BAROQUE TIMBER INDUSTRIES (ZHONGSHAN) COMPANY, LIMITED, et al., Plaintiffs, v. UNITED STATES, Defendant, and Zhejiang Layo Wood Industry Company, Limited, et al., Defendant-Intervenors.
No. 12-00007
United States Court of International Trade
June 27, 2012
Slip Op. 12-90
POGUE, Chief Judge
CONCLUSION
Although OTR Wheel has asked this court to “remand this matter to Commerce with instructions to exclude Plaintiff‘s ‘Trac Master’ and ‘Traction Master’ tires from the scoрe of the subject Tires Orders,” Pl.‘s Mot. 24, Commerce has not yet properly completed its analysis under
Alexander V. Sverdlov, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for Defendant. With him on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Claudia Burke, Assistant Director. Of counsel on the briefs was Shana Hofstetter, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.
Francis J. Sailer, Mark E. Pardo, Andrew T. Schutz, and Kovita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, of Washington, DC, for Defendant-Intervenors Baroque Timber Indus. (Zhongshan) Co., Ltd.; Riverside Plywood Corp.; Samling Elegant Living Trading (Labuan) Ltd.; Samling Global USA, Inc.; Samling Riverside Co., Ltd.; and Suzhou Times Flooring Co., Ltd.
Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for Dеfendant-Intervenors Zhejiang Layo Wood Industry Co., Ltd.; Changzhou Hawd Flooring Co., Ltd.; Dunhua City Jisen Wood Indus. Co., Ltd.; Dunhua City Dexin Wood Indus. Co., Ltd.; Dalian Huilong Wooden Products Co., Ltd.; Kunshan Yingyi-Nature Wood Indus. Co., Ltd.; and Karly Wood Products Ltd.
Jeffrey S. Neeley, Michael S. Holton, and Stephen W. Brophy, Barnes, Richardson & Colburn, of Washington, DC, for Defendant-Intervenor Zhejiang Yuhua Timber Co. Ltd.
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Susan L. Brooks, Sarah M. Wyss, Keith F. Huffman, Mowry & Grimson, PLLC, of Washington, DC, for Defendant-Intervenors Fine Furniture (Shanghai) Ltd.; Great Wood (Tonghua) Ltd.; and Fine Furniture Plantation (Shishou) Ltd.
Kristen S. Smith and Mark R. Ludwikowski, Sandler, Travis & Rosenberg, P.A., of Washington, DC, for Defendant-Intervenors Lumber Liquidatоrs Services, LLC; Armstrong Wood Products (Kunshan) Co., Ltd.; and Home Legend, LLC.
Daniel L. Porter, William H. Barringer, Matthew P. McCullough, and Ross Bidlingmaier, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Defendant-Intervenor Bureau of Fair Trade for Imports & Exports, Ministry of Commerce, People‘s Republic of China.
OPINION AND ORDER
POGUE, Chief Judge:
This is a consolidated action1 seeking review of determinations made by the Department of Commerce (“the Department” or “Commerce“) in the antidumping duty investigation of multilayered wood flooring from the People‘s Republic of China (“China“).2 Currently before the court is Defendant‘s Motion to Dismiss the Complaint filed by Consolidated Plaintiff the Coalition for American Hardwood Parity (“CAHP“).
As explained below, the court agrees that CAHP‘s filing fails to comply with the statutory provisions governing the time for filing. However, in light of recent decisions by the Supreme Court and the Court of Appeals for the Federal Circuit, this court is not yet persuaded that such failure to timely file requires dismissal for lack of jurisdiction. Because the parties did not fully brief the question of whether the relevant statutes are jurisdictional requisites—as opposed to claim processing rules subject to equitable tolling—the court will reserve judgment and order further briefing on this issue.
Background
This case arises from Commerce‘s initiation, on November 18, 2010, of an antidumping duty investigation of multilayered wood flooring from China. Multilayered Wood Flooring from the People‘s Republic of China, 75 Fed.Reg. 70,714 (Dep‘t Commerce Nоv. 18, 2010) (initiation of antidumping duty investigation) (“Initiation Notice“). Following the investigation, on October 18, 2011, Commerce published its Final Determination, finding that the subject merchandise was being sold at less than fair value in the United States, i.e., dumped. Final Determination, 76 Fed. Reg. at 64,323–24. In the Final Determination, Commerce calculated a zero margin for one mandatory respondent, Zhejiang Yuhua Timber Co., Ltd. (“Yuhua“). Id. at 64,323. On December 8, 2011, Commerce published its antidumping duty order. Multilayered Wood Flooring from the People‘s Republic of China, 76 Fed. Reg. 76,690 (Dep‘t Commerce Deс. 8, 2011) (amended final determination of sales at less than fair value and antidumping duty order) (“Antidumping Duty Order“). Yuhua, having received a zero rate in the Final Determination, was excluded from the order. Id.
Following publication of the Final Determination, but prior to publication of the Antidumping Duty Order, CAHP filed a summons giving notice that it would challenge various aspects of Commerce‘s Final Determination. Summons, Nov. 17, 2011, ECF No. 1 (docketed under Ct. No. 11-00452). Among the issues identified for challenge in the Summons were “certain aspects of the affirmative final determination of sales at less than normal value including the exclusion of one producer/exporter[, Yuhua]....” Summons at 1.
Discussion
I. CAHP‘s Summons Was Untimely Filed
The statute states specific timing requirements that a prospective plaintiff must follow when seeking review of Commerce‘s determinations in an antidumping duty investigation. The Motion to Dismiss turns on the proper interpretation of these statutory provisions, found at
(A) In general
Within thirty days after—
(i) the date of publication in the Federal Register of—
(I) notice of any determination described in clause (ii) of subparagraph (B), [or]
(II) an antidumping or countervailing duty order based upon any determination described in clause (i) of subрaragraph (B) ...
an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons, and within thirty days thereafter a complaint....
(B) Reviewable determinations
The determinations which may be contested under subparagraph (A) are as follows:
(i) Final affirmative determinations by [Commerce] and by the Commission under section 1671d or 1673d of this title, including any negative part of such a determination (other than a part referred to in clause (ii)).
(ii) A final negative determination by [Commerce] or the Commission under section 1671d or 1673d of this title, including, at the option of the appellant, any part of a final affirmative determination which specifically excludes any company or product.
Commerce interprets this statute to have, depending on the nature of the complaint, two potential filing dates for a challenge to the exclusion of a company. If the sole challenge plaintiff brings addresses the exclusion of a company, then, according to Commerce, plaintiff may file within thirty days of publication of the affirmative determination, pursuant to
CAHP, in contrast, interprets
On first read, the language of the statute may seem ambiguous. On the one hand,
Commerce argues that this ambiguity has been resolved by the Court of Appeals’ opinion in Bethlehem Steel Corp. v. United States, 742 F.2d 1405 (Fed.Cir.1984). In Bethlehem Steel, the plaintiff challenged Commerce‘s negative finding that an export rebate program was not a countervailable subsidy—and this challenge was in the context of an otherwise affirmative countervailing duty determination, i.e., plaintiff filed a challenge to a negative part of an affirmative determination. Id. at 1407–08. The plaintiff‘s summons was filed within thirty days оf publication of the countervailing duty order but beyond thirty days from the publication of the affirmative determination. Id. at 1408. This Court held that the challenged finding was a negative determination, and therefore, the complaint was untimely pursuant to
Contrary to Commerce‘s assertion, Bethlehem Steel does not resolve the issue because the Court of Appeals was reviewing an earlier version of
(B) Reviewable determinations
The determinations which may be contested under subparagraph (A) are as follows:
(i) Final affirmative determinations by the Secretary and by the Commission under section 1303 of this title, or by [Commerce] and by the Commission under section 1671d or 1673d of this title.
(ii) A final negative determinаtion by the Secretary, the administering authority, or the Commission under section 1303, 1671d, or 1673d of this title.
However, amendments to
This is consistent with a reading of the text that gives effect to all parts of thе statute. See Duncan v. Walker, 533 U.S. 167, 174 (2001) (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (quoting Wash. Market Co. v. Hoffman, 101 U.S. 112, 115–16 (1879) (internal quotation marks omitted))); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must interpret the statutes as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.” (citations omitted) (internal quotation marks omitted)).
CAHP reads the parenthetical in
The legislative history of thе Trade and Tariff Act of 1984 further supports the interpretation that an appellant has the option to characterize a challenge to the exclusion of a company as either a negative part of an affirmative determination or as a negative determination. The Conference Report for the Trade and Tariff Act of 1984 states that the bill
[c]larifies when negative portions of affirmative determinations may be reviewed: any part of a final affirmative determination by the administering authority which spеcifically excludes any company or product may, at the option of the appellant, be treated as a final negative determination and may be subject to appeal within 30 days of publication; other negative aspects of an affirmative determination would be appealable within 30 days after publication of a final order, and if an appellant so chooses, appeal of those portions of an affirmative finding which exclude a product or a company may also be appealed within 30 days of publication of a final order, instead of within 30 days of the determination.
H.R.Rep. No. 98–1156, at 179 (1984) (Conf. Rep.), reprinted in 1984 U.S.C.C.A.N. 5220, 5296. Thus, according to the Conference Report, the amendments to
It follows that CAHP‘s interpretation is incorrect, and, as a result, its summons was untimely filed. This is because CAHP also seeks to challenge othеr aspects of Commerce‘s affirmative determination; such a challenge must be filed within the thirty day period following the publication of the order. Importantly, CAHP incorrectly believed that it was required to file its challenge to the exclusion of Yuhua within thirty days of the affirmative determination—before the order was issued—or lose the opportunity to bring that challenge. On the contrary, however, the “at the option of the appellant” language in
Correctly read,
II. The Challenge to the Exclusion of Yuhua is Not Severable from the Remainder of the Complaint
Determining the proper interpretation of
Because severing the Complaint would create the possibility of piecemeal litigation, such severance is not consistent with the statute. In the House Report pertaining to the Trade and Tariff Act of 1984, the Ways and Means Committee stated that
the Committee is aware of the decision of the CIT in Bethlehem Steel Corp. v. United States (Slip Op. 83-97),6 in which the court refused to permit an appeal of certain negative findings (with respect to certain products or companies) that were part of an overall affirmative determination in accordance with the timetable for appeal of affirmative determinations. The court recognized that its ruling might lead to “undesirable piecemeal” litigation, but said that the corrections must be made by “legislative fiat.” The purpose of the Committee‘s change is to permit an election by appellants of when to appeal such determinations and thereby to prevent piecemeal litigation.
H.R.Rep. No. 98–725, at 47, 1984 U.S.C.C.A.N. at 5175. To read the statute as permitting severability in this case would be to reintroduce the possibility of piecemeal litigation under the guise of the appellant‘s option when that option was intended to correct the very problem of piecemeal litigation. Given the Committee‘s clear rejеction of piecemeal litigation in the House Report, it makes more sense to read the statute as permitting the appellant to choose between challenging the exclusion of a company as a negative determination, if this is the only challenge appellant is making, or as a negative part of an affirmative determination, if the appellant is challenging other aspects of the affirmative determination. Otherwise, the appellant could choose to challenge the exclusion of a company within thirty days of the publication of the affirmative determination and then file a subsequent suit within thirty days of the publication of the order challenging other aspects of the affirmative determination. Not only would this create piecemeal litigation, but it runs afoul of the Court of Appeals’ statement in Bethlehem Steel that “under our reading of the statute Congress did not normally contemplate such a proliferation (and perhaps duplication) of appeals.” Bethlehem Steel, 742 F.2d at 1411. While the statute has changed since the Court of Appeals made that statement, it is not necessary to read the statute as creating multiple opportunities for appeal of the same determination in order to read the statute coherently.
Nor does the Court of Appeals’ suggestion in Bethlehem Steel that severability might be an option in limited cases support severability in this case. In Bethlehem Steel, the Court of Appeals noted in dicta that
we leave open the question whether there may possibly be occasions on which a negative subsidy finding can be severed from affirmative subsidy findings respecting the same product, and then judicially challenged on a separate “interlocutоry” basis. We do decide, however, that if such an earlier appeal is ever permissible, it could be taken only on the ground that Congress gave for specifically providing interlocutory appeals in the Trade Agreements Act of 1979....
Id. at 1411. However, the Trade and Tariff Act of 1984 struck the interlocutory appeal provisions from
Because permitting severability in this case would endorse the possibility of piecemeal litigation, which is both undesirable and contrary to the statutory provision, the court finds that severability is not an option.7
III. Further Briefing Is Necessary on the Issues of Jurisdiction and Equitable Tolling
In prior opinions both the Court of Appeals and this Court have treated the timing requirements of
However, intervening case law from both the Supreme Court and the Court of Appeals has called these holdings into question. See Ocean Duke Corp. v. United States, 35 CIT —, 781 F.Supp.2d 1374, 1379 n. 4 (2011) (noting that “[a] recent dearth of clarity in the holdings of relеvant Supreme Court and Federal Circuit precedents” prevented the court from assuming a statute of limitations was jurisdictional). In a recent line of cases, the Supreme Court has begun to question the strict, jurisdictional construal of timing requirements. See Henderson ex rel. Henderson v. Shinseki, — U.S. —; 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); Reed Elsevier, Inc. v. Muchnick, — U.S. —, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Furthermore, in a recent opinion, the Court of Appeals held that the
In light of these recent developments, the continued viability of the prior opinions from the Court of Appeals and this Court—holding the
The court finds that CAHP‘s summons should have been filed within thirty days following the publication in the Federal Register of the Antidumping Duty Order. Because it was filed prior to publication of the Antidumping Duty Order, the summons was untimely. However because questions remain regarding the jurisdictional nature of the timing requirements found at
- Are the timing requirements of
19 U.S.C. § 1516a(a)(2) jurisdictional requisites or claim processing rules when considered in light of the Supreme Court‘s decisions in Henderson, et al., and any other relevant law? - Are the timing requirements of
19 U.S.C. § 1516a(a)(2) subject to equitable tolling in light of the Court of Appeals’ decision regarding28 U.S.C. § 2636(d) in Former Emps. of Sonoco or any other relevant law? Does the statutory structure of19 U.S.C. § 1516a in relation to28 U.S.C. § 2636(c) differ sufficiently to distinguish it from19 U.S.C. §§ 2273 ,2341 &2371 as they relate to28 U.S.C. § 2636(d) ? - Assuming, arguendo, that Former Emps. of Sonoco supports the possibility of equitable tolling in this case, do equitable grounds exist for the court to permit CAHP‘s untimely filed summons and complaint?
All parties will have until July 12, 2012 to file initial briefs on these issues. Parties shall then have until July 20, 2012 to file a response brief. Initial briefs shall be limited to fifteen pages. Response briefs shall be limited to ten pages.
It is SO ORDERED.
DONALD C. POGUE
CHIEF JUDGE