Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States , 853 F. Supp. 2d 1290 ( 2012 )

Slip Op. 12-90
UNITED STATES COURT OF INTERNATIONAL TRADE
BAROQUE TIMBER INDUSTRIES
(ZHONGSHAN) COMPANY, LIMITED,
et. al,
Plaintiffs,
v.
Before: Donald C. Pogue,
UNITED STATES, Chief Judge
Defendant, Consol. Court No. 12-000071
and
ZHEJIANG LAYO WOOD INDUSTRY
COMPANY, LIMITED, et al.,
Defendant-Intervenors.
OPINION AND ORDER
[ordering further briefing with regard to Defendant’s Motion to
Dismiss]
Dated: June 27, 2012
Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda,
MD and John B. Totaro, Jr., Neville Peterson, LLP, of Washington,
DC, for Consolidated Plaintiff Coalition for American Hardwood
Parity.
Alexander V. Sverdlov, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of
Washington, DC, for Defendant. With him on the briefs were
Stuart F. Delery, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director. Of
counsel on the briefs was Shana Hofstetter, Attorney, Office of
the Chief Counsel for Import Administration, U.S. Department of
Commerce, of Washington, DC.
1
This action was consolidated with Court Nos. 11-00452, 12-
00013, and 12-00020. Order at 1, May 31, 2012, ECF No. 37.
Consol. Ct. No. 12-00007 Page 2
Francis J. Sailer, Mark E. Pardo, Andrew T. Schutz, and
Kovita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman &
Klestadt, of Washington, DC, for Defendant-Intervenors Baroque
Timber Indus. (Zhongshan) Co., Ltd.; Riverside Plywood Corp.;
Samling Elegant Living Trading (Labuan) Ltd.; Samling Global USA,
Inc.; Samling Riverside Co., Ltd.; and Suzhou Times Flooring Co.,
Ltd.
Gregory S. Menegaz, J. Kevin Horgan, and John J.
Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for
Defendant-Intervenors Zhejiang Layo Wood Industry Co., Ltd.;
Changzhou Hawd Flooring Co., Ltd.; Dunhua City Jisen Wood Indus.
Co., Ltd.; Dunhua City Dexin Wood Indus. Co., Ltd.; Dalian
Huilong Wooden Products Co., Ltd.; Kunshan Yingyi-Nature Wood
Indus. Co., Ltd.; and Karly Wood Products Ltd.
Jeffrey S. Neeley, Michael S. Holton, and Stephen W.
Brophy, Barnes, Richardson & Colburn, of Washington, DC, for
Defendant-Intervenor Zhejiang Yuhua Timber Co. Ltd.
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer,
Susan L. Brooks, Sarah M. Wyss, Keith F. Huffman, Mowry &
Grimson, PLLC, of Washington, DC, for Defendant-Intervenors Fine
Furniture (Shanghai) Ltd.; Great Wood (Tonghua) Ltd.; and Fine
Furniture Plantation (Shishou) Ltd.
Kristen S. Smith and Mark R. Ludwikowski, Sandler,
Travis & Rosenberg, P.A., of Washington, DC, for Defendant-
Intervenors Lumber Liquidators Services, LLC; Armstrong Wood
Products (Kunshan) Co., Ltd.; and Home Legend, LLC.
Daniel L. Porter, William H. Barringer, Matthew P.
McCullough, and Ross Bidlingmaier, Curtis, Mallet-Prevost, Colt &
Mosle LLP, of Washington, DC, for Defendant-Intervenor Bureau of
Fair Trade for Imports & Exports, Ministry of Commerce, People’s
Republic of China.
Pogue, Chief Judge: This is a consolidated action
seeking review of determinations made by the Department of
Commerce (“the Department” or “Commerce”) in the antidumping duty
investigation of multilayered wood flooring from the People’s
Consol. Ct. No. 12-00007 Page 3
Republic of China (“China”).2 Currently before the court is
Defendant’s Motion to Dismiss the Complaint filed by Consolidated
Plaintiff the Coalition for American Hardwood Parity (“CAHP”).
In its Motion to Dismiss, ECF No. 52 (docketed under
Ct. No. 11-00452), Defendant alleges that CAHP’s Complaint fails
to comply with jurisdictional requirements established by Section
516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C.
§ 1516a(a)(2),3 because CAHP filed its summons in advance of
Commerce’s publication, in the Federal Register, of the
antidumping order.
As explained below, the court agrees that CAHP’s filing
fails to comply with the statutory provisions governing the time
for filing. However, in light of recent decisions by the Supreme
Court and the Court of Appeals for the Federal Circuit, this
court is not yet persuaded that such failure to timely file
requires dismissal for lack of jurisdiction. Because the parties
did not fully brief the question of whether the relevant statutes
2
Multilayered Wood Flooring from the People’s Republic of
China, 76 Fed. Reg. 64,318 (Dep’t Commerce Oct. 18, 2011) (final
determination of sales at less than fair value) (“Final
Determination”) and accompanying Issues & Decision Memorandum, A-
570-970, POI Apr. 1, 2010 - Sept. 30, 2010 (Oct. 11, 2011) Admin.
R. Pt. 2 Pub. Doc. 31, 32, available at
http://ia.ita.doc.gov/frn/summary/PRC/2011-26932-1.pdf (“I & D
Mem.”) (adopted in Final Determination, 76 Fed. Reg. at 64,318).
3
All subsequent citations to the Tariff Act of 1930 will be
to Title 19 of the U.S. Code, 2006 edition, unless otherwise
noted.
Consol. Ct. No. 12-00007 Page 4
are jurisdictional requisites – as opposed to claim processing
rules subject to equitable tolling – the court will reserve
judgment and order further briefing on this issue.
Background
This case arises from Commerce’s initiation, on
November 18, 2010, of an antidumping duty investigation of
multilayered wood flooring from China. Multilayered Wood Flooring
from the People’s Republic of China, 75 Fed. Reg. 70,714 (Dep’t
Commerce Nov. 18, 2010) (initiation of antidumping duty
investigation) (“Initiation Notice”). Following the
investigation, on October 18, 2011, Commerce published its Final
Determination, finding that the subject merchandise was being
sold at less than fair value in the United States, i.e., dumped.
Final Determination, 76 Fed. Reg. at 64,323–24. In the Final
Determination, Commerce calculated a zero margin for one
mandatory respondent, Zhejiang Yuhua Timber Co., Ltd. (“Yuhua”).
Id. at 64,323. On December 8, 2011, Commerce published its
antidumping duty order. Multilayered Wood Flooring from the
People’s Republic of China, 76 Fed. Reg. 76,690 (Dep’t Commerce
Dec. 8, 2011) (amended final determination of sales at less than
fair value and antidumping duty order) (“Antidumping Duty
Order”). Yuhua, having received a zero rate in the Final
Determination, was excluded from the order. Id.Consol. Ct. No. 12-00007 Page 5
Following publication of the Final Determination, but
prior to publication of the Antidumping Duty Order, CAHP filed a
summons giving notice that it would challenge various aspects of
Commerce’s Final Determination. Summons, Nov. 17, 2011, ECF No. 1
(docketed under Ct. No. 11-00452). Among the issues identified
for challenge in the Summons were “certain aspects of the
affirmative final determination of sales at less than normal
value including the exclusion of one producer/exporter[, Yuhua]
. . . .” Summons at 1.
Discussion
I. CAHP’s Summons Was Untimely Filed
The statute states specific timing requirements that a
prospective plaintiff must follow when seeking review of
Commerce’s determinations in an antidumping duty investigation.
The Motion to Dismiss turns on the proper interpretation of these
statutory provisions, found at 19 U.S.C. § 1516a(a)(2), which are
as follows:
(A) In general
Within thirty days after —
(i) the date of publication in the Federal
Register of —
(I) notice of any determination
described in clause (ii) . . . of
subparagraph (B), [or]
(II) an antidumping or countervailing
duty order based upon any
determination described in clause
(i) of subparagraph (B) . . .
an interested party who is a party to the
Consol. Ct. No. 12-00007 Page 6
proceeding in connection with which the matter
arises may commence an action in the United States
Court of International Trade by filing a summons,
and within thirty days thereafter a complaint
. . . .
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
(i) Final affirmative determinations by
[Commerce] and by the Commission under
section 1671d or 1673d of this title,
including any negative part of such a
determination (other than a part
referred to in clause (ii)).
(ii) A final negative determination by
[Commerce] or the Commission under
section 1671d or 1673d of this title,
including, at the option of the
appellant, any part of a final
affirmative determination which
specifically excludes any company or
product.
Commerce interprets this statute to have, depending on
the nature of the complaint, two potential filing dates for a
challenge to the exclusion of a company. If the sole challenge
plaintiff brings addresses the exclusion of a company, then,
according to Commerce, plaintiff may file within thirty days of
publication of the affirmative determination, pursuant to
§ 1516a(a)(2)(A)(i)(I). Mot. to Dismiss at 6. If, however,
plaintiff challenges both the exclusion of a company and other
aspects of an affirmative determination, then Commerce interprets
the statute to require that the summons be filed within thirty
days of publication of the order, pursuant to
§ 1516a(a)(2)(A)(i)(II). Mot. to Dismiss at 6–7.
CAHP, in contrast, interprets § 1516a(a)(2)(B)(ii) to
Consol. Ct. No. 12-00007 Page 7
require a plaintiff to challenge the exclusion of a company by
filing within thirty days of publication of the affirmative
determination. Pl.’s Opposition to Def.’s Mot to Dismiss at 6–9,
ECF No. 62 (docketed under Ct. No. 11-00452) (“Pl.’s Resp. Br.”).
Therefore, under CAHP’s interpretation, any action that includes
the exclusion of a company must be filed within thirty days of
publication of the affirmative determination.
On first read, the language of the statute may seem
ambiguous. On the one hand, § 1516a(a)(2)(B)(i) appears to
preclude challenges to exclusion of companies from its purview.
By defining challenges to an affirmative determination to include
all challenges to any negative part of the affirmative
determination “other than a [negative part of an affirmative
determination] referred to in clause (ii),” § 1516a(a)(2)(B)(i),
challenges to the exclusion of a company, appear relegated to
§ 1516a(a)(2)(B)(ii). On the other hand, the language in
§ 1516a(a)(2)(B)(ii) does not unequivocally support such a
reading. Rather, § 1516a(a)(2)(B)(ii) permits filing a challenge
to the exclusion of a company within thirty days of the
publication of the affirmative determination “at the option of
the appellant.” If filing on the § 1516a(a)(2)(A)(i)(I) timeline
(within thirty days of publication of the affirmative
determination) is “at the option of the appellant,” then the
appellant must have other filing options, i.e., there must be at
Consol. Ct. No. 12-00007 Page 8
least one other timeline for filing a challenge to the exclusion
of a company.
Commerce argues that this ambiguity has been resolved
by the Court of Appeals’ opinion in Bethlehem Steel Corp. v.
United States, 742 F.2d 1405 (Fed. Cir. 1984). In Bethlehem
Steel, the plaintiff challenged Commerce’s negative finding that
an export rebate program was not a countervailable subsidy – and
this challenge was in the context of an otherwise affirmative
countervailing duty determination, i.e., plaintiff filed a
challenge to a negative part of an affirmative determination. Id.at 1407–08. The plaintiff’s summons was filed within thirty days
of publication of the countervailing duty order but beyond thirty
days from the publication of the affirmative determination. Id.
at 1408. This Court held that the challenged finding was a
negative determination, and therefore, the complaint was untimely
pursuant to § 1516a(a)(2)(A)(i) and § 1516a(a)(2)(B)(ii) because
it was filed more than thirty days after the publication of the
final determination. Id. The Court of Appeals reversed, holding
that the challenged finding was only a negative part or aspect of
an affirmative determination, and, because it is only the whole
determination that is appealable, any challenge to a negative
part or aspect of an affirmative determination is subject to the
time limits for challenges to affirmative determinations. Id.
at 1410–11.
Consol. Ct. No. 12-00007 Page 9
Contrary to Commerce’s assertion, Bethlehem Steel does
not resolve the issue because the Court of Appeals was reviewing
an earlier version of 19 U.S.C. § 1516a(a)(2)(B). When the Court
of Appeals rendered its decision in Bethlehem Steel, the relevant
provision of the statute read as follows:
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
(i) Final affirmative determinations by the
Secretary and by the Commission under section
1303 of this title, or by [Commerce] and by
the Commission under section 1671d or 1673d
of this title.
(ii) A final negative determination by the
Secretary, the administering authority, or
the Commission under section 1303, 1671d, or
1673d of this title.
19 U.S.C. § 1516a(a)(2)(B) (1982). The Court of Appeals’ holding
in Bethlehem Steel fit well with the structure of the statute
then in force. As the statute was cleanly divided between
affirmative and negative determinations, the Court of Appeals
held that it was the nature of the determination as a whole that
governed which timing requirements applied.
However, amendments to § 1516a(a)(2)(B) in the Trade
and Tariff Act of 1984, Pub. L. No. 98-573, § 623, 98 Stat. 2948,
3040,4 inserted the language establishing the unique character of
challenges to the exclusion of a company. Thus, while the Court
4
The Trade and Tariff Act of 1984 became law on October 30,
1984, two months after the decision in Bethlehem Steel was
issued. Trade and Tariff Act of 1984, 98 Stat. at 2948.
Consol. Ct. No. 12-00007 Page 10
of Appeals’ holding in Bethlehem Steel — that the character of
the challenged determination as a whole decides which timing
requirements apply — remains good law, it does not resolve the
question of how challenges to the exclusion of a company are to
be characterized. Rather, the provision for challenging the
exclusion of a company may elude the clear division of
determinations into the affirmative and negative categories
recognized in Bethlehem Steel. Instead of easily resolving into
one of the two Bethlehem Steel categories, the determination to
exclude a company is capable of being either a negative part of
an affirmative determination or a negative determination. How it
is characterized is, pursuant to the statute, at the option of
the appellant. Thus, a plaintiff challenging the determination
may either bring the challenge as challenge to a negative
determination, filing pursuant to the timing requirements of
§ 1516a(a)(2)(A)(i)(I), or as a challenge to a negative part of
an affirmative determination, filing pursuant to the timing
requirements of § 1516a(a)(2)(A)(i)(II).
This is consistent with a reading of the text that
gives effect to all parts of the statute. See Duncan v. Walker,
533 U.S. 167, 174 (2001) (“[A] statute ought, upon the whole, to
be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.”
(quoting Wash. Market Co. v. Hoffman, 101 U.S. 112, 115–16 (1879)
Consol. Ct. No. 12-00007 Page 11
(internal quotation marks omitted)); FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must . . .
interpret the statutes as a symmetrical and coherent regulatory
scheme, and fit, if possible, all parts into an harmonious
whole.” (citations omitted) (internal quotation marks omitted)).
CAHP reads the parenthetical in § 1516a(a)(2)(B)(i) as
an exception that excludes “a part referred to in clause (ii)”
from the universe of negative parts of affirmative
determinations. Therefore, in CAHP’s view the exclusion of a
company, which is referred to in § 1516a(a)(2)(B)(ii), is
categorically excluded from § 1516a(a)(2)(B)(i), and a challenge
to such a determination must be filed pursuant to
§ 1516a(a)(2)(A)(i)(I). But this reading of the statute ignores
the language in § 1516a(a)(2)(B)(ii) that permits such a filing
“at the option of the appellant.” Thus, an interpretation of the
statute that gives effect to all its parts must read the
parenthetical of § 1516a(a)(2)(B)(i) together with
§ 1516a(a)(2)(B)(ii) to permit the appellant to characterize the
exclusion of a company as either a negative part of an
affirmative determination or as a negative determination and to
file accordingly.5
The legislative history of the Trade and Tariff Act of
5
An appellant’s choice in this matter is not without
limits, as is discussed below in Part II.
Consol. Ct. No. 12-00007 Page 12
1984 further supports the interpretation that an appellant has
the option to characterize a challenge to the exclusion of a
company as either a negative part of an affirmative determination
or as a negative determination. The Conference Report for the
Trade and Tariff Act of 1984 states that the bill
[c]larifies when negative portions of affirmative
determinations may be reviewed: any part of a final
affirmative determination by the administering
authority which specifically excludes any company or
product may, at the option of the appellant, be treated
as a final negative determination and may be subject to
appeal within 30 days of publication; other negative
aspects of an affirmative determination would be
appealable within 30 days after publication of a final
order, and if an appellant so chooses, appeal of those
portions of an affirmative finding which exclude a
product or a company may also be appealed within 30
days of publication of a final order, instead of within
30 days of the determination.
H.R. Rep. No. 98-1156, at 179 (1984) (Conf. Rep.), reprinted in
1984 U.S.C.C.A.N. 5220, 5296. Thus, according to the Conference
Report, the amendments to § 1516a(a)(2)(B) were intended to give
the appellant flexibility to challenge the exclusion of a company
either as a negative determination pursuant to the timing
requirements of § 1516a(a)(2)(A)(i)(I) or as a negative part of
an affirmative determination pursuant to § 1516a(a)(2)(A)(i)(II).
This is further supported by the House Report. In addition to
stating the reasoning that appears in the Conference Report, the
House Report explains that “[t]he purpose of clarifying when
negative portions of an affirmative determination may be reviewed
is to permit appeals of determinations which exclude entire
Consol. Ct. No. 12-00007 Page 13
companies or products on the timetable most acceptable to the
appealing party.” H.R. Rep. No. 98-725, at 47 (1984), reprinted
in 1984 U.S.C.C.A.N. 5127, 5174.
It follows that CAHP’s interpretation is incorrect,
and, as a result, its summons was untimely filed. This is
because CAHP also seeks to challenge other aspects of Commerce’s
affirmative determination; such a challenge must be filed within
the thirty day period following the publication of the order.
Importantly, CAHP incorrectly believed that it was required to
file its challenge to the exclusion of Yuhua within thirty days
of the affirmative determination — before the order was issued —
or lose the opportunity to bring that challenge. On the
contrary, however, the “at the option of the appellant” language
in § 1516a(a)(2)(B)(ii) would have permitted CAHP to file that
aspect of the challenge under the timing rules of
§ 1516a(a)(2)(B)(i) and § 1516a(a)(2)(A)(i)(II). But no such
flexibility exists for the remainder of CAHP’s Complaint. See
Horner v. Andrzjewski, 811 F.2d 571, 575 (Fed. Cir. 1987) (“[A]s
a general rule of statutory construction, the expression of one
exception indicates that no other exceptions apply.”).
Therefore, all of the challenges brought by CAHP, excepting the
challenge to Yuhua’s exclusion, are untimely pursuant to
§ 1516a(a)(2)(B)(i) and § 1516a(a)(2)(A)(i)(II), as well as the
Court of Appeals’ holding in Bethlehem Steel. CAHP cannot
Consol. Ct. No. 12-00007 Page 14
bootstrap these untimely challenges alongside its challenge to
the exclusion of Yuhua because that challenge could have been
timely filed within thirty days after publication of the order
along with all other challenges to the affirmative determination.
Correctly read, § 1516a(a)(2) permits the filing of a
challenge to an affirmative determination within thirty days of
the order. It permits the filing of a challenge to a negative
determination within thirty days of the final determination. And
it permits a challenge to the exclusion of a company from the
order to be filed, at the option of the complaining party, either
with a challenge to an affirmative determination or as a
challenge to a negative determination. As explained below,
however, the statute does not permit piecemeal litigation;
therefore, CAHP’s summons was untimely filed.
II. The Challenge to the Exclusion of Yuhua is Not Severable
from the Remainder of the Complaint
Determining the proper interpretation of
§ 1516a(a)(2)(B) does not fully resolve the Motion to Dismiss.
In its Reply Brief, Commerce suggests that the complaint may be
severed, arguing that “the Court should dismiss all parts of
[CAHP’s] complaint that do not specifically relate to Yuhua.”
Def.’s Reply in Supp. of Its Mot. to Dismiss at 4, ECF No. 38
(“Def.’s Reply Br.”). Commerce is correct that, in light of the
foregoing analysis, CAHP properly filed the summons challenging
the exclusion of Yuhua within thirty days of publication of the
Consol. Ct. No. 12-00007 Page 15
determination. However, because CAHP also untimely challenged
other aspects of the affirmative determination prior to
publication of the Antidumping Duty Order, the court must
determine whether the challenge to the exclusion of Yuhua can be
severed from the remaining counts of the Complaint or if the
Complaint must be dismissed in full.
Because severing the Complaint would create the
possibility of piecemeal litigation, such severance is not
consistent with the statute. In the House Report pertaining to
the Trade and Tariff Act of 1984, the Ways and Means Committee
stated that
the Committee is aware of the decision of the CIT in
Bethlehem Steel Corp. v. United States (Slip Op. 83-
97),[6] in which the court refused to permit an appeal
of certain negative findings (with respect to certain
products or companies) that were part of an overall
affirmative determination in accordance with the
timetable for appeal of affirmative determinations.
The court recognized that its ruling might lead to
“undesirable piecemeal” litigation, but said that the
corrections must be made by “legislative fiat.” The
purpose of the Committee’s change is to permit an
election by appellants of when to appeal such
determinations and thereby to prevent piecemeal
litigation.
H.R. Rep. No. 98-725, at 47, 1984 U.S.C.C.A.N. at 5175. To read
the statute as permitting severability in this case would be to
reintroduce the possibility of piecemeal litigation under the
guise of the appellant’s option when that option was intended to
6
Bethlehem Steel Corp. v. United States, 6 CIT 164, 571 F.
Supp. 1265 (1983), rev’d, 742 F.2d 1405 (Fed. Cir. 1984).
Consol. Ct. No. 12-00007 Page 16
correct the very problem of piecemeal litigation. Given the
Committee’s clear rejection of piecemeal litigation in the House
Report, it makes more sense to read the statute as permitting the
appellant to choose between challenging the exclusion of a
company as a negative determination, if this is the only
challenge appellant is making, or as a negative part of an
affirmative determination, if the appellant is challenging other
aspects of the affirmative determination. Otherwise, the
appellant could choose to challenge the exclusion of a company
within thirty days of the publication of the affirmative
determination and then file a subsequent suit within thirty days
of the publication of the order challenging other aspects of the
affirmative determination. Not only would this create piecemeal
litigation, but it runs afoul of the Court of Appeals’ statement
in Bethlehem Steel that “under our reading of the statute
Congress did not normally contemplate such a proliferation (and
perhaps duplication) of appeals.” Bethlehem Steel, 742 F.2d at
1411. While the statute has changed since the Court of Appeals
made that statement, it is not necessary to read the statute as
creating multiple opportunities for appeal of the same
determination in order to read the statute coherently.
Nor does the Court of Appeals’ suggestion in Bethlehem
Steel that severability might be an option in limited cases
support severability in this case. In Bethlehem Steel, the Court
Consol. Ct. No. 12-00007 Page 17
of Appeals noted in dicta that
we leave open the question whether there may possibly
be occasions on which a negative subsidy finding can be
severed from affirmative subsidy findings respecting
the same product, and then judicially challenged on a
separate “interlocutory” basis. We do decide, however,
that if such an earlier appeal is ever permissible, it
could be taken only on the ground that Congress gave
for specifically providing interlocutory appeals in the
Trade Agreements Act of 1979 . . . .
Id. at 1411. However, the Trade and Tariff Act of 1984 struck
the interlocutory appeal provisions from § 1516a. Compare 19
U.S.C. § 1516a(a)(1) (1982), with 19 U.S.C. § 1516a(a)(1) (2006);
see also H.R. Rep. No. 98-1156, at 178, 1984 U.S.C.C.A.N. at 5295
(“Eliminates all interlocutory judicial reviews by the U.S. Court
of International Trade during the course of CVD and AD
investigations.”). Thus, the basis upon which the Court of
Appeals considered severability a possibility was subsequently
stricken from the statute.
Because permitting severability in this case would
endorse the possibility of piecemeal legislation, which is both
undesirable and contrary to the statutory provision, the court
finds that severability is not an option.7
7
Should the court find that the timing requirements of
§ 1516a(a)(2) are jurisdictional requisites, see infra Part III,
CAHP may seek a voluntary dismissal of the untimely portion of
its complaint pursuant to USCIT R. 41(a)(2).
Consol. Ct. No. 12-00007 Page 18
III. Further Briefing Is Necessary on the Issues of Jurisdiction
and Equitable Tolling
In prior opinions both the Court of Appeals and this
Court have treated the timing requirements of § 1516a(a)(2) as
conditions of the government’s waiver of sovereign immunity and,
therefore, as jurisdictional requisites. See NEC Corp. v. United
States, 806 F.2d 247, 248–49 (Fed. Cir. 1986); Georgetown Steel
Corp. v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986);
Advanced Tech. & Materials Co. v. United States, 33 CIT __, Slip
Op. 09-115, at *4–5 (Oct. 15, 2009); Allegheny Ludlum Steel Corp.
v. United States, 7 CIT 56, 61 (1984); British Steel Corp. v.
United States, 6 CIT 200, 202–04, 573 F. Supp. 1145, 1147–49
(1983). Furthermore, the Court of Appeals has interpreted these
timing requirements strictly, thereby precluding equitable
tolling, by this Court, of these provisions. See NEC Corp., 806
F.2d at 249; Georgetown Steel, 801 F.2d at 1312.
However, intervening case law from both the Supreme
Court and the Court of Appeals has called these holdings into
question. See Ocean Duke Corp. v. United States, 35 CIT __, 781
F. Supp. 2d 1374, 1379 n.4 (2011) (noting that “[a] recent dearth
of clarity in the holdings of relevant Supreme Court and Federal
Circuit precedents” prevented the court from assuming a statute
of limitations was jurisdictional). In a recent line of cases,
the Supreme Court has begun to question the strict,
jurisdictional construal of timing requirements. See Henderson ex
Consol. Ct. No. 12-00007 Page 19
rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011); Reed
Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); Bowles v.
Russell, 551 U.S. 205 (2007); Arbaugh v. Y & H Corp., 546 U.S.
500 (2006). Furthermore, in a recent opinion, the Court of
Appeals held that the 28 U.S.C. § 2636(d) bar to an untimely
filed challenge to a trade adjustment assistance determination
was subject to equitable tolling. Former Emps. of Sonoco v.Chao,
372 F.3d 1291, 1298 (Fed. Cir. 2004). This holding calls into
question whether the 28 U.S.C. § 2636(c) bar to challenges filed
out of time pursuant to 19 U.S.C. § 1516a(a)(2) could also be
equitably tolled.
In light of these recent developments, the continued
viability of the prior opinions from the Court of Appeals and
this Court – holding the § 1516a(a)(2) timing requirements to be
strict jurisdictional requisites – may be in question. Because
the parties did not address these issues in their initial
briefs,8 the court will order a second round of briefing.
Conclusion
The court finds that CAHP’s summons should have been
filed within thirty days following the publication in the Federal
8
The court acknowledges that Commerce argued for the
jurisdictional nature of the § 1516a(a)(2) timing requirements in
its Motion to Dismiss. However, because Commerce did not address
the recent developments in the law, the court is not yet
persuaded by Commerce’s position.
Consol. Ct. No. 12-00007 Page 20
Register of the Antidumping Duty Order. Because it was filed
prior to publication of the Antidumping Duty Order, the summons
was untimely. However because questions remain regarding the
jurisdictional nature of the timing requirements found at 19
U.S.C. § 1516a(a)(2) and the possibility of equitable tolling,
and because the parties did not address these issues in their
prior briefs, the court orders additional briefing to address
these issues. In particular, the court directs that the parties
address the following questions:
1. Are the timing requirements of 19 U.S.C.
§ 1516a(a)(2) jurisdictional requisites or claim
processing rules when considered in light of the
Supreme Court’s decisions in Henderson, et al.,
and any other relevant law?
2. Are the timing requirements of 19 U.S.C.
§ 1516a(a)(2) subject to equitable tolling in
light of the Court of Appeals’ decision regarding
28 U.S.C. § 2636(d) in Former Emps. of Sonoco or
any other relevant law? Does the statutory
structure of 19 U.S.C. § 1516a in relation to 28
U.S.C. § 2636(c) differ sufficiently to
distinguish it from 19 U.S.C. §§ 2273, 2341 & 2371
as they relate to 28 U.S.C. § 2636(d)?
3. Assuming, arguendo, that Former Emps. of Sonoco
Consol. Ct. No. 12-00007 Page 21
supports the possibility of equitable tolling in
this case, do equitable grounds exist for the
court to permit CAHP’s untimely filed summons and
complaint?
All parties will have until July 12, 2012 to file
initial briefs on these issues. Parties shall then have until
July 20, 2012 to file a response brief. Initial briefs shall be
limited to fifteen pages. Response briefs shall be limited to
ten pages.
It is SO ORDERED.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: June 27, 2012
New York, New York