# David L. Moss Co. v. United States

> Court of Customs and Patent Appeals · March 27, 1939 · 103 F.2d 395

URL: https://www.frixlaw.com/law-library/cases/9638010

## Case

- **Full name:** DAVID L. MOSS CO., Inc., v. UNITED STATES
- **Court:** Court of Customs and Patent Appeals
- **Decided:** March 27, 1939
- **Citations:** 103 F.2d 395; 26 C.C.P.A. 381; 1939 CCPA LEXIS 239
- **Precedential status:** Published
- **Opinion:** Dissent by Bland
- **Judges:** Garrett, Bland, Hatfield, Len-Root, Parker
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638010

## How later opinions describe it (automated extraction)

- noting expertise of Customs Court in trade matters

## Opinion text

BLAND, Associate Judge
(dissenting in part).
I am in full and hearty accord with the opinion by Judge PARKER (which will be referred to hereinafter as the leading opinion) on the first question decided. This is ’the main and, as I see it, the important question to decide in this case since it is a matter of general importance rather than specific to the facts at bar.
I agree fully for reasons stated in the opinion that, under the circumstances at bar, this court may examine the record made before the Tariff Commission, which discloses that no confidential information was submitted, for the purpose of ascertaining if the record does not show, without any substantial evidence to the contrary, that there was no such domestically produced article as the statute requires.
While the reasoning and citation of authority in the leading opinion are ample to support the conclusion reached on the right of this court to consult, for said purposes, the record made' before the Tariff Commission, it is also proper, I think, to call attention to the fact that there is a close analogy between the situation at bar and that presented to the Circuit Courts of Appeal prior to the creation of this court, and presented to this court after it acquired jurisdiction formerly possessed by the Circuit Courts of Appeal. The decisions of the Circuit Courts of Appeal, such as Hermann et al. v. United States, C.C., 84 F. 151 , as well as the decisions of this court, are uniformly to the effect that in a protest case which attacks the validity of the appraisement which determines the amount of duty, it was proper for the appellate court to review the appraisement proceeding records with a view of determining whether the appraisement upon which the liquidation- was made was valid. Maddaus v. United States, 3 Ct.Cust.App. 330, T.D. 32623, and Lewisohn Importing & Trading Co. v. United States, 5 Ct.Cust.App. 204, T.D. 34329.
I must dissent from the conclusion reached, and the reasoning in reaching the conclusion, in answering the second question which involved the determination as to whether, or not the record before the Tariff Commission, which was submitted to the President, supported, without substantial evidence to the contrary, the validity of the proclamation.
As I read the opinion, it does not hold that the flexible tariff provision may or may not" be called into operation for the purpose of establishing a new industry or to revive an old industry which had ceased to exist. In the opinion, as I interpret it, it is found unnecessary to make any holding on this subject. It is my view, which I hope to express briefly, that section 336 was never intended to be used for the purpose of establishing a new industry or reviving an old one, but that it was meant to provide a means of ascertaining the cost of production of a “domestic article” produced in an American industry, which production cost, when compared with the production cost of the foreign article, would afford a proper basis for arriving at a tariff duty for the purposes expressed in the act. Whenever Congress in the past has undertaken through customs revenues to afford special tariff protection for an *407 industry that could not otherwise exist, it used appropriate language to do so. Examples of the same might be referred to, such as the provisions for the protection of the dye industry in the Tariff Act of 1922, the Antidumping Act 1921, 42 Stat. 11 , and the unfair competition provisions of the 1922 and 1930 tariff acts.
We must not lose sight of the fact that in passing section 336 Congress could not have had in mind any one particular industry, but that its application was directed to many industries. I do not regard it as an important consideration that Congress by the enactment of paragraph 713, § 1, which prescribes the tariff rate for egg products, evidenced a disposition to protect the egg industry, and this consideration should not influence a determination of what Congress meant by the term “domestic article” in section 336.
Now, being in agreement with the leading opinion that we may go to the record made before the Tariff Commission under the circumstances at bar, the issue is squarely presented: Does the record, which contains no conflicting testimony, and all of the facts submitted to the commission, support the conclusion that there was a domestically produced article which would warrant the President in issuing the proclamation. I have carefully considered not only the evidence emphasized by the commission in its report to the President, and that which is pointed out in the leading opinion, but I have considered every other phase of the testimony and I am unable to arrive at a conclusion that during the representative period, or at any time thereafter, there was such an American industry producing such a domestic article as Congress had in contemplation when section 336 was enacted. I find no substantial evidence in the record from which the commission or the President might properly conclude that there was such an article produced. It seems to me that the leading opinion suggests, if it does not definitely hold, that such an industry could not possibly have existed in the face of such devastating competition.
The provisions of section 336 were intended to apply to an established American industry producing an article, the cost of production of which might be fairly compared with the cost of production of the foreign article. If the domestic production was sporadic and inconsequential to the extent that the production costs were so unnecessarily high as not to be fairly comparable with production costs abroad, no remedy, in my judgment, is afforded by the provision. We are here concerned with the evidence relating to the production of dried egg albumen. Testimony which might tend to establish that at some time or other there were industries producing other dried egg products might properly be used as an aid in determining the cost of production of dried egg albumen, since the production of all the dried egg products is obviously at times closely interlinked. It is my view, however, that if there was no dried egg albumen producéd except sporadically, experimentally or as a salvage proposition, it would make little, if any, difference if other dried egg products were produced.
But, taking a broader view of the whole picture presented by the record, it seems to me that the record discloses, by evidence in which there is no conflict, that there was at no time, during the controverted period or thereafter, any industry in the United States which produced any dried egg products from which it might be fairly ascertained what the actual cost of production of dried egg albumen was. A few hundred pounds produced here, a few thousand pounds produced there, in spite of withering competition which was then known to exist, surely affords no basis for a conclusion other than that such production costs, if all proper elements were included, were so high as to afford no standard of comparison required by the statute. If, on the other hand, an isolated instance of the production of dried egg albumen is relied upon, and in that instance it is shown that the dried egg whites were obtained in a salvage operation from the production of other dried egg products, and not from a source which could be relied upon as a regular commercial proposition, it would seem to me to be obvious that such production was not that which the Congress contemplated. Under such circumstances, it seems obvious that all of the essential elements or items entering into production costs could not be ascertained with any degree of certainty and that any attempt to ascertain production costs under those conditions would necessarily bring forth an estimate based upon unreliable, theoretical premises rather than upon actual, existing facts.
*408 Therefore, reviewing the record as a whole, it seems to me that all the evidence in the record supports the conclusion that during the critical period and thereafter there was no domestically produced article such as fills the requirement of the statute. Holding this view, I must respectfully dissent from the conclusion reached in affirming the decision of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638010. Public record. Not legal advice.