Rebar Trade Action Coalition v. United States

Slip Op. 01-55
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: THE HONORABLE GREGORY W. CARMAN, CHIEF JUDGE
REBAR TRADE ACTION COALITION,
Plaintiffs,
v.
Court No. 00-10-00501
UNITED STATES OF AMERICA,
Defendant.
Plaintiff Rebar Trade Action Coalition (Plaintiff) has contested, under 28 U.S.C.
§1581(i), the United States International Trade Commission’s (Commission or Defendant)
negative material injury determination regarding subject imports from Japan in Certain Steel
Concrete Reinforcing Bars from Austria, Belarus, China, Indonesia, Japan, Korea, Latvia,
Moldova, Poland, Russia, Ukraine, and Venezuela, 65 Fed. Reg. 51,329 (Aug. 23, 2000) (Rebar
Investigation). Plaintiff has also moved to dismiss this case without prejudice. Defendant has
moved to dismiss Plaintiff’s complaint for lack of jurisdiction. Defendant’s unopposed motion is
granted. Plaintiff’s motion to dismiss without prejudice is denied. This case is dismissed for
lack of jurisdiction.
Dated: May 4, 2001
Wiley, Rein & Fielding (Charles Owen Verrill, Jr.), Washington, D.C., for Plaintiff.
Lyn M. Schlitt, General Counsel, Marc A. Bernstein, Acting Assistant General Counsel,
Gracemary Rizzo, Office of General Counsel, United States International Trade Commission, for
Defendant.
OPINION
CARMAN, Chief Judge: Upon Plaintiff’s challenge of the Commission’s negative
material injury determination regarding subject imports from Japan in Rebar Investigation, and
Court No. 00-10-00501 Page 2
upon Defendant’s unopposed motion to dismiss for lack of jurisdiction, Defendant’s motion is
granted. Plaintiff’s motion to dismiss without prejudice is denied. This case is dismissed for
lack of jurisdiction.
PROCEDURAL BACKGROUND
On October 20, 2000, Plaintiff filed a summons and complaint, claiming the Commission
wrongfully terminated its investigation and failed to investigate in accordance with law whether
the national steel concrete reinforcing bar industry in the United States is materially injured or
threatened with material injury, or that the establishment of an industry in the United States is
materially retarded, by reason of subject imports from Japan in Rebar Investigation. Plaintiff
claimed this Court has jurisdiction over its appeal pursuant to 28 U.S.C. §1581(i) (2000).
Plaintiff’s complaint alleged three causes of action: (1) the Commission erred as a matter of law
by not aggregating subject imports to evaluate import concentration data, causing its import
concentration analysis to be arbitrary and contrary to law; (2) the Commission’s import
concentration analysis was not supported by substantial evidence of record, was not based on all
facts of record, or was otherwise arbitrary and contrary to law; and (3) the Commission failed to
conduct a material injury or threat of material injury analysis as required by 19 U.S.C. §1673b.
On November 9, 2000, Defendant filed a motion to dismiss the complaint for lack of
jurisdiction. Defendant argued Plaintiff could have had an adequate remedy available under 28
U.S.C. §1581(c) with respect to its challenge of the negative preliminary determination if
Plaintiff had filed a timely appeal. Title 28 U.S.C. §1581(c) states: “The Court of International
Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the
Court No. 00-10-00501 Page 3
Tariff Act of 1930.” Defendant stated 28 U.S.C. §1581(i) does not apply because it explicitly
excepts from its scope those determinations reviewable under section 516A(a) of the Tariff Act
of 1930.1 The Commission’s determination is reviewable under Section 516A, codified at 19
U.S.C. §1516a, because 19 U.S.C. §1516a(a)(1)(C) provides that a party may appeal a negative
determination by the Commission in a preliminary antidumping duty investigation “by filing
concurrently a summons and complaint . . . contesting any factual findings or legal conclusions
upon which the determination is based.” Defendant argues Plaintiff’s appeal of the
Commission’s failure to investigate is a question of whether the Commission’s conclusions are
supported by substantial evidence and that because Plaintiff’s entire complaint merely challenges
the factual findings and legal conclusions upon which the Commission based its negative
determination, it falls squarely within the filing requirements of 19 U.S.C. §1516a(a)(1)(C).
Therefore, because Plaintiff failed to file under 28 U.S.C. §1581(c) in a timely manner, it cannot
now use 28 U.S.C. §1581(i) to do so. See Royal Business Machines, Inc. v. United States, 669
F.2d 692 (CCPA 1982).
On February 16, 2001, Plaintiff filed a motion to dismiss this action without prejudice
pursuant to CIT Rule 41(a)(2). Defendant did not respond.
DISCUSSION
In Rebar Investigation, the Commission states that it “determines, pursuant to section
733(a) of the Tariff Act of 1930 (19 U.S.C. 1673b(a)), that there is no reasonable indication that
1
28 U.S.C. §1581(i) states: “This subsection 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....”
Court No. 00-10-00501 Page 4
an industry in the United States is materially injured or threatened with material injury, or that
the establishment of an industry in the United States is materially retarded, by reason of such
imports from Japan.” Rebar Investigation, 65 Fed. Reg. at 51,330. Although Plaintiff phrases its
appeal as a contest of the Commission’s “wrongful and unauthorized termination of an
investigation and the failure to conduct an investigation in accordance with the law,” Plaintiff’s
three alleged causes of action actually challenge the factual findings and legal conclusions upon
which the determination is based. Plaintiff therefore could have sought relief pursuant to the
provisions of 28 U.S.C. §1581(c). “Section 1581(i) jurisdiction may not be invoked when
jurisdiction under another subsection of §1581 is or could have been available, unless the remedy
provided under that other subsection would be manifestly inadequate.” Miller & Co. v. United
States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988). Plaintiff has not
met its burden to show that the remedy provided under §1581(c) would be manifestly inadequate.
Because this Court grants Defendant's motion to dismiss for lack of jurisdiction, it is
unnecessary to address Plaintiff's motion to dismiss without prejudice except to deny it. Under
Rule 41(a)(2) of the United States Court of International Trade, a court-ordered voluntary
dismissal is without prejudice unless otherwise specified. This court has no jurisdiction over this
case and cannot therefore dismiss it with prejudice. See Textile Productions, Inc. v. Mead Corp.,
134 F.3d 1481, 1486 (Fed. Cir. 1998) ("[A] lack of subject matter jurisdiction usually justifies
only a dismissal, not a dismissal with prejudice.") (citing Fishburn v. Brown, 125 F.3d 979, 981
(6th Cir. 1997) and Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984)). By
granting Defendant's motion to dismiss for lack of jurisdiction, however, this Court makes clear
that Plaintiff may not again challenge, under 28 U.S.C. §1581(i), the Commission's negative
Court No. 00-10-00501 Page 5
material injury determination regarding subject imports from Japan in Rebar Investigation.
CONCLUSION
Defendant’s unopposed motion to dismiss for lack of jurisdiction is granted. Plaintiff’s
motion to dismiss without prejudice is denied. This case is dismissed for lack of jurisdiction.
___________________________
Gregory W. Carman
Chief Judge
Dated: May 4, 2001
New York, New York