Wuxi Seamless Oil Pipe Co., Ltd. v. United States

Slip Op. 13-16
UNITED STATES COURT OF INTERNATIONAL TRADE
WUXI SEAMLESS OIL PIPE
CO., LTD.,
Plaintiff,
Before: Timothy C. Stanceu, Judge
v.
Court No. 12-00410
UNITED STATES,
Defendant.
OPINION
[Dismissing action for lack of subject matter jurisdiction]
Date: February 1, 2013
Rosa S. Jeong and Philippe M. Bruno, Greenberg Traurig, LLP, of Washington, DC, for
plaintiff Wuxi Seamless Oil Pipe Co., Ltd.
L. Misha Preheim, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were
Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director,
and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Sapna Sharma,
Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of
Commerce, of Washington, DC.
Jeffrey David Gerrish, Nathaniel B. Bolin, Robert E. Lighthizer, and Stephen John
Narkin, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, for proposed
defendant-intervenor United States Steel Corporation.
Stanceu, Judge: Plaintiff Wuxi Seamless Oil Pipe Co., Ltd. (“WSP”) contests a decision
of the International Trade Administration, U.S. Department of Commerce (“Commerce” or the
“Department”) not to rescind, as to WSP, an ongoing periodic administrative review of a
countervailing duty order on certain oil country tubular goods (“subject merchandise”) from the
People’s Republic of China (“China” or “PRC”). Compl. ¶ 1 (Dec. 14, 2012), ECF No. 4;
Court No. 12-00410 Page 2
Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for
Revocation in Part, 77 Fed. Reg. 11,490 (Feb. 27, 2012) (“Initiation Notice”). WSP, a Chinese
producer of subject merchandise, is currently a respondent in the review. Id. ¶ 6. Three motions
are before the court. Plaintiff seeks injunctive relief to preclude Commerce from continuing the
review with respect to WSP and also moves to advance and consolidate trial on the merits. Mot.
for Prelim. Inj. and to Advance and Consolidate Trial on Merits (Dec. 14, 2012), ECF No. 5
(“Pl.’s Mot.”); Mem. of Points & Authorities in Supp. of Mot. for Prelim. Inj. and to Advance
and Consolidate Trial on Merits (Dec. 14, 2012), ECF No. 6 (“Pl.’s Mem.”). Defendant moves
to dismiss this action under USCIT Rule 12(b)(1) or, in the alternative, under Rule 12(b)(5).
Def.’s Mot. to Dismiss and Opp’n to Pl.’s Mot. for Prelim. Inj. and Mot. to Advance and
Consolidate Trial on the Merits (Jan. 16, 2013), ECF No. 19. (“Def.’s Mot.”). United States
Steel Corporation (“U.S. Steel”), a domestic producer of oil country tubular goods, moves to
intervene. Mot. to Intervene (Jan. 8, 2013), ECF No. 12. Concluding that it lacks subject matter
jurisdiction, the court will dismiss this action pursuant to USCIT Rule 12(b)(1).
I. BACKGROUND
Pursuant to Section 702(c)(2) of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C.
§ 1671a(c)(2),1 Commerce initiated a countervailing duty investigation on certain oil country
tubular goods from China on May 5, 2009. Certain Oil Country Tubular Goods from the
People’s Republic of China: Initiation of Countervailing Duty Investigation, 74 Fed. Reg. 20,678(May 5, 2009). On December 7, 2009, the Department published an affirmative final
determination. Certain Oil Country Tubular Goods from the People’s Republic of China: Final
1
All statutory citations herein are to the 2006 edition of the United States Code. All
citations to regulations are to the 2011 edition of the Code of Federal Regulations.
Court No. 12-00410 Page 3
Affirmative Countervailing Duty Determination, Final Negative Critical Circumstances
Determination, 74 Fed. Reg. 64,045 (Dec. 7, 2009). The U.S. International Trade Commission
notified Commerce of an affirmative final threat determination on January 13, 2010. See Certain
Oil Country Tubular Goods From China, 75 Fed. Reg. 3248, 3249 (Jan. 20, 2010). On
January 20, 2010, Commerce published an amendment to its affirmative final determination and
a countervailing duty order (the “Order”), correcting certain ministerial errors and assigning a
revised net subsidy rate of 14.95% to WSP and a rate of 13.41% to all others. Certain Oil
Country Tubular Goods From the People’s Republic of China: Amended Final Affirmative
Countervailing Duty Determination and Countervailing Duty Order, 75 Fed. Reg. 3203, 3205.
On January 3, 2012, Commerce published a notice of opportunity to request an
administrative review of the Order (“Notice of Opportunity to Request Review”). Antidumping
or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request
Administrative Review, 77 Fed. Reg. 83 (“Notice of Opportunity to Request Review”). On
February 27, 2012, based on requests for review submitted by WSP and another exporter of
subject merchandise, Jiangsu Chengde Steel Tube Share Co., Ltd., Commerce initiated an
administrative review of the Order for the period of January 1, 2011 through December 31, 2011
(“period of review” or “POR”).2 Initiation Notice, 77 Fed. Reg. at 11,491. The initiation notice
announced that Commerce intended to issue the preliminary results of the review on January 31,
2013. Id. at 11,491; Compl. ¶ 45. On March 7, 2012, the Department issued initial
2
The previous review—which would have been the first review of the subject order—
had been rescinded. See Certain Oil Country Tubular Goods From the People’s Republic of
China: Rescission of Countervailing Duty Administrative Review, 76 Fed. Reg. 39,071 (Jul.
5, 2011). Accordingly, the net subsidy rates determined during the investigation were in
force when plaintiff brought this action.
Court No. 12-00410 Page 4
questionnaires to WSP and the Government of the People’s Republic of China; WSP submitted a
questionnaire response on May 7, 2012. Compl. ¶ 10.
Seeking rescission, WSP submitted a withdrawal of its review request on July 17, 2012,
141 days after initiation and 51 days after the close of the time period provided in a
Departmental regulation, 19 C.F.R. § 351.213(d)(1), for withdrawal of a review request, which is
90 days following publication of the notice initiating the review. WSP requested an extension of
the 90-day time period as provided in § 351.213(d)(1). Compl. ¶¶ 7, 11, 36 (citation omitted).
No party opposed or otherwise commented on WSP’s request. Id. ¶ 12.
On October 9, 2012, Commerce rejected WSP’s request for a time extension and,
accordingly, did not rescind the administrative review as to WSP. Id. ¶¶ 13, 40. The
Department’s Notice of Opportunity to Request Review had notified the public that “the
Department does not intend to extend the 90-day deadline unless the requester demonstrates that
an extraordinary circumstance has prevented it from submitting a timely withdrawal request.
Determinations by the Department to extend the 90-day deadline will be made on a case-by-case
basis.”3 Id. ¶ 32 (citing Notice of Opportunity to Request Review, 77 Fed. Reg. at 84).
Commerce repeated this notification in the Notice of Initiation. Id. ¶ 31 (citing Initiation Notice,
77 Fed. Reg. at 11,490). In its submission withdrawing its request for review, WSP had objected
that “by changing the regulatory standard for granting extension from ‘reasonableness’ to
‘extraordinary circumstances,’ the Department in fact repealed and amended 19 C.F.R.
3
In the preamble to the promulgation of regulatory amendments, including the current
19 C.F.R. § 351.213(d)(1), the Department stated that while the “90-day limitation may be
too rigid . . . the Department must have the final say concerning rescissions of reviews
requested after 90 days in order to prevent abuse of the procedures for requesting and
withdrawing a review.” Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296,
27,317 (May 19, 1997).
Court No. 12-00410 Page 5
§ 351.213(d)(1) without the notice-and-comment process required by the [Administrative
Procedure Act], 5 U.S.C. § 553.” Compl. ¶ 38. Notwithstanding, plaintiff explained that “there
were, in fact, extraordinary circumstances that prevented WSP from filing its withdrawal within
the 90-day deadline.” Id. ¶ 39. Rejecting WSP’s position, Commerce stated in its October 9,
2012 decision that “[t]he regulation has not been modified or changed” and that, instead, the new
interpretation of the withdrawal regulation “represents a change in the agency’s practice . . . .”
id. ¶¶38, 40. The Department also dismissed WSP’s assertion of “extraordinary circumstances,”
id. ¶ 39, concluding that the circumstances WSP cited “are situations faced by many companies,”
id. ¶ 41.
WSP submitted a letter on October 22, 2012 alleging additional facts and requesting that
Commerce reconsider the October 9, 2012 decision and rescind the review. Id. ¶¶ 14, 42(citation omitted). On November 13, 2012, the Department notified WSP that it was denying the
reconsideration request. Id. ¶¶ 14, 43. Commerce reiterated that it did not find WSP’s
circumstances to be “extraordinary,” adding that these circumstances “are not germane to the
subject of the Department’s retrospective administrative review of Wuxi’s sales for the 2011
period of review . . . .” Id. ¶ 43.
In the review, the Department issued three supplemental questionnaires to WSP during
the period of November 9 through December 6, 2012. Id. ¶ 15. WSP submitted full responses to
these questionnaires. Pl.’s Mem. 12 n.4.
On December 14, 2012, WSP filed its summons and complaint to initiate this action.
Summons, ECF No. 1; Compl. On the same day, WSP filed its motion for a preliminary
injunction and to advance and consolidate trial on the merits. Pl.’s Mot. On January 8, 2012,
U.S. Steel moved to intervene in this action as of right. Mot. to Intervene. On January 16, 2012,
Court No. 12-00410 Page 6
defendant moved to dismiss. Def.’s Mot. Defendant’s motion informed the court that the
preliminary results of the review would issue on February 1, 2013. Id. at 6.
On January 17, 2013, the court held a telephonic conference with the parties to the action
and proposed defendant-intervenor. During the conference, plaintiff stated that after it brought
this action, WSP had received and submitted full responses to three additional supplemental
questionnaires from Commerce. At the conference, plaintiff expressly waived the opportunity to
request oral argument and an evidentiary hearing on the issue of subject matter jurisdiction,
informing the court that it chose to rest upon its response to the motion to dismiss and the
existing case record. Order (Jan. 17, 2013), ECF No. 20. On January 25, 2013, plaintiff
responded to defendant’s motion, Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. 21 (“Pl.’s
Opp’n”), and on January 28, 2013, plaintiff responded to U.S. Steel’s motion to intervene, Pl.’s
Opp’n to Mot. to Intervene, ECF No. 25.
II. DISCUSSION
The court has an independent responsibility to ascertain whether subject matter
jurisdiction exists over an action. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
A plaintiff has the burden of establishing jurisdictional facts by a preponderance of the evidence.
See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). The plaintiff must be
given an opportunity to do so before dismissal is entered. Reynolds v. Army and Air Force
Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988) (citations omitted). The “court must
accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011) (citation omitted). The court also may consider matters outside the
pleadings to find jurisdictional facts. Land v. Dollar, 330 U.S. 731, 735 n.4 (1947); see also
Court No. 12-00410 Page 7
Cedars-Sinai Med. Center v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993). When a court
concludes that it lacks jurisdiction, its “only function remaining [is] that of announcing the fact
and dismissing the cause.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95
(1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
Plaintiff invokes the court’s “residual” jurisdiction provided by section 201 of the
Customs Courts Act of 1980 (“Customs Courts Act”), 28 U.S.C. § 1581(i). Compl. ¶¶ 2-5.
Paragraph (2) of §1581(i) provides the Court of International Trade jurisdiction of “any civil
action commenced against the United States . . . that arises out of any law of the United States
providing for . . . tariffs, duties, fees, or other taxes on the importation of merchandise for
reasons other than the raising of revenue.” 28 U.S.C. § 1581(i)(2). Paragraph (4) of subsection
(i) provides for jurisdiction of “any civil action commenced against the United States . . . that
arises out of any law of the United States providing for . . . administration and enforcement with
respect to the matters referred to in paragraphs (1)—(3) of this subsection . . . .” 28 U.S.C.
§ 1581(i)(4).
This action would appear to fall within the literal terms of the jurisdictional grant of
§ 1581(i)(4), and plaintiff’s complaint asserts jurisdiction thereunder. Compl. ¶¶ 2-4. But
because claims brought under 28 U.S.C. § 1581(i)(4) require a waiver of sovereign immunity,
the court must strictly construe the jurisdictional statute. United States v. Sherwood, 312 U.S.
584, 586 (1941). The limits of the waiver of sovereign immunity define a court’s jurisdiction to
entertain suit. Hercules, Inc. v. United States, 516 U.S. 417, 422-23 (1996).
The court may exercise § 1581(i) jurisdiction over this case only if two conditions are
satisfied. First, the contested agency action must be a final agency action. See Corus Group
PLC v. International Trade Com’n., 352 F.3d 1351, 1358-59 (Fed. Cir. 2011); Michael Simon
Court No. 12-00410 Page 8
Design, Inc. v. United States, 609 F.3d 1335, 1338 (Fed. Cir. 2010); U.S. Ass’n of Importers of
Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1348-50 (Fed. Cir. 2005).
Second, “[w]here another remedy is or could have been available, the party asserting § 1581(i)
jurisdiction has the burden to show how that remedy would be manifestly inadequate.” Miller &
Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988)
(citations omitted).
In support of its jurisdictional argument, plaintiff alleges that “[t]he relief sought by WSP
is not available under 28 U.S.C. § 1581(a)—(h).” Compl. ¶ 4. The stated relief WSP seeks is a
court order declaring the ongoing review of WSP unlawful and enjoining the Department from
continuing that review.4 Id. ¶¶ 3-4, Prayer for Relief and Judgment. Characterizing its case as a
challenge to the Department’s decision “to continue an administrative review of WSP,” plaintiff
describes the remedy available under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c) as “manifestly
inadequate . . . [,] for the review that WSP seeks to prevent will have already occurred and WSP
will be deprived of meaningful relief.” Id. ¶¶ 3-4. Accordingly, plaintiff contends that its “only
recourse is under 28 U.S.C. § 1581(i).” Id. ¶ 4.
Regardless of how a plaintiff characterizes its cause of action, the court must look to the
true nature of the action when considering subject matter jurisdiction. Norsk Hydro Can., Inc. v.
United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006) (quotation and citation omitted). Plaintiff’s
complaint is expressed in four separate counts. Compl. ¶¶ 48-60. For the reasons discussed
4
If the review were terminated with respect to WSP, the review apparently would
continue because another exporter of subject merchandise, Jiangsu Chengde Steel Tube
Share Co., Ltd., had requested a review and, to the court’s knowledge, has not withdrawn
that request. Initiation of Antidumping and Countervailing Duty Administrative Reviews and
Request for Revocation in Part, 77 Fed. Reg. 11,490, 11,491 (Feb. 27, 2012).
Court No. 12-00410 Page 9
below, the court construes plaintiff’s complaint to present a single claim: that the Department
unlawfully denied WSP’s request for an extension of the 90-day deadline.5
In determining the true nature of plaintiff’s claim, the court views the Department’s
administrative actions in the context of the regulatory provision under which these actions were
taken. Subsection (d) of § 351.213 of the Department’s regulations provides generally that the
Secretary will rescind an administrative review if the party requesting the review withdraws its
request “within 90 days of the date of publication of the notice of initiation of the requested
review,” but the regulatory provision Commerce applied is expressed in the last sentence in the
subsection: “The Secretary may extend this time limit if the Secretary decides that it is
reasonable to do so.” 19 C.F.R. § 351.213(d). As plaintiff spells out at some length in its
complaint, the Department’s decision of October 9, 2012 was a decision to deny WSP’s request
to extend the 90-day deadline. Compl. ¶¶ 36-41. After WSP requested that Commerce
reconsider the October 9, 2012 decision, Commerce, on November 13, 2012, issued another
decision, this time denying WSP’s request for reconsideration of the earlier decision. Id.
¶¶ 42-43. Although, as plaintiff pleads, Commerce took the action of continuing the review as to
WSP, the continuation of the review was merely the inevitable consequence of the October 9 and
November 13 decisions. According to the facts as pled in the complaint, when read in the
5
Each of the four counts presents grounds in support of the single claim. Plaintiff’s first
count alleges that the review of WSP is being continued according to an “amendment” to
19 C.F.R. § 351.213(d)(1) effectuated in violation of the notice-and-comment rulemaking
requirements of the APA. Compl. ¶¶ 48-52 (Dec. 14, 2012), ECF No. 4. As a second count,
plaintiff alleges that the decision to not rescind WSP’s review violates the preexisting
“reasonableness” standard of 19 C.F.R. §351.213(d)(1). Id. ¶¶ 50, 53-56. Plaintiff’s third
and fourth counts allege that the “extraordinary circumstances” standard is “arbitrary and
capricious” because it is “not based on reasoned analysis,” id. ¶¶ 57-58, and because “the
Department has never provided any guidelines as to what types of facts would constitute
‘extraordinary circumstances,’” id. ¶¶ 59-60.
Court No. 12-00410 Page 10
context of 19 C.F.R. § 351.213(d), there was no separate decision by Commerce to continue the
administrative review as to WSP. For this reason, the court determines the true nature of
plaintiff’s claim, when construed according to the governing regulatory provision, to be a
challenge to an agency decision not to extend a regulatory deadline and not, as characterized by
plaintiff, a challenge to the Department’s continuation of the review.
It is at least arguable that the Department’s decision denying WSP an extension of the
90-day deadline was a final agency action. If not final when Commerce first notified WSP of its
decision on October 9, 2012, the decision arguably became final on November 13, 2012, when
Commerce denied WSP’s request for reconsideration of the October 9, 2012 decision. Language
Commerce used in its November 13, 2012 communication suggests that Commerce intended the
decision denying the extension to be a final one. Compl. ¶ 43 (quoting Letter from Susan H.
Kuhbach, Director, AD/CVD Operations, Office to WSP 1 (Nov.13, 2012) (“We find that it
would not be practicable for the Department to reconsider its decisions to conduct reviews of
companies, and reallocate it[s] scarce resources across cases, based upon such circumstances.”)).
It also can be argued, as defendant does in moving to dismiss, that the responses Commerce
issued to WSP on October 9 and November 13, 2012 were not absolutely final as Commerce had
yet to issue final results of the administrative review. Def.’s Mot. 17-18. Under this argument,
there was still the possibility, however remote, that Commerce would exercise its inherent
discretion to rescind the review as to WSP at any time prior to completing the review.
In the circumstance this case presents, the court finds it unnecessary to decide the
question of finality in order to reach a decision on the larger question of subject matter
jurisdiction. The court concludes that WSP has not satisfied the second condition for obtaining
jurisdiction under 28 U.S.C. § 1581(i) by demonstrating that another available remedy is
Court No. 12-00410 Page 11
inadequate. Specifically, plaintiff has not shown the inadequacy of the remedy available in an
action brought under Section 516A of the Tariff Act, 19 U.S.C. § 1516a. Plaintiff could bring
such an action upon publication of the final results of the administrative review. Exclusive
jurisdiction would lie in the Court of International Trade according to 28 U.S.C. § 1581(c). If, as
plaintiff contends, the Department’s decision denying WSP the benefit of an extension of the
90-day deadline was unlawful, the remedy available under Section 516A is a judicial decision
setting aside the results of the review as applied to WSP and ordering an appropriate remand.6
As did the plaintiff in Miller & Co., WSP seeks to challenge the Department’s alleged failure to
comply with procedural rules in a specific administrative review. See Miller & Co., 824 F.2d
at 964 (“the procedural correctness of a countervailing duty determination, as well as the merits,
are subject to judicial review”).
Pointing out that the section 516A remedy would not include an injunction to halt the
review, plaintiff argues that the remedy available under Section 516A is manifestly inadequate
because WSP must “expend great expense and resources” to “participate fully in th[e] review
given that the consequence of non-participation is inevitably a highly punitive adverse facts
available subsidy rate.” Compl. ¶ 46. As plaintiff asserts in its response to defendant’s motion
to dismiss, “[s]ince refusal to rescind this review, the Department has propounded, almost on a
weekly basis, additional supplemental questionnaires to [WSP] with mere days to respond.”
Pl.’s Opp’n 1. Plaintiff also submits that “after the preliminary results . . . the Department is
6
Section 516A(a)(2)(A) of the Tariff Act of 1930 authorizes an interested party to bring
an action within thirty days after Commerce publishes in the Federal Register the final
determination in an administrative review issued under 19 U.S.C. § 1675, in which action the
interested party may contest “any factual findings or legal conclusions upon which the
determination is based.” 19 U.S.C. § 1516a(a)(2)(A) (2006).
Court No. 12-00410 Page 12
likely to issue additional supplemental questionnaires and may conduct a verification.” Id.
at 1-2. The court rejects this argument.
The court considers the adequacy of the section 516A remedy according to factual
circumstances existing as of the date plaintiff commenced this action, December 14, 2012. See
Miller & Co., 824 F.2d at 963-64. By that date, plaintiff already had submitted to Commerce full
responses to four questionnaires (one initial questionnaire and three supplemental
questionnaires).7 Compl. ¶ 10; Pl.’s Mem. 12 n.4. From that point forward, if WSP desired to
perform the absolute minimum needed to preserve its claim for judicial review in a Section 516A
proceeding, it could limit its further participation to the filing of a case brief objecting to the
Department’s refusal to extend the 90-day time limit. See 19 C.F.R. 351.309(c)(2) (“The case
brief must present all arguments that continue in the submitter’s view to be relevant to the
Secretary’s final determination or final results, including any arguments presented before the
date of publication of the preliminary determination or preliminary results.”). Plaintiff,
understandably, indicates that it would not choose this minimal course because of the prospect of
receiving a rate determined according to “facts otherwise available” and an “adverse inference,”
see 19 U.S.C. § 1677e(a), (b); WSP would risk suffering the consequences of such a rate should
it not prevail in court on its claim that Commerce unlawfully denied it the extension of the
90-day deadline. But WSP’s continuing its participation in the review from the point at which it
brought this action, compared to the burden it had incurred up to that point, will be incremental.
Although issuance of further questionnaires was a possibility as of the date this action was
7
Although plaintiff’s statement regarding WSP’s full completion of the supplemental
questionnaires is not found in its complaint, it was filed on the same day, and accordingly the
court considers it contemporaneous with the complaint for purposes of ascertaining
jurisdictional facts in existence at the time plaintiff brought this action.
Court No. 12-00410 Page 13
commenced, WSP already had completed four questionnaires by that time.8 Supplemental
questionnaires typically require clarifying responses on matters already explored in the initial
questionnaires. The preliminary results are scheduled to issue on February 1, 2013, and the final
phase of the review is, therefore, about to begin. Def.’s Mot. 6. Taken together, these
jurisdictional facts show that WSP, upon commencing this action, already had performed
approximately half, or more, of the procedural steps needed to complete its participation in the
review and had already weathered the expense of completing four questionnaires. Seen from the
perspective of WSP’s situation on December 14, 2012, the incremental burden that WSP would
incur from participating fully in the review is not a convincing reason why the court should find
the Section 516A remedy inadequate.
To further support its assertion of jurisdiction, plaintiff cites several cases in which the
Court of International Trade “invoked section 1581(i) jurisdiction to consider requests to enjoin
the Department from continuing an unlawful proceeding.” Pl.’s Mem. 12-13, 15 (citing
Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 584,
717 F. Supp. 847 (1989), aff’d on other grounds, 903 F.2d 1555 (Fed. Cir. 1990);
Technsnabexport, Ltd. v. United States, 16 CIT 420, 795 F. Supp. 428 (1992); Jia Farn Mfg. v.
United States, 17 CIT 187, 817 F. Supp. 969 (1993); Kemira Fibers Oy v. United States,
18 CIT 687, 858 F. Supp. 229 (1994), rev’d on other grounds, 61 F.3d 866 (Fed. Cir. 1995);
8
The court was informed at the January 17, 2013 telephonic conference with the parties
that WSP, since bringing its action, had received, and submitted full responses to, three
additional supplemental questionnaires from Commerce. The court does not consider this
fact in support of any argument against the exercise of jurisdiction because the questionnaires
and responses occurred after this action was commenced. The fact merely confirms a
procedural circumstance favorable to plaintiff’ s position: that at the time the action was
brought, the issuance of additional supplemental questionnaires was a possibility.
Court No. 12-00410 Page 14
Dofasco Inc. v. United States, 28 CIT 263, 326 F. Supp. 2d 1340 (2004)). Plaintiff distinguishes
these decisions from others in which the court did not find jurisdiction under section 1581(i),
which according to plaintiff involved claims “related to methodology or procedure . . . [or] the
timing of a review.” Id. at 14 (citing NSK Ltd. v. United States, 28 CIT 1600, 350 F. Supp. 2d
1128 (2004); Abitibi-Consolidated Inc. v. United States, 30 CIT 714, 437 F. Supp. 2d 1352(2006); Tianjin Magnesium International Co. v. United States, 32 CIT 1, 533 F. Supp. 2d 1327(2008)). In this action, plaintiff submits, “the decision challenged . . .[is] a fundamental,
dispositive decision . . . [as] WSP seeks to terminate the proceeding entirely.” Id.Each of the cases plaintiff cites is distinguishable from the case at bar. In none of the
cases where jurisdiction was held to exist under 28 U.S.C. § 1581(i) had the trade remedy
proceeding progressed as far as this one by the time the action was commenced. See Asociacion
Colombiana, 13 CIT at 584, 717 F. Supp. at 848 (administrative review recently initiated);
Technsnabexport, Ltd., 16 CIT at 422, 795 F. Supp. at 432 (plaintiffs had not responded to
questionnaires when action commenced); Jia Farn Mfg., 17 CIT at 188, 817 F. Supp. at 970
(action commenced shortly after initiation of administrative review); Kemira Fibers Oy, 18 CIT
at 689, 858 F. Supp. at 231 (plaintiff submitted questionnaire response but withdrew response on
same day plaintiff moved to enjoin administrative review); Dofasco Inc., 28 CIT at 263,
326 F. Supp. 2d at 1341 (plaintiff had not responded to questionnaires when action commenced).
And the court does not find meaningful plaintiff’s distinction between a “fundamental,
dispositive decision” and a “methodological,” “procedural,” or temporal one. Here, WSP seeks
to bring an interlocutory challenge to an agency decision that will be subsumed within the final
results of an administrative review.
Court No. 12-00410 Page 15
Citing several decisions of this Court, plaintiff also argues that “[i]n some cases, the
Court [has] found the legal merits of [plaintiff’s] challenge relevant in considering [the]
jurisdictional question.” Pl.’s Mem. 16 (citing Hylsa S.A. de C.V. v. United States, 21 CIT 222,
960 F. Supp. 320 (1997), aff’d 135 F.3d 778, 1998 WL 56389 (Fed. Cir. 1998); Government of
the People’s Republic of China v. United States, 31 CIT 451, 460, 483 F. Supp. 2d 1274, 1282
(2007)). These cases are inapposite. To resolve the jurisdictional question this case presents, the
court need not, and in the circumstance presented should not, consider the merits of
plaintiff’s claim.
In its response to defendant’s motion to dismiss, WSP argues that the only remedy
available upon the completion of the administrative review will be a “retroactive vacatur” which,
according to WSP, is not an adequate remedy. Pl.’s Opp’n 3. Plaintiff argues, dramatically, that
“a retroactive vacatur of the decision is not the same remedy as an immediate termination of the
proceeding, just as a vacatur of a prison sentence already served is not the same remedy as an
early prison release.” Id. This is a false analogy. For the reasons the court has discussed,
completing the administrative review is not so burdensome as to render inadequate the remedy
that WSP may pursue by contesting the final results of the review.
Finally, plaintiff argues that because “WSP seeks to terminate the administrative review
. . . [its] claim becomes entirely moot once the review is completed because there will be no
review to terminate.” Id. at 4. As a consequence, plaintiff believes “there is a real risk that
WSP’s appeal under section 1581(c) would be dismissed unless the Court decides to apply one
of the two recognized exceptions to the mootness doctrine . . . .” Id. The Supreme Court has
instructed that “a case is moot when the issue[] presented [is] no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 497 (1969)
Court No. 12-00410 Page 16
(citation omitted). The question of whether WSP lawfully may be subjected to the outcome of
the ongoing administrative review is not a moot question: it is a live issue that, based on the
allegations in the complaint, was of interest to WSP at the time this action was brought. Nothing
that has happened since causes the court to conclude that the dispute between the parties no
longer exists or that WSP no longer has an interest in it. Although WSP may not seek a remedy
to resolve that dispute just yet, see U.S. Ass’n of Importers of Textiles & Apparel, 413 F.3d at
1348-50, it soon will have the opportunity to do so. In this circumstance, the case or controversy
existing between the parties cannot be said to be moot.
III. CONCLUSION
Because plaintiff has not demonstrated factually that the remedy available under
19 U.S.C. § 1516a will be inadequate, this Court lacks jurisdiction under 28 U.S.C. § 1581(i)(4).
The court therefore grants defendant’s motion to dismiss pursuant to USCIT Rule 12(b)(1).
Plaintiff’s motion for preliminary injunction and to advance and consolidate trial on the merits
and proposed defendant-intervenor’s motion to intervene are denied as moot. The court will
enter judgment dismissing this action.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: February 1, 2013
New York, New York