Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States , 865 F. Supp. 2d 1300 ( 2012 )

Slip Op. 12 -119
UNITED STATES COURT OF INTERNATIONAL TRADE
BAROQUE TIMBER INDUSTRIES
(ZHONGSHAN) COMPANY, LIMITED,
et. al,
Plaintiffs,
Before: Donald C. Pogue,
v. Chief Judge
UNITED STATES, Consol. Court No. 12-000071
Defendant,
and
ZHEJIANG LAYO WOOD INDUSTRY
COMPANY, LIMITED, et al.,
Defendant-Intervenors.
OPINION AND ORDER
[granting Defendant’s Motion to Dismiss for lack of subject-
matter jurisdiction]
Dated: September 19, 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, Trial Attorney, 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,
Kavita Mohan, and John M. Foote, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of Washington, DC, for Defendant-
Intervenors Baroque Timber Industries (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, Washington, DC, for
Defendant-Intervenors Zhejiang Layo Wood Industry Co., Ltd.;
Changzou Hawd Flooring Co., Ltd.; Dunhua City Jisen Wood Industry
Co., Ltd.; Dunhua City Dexin Wood Industry Co., Ltd.; Dalian
Huilong Wooden Products Co., Ltd.; Kunshan Yingyi-Nature Wood
Industry Co., Ltd.; and Karly Wood Product Ltd.
Jeffrey S. Neeley, Michael S. Holton, and Stephen W.
Brophy, Barnes, Richardson & Colburn, 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-Intervenor Fine
Furniture (Shanghai) Ltd.; Great Wood (Tonghua) Ltd.; and Fine
Furniture Plantation (Shishou) Ltd.
Kristen S. Smith and Mark R. Ludwikowski, Sandler,
Travis & Rosenberg PA, of Washington, DC, for Defendant-
Intervenors Lumber Liquidators Services, LLC; Armstrong Wood
Products (Kunshan) Co., Ltd.; and Home Legend, LLC.
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
Republic of China (“China”).2 Currently before the court is
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.
(footnote continued)
Consol. Ct. No. 12-00007 Page 3
Defendant’s Motion to Dismiss Plaintiff’s Complaint for Lack of
Jurisdiction, ECF No. 52 (docketed under Ct. No. 11-00452)
(“Motion to Dismiss”).
In the Motion to Dismiss, Defendant alleges that
Plaintiff Coalition for American Hardwood Parity (“CAHP”)
Complaint failed to comply with jurisdictional timing
requirements established by § 516A(a)(2) of the Tariff Act of
1930, as amended, 19 U.S.C. § 1516a(a)(2),3 because CAHP filed
its Summons, ECF No. 1 (docketed under Ct. No. 11-00452), in
advance of Commerce’s publication in the Federal Register, of the
antidumping duty order. In Baroque Timber Industries (Zhongshan)
Co. v. United States, 36 CIT __, Slip Op. 12-90 (June 27, 2012)
(“Baroque Timber I”), the court held that CAHP’s Summons was
untimely filed pursuant to 19 U.S.C. § 1516a(a)(2). However, the
court reserved decision on whether the untimely filing required
dismissal of the Complaint on jurisdictional grounds and
requested further briefing to determine whether the timing
requirements in § 1516a(a)(2) are jurisdictional and, if not,
whether they are subject to equitable tolling. Baroque Timber I,
2
(footnote continued)
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
36 CIT at __, Slip Op. 12-90 at *19–21.
Having considered the additional briefing submitted by
the parties, the court concludes that recent Supreme Court
precedent has cast doubt on the jurisdictional nature of
§ 1516a(a)(2)’s timing requirements; however, because the Court
of Appeals for the Federal Circuit has historically treated those
timing requirements as jurisdictional requisites, the court is
obligated to follow circuit precedent unless it is reversed.
Therefore, CAHP’s Complaint will be dismissed for lack of
jurisdiction.
BACKGROUND4
In Baroque Timber I, the court recognized that 19
U.S.C. § 1516a(a)(2) contains two potential time lines for a
party to challenge the exclusion of a company from an antidumping
duty order: (1) as a negative part of an affirmative
determination, pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i)(II)
(requiring filing within thirty days of publication of the
antidumping duty order), or (2) as a negative determination,
pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i)(I) (requiring filing
within thirty days of publication of the final determination).
Baroque Timber I, 36 CIT at __, Slip Op. 12-90 at *10. We held,
4
Familiarity with the court’s prior opinion is presumed,
and only interim developments not included in the prior opinion
are provided here by way of background.
Consol. Ct. No. 12-00007 Page 5
however, that a challenge to the exclusion of a company must be
filed as a negative part of an affirmative determination, i.e.,
within thirty days after publication of the antidumping duty
order, if filed alongside other challenges to an affirmative
determination. Id. at *13–14. Because CAHP challenged both the
exclusion of Zhejiang Yuhua Timber Co., Ltd. (“Yuhua”) and other
aspects of the affirmative determination, its Summons, filed
prior to publication of the antidumping duty order, was untimely.
Id. However, having reserved decision regarding the
jurisdictional nature of § 1516a(a)(2) and the possibility that
the filing deadline is subject to equitable tolling, the court
directed the parties to submit further briefing addressing the
reserved issues. Id. at *18–19. We now turn to these issues.
DISCUSSION
I. Jurisdiction
In Kontrick v. Ryan, 540 U.S. 443 (2004), the Supreme
Court noted that “[c]ourts, including this Court, it is true,
have been less than meticulous . . . ; they have more than
occasionally used the term ‘jurisdictional’ to describe emphatic
time prescriptions in rules of court. ‘Jurisdiction,’ the Court
has aptly observed, ‘is a word of many, too many, meanings.’”
Kontrick, 540 U.S. at 454 (quoting Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 90 (1998)).
Consol. Ct. No. 12-00007 Page 6
Following Kontrick, the Court has attempted to bring
greater clarity to consideration of what restrictions are
properly classed as jurisdictional.5 The Court has also
directed: “Clarity would be facilitated if courts and litigants
used the label ‘jurisdictional’ not for claim-processing rules,
but only for prescriptions delineating the classes of cases
(subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court’s adjudicatory authority.”
Kontrick, 540 U.S. at 455; see also Eberhart, 546 U.S. at 16;
Scarborough, 541 U.S. at 413–14.6
While further clarity is needed, “‘[c]lassify[ing] time
5
See Gonzalez v. Thaler, 132 S. Ct. 641 (2012); Henderson
ex rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011); Union Pac.
R.R. v. Bhd. of Locomotive Eng’rs & Trainmen, 130 S. Ct. 584(2009); 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); Eberhart v. United States, 546 U.S. 12(2005); Scarborough v. Principi, 541 U.S. 401 (2004).
6
As the Supreme Court has pointed out, proper delineation
of jurisdiction is not an academic exercise. See Henderson, 131
S. Ct. at 1202 (“Because the consequences that attach to the
jurisdictional label may be so drastic, we have tried in recent
cases to bring some discipline to the use of this term.”).
“While a mandatory but nonjurisdictional limit is enforceable at
the insistence of a party claiming its benefit or by a judge
concerned with moving the docket,” that limitation can be altered
through equitable means. Bowles, 551 U.S. at 216 (Souter, J.,
dissenting). A jurisdictional limitation, however, cannot be
tolled. Id. at 214 (majority opinion). Furthermore, a mandatory,
but non-jurisdictional, limitation may be waived if not timely
raised; however, a jurisdictional limitation may be raised at any
time, and the court is obligated to raise jurisdictional
limitations sua sponte. Id. at 216–17 (Souter, J., dissenting)
(citing Arbaugh, 546 U.S. at 514).
Consol. Ct. No. 12-00007 Page 7
prescriptions, even rigid ones, under the heading “subject matter
jurisdiction”’ can be confounding.” Kontrick, 540 U.S. at 455(quoting Carlisle v. United States, 517 U.S. 416, 434 (1996)).
To provide guidance in this determination, the Supreme Court, in
Arbaugh, applied a “readily administrable bright line” for
distinguishing between jurisdictional requisites and claim-
processing rules:
If the legislature clearly states that a threshold
limitation on a statute’s scope shall count as
jurisdictional, then courts and litigants will be duly
instructed and will not be left to wrestle with the
issue. But when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should
treat the restriction as nonjurisdictional in
character.
546 U.S. at 515–16 (footnote omitted) (citation omitted).7
When determining whether Congress has ranked a
statutory time limit as jurisdictional, courts are to consider
text, context, and historical treatment. Reed Elsevier, 130
S. Ct. at 1246 (citing Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393–95 (1982)). Textual factors weighing in favor of
jurisdiction include explicit jurisdictional terms, implicit
references to a court’s jurisdiction, and location in the same
provision as the court’s grant of subject-matter jurisdiction.
See Henderson, 131 S. Ct. at 1204 (noting that 38 U.S.C.
7
The Supreme Court has endorsed this standard in subsequent
cases. See Gonzalez, 132 S. Ct. at 648–49; Henderson, 131 S. Ct.
at 1203; Reed Elsevier, 130 S. Ct. at 1244.
Consol. Ct. No. 12-00007 Page 8
§ 7266(a)8 “does not speak in jurisdictional terms or refer in
any way to the jurisdiction of the [Veterans Court]” (quoting
Zipes, 455 U.S. at 394)); Id. at 1205 (noting that the timing
requirements in 38 U.S.C. § 7266(a) are in a separate statutory
provision from the grant of subject-matter jurisdiction).
Context and historical treatment are often considered together.
Reed Elsevier, 130 S. Ct. at 1248 (“[C]ontext, including this
Court’s interpretation of similar provisions in many years past,
is relevant . . . .”). Therefore, context includes the
background and framework of the statutory scheme, see Henderson,
131 S. Ct. at 1205 (noting that “what is most telling here are
the singular characteristics of the review scheme that Congress
created for the adjudication of veterans’ benefits claims”), as
well as prior treatment of a statutory provision by the Supreme
Court, see Union Pac. R.R., 130 S. Ct. at 597 (holding the 28
U.S.C. § 2107(a) time limits for filing an appeal jurisdictional
based on “a long line of [Supreme Court] decisions left
undisturbed by Congress” (citing Bowles, 551 U.S. at 209–11)).
Following these instructions, and turning to the case
8
In order to obtain review by the Court of Appeals
for Veterans Claims of a final decision of the
Board of Veterans’ Appeals, a person adversely
affected by such decision shall file a notice of
appeal with the Court within 120 days after the
date on which notice of the decision is mailed
pursuant to section 7104(e) of this title.
38 U.S.C. § 7266(a).
Consol. Ct. No. 12-00007 Page 9
at hand, we initially note that “[f]iling deadlines . . . are
quintessential claim-processing rules.” Henderson, 131 S. Ct.
at 1203. Therefore, “[a filing deadline] falls outside the class
of limitations on subject-matter jurisdiction unless Congress
says otherwise.” Bowles, 551 U.S. at 218 (Souter, J., dissenting)
(footnote omitted); see also John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133 (2008).
Looking first to the text of the statute for
Congressional intent we see that 19 U.S.C. § 1516a(a)(2) contains
no indication that it is jurisdictional in nature. The statute
does not contain express jurisdictional language or language
implying that its timing requirements are jurisdictional.
Rather, § 1516a(a)(2) states that a summons and complaint are to
be filed in accordance with the rules of the Court of
International Trade, thereby indicating that Congress did not
intend for these timing provisions to be jurisdictional
requisites. Cf. Henderson, 131 S. Ct. at 1204-05 (examining 38
U.S.C. § 7266(a)); Reed Elsevier, 130 S. Ct. at 1245 (examining
17 U.S.C. § 411(a)); Arbaugh, 546 U.S. at 515–16. Furthermore,
the timing requirement in § 1516a(a)(2) is separate from the
Court’s grant of subject-matter jurisdiction in 28 U.S.C.
§ 1581(c), also indicating that the requirement should not be
treated as jurisdictional. See Henderson, 131 S. Ct. at 1205;
Reed Elsevier, 130 S. Ct. at 1245–46.
Consol. Ct. No. 12-00007 Page 10
Commerce contends that 28 U.S.C. § 1581(c) incorporates
19 U.S.C. § 1516a when it references § 1516a in making the
jurisdictional grant and further argues that this renders
§ 1516a, including the timing requirements, jurisdictional.
Def.’s Br. in Resp. to the Questions Presented in the Court’s
June 27, 2012 Order at 3–4, ECF No. 48. This argument is not
persuasive. Jurisdiction refers to the “classes of cases
(subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court’s adjudicatory authority.”
Kontrick, 540 U.S. at 455. Section 1581(c) states that “[t]he
Court of International Trade shall have exclusive jurisdiction of
any civil action commenced under [19 U.S.C. § 1516a].” Section
1516a does not grant jurisdiction; rather, it sets out the
parameters of the jurisdiction granted in § 1581(c) by defining
which determinations may be challenged and the procedures for
such challenges under the authority established by § 1581(c). In
other words, § 1581(c) defines the Court of International Trade’s
jurisdiction as the class of cases commenced pursuant to § 1516a.
But, defining the scope of subject-matter jurisdiction by
reference to § 1516a does not render § 1516a jurisdictional.
Rather, § 1516a contains a quintessential example of claim-
processing rules that describe for plaintiffs the necessary — but
not jurisdictional — requirements for filing a challenge over
which the Court of International Trade will have jurisdiction
Consol. Ct. No. 12-00007 Page 11
pursuant to § 1581(c).9
While consideration of the text of 19 U.S.C.
§ 1516a(a)(2) weighs in favor of the conclusion that Congress
intended its timing requirements not to be jurisdictional,
9
The Court of International Trade was established by the
Customs Courts Act of 1980, Pub. L. No. 96-417, 94 Stat. 1727.
Title II of the Customs Courts Act of 1980 is titled
“Jurisdiction of the Court of International Trade” and was
codified as 28 U.S.C. §§ 1581–85. 94 Stat. at 1728–30. Title III
of the Customs Courts Act of 1980 is titled “Court of
International Trade Procedures” and was codified as 28 U.S.C.
§§ 1876, 2631–47. 94 Stat. 1730–39. Included in “Court of
International Trade Procedures” is 28 U.S.C. § 2636, “Time for
commencement of action.” 94 Stat. at 1734–35. Section 2636(c),
which sets forth the timing requirements for commencing an action
pursuant to 19 U.S.C. § 1516a, was intended to substantially
restate the timing requirements already set forth in § 1516a. See
Bethlehem Steel Corp. v. United States, 742 F.2d 1405, 1412 (Fed.
Cir. 1984).
When the foregoing background is compared to the
Supreme Court’s discussion of the Veteran’s Judicial Review Act
(“VJRA”) in Henderson, it is clear that the statutory structure
of the Customs Courts Act does not indicate that the timing
requirements in 19 U.S.C. § 1516a are jurisdictional. As the
Supreme Court noted in Henderson,
[n]or does § 7266’s placement within the VJRA provide
such an indication [of jurisdictional attributes].
Congress placed § 7266, numbered § 4066 in the enacting
legislation, in a subchapter entitled “Procedure.”
That placement suggests that Congress regarded the 120-
day limit as a claim-processing rule. Congress elected
not to place the 120-day limit in the VJRA subchapter
entitled “Organization and Jurisdiction.”
131 S. Ct. at 1205 (citations omitted). As with the VJRA, the
Customs Courts Act of 1980 separated procedure and jurisdiction,
placing the timing requirements for filing under procedure.
Furthermore, while the jurisdictional provision, 28 U.S.C.
§ 1581(c), references 19 U.S.C. § 1516a to establish the class of
cases subject to review, the timing requirements laid out in
§ 1516a were substantially restated in the procedural provision,
28 U.S.C. § 2636(c). Bethlehem Steel, 742 F.2d at 1412.
Consol. Ct. No. 12-00007 Page 12
consideration of the context of those requirements creates a more
complicated picture because it is partially analogous to both the
context that the Supreme Court found jurisdictional in Bowles and
that it found not jurisdictional in Henderson. In Bowles, the
Supreme Court interpreted the filing requirements of 28 U.S.C.
§ 2107(a),10 governing appeals from federal district courts to
federal circuit courts, to be jurisdictional because appeal
requirements in civil litigation between Article III courts had
been historically treated as jurisdictional. Bowles, 551 U.S. at209–11. By contrast, in Henderson the Supreme Court held that
the appeal requirements of 38 U.S.C. § 7266(a),11 governing
appeals from the Board of Veterans’ Appeals to the Court of
Appeals for Veterans Claims, were not jurisdictional. 131 S. Ct.
at 1204-06. The Court based its holding in large part on the
context of the veterans’ benefits review scheme. Id. at 1205.
First, unlike the timing requirements held jurisdictional in
Bowles, § 7266(a) does not concern an appeal between Article III
courts; rather, it governs appeals from an administrative agency
to an Article I court. Id. at 1204–05. Furthermore, the process
is informal, non-adversarial, and conducted in a context intended
10
“Except as otherwise provided in this section, no appeal
shall bring any judgment, order or decree in an action, suit or
proceeding of a civil nature before a court of appeals for review
unless notice of appeal is filed, within thirty days after the
entry of such judgment, order or decree.” 28 U.S.C. § 2107(a).
11
For the text of 38 U.S.C. § 7266(a), see supra note 8.
Consol. Ct. No. 12-00007 Page 13
to evidence a solicitude for veterans. Id. at 1205–06.
As an Article III court reviewing agency
determinations, this Court’s review of Commerce action pursuant
to § 1516a falls between those two examples. Like Henderson,
§ 1516a(a)(2) imposes requirements on the filing of a summons and
complaint for the review of determinations by an administrative
agency. Unlike Henderson, the Court of International Trade is an
Article III court, and the process for determining an antidumping
duty is adversarial. In that regard, § 1516a review is more akin
to ordinary civil litigation than the procedure for review of
Board of Veterans’ Appeals’ decisions. Section 1516a(a)(2) does
not, however, impose requirements on reviews between Article III
courts; therefore, the Bowles context is not fully analogous to
the context at issue here.
Though the context of § 1516a(a)(2) cannot be fully
analogized to Bowles, the Bowles decision is additionally
relevant when considering the historical treatment of
§ 1516a(a)(2). Historically, § 1516a(a)(2)’s timing requirements
have been treated as jurisdictional by the Court of Appeals and
this Court. See NEC Corp. v. United States, 806 F.2d 247, 248–49
(Fed. Cir. 1986) (affirming dismissal for lack of subject-matter
jurisdiction when a summons was untimely filed outside the thirty
day period due to insufficient postage); Georgetown Steel Corp.
v. United States, 801 F.2d 1308, 1311–13 (Fed. Cir. 1986)
Consol. Ct. No. 12-00007 Page 14
(vacating and ordering dismissal, in part, for lack of subject-
matter jurisdiction when a complaint was filed outside the thirty
day time period for review); British Steel Corp. v. United
States, 6 CIT 200, 202–04 (1983) (dismissing for lack of subject-
matter jurisdiction when plaintiff commenced a challenge to an
affirmative countervailing duty determination within thirty days
after publication of the final determination but before
publication of the countervailing duty order); Advanced Tech. &
Materials Co. v. United States, 33 CIT __, Slip Op. 09-115, *4–7
(Oct. 15, 2009) (dismissing for lack of subject-matter
jurisdiction a challenge to an affirmative antidumping
determination filed prior to publication of the antidumping duty
order). The Court of Appeals has held § 1516a(a)(2)’s timing
requirements jurisdictional on the grounds that the manner and
method for filing a summons and complaint with the Court of
International Trade constitute terms and conditions upon which
the United States has waived its sovereign immunity. See NEC
Corp., 806 F.2d at 248; Georgetown Steel, 801 F.2d at 1312.
Considered in light of the Supreme Court’s holding in
Bowles, and in light of our conclusion that the statutory context
at issue in this case is not completely in line with that
considered in Henderson, we conclude that we are obligated to
follow the precedential opinions of the Court of Appeals in NEC
Corp and Georgetown Steel and hold that the timing requirements
Consol. Ct. No. 12-00007 Page 15
of 19 U.S.C. § 1516a(a)(2) are jurisdictional requisites. NEC
Corp. and Georgetown Steel were both decided prior to the recent
developments in Supreme Court jurisprudence focused on delimiting
the boundaries of jurisdiction, and, as such, they were not based
on a consideration of the Arbaugh standard. Nonetheless, we are
bound by the precedential opinions of the Court of Appeals, Nat’l
Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs,
260 F.3d 1365, 1373–74 (Fed. Cir. 2001), especially where, as
here, the historical treatment of the statute may be reason to
maintain its position as a jurisdictional requisite, see Bowles,
551 U.S. at 209–11.12 While it appears that the timing
requirements of 19 U.S.C. § 1516a(a)(2) should be reconsidered in
light of the Arbaugh standard and its progeny, such a
reconsideration is not the province of this court where the
Supreme Court has not extended further its own analysis.
12
In her concurring opinion in Reed Elsevier, Justice
Ginsburg suggested that the Bowles decision rested solely on the
precedential effect of rulings from the Supreme Court, and that
historical rulings from lower courts may not carry the same
weight, particularly opinions that have not considered the issue
in light of the Arbaugh standard. Reed Elsevier, 130 S. Ct. at
1250–51 (Ginsburg, J., concurring). However, we find that Bowles
provides reason to maintain the jurisdictional nature of a
statute historically held to be jurisdictional where, as here, we
are bound by the precedential opinions of the Court of Appeals.
Cf. Eberhart, 546 U.S. at 19–20 (“Convinced, therefore, that
Robinson and Smith governed this case, the Seventh Circuit felt
bound to apply them, even though it expressed grave doubts in
light of Kontrick. This was a prudent course. It neither forced
the issue by upsetting what the Court of Appeals took to be our
settled precedents, nor buried the issue by proceeding in a
summary fashion.”).
Consol. Ct. No. 12-00007 Page 16
As we noted in Baroque Timber I, we do not find the
Complaint severable by the Court, sua sponte. 36 CIT at __, Slip
Op 12-90 at *14–17. However, CAHP may amend its Complaint to
remove the untimely counts.13 Therefore, unless CAHP amends its
Complaint consistent with Baroque Timber I by the date specified
in the Conclusion to this opinion, the court will enter an order
of final judgment dismissing the Complaint in its entirety for
lack of jurisdiction.
II. Equitable Tolling
In Baroque Timber I, we also requested additional
briefing from the parties on the question of equitable tolling in
light of the Court of Appeals decision in Former Employees of
13
CAHP’s challenge to the exclusion of Yuhua would have
been timely filed pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i)(I)
and 19 U.S.C. § 1516a(a)(2)(B)(ii), if not filed alongside other
challenges to the affirmative antidumping duty determination. See
Baroque Timber I, 36 CIT at __, Slip Op. 12-90 at *13.
Therefore, CAHP may amend its complaint, pursuant to USCIT R.
15(a)(2), to eliminate all counts of the Complaint that do not
pertain to the exclusion of Yuhua and proceed with only that
challenge.
In Baroque Timber I, the court suggested that CAHP
could seek voluntary dismissal of the untimely portions of its
Complaint, pursuant to USCIT R. 41(a)(2). 36 CIT at __, Slip Op.
12-90 at *17 n.7. While the effect of dismissing the untimely
portion of the Complaint is the same as amending the Complaint,
the court recognizes the proper procedure in this case would be
to amend the Complaint. Cf. Nilssen v. Motorola, Inc., 203 F.3d
782, 784 (2000) (“Although we agree with Nilssen that an
involuntary dismissal of a claim is technically not an amendment,
that distinction is not controlling. The true state of affairs
is more critical than mere labels. The fact that a voluntary
dismissal of a claim under Rule 41(a) is properly labeled an
amendment under Rule 15 is a technical, not a substantive,
distinction.” (footnote omitted)).
Consol. Ct. No. 12-00007 Page 17
Sonoco Products Co. v. Chao, 372 F.3d 1291 (Fed. Cir. 2004)
(holding that 19 U.S.C. § 2636(d) is subject to equitable
tolling).14 Baroque Timber I, 36 CIT at __, Slip Op. 12-90 at
*19–21. Because we have determined that the court lacks
jurisdiction due to CAHP’s untimely filing, we cannot reach the
question of equitable tolling. See Bowles, 551 U.S. at 214(noting that courts cannot create equitable exceptions to
jurisdictional requirements). While we will not decide whether
the time limits set out at 19 U.S.C. § 1516a(a)(2) would be
subject to equitable tolling, we note that the questions raised
above regarding the continuing validity of holding the
§ 1516a(a)(2) timing requirements to be jurisdictional requisites
could render the equitable tolling question equally imperative.
As with the issue of § 1516a(a)(2)’s jurisdictional
character, there is good reason to believe that, in light of
recent precedent, § 1516a(a)(2)15 may be subject to equitable
14
There is a dearth of clarity regarding the applicability
of equitable tolling to the various sections of 28 U.S.C. § 2636.
See Former Emps. of Sonoco, 372 F.3d at 1298 (holding that
§ 2636(d) is subject to equitable tolling); but see SKF USA Inc.
v. U.S. Customs & Border Protection, 556 F.3d 1337, 1348 (Fed.
Cir. 2009) (assuming, but not deciding, that § 2636(i) was
jurisdictional); Autoalliance Int’l, Inc. v. United States, 357
F.3d 1290, 1294 (Fed. Cir. 2004) (rejecting the applicability of
equitable tolling to § 2636(a)).
15
Given that 28 U.S.C. § 2636(c) was intended to
substantially restate the timing requirements already set forth
in § 1516a, see Bethlehem Steel, 742 F.2d at 1412, it stands to
reason that if either statutory provision is subject to equitable
(footnote continued)
Consol. Ct. No. 12-00007 Page 18
tolling were it found, upon reconsideration, not to be a
jurisdictional requisite. See Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 95 (1990) (noting that “[o]nce Congress has made
such a waiver [of sovereign immunity] . . . making the rule of
equitable tolling applicable to suits against the Government, in
the same way that it is applicable to private suits, amounts to
little, if any, broadening of the congressional waiver”); see
also Former Emps. of Sonoco, 372 F.3d at 1296–98 (holding 28
U.S.C. § 2636(d) subject to equitable tolling). Furthermore, the
facts of this case present a good case for equitable tolling.
CAHP’s summons was untimely because it was filed early — not late
— due to CAHP’s misinterpretation of a complicated statute.
Moreover, there was no prior judicial guidance for interpreting
the statute in light of the particular facts of CAHP’s case.
Together these facts suggest that CAHP filed its summons out of
time in an attempt to preserve its rights, a basis upon which
courts have found it appropriate to toll a statutory timing
requirement. See Irwin, 498 U.S. at 96 (“We have allowed
equitable tolling in situations where the claimant has actively
pursued his judicial remedies by filing a defective pleading
during the statutory time period . . . .”). Nor does it seem
that CAHP’s early filing would prejudice the interests of the
15
(footnote continued)
tolling the other provision would likewise be subject to
equitable tolling.
Consol. Ct. No. 12-00007 Page 19
Defendant. However, such a decision is not for this court to
make today; it rests either with the Court of Appeals or with
this court at some later date.
III. Certification for Interlocutory Appeal
Consistent with the prior discussion, we believe that
the statutory issues discussed in this opinion are appropriate
for interlocutory appeal. This Court may certify an issue for
interlocutory appeal to the Court of Appeals for the Federal
Circuit when “a controlling question of law is involved with
respect to which there is a substantial ground for difference of
opinion and that an immediate appeal . . . may materially advance
the ultimate determination of the litigation . . . .” 28 U.S.C.
§ 1292(d)(1). This case meets the three part test set forth in
28 U.S.C. § 1292(d)(1): (1) it presents controlling questions of
law, namely whether the timing requirements of 19 U.S.C.
§ 1516a(a)(2) should be interpreted to render CAHP’s Complaint
untimely and, if so, whether such timing requirements should be
interpreted as jurisdictional requisites or claim-processing
rules; (2) there is a substantial ground for difference of
opinion given the intervening Supreme Court precedent that has
not yet been considered in analyzing the nature of the
§ 1516a(a)(2) timing requirements; and (3) an immediate appeal
may materially advance the ultimate termination of the litigation
because an incorrect disposition of this issue would require
Consol. Ct. No. 12-00007 Page 20
reversal of a final judgment based thereon. Cf. USEC Inc. v.
United States, 27 CIT 1925, 1928–29 (2003). Therefore, we find,
pursuant to 28 U.S.C. § 1292(d)(1), that interlocutory appeal of
the court’s interpretation of 19 U.S.C. § 1516a(a)(2) and its
decision that 19 U.S.C. § 1516a(a)(2) may be a jurisdictional
requisite is appropriate.
Upon request by the parties, the court will order
certification of the following issues for interlocutory appeal to
the Court of Appeals:
(1) Whether, pursuant to 19 U.S.C. § 1516a(a)(2), a
challenge to the exclusion of a company must be filed as a
negative part of an affirmative determination, i.e., within
thirty days after publication of the antidumping duty order, if
filed alongside other challenges to an affirmative determination.
Baroque Timber I, 36 CIT at __, Slip Op. 12-90 at *13–14.
(2) Whether the timing requirements of 19 U.S.C.
§ 1516a(a)(2) should continue to be considered jurisdictional
requisites in light of recent Supreme Court precedent delimiting
the boundaries of what is properly considered a jurisdictional
requirement.
(3) Whether, if the timing requirements of 19 U.S.C.
§ 1516a(a)(2) are not jurisdictional requisites, those timing
requirements are subject to equitable tolling.
Consol. Ct. No. 12-00007 Page 21
CONCLUSION
Consistent with this opinion and the court’s prior
opinion in Baroque Timber I, the Defendant’s Motion to Dismiss
Plaintiff’s Complaint for Lack of Jurisdiction is hereby granted.
The parties are directed to consult on whether the court should
certify the issues discussed above for interlocutory appeal and
to inform the court of their decision by October 10, 2012. If
the parties do not seek interlocutory appeal, the court will
enter final judgment dismissing this case unless CAHP files an
amended complaint consistent with this opinion and the court’s
opinion in Baroque Timber I by October 31, 2012.
It is SO ORDERED.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: September 19, 2012
New York, NY