Full Member Subgroup of the Am. Inst. of Steel Constr., LLC v. United States , 2020 CIT 157 ( 2020 )


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  •                                   Slip Op. 20-157
    UNITED STATES COURT OF INTERNATIONAL TRADE
    FULL MEMBER SUBGROUP OF THE
    AMERICAN INSTITUTE OF STEEL
    CONSTRUCTION, LLC,
    Plaintiff,
    v.
    Before: Claire R. Kelly, Judge
    UNITED STATES,
    Court No. 20-00089
    Defendant
    and
    BUILDING SYSTEMS DE MEXICO, S.A.
    DE C.V. and COREY S.A. DE C.V.,
    Defendant-Intervenors.
    OPINION AND ORDER
    [ Denying Defendant’s motion to dismiss. ]
    Dated: November 3, 2020
    Alan H. Price, Wiley Rein LLP, of Washington, DC, for plaintiff Full Member
    Subgroup of the American Institute of Steel Construction, LLC. Also on the brief was
    Christopher B. Weld, Stephanie M. Bell, and Adam M. Teslik.
    In K. Cho, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
    Department of Justice, of Washington, DC, for defendant United States. Also on the
    briefs were Michael D. Granston, Deputy Assistant Attorney General, Jeanne E.
    Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel was
    Brandon J. Custard, Senior Attorney, Office of Chief Counsel for Trade Enforcement
    & Compliance, U.S. Department of Commerce, of Washington, DC.
    Diana D. Quaia, Arent Fox LLP, of Washington, DC, for defendant-intervenor Corey
    S.A. de C.V. Also on the brief was John M. Gurley and Jessica R. DiPietro.
    Court No. 20-00089                                                               Page 2
    Matthew R. Nicely, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC, for
    defendant-intervenor Building Systems de Mexico, S.A. de C.V. Also on the brief was
    Daniel M. Witkowski.
    Kelly, Judge: Defendant moves to dismiss Plaintiff’s complaint for lack of
    subject-matter jurisdiction. See Def.’s Memo. Supp. Mot. to Dismiss for Lack of
    Subject-Matter Jurisdiction & Opp’n to Mot. to Stay, July 9, 2020, ECF No. 28 (“Def.’s
    Br.”). Defendant and Defendant-Intervenor Corey S.A. de C.V. (“Corey”) submit that
    section 516A(g) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(g) (2018) 1
    precludes the Court from exercising jurisdiction over Full Member Subgroup of the
    American Institute of Steel Construction’s (“AISC”) challenge to the U.S. Department
    of Commerce’s (“Commerce”) final affirmative determination in its less than fair
    value (“LTFV”) investigation of fabricated structural steel (“FSS”) from Mexico
    because Corey timely filed a request for binational panel review of the final
    determination pursuant to Article 1904 of the North American Free Trade Agreement
    (“NAFTA”). See Def.’s Br. at 5–13; Def.-Intervenor [Corey’s Revised] Resp. Supp.
    Def.’s Mot. to Dismiss, Aug. 13, 2020, ECF No. 37 (“Corey’s Resp. Br.”). Defendant-
    Intervenor Building Systems de Mexico, S.A. de C.V. (“BSM”) agrees that the case
    1 On July 1, 2020, the United States-Mexico-Canada Agreement (“USMCA”) entered
    into force, replacing the NAFTA. See United States-Mexico-Canada Agreement,
    Office of the U.S. Trade Representative, https://ustr.gov/trade-agreements/free-trade-
    agreements/united-states-mexico-canada-agreement (last visited Nov. 1, 2020); see
    also United States-Mexico-Canada Agreement Implementation Act, Pub. L. No. 116-
    113, 134 Stat. 11 (2020) (“Implementation Act”). Pursuant to section 432 of the
    Implementation Act, the USMCA’s entry into force does not affect the disposition of
    this action, which involves a final determination that was published before the
    relevant amendments to the Tariff Act of 1930 became effective. As such, further
    citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title
    19 of the U.S. Code, 2018 edition.
    Court No. 20-00089                                                             Page 3
    should be dismissed, but for different reasons. See Def.-Intervenor [BSM]’s Resp. to
    Mot. to Dismiss, Aug. 13, 2020, ECF No. 36 (“BSM’s Resp. Br.”). AISC requests the
    court to issue its decision in accordance with the pending motion to dismiss in
    Building Systems de Mexico, S.A. de C.V. v. United States, Ct. No. 20-00069
    (“Building Systems”). See Pl.’s Resp. to Mot. to Dismiss, Aug. 13, 2020, ECF No. 34
    (“Pl.’s Resp.”). For the reasons that follow, Defendant’s motion to dismiss is denied.
    BACKGROUND
    On February 25, 2019, in response to a petition filed by AISC, a trade
    association representing domestic producers of FSS, Commerce initiated an
    antidumping investigation into FSS from Canada, Mexico, and the People’s Republic
    of China. See Certain [FSS] From Canada, Mexico, and the People’s Republic of
    China, 84 Fed. Reg. 7,330 (Dep’t Commerce Mar. 4, 2019) (initiation of [LTFV]
    investigations).   Commerce selected Defendant-Intervenors BSM and Corey as
    mandatory respondents. See Compl. ¶¶ 3–4, May 13, 2020, ECF No. 9. Commerce
    affirmatively determined that imports of certain FSS from Mexico into the United
    States were being, or were likely to be, sold at LTFV, and its investigation yielded
    weighted-average dumping margins of 8.47 and 0.00 percent for BSM and Corey,
    respectively.   See Certain [FSS] from Mexico, 85 Fed. Reg. 5,390, 5,392 (Dep’t
    Commerce Jan. 30, 2020) (final determination of sales at [LTFV]) (“Final Results”)
    and accompanying Issues and Decision Memo. for [Final Results], A-201-850, (Jan.
    23, 2020), ECF No. 25-6 (“Final Decision Memo”).
    Court No. 20-00089                                                             Page 4
    On February 19, 2020, BSM filed a notice of intent to seek judicial review of
    Commerce’s final determination. See Compl. ¶ 4, March 30, 2020, ECF No. 6 (from
    Dkt. Ct. No. 20-00069) (“Building Systems Compl.”). On February 28, 2020, the
    United States Section of the NAFTA Secretariat received a request for binational
    review of Commerce’s final determination filed on behalf of Defendant-Intervenor
    Corey. See [NAFTA], Article 1904 Binational Panel Review, 85 Fed. Reg. 14,462
    (Dep’t Commerce Mar. 12, 2020) (notice of request for panel review; USA-MEX-2020-
    1904-01) (“NAFTA Req.”). 2
    Plaintiff AISC commenced this action pursuant to 28 U.S.C. § 1581(c) (2018)
    and 19 U.S.C. § 1516a(a)(2)(A)(i)(I), (B)(i), contesting portions of Commerce’s final
    affirmative determination. See Summons, Apr. 17, 2020, ECF No. 1; Compl. ¶ 5. In
    its complaint, AISC asserts that the court lacks jurisdiction over this action because
    of the request for review before a NAFTA binational panel. See Compl. at ¶¶ 2–5.
    Nonetheless, Plaintiff explains that it commences this action in light of arguments
    raised in a related case, Building Systems, Ct. No. 20-00069.
    Id. at
    ¶¶ 4-5.
    Specifically, the plaintiff in Building Systems, Ct. No. 20-00069 asserts that this
    Court has jurisdiction over an action involving the same Commerce determination
    despite the fact that an interested party requested review of that determination
    before a NAFTA binational panel. See Pl’s Resp. Opp’n to Mot. to Dismiss, Aug. 13,
    2 On March 20, 2020, the U.S. International Trade Commission published its final
    negative determination in its contemporaneous investigation into whether imports of
    FSS cause (or represent a threat of) material injury to the domestic industry. See
    [FSS] from Canada, China & Mexico, 85 Fed. Reg. 16,129 (Int’l Trade Comm’n Mar.
    20, 2020).
    Court No. 20-00089                                                                Page 5
    2020, ECF No. 42 (from Dkt. Ct. No. 20-00069). Plaintiff AISC therefore commences
    this action, reasoning that if the Court concludes that it has jurisdiction in Building
    Systems despite the request for binational panel review, it may do the same in this
    case.   See Pl.’s Resp. at 1–3.     Defendant’s motion argues that the court lacks
    jurisdiction, and as explained above, Plaintiff does not disagree. BSM, for its part,
    argues that the case should be dismissed, not because a binational panel has been
    requested, 3 but because Plaintiff failed to timely invoke the jurisdiction of this court.
    See BSM’s Resp. Br. at 2–3. In its reply brief, Defendant adds that not only does this
    Court lack jurisdiction over the Commerce determination at issue, but that it lacks
    the power to decide whether it has jurisdiction. See Def.’s Reply Supp. Mot. to
    Dismiss for Lack of Subject-Matter Jurisdiction at 3–10, Sept. 17, 2020, ECF No. 42
    (“Def.’s Reply Br.”).
    DISCUSSION
    As a threshold matter the Defendant argues that the Court cannot decide the
    jurisdictional question at issue. See Def.’s Reply Br. at 5–6. Instead Defendant
    argues that this Court must await the NAFTA panel’s decision as to whether a party
    3 BSM maintains its position in Building Systems, Ct. No. 20-00069, that the 19
    U.S.C. § 1516a(g)(3)(A)(i) exception to preclusion from exercising jurisdiction, which
    applies where the request is not filed by a NAFTA party, would allow this Court to
    review the final determination. See BSM’s Resp. Br. at 2–3. Because Corey received
    a margin of zero, BSM explains that Corey would not have standing to appeal
    Commerce’s final determination under U.S. law, and thus its request could not be
    deemed a request for panel review by the United States. See
    id. Court No. 20-00089
                                                                   Page 6
    had standing under U.S. law to request a binational panel. See
    id. 4
    Defendant
    alternatively argues that even if this Court may decide whether it has jurisdiction,
    that 19 U.S.C § 1516a(g) precludes the Court from exercising jurisdiction. See Def.’s
    Reply Br. at 9–10. For the following reasons, both of Defendant’s arguments fail.
    Defendant’s argument that this Court lacks the power to decide its own
    jurisdiction fails as: (i) the statute envisions that the Court will decide jurisdictional
    disputes; and (ii) separation of powers prevents the Court from abdicating its role to
    decide this jurisdictional issue. See Bldg. Sys. de Mexico, S.A. de C.V. v. United
    States, 44 CIT __, __, Slip Op. 20-155 at 6–11 (Nov. 3, 2020) (“Building Systems”).
    As discussed more fully in Building Systems, one exception to the Court’s jurisdiction
    explicitly references a scenario where a NAFTA binational panel might decide
    whether it lacked jurisdiction. See
    id. at 7–9.
    The existence of other exceptions
    4  In Building Systems, Ct. No. 20-00069, the defendant filed a motion to dismiss
    arguing that the statute precluded this Court from exercising jurisdiction and asking
    this Court to dismiss in light of the statutory provisions. See generally Def.’s Memo.
    Supp. Mot. to Dismiss for Lack of Subject-Matter Jurisdiction & Opp’n to Mot. to
    Stay, July 9, 2020, ECF No. 31 (from Dkt. Ct. No. 20-00069). Subsequently amicus
    curiae, the Government of Canada, argued that not only did this Court lack
    jurisdiction, it also lacked the power to address the jurisdictional question. See Gov’t
    of Canada’s Amicus Curiae Br. Supp. Def.’s Mot. to Dismiss at 1–17, July 10, 2020,
    ECF No. 36-1 (from Dkt. Ct. No. 20-00069). Plaintiff in that case argued that the
    Court, not a NAFTA binational panel, was the proper body to determine whether the
    party that requested the binational panel had standing to do so. See Pl.’s Resp. Opp’n
    Mot. to Dismiss at 1–15, Aug. 13, 2020, ECF No. 42 (from Dkt. Ct. No. 20-00069).
    The defendant in its reply then echoed the amicus’ argument that the Court could not
    consider its own jurisdiction. See Def.’s Reply Supp. Mot. to Dismiss for Lack of
    Subject-Matter Jurisdiction at 2–7, Sept. 17, 2020, ECF No. 48 (from Dkt. Ct. No. 20-
    00069). Here, the Defendant also moved to dismiss the case for lack of jurisdiction
    and subsequently added in its reply that the Court lacked the power to determine its
    own jurisdiction. See Def.’s Reply Br. at 3–10.
    Court No. 20-00089                                                               Page 7
    implies that the Court would also be called upon to assess its own jurisdiction. See
    id. Moreover, the Court
    must be mindful of its constitutional role in our system of
    government. See
    id. at 9–10.
    The Court cannot abdicate its role to interpret the
    contours of Congressional action even where that action involves diverting the
    Court’s jurisdiction. 5 See
    id. The statutory scheme
    indicates that this Court has jurisdiction to hear this
    dispute. Although Congress gives the U.S. Court of International Trade exclusive
    jurisdiction over antidumping determinations, it has excluded certain antidumping
    determinations involving merchandise from NAFTA countries. In relevant part, 28
    U.S.C. § 1581(c) (2018) vests the court with exclusive jurisdiction over any civil action
    commenced under section 516A of the Tariff Act of 1930, as amended 19 U.S.C.
    § 1516a. Under 19 U.S.C. § 1516a(a)(2)(B)(i) the court may review “[f]inal affirmative
    determinations by the administering authority and by the Commission under [19
    U.S.C. §§ 1671d or 1673d], including any negative part of such a determination (other
    5  As discussed in Building Systems, this case does not involve a challenge to the
    constitutionality of a NAFTA binational panel. See Building Systems, 44 CIT at __,
    Slip Op. 20-155 at 9 n. 9. Section 1516a(g)(4) provides that an action challenging the
    constitutionality of binational panels “may be brought only in the United States Court
    of Appeals for the District of Columbia Circuit[.]” 19 U.S.C. § 1516a(g)(4)(A). Nor
    does this case involve a challenge that would be decided by a three-judge panel of this
    Court. Pursuant to 19 U.S.C. § 1516a(g)(4)(B) all constitutional issues that may arise
    under any law—apart from challenges to the constitutionality of binational panels
    themselves as covered by 19 U.S.C. § 1516a(g)(4)(A)—must be heard by a three-judge
    panel of the U.S. Court of International Trade.
    Court No. 20-00089                                                                Page 8
    than a part referred to in clause (ii)).” 6   However, 19 U.S.C. § 1516a(g) provides that
    if a party seeks binational review of “a determination . . . described in [19 U.S.C.
    § 1516a(a)(2)(B)(i)–(iii), (vi)–(vii)] . . . the determination is not reviewable under [19
    U.S.C. § 1516a(a).]” 19 U.S.C. § 1516a(g)(1)(B), (2)(A).         Nonetheless, 19 U.S.C.
    § 1516a(g)(3) enumerates certain exceptions, 7 and permits judicial review of “a
    6   19 U.S.C. § 1516a(a)(2)(B)(ii) provides for review of
    [a] final negative determination by the administering authority or the
    Commission under section [19 U.S.C. §§ 1671d or 1673d], including, at the
    option of the appellant, any part of a final affirmative determination which
    specifically excludes any company or product.
    7   19 U.S.C. § 1516a(g)(3) Exception to exclusive binational panel review.
    (A) In general. A determination is reviewable under subsection (a) if the
    determination sought to be reviewed is--
    (i) a determination as to which neither the United States nor the
    relevant FTA country requested review by a binational panel pursuant
    to article 1904 of the NAFTA or of the Agreement,
    (ii) a revised determination issued as a direct result of judicial review,
    commenced pursuant to subsection (a), if neither the United States nor
    the relevant FTA country requested review of the original
    determination,
    (iii) a determination issued as a direct result of judicial review that was
    commenced pursuant to subsection (a) prior to the entry into force of the
    NAFTA or of the Agreement,
    (iv) a determination which a binational panel has determined is not
    reviewable by the binational panel,
    (v) a determination as to which binational panel review has terminated
    pursuant to paragraph 12 of article 1905 of the NAFTA, or
    (vi) a determination as to which extraordinary challenge committee
    review has terminated pursuant to paragraph 12 of article 1905 of the
    NAFTA.
    Court No. 20-00089                                                              Page 9
    determination as to which neither the United States nor the relevant [free trade area
    (“FTA”)] country requested review[.]”
    Id. at
    § 1516a(g)(3)(A)(i).
    The statute also establishes a mechanism for private parties to seek binational
    review of Commerce’s final determination in NAFTA cases.            Namely, 19 U.S.C.
    § 3434(c) provides, in pertinent part, that
    a person, within the meaning of paragraph 5 of article 1904, may request
    a binational panel review of such determination by filing such a request
    with the United States Secretary . . . [and] [t]he receipt of such request
    by the United States Secretary shall be deemed to be a request for
    binational panel review within the meaning of article 1904.
    19 U.S.C. § 3434(c). Under article 1904(5) of the NAFTA
    [a]n involved Party on its own initiative may request review of a final
    determination by a panel and shall, on request of a person who would
    otherwise be entitled under the law of the importing Party to commence
    domestic procedures for judicial review of that final determination,
    request such review.
    [NAFTA] art. 1904(5), U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289, 683 (1993).
    In the United States, a private person who would “otherwise be entitled under
    the law of the importing Party to commence domestic procedures for judicial review”
    is a person who has standing. Standing is a threshold matter in which the court
    ensures that the plaintiff’s complaint meets the requirements of Article III of the
    Constitution. McKinney v. U.S. Dept. of Treasury, 
    799 F.2d 1544
    , 1549 (Fed. Cir.
    1986); see also Warth v. Seldin, 
    422 U.S. 490
    , 517–18 (1975) (“[t]he rules of standing
    . . . are threshold determinants of the propriety of judicial intervention.”). The
    Constitution constrains the federal courts’ jurisdiction to cases which involve “actual
    cases or controversies,” and standing constitutes part of this limitation. Simon v. E.
    Court No. 20-00089                                                                Page 10
    Ky. Welfare Rights Org., 
    426 U.S. 26
    , 37 (1976) (“No principle is more fundamental
    to   the   judiciary's    proper     role   in     our   system   of   government    than
    the constitutional limitation of federal-court jurisdiction to actual cases or
    controversies.”); see U.S. Const. art. III, § 2, cl. 1.           “[T]he core component
    of standing is   an      essential    and        unchanging   part     of   the   case-or-
    controversy requirement of Article III.” See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992). To establish standing, a plaintiff must satisfy three elements. First,
    it must have suffered an “injury in fact,” that is, “an invasion of a legally protected
    interest” that is “concrete and particularized” and “actual or imminent, not
    ‘conjectural’ or ‘hypothetical[.]’”
    Id. at
    560 (citations omitted). Second, a causal
    connection must exist between the injury and the conduct complained of.
    Id. Third, the plaintiff
    must show a likelihood that the injury can be redressed by a favorable
    court decision.
    Id. at
    561.
    Here, Corey’s request for NAFTA binational review of the Final Results cannot
    be deemed filed by the United States because, under U.S. law, Corey would not have
    standing to challenge the Final Results. Corey received a weighted-average dumping
    margin of 0.00 percent. See Final Results, 85 Fed. Reg. at 5,392. Under U.S. law,
    Corey’s 0.00 percent margin, without more, is insufficient to demonstrate an injury
    in fact—the first of three requirements for standing. See, e.g., PAO Severstal v.
    United States, 41 CIT __, __, 
    219 F. Supp. 3d 1411
    , 1414 (2017) (“PAO”) (holding a
    prevailing party lacks standing to sue); Zhanjiang Guolian Aquatic Prods. Co. v.
    United States, 38 CIT __, __, 
    991 F. Supp. 2d 1339
    , 1342 (2014) (citing Royal Thai
    Court No. 20-00089                                                             Page 11
    Gov't v. United States, 38 CIT __, __, 
    978 F. Supp. 2d 1330
    , 1333 (2014)); Jubail
    Energy Servs. Co. v. United States, 39 CIT __, __, 
    125 F. Supp. 3d 1352
    , 1356 (2015)
    (respondent receiving favorable outcome in antidumping determination lacks
    standing); Rose Bearings Ltd. v. United States, 
    14 CIT 801
    , 802–03, 
    751 F. Supp. 1545
    , 1546–47 (1990) (where, inter alia, the complaining party did not have to pay an
    antidumping duty, there is no case or controversy); but see Oman Fasteners, LLC. v.
    United States, 43 CIT __, Slip Op. 19-108 at 14–21 (Aug. 8, 2019) (“Oman”) (finding
    a plaintiff had standing to challenge a final determination, despite being assigned a
    zero rate, where the plaintiff alleges that the outcome of a separate, pending appeal
    of that same determination, in which it was a defendant-intervenor thus unable to
    raise its own claim, could result in it being assigned a rate on remand). 8 As all three
    criteria must be satisfied for a party to have standing, the court does not need to
    consider the other two requirements. Moreover, since Corey is the only party to this
    dispute that requested a binational panel, see generally NAFTA Req., and since it did
    not have standing to do so, no party who would “otherwise be entitled under the law
    of the importing Party to commence domestic procedures for judicial review”
    requested a binational panel. 9 As explained in Building Systems, Congress provided
    for the NAFTA binational panels to serve as an alternate forum and did not expand
    8
    In this case, as in Oman, the petitioners in the investigation have challenged
    Commerce’s determination and Corey (the prevailing party) is a defendant-
    intervenor. See Corey’s Resp. Br. BSM argues that petitioners’ filing is beyond the
    time allowed by statute to commence an action. See BSM’s Resp. Br. at 2-3.
    9No party to this dispute alleges that anyone other than Corey has filed a request for
    a NAFTA binational panel.
    Court No. 20-00089                                                              Page 12
    the rights of the litigants. See Building Systems, 44 CIT at __, Slip Op. 20-155 at 3 n.
    2, 16 (noting a prevailing party could not invoke the Court’s jurisdiction but could act
    as a defendant-intervenor if another party challenged the Commerce determination).
    As such, 19 U.S.C. § 1516a(g) does not preclude the court from exercising jurisdiction
    over AISC’s complaint. See Building Systems, 44 CIT at __, Slip Op. 20-155 at 15–
    16.
    Nonetheless, BSM argues that, pursuant to the timing requirements set forth
    in 19 U.S.C. § 1516a(a)(5) for cases involving free trade area merchandise, Plaintiff’s
    challenge is untimely. 10 See BSM’s Resp. Br. at 3. However, “procedural rules,
    including time bars, cabin a court’s power only if Congress has ‘clearly stated’ as
    much.” United States v. Kwai Fun Wong, 
    575 U.S. 402
    , 409 (2015) (citations omitted)
    (“Kwai Fun Wong”). Under Kwai Fun Wong, the time requirements of 19 U.S.C. §
    1516a(a) are not jurisdictional. See Icdas Celik Enerji Tersane ve Ulasim Sanayi,
    A.S. v. United States, 39 CIT __, __, 
    106 F. Supp. 3d 1328
    , 1335–37 (2015) (citing,
    inter alia, Kwai Fun 
    Wong, 575 U.S. at 406
    –20).         As the time requirements of
    1019 U.S.C. § 1516a(a)(5). Time limits in cases involving merchandise from free
    trade area countries.
    Notwithstanding any other provision of this subsection, in the case of a
    determination to which the provisions of subsection (g) apply, an action
    under this subsection may not be commenced, and the time limits for
    commencing an action under this subsection shall not begin to run, until
    the day specified in whichever of the following subparagraphs applies:
    (A) For a determination described in paragraph (1)(B) or clause (i), (ii)
    or (iii) of paragraph (2)(B), the 31st day after the date on which notice of
    the determination is published in the Federal Register.
    Court No. 20-00089                                                             Page 13
    § 1516a(a) are not jurisdictional and because no party in this action moves to dismiss
    it as untimely, see Def.’s Reply Br. at 2 n.1, the court declines to consider timeliness
    as a basis for granting or denying Defendant’s motion to dismiss.
    CONCLUSION
    For the foregoing reasons, it is
    ORDERED that Defendant’s motion to dismiss for lack of subject matter
    jurisdiction is denied.
    /s/ Claire R. Kelly
    Claire R. Kelly, Judge
    Dated:       November 3, 2020
    New York, New York