OpenJurist

983 F2d 1086 Belton Industries Inc v. United States

983 F.2d 1086

BELTON INDUSTRIES INC.; Burlington Industries, Inc.;
Chatham Manufacturing Company; Milliken & Company; Mount
Vernon Mills, Inc.; Shuford Mills, Inc.; Bibb
Manufacturing Company and JPS Textiles as successors in
interest to J.P. Stevens & Co., Inc.; West Point-Pepperell,
Inc. and the American Textile Manufacturers Institute, Inc.
for itself and on behalf of Belton Industries, Inc.;
Burlington Industries, Inc.; Chatham Manufacturing Company;
Milliken & Company; Mount Vernon Mills, Inc. and Shuford
Mills, Inc., Plaintiffs-Appellees,
v.
The UNITED STATES, Defendant-Appellee,
v.
GOVERNMENT OF COLOMBIA, Defendant-Appellant,
and
Royal Thai Government, Defendant-Appellant.
BELTON INDUSTRIES INC.; Burlington Industries, Inc.;
Chatham Manufacturing Company; Milliken & Company; Mount
Vernon Mills, Inc.; Shuford Mills, Inc.; Bibb
Manufacturing Company and JPS Textiles as successors in
interest to J.P. Stevens & Co., Inc.; West Point-Pepperell,
Inc. and the American Textile Manufacturers Institute, Inc.
for itself and on behalf of Belton Industries, Inc.;
Burlington Industries, Inc.; Chatham Manufacturing Company;
Milliken & Company; Mount Vernon Mills, Inc. and Shuford
Mills, Inc., Plaintiffs-Appellees,
v.
The UNITED STATES, Defendant-Appellee,
and
Government of Colombia, Defendant,
and
Royal Thai Government, Defendant-Appellee,
v.
GOVERNMENT OF SRI LANKA, Appellant,
and
Government of Peru, Appellant.

Nos. 92-1419, 92-1451, 92-1452 and 92-1483.

United States Court of Appeals, Federal Circuit.

Oct. 30, 1992.

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before ARCHER, Circuit Judge, BENNETT, Senior Circuit Judge, and SCHALL, Circuit Judge.

ARCHER, Circuit Judge.

ORDER

1

The United States moves to voluntarily dismiss its appeal no. 92-1421. The Government of Columbia and the Royal Thai Government oppose. Belton Industries, Inc. et al. move for leave to file a reply, with reply attached.

2

Courts of Appeals, in their discretion, generally permit an appellant to dismiss its own appeal unless dismissal will adversely affect another party. See Township of Benton v. County of Berrian, 570 F.2d 114 (6th Cir.1978). The United States asks that the court follow the general rule. The Columbia and Royal Thai Governments argue that the exception to the general rule applies because the United States' dismissal will adversely affect them.

3

Both parties rely on Benton to support their positions. In Benton, both the United States and the County of Berrian had appealed from an injunction. The government moved to dismiss its appeal stating that it would appeal after further proceedings in the district court were concluded. The Sixth Circuit denied the motion on the ground that the court had to review the merits of the appeal in any event because Berrian was continuing its appeal even if the government's appeal was dismissed. In that case, briefing had been completed.

4

The Columbia and Royal Thai Governments argue that the instant situation is analogous. We disagree. Although the appeal here will continue whether or not the United States' appeal is dismissed, the United States has made a decision not to be an appellant, that is, it is not challenging the Court of International Trade's decision now or in the future. Indeed, if the United States does not appear as an appellant in this case, it will be designated an appellee. Denying the United States' motion would place this court in the uncomfortable position of forcing the United States to support a position that the Solicitor General has decided the United States should not support. In our discretion, we decline to do so.

5

Accordingly,

IT IS ORDERED THAT:

6

(1) The United States' motion to dismiss appeal no. 92-1421 is granted.

7

(2) Belton's motion for leave to file a reply is granted.

8

(3) The appellants may extend the time to file their initial briefs by 14 days.

9

(4) The revised official caption is reflected above.