nor protect petitioner’s ability to mount his own defense.

Without specifically ordering the lawyer to appear before the court, the court could not assess petitioner’s claims of dissatisfaction or even the lawyer’s level of preparedness. But, more to the point, Judge Russell simply refused to acknowledge petitioner’s repeated requests to represent himself. Judge Russell’s attempt to force petitioner to accept representation of a lawyer he did not want is directly contrary to Faretta.

Finally, when petitioner appeared before Judge Russell four days later for trial, it was as if the April 24th hearing never took place. It does not appear in the record whether Judge Russell ever inquired where petitioner’s lawyer was, or even whether petitioner had communicated to the lawyer the Judge’s command to appear on April 28th. It appears as if the Judge had been prepared all along to accept petitioner’s pro se defense.

But such self-representation is proper only if the waiver of the right to counsel is knowingly and intelligently made. In determining whether the waiver of the right to counsel is knowingly and intelligently made, the court should entertain every reasonable presumption against waiver. See U.S. v. Johnson, 659 F.2d 415, 416 (4th Cir.1981). While it is incumbent upon the trial court to determine if the waiver is knowing and intelligent, no particular form of interrogation is required. See U.S. v. King, 582 F.2d 888, 890 (4th Cir.1978). But the court must at least make the defendant aware of the dangers and disadvantages of self-representation so that the defendant “knows what he is doing” and “his choice is made with his eyes open.” Faretta v. California, supra, 422 U.S. at 806, 95 S.Ct. at 2525.

The petitioner’s statements to Judge Russell on April 24th convey not only the petitioner’s desire to represent himself, but also suggest that the desire arose out of a unhappiness with his retained counsel’s services and a hope of avoiding further counsel fees. That is, the press of circumstance, rather than mere free choice, appears to have been a factor in petitioner’s waiver.

Further, petitioner seems to have had a rather inflated opinion of his abilities to mount his own defense. Judge Russell made no attempt to investigate those abilities, or to advise petitioner of possible hazards and disadvantages of proceeding without counsel, of which petitioner was probably unaware. The Code of Virginia, Section 19.2-160, provides that in misdemeanor cases in which imprisonment is possible, “the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his right to counsel”, and provides that the accused sign a form indicating his waiver. Judge Russell did not have petitioner sign such a form. While the absence of such a form alone does not preclude a finding of informed waiver, other factors also militate against such a finding.

Neither on April 24th or April 28th did the learned trial judge attempt to determine whether petitioner’s choice to proceed pro se was an informed choice. Before a court may accept a criminal defendant’s waiver of the right to counsel

the court must assure itself that the defendant knows the charges against him, the possible punishment and the manner in which an attorney can be of assistance. The defendant must be made aware that he will be on his own in a complex area where experience and professional training are greatly to be desired.

U.S. v. King, supra (citations omitted). Thus, the court must take an advisory role to aid the accused in his determination whether self-representation is in his own best interests. But the record here is devoid of any effort to assure that petitioner’s waiver of the right to counsel was “made with his eyes open”, or, indeed, whether it was even voluntarily made.

Furthermore, Judge Russell knew that on the day of trial that petitioner’s desire to represent himself was conditioned on the availability of additional time to prepare his defense. The court denied petitioner’s continuance on April 24th on the assumption that petitioner would be tried with the assistance of retained counsel. But when petitioner appeared for trial without retained counsel, the court proceeded as if petitioner’s preparedness had never been put in issue.

Undoubtedly, courts have the right to control their docket and require that cases proceed in an orderly and timely fashion, and to that end may deny motions for continuances. See United States v. Inman, 483 F.2d 738, 740 (4th Cir.1973); Sykes v. Commonwealth of Virginia, 364 F.2d 314, 316 (4th Cir.1966). But “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). And denial of a continuance necessary to permit adequate assistance of counsel is an abuse of discretion amounting to a deprivation of a fair trial. See United States v. Evans, 569 F.2d 209, 211-212 (4th Cir.1978), cert. denied 435 U.S. 975, 98 S.Ct. 1624, 56 L.Ed.2d 69 (1978). If myopic insistence on expeditiousness can render the right to counsel an empty formality, denial of a continuance in the face of a justifiable request from a pro se criminal defendant renders an accused’s right of self-representation a hollow sham.

The chain of events in this case shows that petitioner had effectively abandoned his retained counsel as of February 17th. During the period February 17 to April 17, he was not preparing for trial, but attempting to obtain replacement counsel pursuant to Judge Brown’s instructions. At some point prior to April 17, petitioner decided to waive his right to counsel. He came before the court to ask for more time to make his own defense, to prepare and serve subpoenas and to prepare jury instructions. The only information concerning petitioner’s preparedness before Judge Russell was petitioner’s statements of his lack of vital trial preparation. The court made no further inquiry, but simply forced the accused to proceed.

Based upon the foregoing, the court finds that the combined record of the learned trial judge’s actions on April 24th and 28th, 1981, shows an absence of scrupulous regard for the protections of a fair trial guaranteed by the Sixth and Fourteenth amendment. Judge Russell’s failure to advise petitioner of the hazards of a pro se defense, or to inquire whether petitioner’s choice to proceed pro se was an informed choice, or, indeed, even to acknowledge petitioner’s desire to waive counsel, taken together with the Judge’s effort to force petitioner to proceed with counsel he did not want, deprived petitioner of the Sixth amendment guarantees enunciated in Faretta. Further, Judge Russell’s failure to allow the petitioner the requested continuance, without even an inquiry into petitioner’s level of preparedness, taken in light of petitioner’s representations of unpreparedness, deprived petitioner of effective self-representation. Therefore, the court concludes that petitioner’s application for a writ of habeas corpus is meritorious, and, accordingly, the writ is granted.

Finally, the Attorney General for the Commonwealth of Virginia moves this court to dismiss him as a party respondent to petitioner’s application for a writ of habeas corpus. Petitioner apparently named the Attorney General in his application because Rule 2(b) of the Rules Governing Section 2254 Cases in United States District Courts requires the joinder of the state Attorney General; he is in the “best position to inform the court as to who the proper party respondent is.” See Rule 2, Advisory Committee Note. But the Attorney General is empowered to represent guards or custodians of prisoners only if the prisoner is in the custody of or subject to the future custody of the Virginia Department of Corrections. See Va.Code § 2.1-121. Since this petitioner is not in the custody or subject to the future custody of the Department of Corrections, the Attorney General is not an appropriate party respondent. Furthermore, the appropriate party respondent, the Sheriff of Arlington County, is before the court. Accordingly, the Attorney General is dismissed as a party to this action.

ORDER

This matter comes before the court on petitioner’s application under 28 U.S.C. § 2254 for a writ of habeas corpus. For reasons stated in the accompanying memorandum opinion, the court finds that petitioner’s application is meritorious. Accordingly, the writ is GRANTED. The Sheriff of Arlington County is hereby prohibited from seizing the petitioner for purposes of execution of criminal judgment of the Circuit Court of the County of Arlington, Virginia, entered against petitioner on July 16, 1981, sub nom. Commonwealth of Virginia v. Victor H. Van Sant, Crim No. C-16893, C-16896 (Arlington Co.Cir.Ct. July 16, 1981). Further, the court ORDERS the release of any bail bond currently serving as security for petitioner’s appearance. Finally, the Attorney General for the Commonwealth of Virginia is DISMISSED from this case.

Let the Clerk send a copy of this order and accompanying memorandum opinion to all counsel of record and to the Sheriff of the Arlington County, Virginia.