Jinan Farmlady Trading Co. v. United States , 836 F. Supp. 2d 1406 ( 2012 )

Slip Op. 12 -58
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
______________________________
:
JINAN FARMLADY TRADING CO., :
et. al., :
: Court No. 11-00195
Plaintiffs, :
:
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
FRESH GARLIC PRODUCERS :
ASSOCIATION, et al., :
:
Defendant-Intervenors :
______________________________:
OPINION
Held: Defendant’s Motion to Dismiss is granted. Plaintiffs’
Complaint is dismissed.
Dated: April 26, 2012
Hume & De Luca, PC (Robert T. Hume) for Jinan Farmlady Trading
Co., et al., Plaintiffs.
Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Reginald T. Blades, Jr., Assistant
Director; (Melissa M. Devine), Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of
Justice, George Kivork, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, of Counsel,
for the United States, Defendant.
Kelley Drye & Warren, LLP (Michael J. Coursey and John M.
Herrmann)for Fresh Garlic Producers Association, et al., Defendant-
Intervenors.
TSOUCALAS, Senior Judge: This matter comes before the Court on
the motion to dismiss filed by Defendant, United States and joined
Court No. 11-00195 Page 2
by Defendant-Intervenors, Christopher Ranch, LLC, Fresh Garlic
Producers Association, The Garlic Company, Valley Garlic, and
Vessey and Company, Inc. (Collectively “Defendants”). Plaintiffs,
Jinan Farmlady Trading Co., Ltd., Weifang Hongqiao International
Logistics Co. Ltd., Qingdao Xingdao Xintianfeng Foods Co., Ltd.,
and Gingar Import Corporation (“Plaintiffs”) oppose dismissal.
Defendants move pursuant to USCIT Rules 12(b)(1) and 12(b)(5), and
seek dismissal alleging the Court lack jurisdiction to hear
Plaintiffs claims, that Plaintiffs lack standing and that
Plaintiffs have failed to state a claim. Alternatively, if the
Court should deny the Defendants’ motion, they request a more
definite statement. For the reasons set forth below, the Court
concludes that it lacks subject matter jurisdiction to hear this
suit and grants Defendants’ motion to dismiss the Complaint.
BACKGROUND
On June 17, 2011, Plaintiffs filed the instant action under 28
U.S.C. 1581(i). In the jurisdiction clause in their Complaint,
Plaintiffs are contesting the U.S. Department of Commerce’s
(“Commerce”) “. . . method used to conduct administrative reviews
of the antidumping duty order on fresh garlic from the People's
Republic of China, including the selection of respondents and the
assignment of antidumping duty rates." Comp. at 1. Plaintiffs
allege they have standing because they “participated in previous
administrative reviews of the antidumping duty order on fresh
Court No. 11-00195 Page 3
garlic from the People’s Republic of China . . . .” Id.
Plaintiffs’ allegations in the Complaint were raised at the
administrative level. See Pl.’s Reply Mem. to Def. Intervenor
Reply Brief at 3 (“. . . [P]laintiffs agree they participated in
the 15th [Administrative Review] and made arguments similar to
those made in the complaint . . . .”). After the preliminary
results of the administrative review were published,1 Plaintiffs
submitted a case brief with comments to Commerce before a final
determination was made. See Case Br. Filed On Behalf Of Jinan
Farmlady Trading Co., LTD to United States Department of Commerce
(May 20, 2011), Def. Intervenor’s Reply Brief in Support of Def.’s
Mot. to Dismiss, App. 7. In this case brief, Plaintiffs contended
that “[Commerce’s] approach allowing the Fresh Garlic Producers
Association and its individual members (‘Petitioners’) to designate
certain Chinese exporters/producers as respondents and subsequently
to rescind the review with respect to specified respondents is
arbitrary, capricious and contrary to law.” Id. at 1. Commerce
disagreed and noted that its “regulations make clear that
Petitioners’ request for a review of specified individual companies
is precisely how the review request process is designed.
Therefore, [Commerce] does not consider Petitioners’ review
1
Fresh Garlic from the People’s Republic of China:
Preliminary Results of, Partial Rescission of, and intent to
Rescind, in Part, the 15th Antidumping Duty Administrative
Review, 75 Fed. Reg 80,458 (Dec. 22, 2010).
Court No. 11-00195 Page 4
requests to be arbitrary, capricious, or contrary to law.” See
Issues and Decision Memorandum for the Final Results of the 15th
Administrative Review of Fresh Garlic from the People’s Republic of
China at 29 (June 20, 2011), Pl.’s Resp. to Def.’s Mot. to Dismiss
Pl.’s Compl., App. 1. Thereafter, the final results were
published. See Fresh Garlic From the People’s Republic of China:
Final Results and Final Rescission, in Part, of the 2008-2009
Antidumping Duty Administrative Review, 76 Fed. Reg. 37,321 (June
27, 2011)(“15th Administrative Review Final Results”).
Rather than challenging the final determination of the 15th
Administrative Review Final Results under 28 U.S.C. § 1581(c),
Plaintiffs chose to file this Complaint under 28 U.S.C. § 1581(i)
alleging that the “methodology used by Commerce to delegate
effective selection of respondents in antidumping proceedings is
arbitrary and capricious . . . . ” Compl. at 2.
STANDARD OF REVIEW
When jurisdiction is questioned, “the burden rests on
plaintiff to prove that jurisdiction exists.” Lowa, Ltd. v. United
States, 5 C.I.T. 81, 83, 561 F. Supp. 441, 443 (1983) (quoting
United States v. Biehl & Co., 3 CIT 158, 160, 539 F. Supp. 1218,
1220 (1982)). In determining a motion to dismiss for failure to
state a claim, the Court “must assume all well-pled factual
allegations are true and indulge in all reasonable inferences in
favor of the nonmovant.” Gould, Inc. v. United States, 935 F.2d
Court No. 11-00195 Page 5
1271, 1274 (Fed. Cir. 1991).
ANALYSIS
Plaintiffs assert that the Court has jurisdiction under 28
U.S.C. § 1581(i). Since Defendants have challenged jurisdiction,
Plaintiffs have the burden of proving that jurisdiction under 28
U.S.C. § 1581(i) is proper. Plaintiffs appeared and actively
participated in the 15th Administrative Review of the antidumping
duty order regarding fresh garlic from the People’s Republic of
China. The issues Plaintiffs raised were similar to the
allegations in the Complaint herein. Yet the Plaintiffs did not
challenge the final determination by filing this action utilizing
28 U.S.C. § 1581(c). 28 U.S.C. § 1581(i) specifically states that
“[it] shall not confer jurisdiction over an antidumping or
countervailing duty determination which is reviewable . . . by the
Court of International Trade under section 516A(a) of the Tariff
Act of 1930 . . . .” 28 U.S.C. § 1581(i). Plaintiffs’ cause of
action should have been brought under 28 U.S.C. § 1581(c) because
“[s]ection 1581(i) jurisdiction may not be invoked when
jurisdiction under another subsection of § 1581 is or could have
been available . . . .” Miller & Co. v. United States, 824 F.2d
961, 963 (Fed. Cir 1987), cert. denied, 484 U.S. 1041 (1988).
Therefore, the proper jurisdictional predicate to review the
Plaintiffs’ claims is 28 U.S.C. § 1581(c).
Plaintiffs contend that relief is not possible under 28 U.S.C.
Court No. 11-00195 Page 6
§ 1581(c). “Because the practice of manipulation occurs in a
number of cases, particularly those involving China, relief cannot
be obtained through a challenge to one final determination.” Pl.’s
Resp. to Def.’s Mot. to Dismiss at 18. The Court does not agree.
Had Plaintiffs challenged the 15th Administrative Review Final
Results, their allegations could have been addressed and corrected
if not in accord with the law. Whether the conduct occurs
repeatedly is immaterial to correcting the problem through
challenging the 15th Administrative Review Final Results under 28
U.S.C. § 1581(c).
Plaintiffs’ contention is inconsistent with their position
that “the discrete actions plaintiffs are challenging are the
repeated failures by Commerce to require meaningful answers to why
review requests are being sought and, in turn, why they are being
withdrawn.” Pl.’s Resp. to Def.’s Mot. to Dismiss at 19.
(internal quotation omitted) Plaintiffs raised this in the
administrative review but Commerce disagreed. Plaintiffs’
challenges and Commerce’s responses all occurred during the 15th
Administrative Review. Thus, any final decision which was
repugnant to Plaintiffs’ position was reviewable under 28 U.S.C. §
1581(c). Since Plaintiffs’ claims are a direct challenge to the
15th Administrative Review Final Results, they cannot maintain this
action under 28 U.S.C. § 1581(i). “[S]ubsection (i), and in
particular paragraph (4), makes it clear that the court is not
Court No. 11-00195 Page 7
prohibited from entertaining a civil action relating to an
antidumping . . . proceeding so long as the action does not involve
a challenge to a determination specified in section 516A of the
Tariff Act of 1930.” Royal Bus. Machs, Inc. v. United States, 669
F.2d 692, 701-02 (C.C.P.A. 1982). This is because 28 U.S.C. §
1581(c) grants this Court “exclusive jurisdiction of any civil
action commenced under 516A of the Tariff Act of 1930". 28 U.S.C.
§ 1581(c). A party cannot short circuit the statutory framework by
filing an action under 28 U.S.C. § 1581(i) when it could have been
filed under 28 U.S.C. § 1581(c).2 As such, the Court does not have
jurisdiction under 28 U.S.C. § 1581(i).
Since the Court finds that Plaintiffs could have brought this
action under 28 U.S.C. § 1581(c) but failed to do so, the Court
does not have jurisdiction under 28 U.S.C. § 1581(i) unless
Plaintiffs could show that the remedy available under 28 U.S.C. §
2Emphasizing this concern, the House Committee on the
Judiciary had explained that its intent was “that the Court of
International Trade not permit subsection (i), and in particular
paragraph (4), to be utilized to circumvent the exclusive method
of judicial review of those antidumping . . . determinations
listed in section 516A of the Tariff Act of 1930 . . . .” H.R.
Rep. No. 96-1235, pt. 2, at 48 (1980). More specifically the
Committee wrote: “[A]ny determinations specified in section 516A
of the Tariff Act of 1930, or any preliminary administration
action which, in the course of proceeding, will be, directly or
by implication, incorporated in or superceded by any such
determination, is reviewable exclusively as provided in section
516A. For example, a preliminary affirmative antidumping . . .
determination or a decision to exclude a particular exporter from
an antidumping investigation would be reviewable, if at all, only
in connection with the review of the final determinations by the
administering authority . . . .” Id. (Emphasis added).
Court No. 11-00195 Page 8
1581(c) was “manifestly inadequate.” See Miller & Co., 824 F.2d at
963 (“Where another remedy is or could have been available, the
party asserting § 1581(i) jurisdiction has the burden to show how
that remedy would be manifestly inadequate.”). Plaintiffs allege
the remedy under 28 U.S.C. § 1581(c) would be “manifestly
inadequate” because “Plaintiffs are challenging the ‘administration
and enforcement’ of Commerce’s regulations in light of the
contradictory policy that distorts the final results in [non market
economy administrative reviews].” Pl.’s Reply Mem. to Def.
Intervenor’s Reply Brief at 8. In support of their argument,
Plaintiffs cite Cons. Bearings, Co. v. United States, 348 F.3d 997(Fed. Cir 2003), where the plaintiff “. . . challenge[d] the manner
in which Commerce administered the final results.” 348 F.3d at
1002. However, Plaintiffs here are complaining about Commerce’s
actions during the administrative review process before a final
determination and not the administration of the final results after
a final determination was made. For example, Plaintiffs allege the
administration and enforcement of the regulations “distorts the
final results in . . . [administrative reviews]”. Pl.’s Reply Mem.
to Def. Intervenors’ Reply Brief at 8. Even if Plaintiffs’
allegations are true, the complained of conduct occurred during the
review process and not after the final results. Another example
where Plaintiffs illustrate their concern for the 15th
Administrative Review process itself and not the administration of
Court No. 11-00195 Page 9
those results is when they allege that “[b]y delegating to
defendant-intervenors the privilege of identifying those companies
that could be excluded from the 15th [Administrative Review] threw
[sic] the process of first requesting a review for a named company
and then withdrawing the review requests for that named company,
Commerce bestowed on the defendant-intervenors . . . the privilege
of manipulating the rates assigned by Commerce to other companies.”
Id. All of these assertions, if true, occurred within the
administrative review process and not after a final determination.
Since Plaintiffs’ chief concerns involve Commerce’s activities
leading up to the 15th Administrative Review Final Results and not
the administration and enforcement of those final results, reliance
on Consolidated Bearings is misguided.
Additionally, the Court of Appeals recently found jurisdiction
improper under 28 U.S.C. § 1581(i) for an importer seeking duty
free treatment of plasma flat panel televisions imported from
Mexico. Although that case involved jurisdiction under 28 U.S.C.
§ 1581(a) instead of 28 U.S.C. § 1581(c), the logic remains the
same. “Because Hitachi’s claim had not already been allowed or
denied, Hitachi could have . . . established jurisdiction under §
1581(a). Therefore jurisdiction under § 1581(a) is not ‘manifestly
inadequate’ and jurisdiction under § 1581(i) is improper.” Hitachi
Home Elect. (Ame.), Inc. v. United States, 661 F.3d 1343, 1350
(Fed. Cir. 2011).
Court No. 11-00195 Page 10
Given the allegations in Plaintiffs’ Complaint, Plaintiffs
should have sought review of the 15th Administrative Review Final
Results under 28 U.S.C. § 1581(c). Plaintiffs have not shown that
a remedy under 28 U.S.C. § 1581(c) would be manifestly inadequate.
As such, the Court lacks jurisdiction to hear this case under 28
U.S.C. § 1581(i). Because the Court does not have jurisdiction to
hear this case under 28 U.S.C. § 1581(i), the other arguments
herein are moot.
CONCLUSION
Based on the foregoing the Court dismisses the Complaint in
its entirety for lack of jurisdiction.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
Senior Judge
Dated: April 26, 2012
New York, New York