Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United StatesComm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States
[Defendant‘s motion to dismiss for lack of subject matter jurisdiction is denied.]
Dated: November 4, 2019
Lisa W. Wang, Andrew W. Kentz, David A. Yocis, Nathanial M. Rickard, Heather N. Doherty, Sophia J.C. Lin, and Zachary J. Walker, Picard Kentz & Rowe LLP, of Washington, DC, for Plaintiff Committee Overseeing Action for Lumber International Trade Investigations or Negotiations.
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Jessica DiPietro and Nikki Kаlbing, Attorneys, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Elliot J. Feldman, Michael S. Snarr, John J. Burke, Mark B. Lehnardt, Lindita V. Ciko Torza, and Jake R. Frischknecht, Baker & Hostetler, LP, of Washington, DC, for Defendant-Intervenor Fontaine, Inc.
Yohai Baisburd, Myles S. Getlan, Jonathan M. Zielinski, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Defendant-Intervenor Scierie Alexandre Lemay & Fils Inc.
Barnett, Judgе: Plaintiff, Committee Overseeing Action for Lumber International Trade Investigations or Negotiations, seeks to challenge the final results of the countervailing duty expedited review of certain softwood lumber products from Canada. Compl. ¶¶ 1–2, ECF No. 2; Certain Softwood Lumber Products From Canada, 84 Fed. Reg. 32,121 (Dep‘t Commerce July 5, 2019) (final results of countervailing duty expedited review) (“Final Results of Expedited Review“), and accompanying Issues and Decision Mem. (“I&D Mem.“), C-122-858 (June 28, 2019), available at https://enforcement.trade.gov/frn/summary/canada/2019-14338-1.pdf (last visited Nov. 4, 2019). Defendant, United States (“the Government“), moves to dismiss Plaintiff‘s complaint for lack of subject matter jurisdiction pursuant to United States Court of International Trade (“USCIT“) Rule 12(b)(1). Def.‘s Mot. to Dismiss and Opp‘n to Pl.‘s Mot. for a Prelim. Inj. (“Def.‘s Mot.“), ECF No. 21.1 Plaintiff opposes the motion. Pl.‘s Resp. in Opp‘n to Def.‘s Mot. to Dismiss (“Pl.‘s Opp‘n“), ECF No. 74. Several Defendant-Intervenors support the Government‘s motion. Resp. of Def.-Int. Scierie
BACKGROUND
On January 3, 2018, following affirmative determinations of dumping, countervailable subsidization, and material injury, Commerce published the countervailing duty (“CVD“) and antidumping (“AD“) duty orders. See Certain Softwood Lumber Products From Canada, 83 Fed. Reg. 347 (Dep‘t Commerce Jan. 3, 2018) (am. final aff. CVD determination and CVD order) (“CVD Order“); Certain Softwood Lumber Products From Canada, 83 Fed. Reg. 350 (Dep‘t Commerce Jan. 3, 2018) (AD order and partial am. final determination).
On March 8, 2018, in response to requests filed by certain Canadian producers, Commеrce initiated an expedited review of the CVD Order. See Certain Softwood Lumber Products From Canada, 83 Fed. Reg. 9,833 (Dep‘t Commerce March 8, 2018) (initiation of expedited review of the CVD Order) (“Initiation Notice“). The companies subject to the expedited review (and their affiliates) are companies that were not
On July 5, 2019, Commerce issued the Finаl Results of Expedited Review, pursuant to which the agency calculated reduced or de minimis rates for the eight companies as follows: (1) Les Produits Forestiers D&G Ltée and its cross-owned affiliates (“D&G“): 0.21 percent; (2) Marcel Lauzon Inc. and its cross-owned affiliates (“MLI“): 0.42 percent; (3) North American Forest Products Ltd. and its cross-owned affiliates (“NAFP“): 0.17 percent; (4) Roland Boulanger & Cie Ltée and its cross-owned affiliates (“Roland“): 0.31 percent; (5) Scierie Alexandre Lemay & Fils Inc. and its cross-owned affiliates (“Lemay“): 0.05 percent; (6) Fontaine and its cross-owned affiliates: 1.26 percent; (7) Mobilier Rustique (Beauce) Inc. and its cross-owned affiliatеs (“Rustique“): 1.99 percent; and (8) Produits Matra Inc. and Sechoirs de Beauce Inc. and their cross-owned affiliate (“Matra“): 5.80 percent. Final Results of Expedited Review, 84 Fed. Reg. at 32,122.
The rates calculated for D&G, MLI, NAFP, Roland, and Lemay are considered de minimis, therefore, Commerce stated it would instruct CBP “to discontinue the suspension of liquidation and the collection of cash deposits of estimated countervailing duties on all shipments of softwood lumber produced and exported by” those companies that were entered on or after July 5, 2019; “liquidate, without regard to countervailing duties, all suspended entries of shipments of sоftwood lumber produced and exported
On July 15, 2019, Plaintiff initiated this action challenging the Final Results of Expedited Review. Summons, ECF No. 1; Compl., ECF No. 2. Plaintiff alleged jurisdiction pursuant to
DISCUSSION
I. Legal Standard for Subject Matter Jurisdiction
To adjudicate a case, a court must have subject-matter jurisdiction оver the claims presented. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94–95 (1998). “[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
The plaintiff bears the burden of establishing subject-matter jurisdiction. See Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). When, as here, the motion challenges the existence of jurisdiction as opposed to the sufficiency of a plaintiff‘s allegations of jurisdiction, “the factual allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true.” Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012); cf. H & H Wholesale Servs., Inc. v. United States, 30 CIT 689, 691–92, 437 F. Supp. 2d 1335, 1339 (2006) (when the motion challenges the sufficiency of the pleadings, the court assumes that the allegations within the complaint are true). To “resolv[e] these disputed predicate jurisdictional facts, [the] court is not restricted to the face of the pleadings” and may, if necessary, “review evidence extrinsic to the pleadings.” Shoshone Indian Tribe, 672 F.3d at 1030 (internal quotation marks and citation omitted).
As noted,
Relevant here,
The regulatory provision for expedited reviews,
must be accompanied by a certification that:
(i) The requester exported the subject merchandise to the United States during the period of investigation;
(ii) The requester is not affiliated with an exporter or producer that the Secretary individually examined in the investigation; and
(iii) The requester has informed the government of the exporting country that the government will be required to provide a full response to the Department‘s questionnaire.
(i) The period of review will be the period of investigation used by the [agency] in the investigation that resulted in the publication of the countеrvailing duty order (see § 351.204(b)(2));
(ii) The [agency] will not permit the posting of a bond or security in lieu of a cash deposit under paragraph (e) of this section;
(iii) The final results of a review under this paragraph (k) will not be the basis for the assessment of countervailing duties; and
(iv) The [agency] may exclude from the countervailing duty order in question any exporter for which the [agency] determines an individual net countervailable subsidy rate of zero or de minimis (see § 351.204(e)(1)), provided that the [agency] has verified the information on which the exclusion is based.
III. Parties’ Contentions
The Government contends that expedited reviews are exclusively reviewable pursuant to
Regarding the availability of (c) jurisdiction, the Government advances three arguments supporting its position. The Government first contends that expedited reviews are conducted pursuant to
The Government of Canada and Lemay agree with the Government that expedited reviews are covered by
Plaintiff contends that expedited reviews are not covered by
IV. The Court Lacks Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1581(c)
A. Section 1675 of Title 19 Does Not Cover Expedited Reviews
“The Court of International Trade, like all federal courts, is a court of limited jurisdiction.” Sakar Int‘l, Inc. v. United States, 516 F.3d 1340, 1349 (Fed. Cir. 2008). The authority bestowed upon it “by the Constitution and federal statutes . . . is not to be expanded by judicial decree.” Id.; see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Here, the court finds that expedited reviews are not among the proceedings and determinations covered by
First, as Commerce itself acknowledgеd, an expedited review “is not an administrative review” conducted pursuant to
Second, and more relevant here, an expedited review is not a new shipper review. Commerce also acknowledged this fact, explaining:
Section 351.214 sets forth the procedures for conducting new shipper reviews, a new procedure contаined in [19 U.S.C. § 1675(a)(2)]. This section also establishes a procedure for conducting an expedited review of exporters that are not individually examined in countervailing duty investigations.
The Government (and others) does not assert that expedited reviews are new shipper reviews. Indeed, they could not, as the foregoing demonstrates the fallacy of that position and Commerce‘s express disavowal. Instead, the Government relies on a cross-reference to “the requirements of”
Moreover, the argument defies common sense. Because expedited reviews are not new shipper reviews,
The Government seeks to overcome these important distinctions by pointing to similarities in the “purpose and result of new shipper reviews and expedited reviews.” Gov‘t‘s Reply at 3. According to the Government, “both types of review establish an individual rate, on an expedited basis, for companies that did not obtain one during the investigation.” Id. at 5. The Government overlooks the fact that a respondent subject to an expedited review obtains a cash deposit rаte, see Final Results of Expedited Review, 84 Fed. Reg. at 32,122 (issuing cash deposit instructions to CBP), whereas a new shipper respondent obtains the rate at which final duty liability is assessed on reviewed entries, see
B. Section 1671d of Title 19 Does Not Cover Expedited Reviews
The Government argues that expedited reviews are “analоgous to final determinations under
The Government also points to the “similarity of data considered” and the overlapping review periods. Id. However, Commerce set the period of review for expedited reviews to overlap with the period of investigation used in the underlying CVD investigation to allow the agency to use data from that investigation. Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,321 (Dep‘t Commerce May 19, 1997) (final rule). The overlapping data period is intended to aid in the expeditious completion of the review, id.; it was not intended to—and does not—render an expedited review а final determination pursuant to
C. An Expedited Reviеw Does Not Constitute the Agency‘s Reconsideration of a Prior Determination
The Government argues in the alternative that an expedited review is analogous to the agency‘s reconsideration of a “previously closed segment of a proceeding.” Id. For this proposition the Government relies on Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). Id. at 6.16 TKS is inapposite.
In TKS, the Federal Circuit recognized Commerce‘s inherent authority to reconsider the results of a prior administrative review and revocation of an antidumping duty order based on evidence of fraud by the respondent. 529 F.3d at 1355–56, 1359–60. As the court aptly nоted, “[t]he power to reconsider is inherent in the power to decide.” Id. at 1360. The Government‘s reliance on TKS to aver that Commerce “merely exercis[ed] its authority to reconsider its decision in a [CVD] investigation,” Gov‘t‘s Reply at 6, represents counsel‘s impermissible “post hoc rationalization[] for agency action” that has no basis in the record, Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168–69 (1962). In conducting the expedited review, Commerce
In sum, expedited reviews of a CVD order pursuant to
V. The Court Has Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1581(i)
As previously noted,
CONCLUSION & ORDER
For the reasons discussed herein, the Government‘s motion to dismiss pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction is DENIED. The court will exercise jurisdiction over this action pursuant to
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: November 4, 2019
New York, New York
Notes
[T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, 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 and subsections (a)-(h) of this section.