Royal Thai Government v. United States, 2014 CIT 47

Plaintiff Royal Thai Government challenged Commerce’s final negative countervailing duty (CVD) determination on frozen warmwater shrimp from Thailand, in which Commerce found de minimis subsidies and published a negative determination (no CVD order issued).
Thai exporters (Thai Union) are plaintiff-intervenors; plaintiff also is a defendant-intervenor in a parallel COGSI challenge but here raises distinct issues claiming Commerce should have found even lower de minimis rates.
Plaintiff seeks to preserve a position to offset any potential increases in subsidy rates that might result if COGSI succeeds in appealing Commerce’s negative determination.
Defendant United States and defendant-intervenor Coalition of Gulf Shrimp Industries (COGSI) moved to dismiss under Rule 12(b)(1) for lack of Article III standing, arguing no live case or controversy exists because plaintiff prevailed before Commerce and no duties or deposits are currently due.
The court found plaintiff’s asserted future injury speculative because several contingent events would need to occur (COGSI must succeed on appeal/remand, Commerce must reverse, and the ITC must make an affirmative injury determination) before any duties or deposits could be imposed.
The court granted the motions to dismiss without prejudice, holding plaintiff may pursue challenges if and when a remand redetermination or an affirmative CVD order arises.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Royal Thai has Article III standing to challenge Commerce’s negative CVD determination despite prevailing before the agency	Royal Thai: a live controversy exists because COGSI’s appeal could lead to a higher subsidy rate and an affirmative CVD determination, causing future injury	U.S./COGSI: no present or imminent injury; plaintiff prevailed and no duties or deposits are due; future harm is speculative	Dismissed for lack of Article III standing; no live case or controversy
Whether potential injury tied to a third party’s (COGSI’s) appeal suffices as imminent injury	Royal Thai: COGSI’s appeal creates a realistic risk of future affirmative determination and duties	U.S./COGSI: injury depends on multiple contingent events; speculation cannot confer standing	Injury too speculative; does not establish injury in fact
Whether allowing plaintiff’s suit to proceed now is required by fairness or would prevent prejudice if COGSI prevails	Royal Thai: dismissal while COGSI proceeds would be unfair and could prejudice plaintiff	U.S./COGSI: plaintiff can litigate any redetermination on remand or any future CVD order; no prejudice now	Dismissal without prejudice is appropriate; plaintiff may challenge remand results or future orders

McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 (standing burden on plaintiff)
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (Article III case-or-controversy requirement)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (injury-in-fact, traceability, redressability requirements for standing)
Freeport Minerals Co. v. United States, 758 F.2d 629 (Fed. Cir. 1985) (prevailing party may lack standing to challenge an administrative proceeding it won)
Rose Bearings Ltd. v. United States, 751 F. Supp. 1545 (CIT 1990) (a prevailing party may not appeal merely because it disagrees with some findings)
Asahi Seiko Co. v. United States, 755 F. Supp. 2d 1316 (CIT 2011) (hypothetical harm insufficient for jurisdiction)
Georgetown Steel Corp. v. United States, 810 F. Supp. 318 (CIT 1992) (court must avoid issuing advisory opinions)