Valeo North America, Inc. v. United States, 2017 CIT 155

Background

Plaintiffs (Valeo and Mahle entities) are importers challenging Commerce’s affirmative preliminary antidumping determination on certain aluminum foil from China issued Nov. 2, 2017.
Plaintiffs allege Commerce’s preliminary determination was untimely (published after the statutory 190-day deadline) and therefore ultra vires and should be treated as a negative preliminary determination.
Plaintiffs sought a temporary restraining order to prevent Commerce from directing CBP to collect cash deposits and to enjoin CBP from collecting deposits on their entries.
Plaintiffs invoked the court’s residual jurisdiction under 28 U.S.C. § 1581(i)(2), arguing remedies under the statutory review provision (§ 1516a / § 1581(c)) would be manifestly inadequate.
Defendant argued § 1581(i) is unavailable because Plaintiffs can obtain full relief by waiting for the final determination and then bringing a § 1516a challenge under § 1581(c); paying provisional deposits pending review is an ordinary, remediable consequence.
The Court ordered supplemental briefing on jurisdiction and dismissed the action for lack of subject-matter jurisdiction, holding Plaintiffs failed to show § 1581(c) relief would be manifestly inadequate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court has jurisdiction under 28 U.S.C. § 1581(i) to review Commerce’s allegedly untimely preliminary determination	§1581(i) available because the preliminary determination is ultra vires and §1581(c) review of the final determination would be manifestly inadequate	§1581(i) precluded because §1581(c)/§1516a review of the final determination provides an adequate remedy; paying deposits is speculative/temporary	Held: No §1581(i) jurisdiction; dismissal for lack of subject-matter jurisdiction
Whether paying provisional cash deposits pending final review makes §1581(c) remedies manifestly inadequate	Cash deposits create immediate, harmful consequences and lift statutory cap, so §1581(c) is inadequate	Payment of deposits is an ordinary, remediable consequence; plaintiffs can be made whole if they prevail under §1516a	Held: Paying deposits is not a recognized harm rendering §1581(c) manifestly inadequate
Whether the alleged procedural defect renders the entire proceeding ultra vires such that only §1581(i) review is appropriate	The late preliminary determination fatally compromised the investigative process, rendering it ultra vires	Even if procedure was flawed, relief for procedural error is available under §1516a review of the final determination; plaintiffs do not seek to terminate the proceeding	Held: Plaintiffs’ claim does not show the proceeding should be halted; distinguishable from cases that stopped proceedings
Whether plaintiffs would lose meaningful relief by awaiting final determination	Plaintiffs would lose the opportunity to avoid deposit collection and participation during the interim	Defendant: Plaintiffs will not lose full relief and can seek complete relief after final determination; interim deposits are reversible if plaintiffs prevail	Held: Awaiting final determination does not preclude full relief; §1581(c) adequate

Key Cases Cited

Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356 (Fed. Cir. 1992) (federal courts have limited jurisdiction and must enforce jurisdictional limits)
Aldinger v. Howard, 427 U.S. 1 (U.S. 1976) (discussion of limited jurisdiction of federal courts)
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (U.S. 2005) (recognition of jurisdictional limits in federal courts)
Miller & Co. v. United States, 824 F.2d 961 (Fed. Cir. 1987) (§1581(i) unavailable when another §1581 remedy exists unless that remedy is manifestly inadequate)
FTC v. Standard Oil Co., 449 U.S. 232 (U.S. 1980) (administrative participation and delay do not alone make statutory review inadequate)
MacMillan Bloedel Ltd. v. United States, 16 C.I.T. 331 (CIT 1992) (paying provisional deposits is an ordinary consequence of the statutory scheme)