ARMSTRONG RUBBER COMPANY AND COOPER TIRE & RUBBER COMPANY,
PETITIONERS V. UNITED STATES OF AMERICA, ET AL.

   No. 85-2154

   In the Supreme court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Federal Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Argument
   Conclusion
   Appendix

                            OPINIONS BELOW

   The April 7, 1986, order of the court of appeals (Pet. App. 1a-2a)
remanding this case to the United States Court of International Trade
(CIT) is unreported.  The court of appeals' order of January 31, 1986
(Pet. App. 8a-9a) denying petitioners' motion to dismiss the appeal is
also unreported.  The CIT's opinion of August 8, 1985 (Pet. App.
4a-7a) is reported at 614 F. Supp. 1252.  The CIT's denial of
petitioner's postjudgment motion (App., infra, 1a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 7, 1986.
The petition for a writ of certiorari was filed on June 30, 1986.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals correctly held that a post-judgment
motion filed by petitioners was not a motion under Rule 59(e) of the
Rules of the United States Court of International Trade and that a
notice of appeal filed prior to the motion was therefore sufficient to
give the court of appeals jurisdiction.

                               STATEMENT

   1. In July 1984, petitioners filed a petition with the United
States International Trade Commission (the Commission) pursuant to the
antidumping statute, 19 U.S.C.(& Supp. II) 1673 et seq., seeking the
imposition of antidumping duties on certain imported Korean automobile
tires.  Specifically, their petition alleged that new imported radial
ply tires were being sold in the United States at less than fair
value, causing actual or potential injury to the domestic tire
industry.  In September 1984, the Commission determined that there was
no reasonable indication that the domestic automobile tire industry
was materially injured, or threatened with material injury, by reason
of those imported tires.  See Radial Ply Tires for Passenger Cars from
the Republic of Korea, Investigation No. 731-TA-200 (Preliminary),
USITC Pub. 1572, 49 Fed. Reg. 36712 (1984).

   Petitioners appealed the Commission's negative determination to the
CIT, requesting a judgment on the administrative record.  On August 8,
1985, the CIT issued an opinion stating that the Commission had failed
to apply the correct standard in assessing whether there was a
reasonable indication of material injury or threat of material injury
and issued an order reversing the Commission's determination and
remanding the case to the Commission for issuance of a determination
consistent with the court's opinion (Pet. App. 4a-7a).

   On August 15, 1985, the Commission filed a notice of appeal.
Subsequently, on August 19, 1985, petitioners filed a motion (Pet.
App. 44a-50a) requesting the CIT to amend its judgment to require that
the Commission issue a determination consistent with the court's
opinion "as soon as possible but in no event later than * * * 32 days
after the entry of (the) Court's Opinion and Order (or) at the very
least * * * to require the (Commission) to abide by the aforementioned
deadline" (id. at 44a).  In the text of their motion (ibid.),
petitioners alleged that the motion was made pursuant to Ct. Int'l
Trade R. 59(e).  /1/

   On September 18, 1985, the CIT denied petitioners' motion (App.,
infra, 1a).  In its order denying the motion, the CIT stated that the
motion was being "treated as a motion under Rule 60 of the Rules of
this Court" (ibid.).  /2/ Int'l Trade R. 60 motion, the Commission did
not file a second notice of appeal.  /3/

   2. On December 19, 1985, petitioners filed a motion to dismiss the
appeal.  In their motion, petitioners alleged that the court of
appeals did not have jurisdiction to entertain the appeal because the
Commission's notice of appeal, filed four days prior to petitioners'
August 19, 1985 motion, was without effect pursuant to Fed. R. App. P.
4(a)(4) (set out at Pet. App. 10a) and Fed. Cir. R. 10(a) (set out at
Pet. App. 12a).  The court of appeals denied petitioners' motion on
January 31, 1986 (id. at 8a-9a).  The court reasoned that petitioners
had not shown that the CIT was in error when it characterized
petitioners' postjudgment motion as a motion under Ct. Int'l Trade R.
60 rather than as one under Ct. Int'l Trade R. 59(e).  Accordingly,
the court had jurisdiction, since a motion under Ct. Int'l Trade R. 60
does not nullify a previously filed notice of appeal.

   On March 6, 1986, the Commission requested the court of appeals to
vacate the CIT's decision in this case and to remand the case to the
CIT for reconsideration in light of a recent intervening Federal
Circuit decision, American Lamb Co. v. United States, 785 F.2d 994
(1986).  /4/ Petitioners opposed the Commission's motion and renewed
their argument that the court of appeals was without jurisdiction to
decide the appeal.  In their opposition, petitioners cited two Fifth
Circuit en banc cases /5/ for the proposition that the court of
appeals did not have jurisdiction over the appeal.  Petitioners
repeated these arguments in a later submission while the Commission's
motion to remand was pending.  On April 7, 1986, the court of appeals
rejected without comment petitioners' jurisdictional arguments and
remanded the case to the CIT (Pet. App. 1a-2a).

                               ARGUMENT

   The decision of the court of appeals is correct and does not
conflict with any decision of this Court or any other court of
appeals.  In any event, the decision below turns on the interpretation
of rules of a specialized court (rules patterned after but critically
different from the corresponding Civil Rules) and is of no general
importance.  Accordingly, review by this Court is not warranted.

   1. Petitioners contend (Pet. 8-13) that the Federal Circuit's
decision in this case conflicts with the Fifth Circuit's en banc
decisions in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784
F.2d 665 (5th Cir. 1986) (set out at Pet. App.22a-33a), petition for
cert. pending sub nom. Southern Pacific Transportation Co. v. Harcon
Barge, No. 85-2015, and Willie v. Continental Oil Co., 784 F.2d 706
(5th Cir. 1986) (set out at Pet. App. 34a-36a).  This claim of a
conflict is erroneous.  Harcon Barge and Willie involved Rules 59(e)
and 60(b) of the Federal Rules of Civil Procedure;  the present case
involves Rules 59(e) and 60 of the Court of International Trade.  The
two CIT Rules differ in critical respects from the corresponding
Federal Rules of Civil Procedure.  The only issue in this case,
therefore, is whether the Federal Circuit correctly interpreted the
CIT's own unique rules.

   In Harcon Barge, the Fifth Circuit examined whether a postjudgment
motion to relieve the moving defendants from liability for costs,
filed within 10 days of the entry of a district court's judgment, was
a motion pursuant to Jed. R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b).
This inquiry was necessary because, while the filing of a notice of
appeal generally divests the district court of jurisdiction over a
case and gives that jurisdiction to the court of appeals, Rule 4(a)(4)
of the Federal Rules of Appellate Procedure (set out at Pet. App. 10a)
provides that a notice of appeal is nullified by the timely filing of
a Fed. R. Civ. P. 59(e) motion.  A Fed. R. Civ. P. 60 motion, by
contrast, does not affect a previously filed notice of appeal and does
not disturb the jurisdiction of the court of appeals.  See generally
Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per
curiam).  /6/ The Fifth Circuit, sitting en banc, held that all
postjudgment motions to alter or amend the judgment -- except motions
involving purely clerical errors -- that are filed within 10 days of
entry of the judgment shall be treated as Fed. R. Civ. P. 59(e)
motions for purposes of Fed. R. App. P. 4(a)(4).  Under the court's
holding, "Rule 60(b) relief may be invoked * * * only for the causes
specifically stated in the rule and * * * only after ten days
following entry of judgment" (Pet. app. 31a).  The court then applied
its holding in the two cases, ruling that the motion for relief from
costs (Harcon Barge) and the motion to amend the judgment to reflect a
stipulation of the parties (Willie) were both Fed. R. Civ. P. 59(e)
motions, since both were filed within 10 days of the judgment.  The
previously filed notices of appeal were therefore nullified and the
appeals dismissed.

   The court in Harcon Barge based its decision on the need for a
"bright line" standard (Pet. App. 25a-26a).  /7/ It emphasized that
while Fed. R. Civ. P. 59(e) and 60 "provide overlapping relief," Fed.
R. Civ. P. 59(e) motions must be filed within 10 days while motions
under Fed. R. Civ. P. 60(a) and (b) may be filed at a later date (Pet.
App. 28a).

   The Federal Circuit's decision in this case is based not on the
Federal Rules of Civil Procedure but on the CIT's rules.  The CIT is a
specialized federal court, not a federal district court, /8/ and the
Federal Rules of Civl Procedure are therefore not directly applicable
to the CIT's proceedings.  /9/ Whereas the Federal Rules of Civil
Procedure are promulgated by this Court, pursuant to 28 U.S.C. 2072,
and apply to all federal district courts (Fed. R. Civ. P. 1), Congress
has instead given the CIT the power to promulgate its own rules of
procedure.  See 28 U.S.C. 2633(b).  /10/

   The bright line test adopted by the Fifth Circuit, which was based
on the 10 day limitation found in Fed. R. Civ. P. 59(e), has no
applicability in the context of the CIT's rules, which contain a 30
day time limit for bringing both Ct. Int'l Trade R. 59(e) motions and
Ct. Int'l Trade R. 60(b) motions.  A 10 day bright line rule would be
inappropriate, and indeed arbitrary, since it would have no basis in
the CIT's rules, which set a 30 day rather than a 10 day time limit
for filing a Ct. Int'l Trade R. 59(e) motion.  A 30 day bright line
rule would also be inappropriate:  if all motions to modify the
judgment that are made within 30 days were considered Ct. Int'l Trade
R. 59(e) motions, then Ct. Int'l Trade R. 60(b) would be nullified,
since Ct. Int'l Trade R. 60(b) also contains a 30 day time limit.
This anomaly does not exist under the Harcon Barge decision because
Fed. R. Civ. P. 60(b) is not limited to 10 or 30 days;  under Fed R.
Civ. P. 60(b), motions must be filed within a "reasonable" time, and
certain specified motions must be filed within one year.  /11/ The
analysis in Harcon Barge simply does not apply to the CIT rules, and
petitioners' claim of a conflict is therefore erroenous.  /12/

   2.  Moreover, the court of appeals' decision that petitioners'
motion was not under Ct. Int'l Trade R. 59(e), and therefore did not
nullify the Commission's notice of appeal, was correct.  First, the
CIT explicitly ruled that petitioners' motion was a Ct. Int'l Trade R.
60 motion, rather than a Ct. Int'l Trade R. 59(e) motion (App., infra,
1a).  Since the CIT was interpreting its own rules, its determination
that the motion in question was not one under Ct. Int'l Trade R. 59(e)
was entitled to deference by the Federal Circuit.  /13/ It is of
course not dispositive that petitioners characterized their motion as
one under Ct. Int'l Trade R. 59(e), since a court may properly go
behind the label placed on a motion by the movant and examine the
substance of a motion, particularly where the label has collateral
consequences.  See, e.g., United States v. 1982 Sanger 24' Spectra
Boat, 738 F.2d 1043, 1046 (9th Cir. 1984);  Miller v. Transamerican
Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983).

   Second, it is fundamental that "(m)otions to alter or amend the
judgment are those which call into question the correctness of a
judgment on some material point of fact or law, and may properly be
cast in the form of a motion to reconsider, to vacate, to set aside,
for reargument or for rehearing." St. Paul Fire & Marine Ins. Co. v.
Continental Casualty Co., 684 F.2d 691, 693 (10th Cir. 1982) (citing
extensive authority);  accord, e.g., FCC v. League of Women Voters,
468 U.S. 364, 373 n.10 (1984) (quoting Department of Banking v. Pink,
317 U.S. 264, 266 (1942)) ("(T)he rule requiring suspension of a
judgment's finality for purposes of appeal during the pendency of a
post-judgment motion for reconsideration applies only when such a
motion actually seeks an 'alteration of the rights adjudicated' in the
court's first judgment.");  Miller v. Transamerican Press, Inc., 709
F.2d at 527 (citation omitted) ("'alter or amend' means a substantive
change of mind by the court").  /14/

   Petitioners' motion did not seek a substantive change of mind by
the CIT.  Rather, the motion sought only to set a time limit by which
the Commission had to act on remand.  /15/ Petitioners had achieved
victory in the CIT and clearly were not calling into question the
correctness of the ruling on any point of law or fact.  The motion,
therefore, was not one under Ct. Int'l Trade R. 59(e), /16/ and the
rulings of the CIT and the Federal Circuit were correct.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   LYN M. SCHLITT

      General Counsel

   MICHAEL P. MABILE

      Assistant General Counsel

   KRISTIAN ANDERSON

      Attorney United States International Trade Commission

   AUGUST 1986

   /1/ Ct. Int'l Trade R. 59(e) provides that "(a) motion to alter or
amend the judgment shall be served not later than 30 days after the
entry of the judgment." That rule is patterned on Fed. R. Civ. P.
59(e) with one crucial difference:  the time period under Fed. R. Civ.
P. 59(e) is 10 days, not 30 days.  See generally 28 U.S.C. 2645(b),
2646 (postjudgment motions in CIT proceedings for retrial, rehearing,
or amending judgment must be filed within 30 days after entry of
judgment).

   /2/ Ct. Int'l Trade R. 60 is patterned on Fed. R. Civ. P. 60 but is
not identical to it.  Compare Pet. App. 17a-18a (quoting Ct. Int'l
Trade R. 60) with Pet. App. 14a-15a (quoting Fed. R. Civ. P. 60).
Both rules apply to relief from the judgment for clerical errors (Rule
60(a)) or on grounds, inter alia, of mistake, inadvertence, excusable
neglect, newly discovered evidence, or fraud (Rule 60(b)).  One major
difference between the rules is that all motions made under Ct. Int'l
Trade R. 60(b) must be served and filed not more than 30 days after
the entry of the judgment, while Fed. R. Civ. P. 60(b) requires that
all motions be made "within a reasonable time" and that certain
specified motions be made within one year.  We note that Ct. Int'l
Trade R. 60(b) has been amended, effective October 1, 1986, to make
the applicable time periods the same as those under Fed. R. Civ. P.
60(b).

   /3/ Under Fed. R. App. P. 4(a)(4), which is applicable to the
Federal Circuit (see Pet. App. 10a-12a), if a timely Rule 59(e) motion
to alter or amend the judgment is filed in the district court then
"the time for appeal for all parties shall run from the entry of the
order * * * granting or denying * * * such motion." The rule further
provides that a notice of appeal filed before the disposition of such
motion "shall have no effect" and that "(a) new notice of appeal must
be filed within the prescribed time measured from the entry of the
order disposing of (such) motion * * *." Neither Fed. R. App. P.
4(a)(4) nor any circuit rule of the Federal Circuit refers expressly
to Ct. Int'l Trade R. 59(e).  The court below appears to have assumed
that a motion properly filed under Ct. Int'l Trade R. 59(e) would have
the same effect as a motion under Fed. R. Civ. P. 59(e), but it did
not have to reach that question.

   /4/ Previously, on November 23, 1985, the court of appeals had
stayed its consideration of the Commission's appeal pending the
resolution of a controlling point of substantive law that was being
decided in an interlocutory appeal in American Lamb (see Pet. App.
1a-2a).

   /5/ Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th
Cir. 1986), petition for cert. pending sub nom. Southern Pacific
Transportation Co. v. Harcon Barge Co., No. 85-2015;  and Willie v.
Continental Oil Co., 784 F.2d 706 (5th Cir. 1986).

   /6/ Since a Fed. R. Civ. P. 60(b) motion does not affect the
finality of the district court's judgment, a Fed. R. Civ. P. 60(b)
motion filed after the notice of appeal may only be granted with leave
of the court of appeals.  It has been held, however, that a district
court, without leave of the court of appeals, may entertain and deny a
Fed. R. Civ. P. 60(b) motion even after a timely notice of appeal is
filed.  See, e.g., Venen v. Sweet, 758 F.2d 117, 123 (3d Cir. 1985).

   /7/ While not declaring that a bright line test would always be
used, other circuits have adopted similar approaches.  See, e.g.,
Rankin v. Heckler, 761 F.2d 936, 942 (3d Cir. 1985) (footnote omitted)
("Regardless how it is styled, a motion filed within ten days of entry
of judgment questioning the correctness of a judgment may be treated
as a motion to alter or amend the judgment under Rule 59(e).");
Western Industries, Inc. v. Newcor Canada, Ltd., 709 F.2d 16, 17 (7th
Cir. 1983) (where issue was whether motion was one under Fed. R. Civ.
P. 59(e) or 60(b), court stated that "(p)ost-judgment motions filed
within 10 days should where possible be construed as Rule 59(e)
motions to avoid otherwise endless hassles over proper
characterization").

   /8/ The CIT was created by the Customs Courts Act of 1980, Pub. L.
No. 96-417, 94 Stat. 1727 et seq., as the successor to the Customs
Court.

   /9/ Ct. Int'l Trade R. 1 provides that the CIT "may refer for
guidance to the rules of other courts" (emphasis added).  The CIT has
looked to the Federal Rules of Civil Procedure for guidance where the
rules in question are identical or very similar to the corresponding
CIT rules.  See, e.g., United States v. F.A.G. Bearings Corp., 615 F.
Supp. 562, 566 n.4 (Ct. Int'l Trade 1984);  Vivitar Corp. v. United
States, 585 F. Supp. 1415, 1417 (Ct. Int'l Trade 1984).

   /10/ Appeals from the CIT to the Federal Circuit are governed by
the Federal Rules of Appellate Procedure and by the Federal Circuit's
local rules.  Those local rules provide that the CIT shall be
considered a district court for purposes of the Federal Rules of
Appellate Procedure.  See Introduction, Rules of the United States
Court of Appeals for the Federal Circuit Supplementing the Federal
Rules of Appellate Procedure (set out at Pet. App. 11a).  Moreover,
Fed. Cir. R. 10(a) states that "(a) notice of appeal shall be filed in
the manner and within the time prescribed by (Fed. R. App. P.) 4(a)"
(Pet. App. 12a).

   /11/ As noted on page 3 note 2, supra, the CIT has recently amended
its Rule 60(b), effective October 1, 1986, to provide time limits that
correspond to Fed. R. Civ. P. 60(b), i.e., "reasonable time" and one
year.  That amendment makes this case particularly inappropriate for
review by this Court.

   /12/ There is an entirely separate reason why this case does not
conflict with Harcon Barge:  even if the CIT erred in interpreting
petitioners' motion as one under Ct. Int'l Trade R. 60, the Commission
properly relied on the CIT's ruling, and the narrow "unique
circumstances" exception of Harris Truck Lines, Inc. v. Cherry Meat
Packers, Inc., 371 U.S. 215 (1962), and Thompson v. INS, 375 U.S. 384
(1964), therefore applies.  In Harris Lines, appellant's counsel had
obtained from the district court a timely extension of the filing date
for appeal on grounds of excusable neglect.  The court of appeals
dismissed the appeal, ruling that the district court's decision on
excusable neglect was erroneous.  This Court reversed, noting the
"obvious hardship" to a party who relies on the trial court's ruling.
The Court stated (371 U.S. at 217) that "(w)hatever the proper result
as an initial matter on the facts here, the record contains a showing
of unique circumstances sufficient that the Court of Appeals ought not
to have disturbed the motion judge's ruling." In Thompson, the
district court had erroneously informed appellant that his new trial
motion was timely.  When that motion was denied, appellant's appeal
was dismissed as untimely.  Again this Court reversed.  Relying on
Harris Lines, the Court noted (375 U.S. at 387) that "(h)ere, as
there, (appellant) relied on the statement of the District Court and
filed the appeal within the assumedly new deadline but beyond the old
deadline." The unique circumstances exception also applies in the
present case.  The CIT explicitly ruled that petitioners' motion was
one under Ct. Int'l Trade R. 60.  It was in reliance on that ruling
that the Commission did not file a second notice of appeal.

   /13/ Courts of appeals generally defer to the district court's
interpretation of its own local rules, unless the rule or its
construction conflicts with the Constitution, a statute, or the
Federal Rules of Civil Procedure.  See e.g., John v. Louisiana, 757
F.2d 698, 707 (5th Cir. 1985);  Miranda v. Southern Pacific
Transportation Co., 710 F.2d 516, 521 (9th Cir. 1983);  Smith v. Ford
Motor Co., 626 F.2d 784, 796 (10th Cir. 1980), cert. denied, 450 U.S.
918 (1981).  Similarly, the CIT is entitled to deference when it
interprets its own rules.

   /14/ It is important to limit the scope of Rule 59(e) motions
because of the possibility of abuse to delay appeals.  The potential
for abuse if greater under a 30 day rule (like the CIT Rule) than
under a 10 day rule.  One court has noted, in discussing Fed. R. Civ.
P. 59(e), that "(t)he possibilities of abusive use of post-judgment
motions to delay appeal are slight since 10 days is a short time and
cannot be extended." Western Industries, Inc. v. Newcor Canada, Ltd.,
709 F.2d 16, 17 (7th Cir. 1983) (citation omitted).  A 30 day period
poses a greater risk of abuse.

   /15/ The fact that petitioners' motion requested the CIT to hold
the case to ensure that the CIT's order was carried out (see Pet.6-7 &
n.9;  Pet. App. 47a) does not change the analysis.  It would obviously
be inappropriate to permit the party who achieved a victory in the
lower court -- and who is therefore not calling into question the
correctness of the judgment -- to delay the time for filing an appeal,
and render a previously filed notice of appeal void, simply by asking
the court to hold the case until the court's order is implemented.

   /16/ Indeed, it is not even clear whether the motion should be
characterized as one under Ct. Int'l Trade R. 60, since it does not
seem to fall squarely into any of the categories specified in Rules
60(a) or 60(b).  For that reason, even if the CIT's rules were
identical to the Federal Rules of Civil Procedure, it is not at all
clear that there would be a conflict with Harcon Barge.  That case
only governs motions that could be construed as either Fed. R. Civ. P.
59(e) or 60(b) motions, not those that arguably fit within neither
category.

                               APPENDIX