Case Information
*1 Slip Op. 15-109
UNITED STATES COURT OF INTERNATIONAL TRADE
ICDAS CELIK ENERJI TERSANE VE
ULASIM SANAYI, A.S.,
Plaintiff,
Before: Leo M. Gordon, Judge v.
UNITED STATES,
Defendant. OPINION and ORDER
[Plaintiff’s motion to re-caption Amended Complaint granted; Defendant and Defendant- Intervenors’ cross-motions to dismiss denied.]
Dated: September 24, 2015 Matthew M. Nolan, Diana D. Quaia, and Nancy A. Noonan, Arent Fox LLP of Washington, DC for Plaintiff Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, for Defendant, United States. With him on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the briefs were Scott McBride, Senior Attorney, U.S. Department of Commerce, Office of the Chief Counsel for Trade Enforcement and Compliance of Washington, DC.
Alan H. Price, John R. Shane, and Maureen E. Thorson, Wiley Rein LLP of Washington, DC for Defendant-Intervenors Rebar Trade Action Coalition, Gerdau Ameristeel U.S. Inc., Commercial Metals Company, and Byer Steel Corporation.
Gordon, Judge: This action involves a U.S. Department of Commerce (“Commerce” or “the Government”) final determination in the countervailing duty investigation of steel concrete reinforcing bar from the Republic of Turkey. Steel Concrete Reinforcing Bar from the Republic of Turkey, 79 Fed. Reg. 54,963 (Dep’t of Commerce Sept. 15, 2014) (final affirmative countervailing duty determination, final affirmative critical circumstances determination) (“Final Determination”); see also Steel Concrete Reinforcing Bar from the Republic of Turkey, 79 Fed. Reg. 65,926 (Dep’t of Commerce Nov. 6, 2014) (final countervailing duty order) (“Order”). Plaintiff Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S. (“Icdas”) moves to have the court construe its Amended Complaint as a concurrently filed summons and complaint deemed filed as of November 26, 2014, or in the alternative, to amend the caption of the Amended Complaint to read “Summons and Complaint” and deem the revised document filed as of the same date. See Mot. of Pl. Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. to Construe Pl.’s Nov. 26, 2014 Am. Compl. as a Concurrently Filed Summons and Compl. and Deem the Summons and compl. Filed as of Nov. 26, 2014, or, Alternatively, Mot. to Amend Pl.’s Nov. 26, 2014 Am. Compl. to Recaption it as Summons and Compl. and Deem the Recaptioned Summons and Compl. Filed as of Nov. 26, 2014 (Jan. 9, 2015), ECF No. 19 (“Pl.’s Mot.”).
The Government and Defendant-Intervenor Rebar Trade Action Coalition (“RTAC”) cross-move pursuant to USCIT Rule 12(b)(1) to dismiss Icdas’ Amended Complaint for lack of jurisdiction. See Def.’s Cross-Mot. to Dismiss Pl.’s Am. Compl. for Lack of Jurisdiction and Def.’s Resp. to Pl.’s Jan. 9, 2015 Motion (Feb. 2, 2015), ECF No. 25 (“Def.’s Cross-Mot.”); RTAC’s Resp. in Opp. to Pl.’s Jan. 9, 2015 Mot.; RATC’s Mot. to Dismiss (Feb. 2, 2015), ECF No. 24 (“RTAC’s Cross-Mot.”); see also Resp. of Pl. Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. to Def. and Def.-Intervenor’s Cross-Mots. to Dismiss (Mar. 25, 2015), ECF No. 29 (“Pl.’s Resp.”); Def.’s Reply in Supp. of its Cross- Mot. to Dismiss (June 17, 2015), ECF No. 38 (“Def.’s Reply”); Rebar Trade Action Coalition’s Reply to Pl.’s Mar. 25, 2015 Resp. to the Feb. 4, 2015 Cross-Mots. to Dismiss (June 17, 2015), ECF No. 37 (“RTAC’s Reply”).
The Government and RTAC argue that the court lacks subject matter jurisdiction under Section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a), [1] and 28 U.S.C. § 1581(c) (2012) because Icdas filed its summons before Commerce published the Order in the Federal Register. For the reasons set forth below, the court grants Icdas’ requested relief and amends the caption of the Amended Complaint to read “Summons and Complaint” and deems the re-captioned document filed as of November 26, 2014. The court also denies the Government and RTAC’s cross-motions to dismiss.
I. Standard of Review
“Plaintiffs carry
the burden of demonstrating
that
jurisdiction exists.”
Techsnabexport, Ltd. v. United States,
II. Discussion
Under 28 U.S.C. § 2636, an action contesting a final affirmative countervailing duty determination “is barred unless commenced in accordance with” 19 U.S.C. § 1516a. 28 U.S.C. § 2636(c). Section 1516a(a)(2)(A), in turn, outlines a brief window of time for commencing such an action at the U.S. Court of International Trade. A party must file a summons “within thirty days after” the date the countervailing duty order is published in the Federal Register, and within 30 days thereafter, a complaint. 19 U.S.C. § 1516a(a)(2)(A)(i)(II). Though § 1516a(a)(2)(A) provides for a two-step process to commence an action challenging a countervailing duty order, the Court’s Rules “encourage[]” commencement of a trade action “by the concurrent filing of a summons and complaint.” USCIT R. 3, Prac. Cmt. (concurrent filing encouraged to “expedite” prosecution of action).
A countervailing duty order is based on both a final affirmative subsidy determination by Commerce and a final affirmative injury determination by the U.S. International Trade Commission (“ITC”). 19 U.S.C. § 1671d(c)(2). A party challenging either Commerce’s final affirmative determination or the ITC’s final affirmative determination may also contest any negative part of those determinations. 19 U.S.C. § 1516a(a)(2)(B)(i). The “negative part” language is limited to only those negative decisions subsumed in a final affirmative determination by Commerce or the ITC. Id. Section 1516a differentiates a negative part from a final negative determination. The latter is (1) a separate type of reviewable determination, 19 U.S.C. § 1516a(a)(2)(B)(ii), and (2) challengeable under § 1516a(a)(2)(A), but a different subdivision, § 1516a(a)(2)(A)(i)(I). A challenge to a final negative determination may include a challenge to any part of a final affirmative subsidy or final injury determination that excludes a particular company or product. 19 U.S.C. § 1516a(a)(2)(B)(ii).
Both a “negative part” of a final affirmative determination and a final negative determination, including a certain affirmative part, are judicially reviewable, albeit under different provisions of § 1516a(a)(2)(A). The statute provides an identical time period, 30 days, for filing a summons to commence the challenge to either type of determination. The difference is the triggering event—the date of publication of the countervailing duty order in the Federal Register for a final affirmative determination (including any “negative part”), 19 U.S.C. § 1516a(a)(2)(A)(i)(II) (“order provision”), as opposed to the date of publication in the Federal Register of the notice of a final negative determination, including any part of a final affirmative determination that excludes a company or product, 19 U.S.C. § 1516a(a)(2)(A)(i)(I) (“final determination provision”).
Icdas filed its summons on October 14, 2014, 29 days after Commerce published the Final Determination. The countervailing duty order on rebar from Turkey, however, was published on November 6, 2014. Although Icdas filed a complaint on November 10, 2014 and an amended complaint on November 26, 2014, Icdas did not file a new summons.
Icdas requests that the court construe its Amended Complaint as a concurrently filed Summons and Complaint pursuant to USCIT Rule 8(f). Pl.’s Mot. at 4-8. In the alternative, Icdas requests permission to amend the caption on the Amended Complaint to read “Summons and Complaint” pursuant to USCIT Rule 15. Id. at 2. Because Icdas filed the Amended Complaint on November 26, a date within 30 days of the Order’s publication in the Federal Register, Icdas argues that either solution would satisfy the time period for filing a summons described in § 1516a(a)(2)(A).
In their briefs the parties argue about the applicability of equitable tolling. The doctrine of equitable tolling, though, does not seem to apply here because no time period needs to be “tolled.” This action presents a different sort of problem because Icdas filed its summons early, not late. The question here is more basic and depends on whether the Court’s Rules can accommodate Icdas’ requested relief. The court believes that they can.
As noted, Icdas seeks relief under USCIT Rules 8 and 15. USCIT Rule 8 governs
“General Rules of Pleading” and deals mainly with the sufficiency of statements within a
pleading, whereas USCIT Rule 15 governs “Amended and Supplemental Pleadings.” Of
the two, USCIT Rule 15 seems to better cover Icdas’ request to re-caption its Amended
Complaint as a “Summons and Complaint.” The court and the parties, however, are
dealing with an early filed summons, a “notice” document, not a pleading. See Giorgio
Foods, Inc. v. United States, 31 CIT 1261, 515 F. Supp. 2d 1313, 1319 (2007) (citing
DaimlerChrysler v. United States,
USCIT Rule 3 provides that “[t]he court may allow a summons to be amended at
any time on such terms as it deems just, unless it clearly appears that material prejudice
would result to the substantial rights of the party against whom the amendment is allowed.
Likewise, under USCIT Rule 15, “the court should freely give leave [to amend] when
justice so requires.” USCIT R. 15(a). More specifically, leave to amend should be given
freely absent bad faith, prejudice to the opposing party, or futility of amendment. Foman
v. Davis,
Here, the court can identify no prejudice to the Government or RTAC by granting Icdas its requested relief. Icdas’ summons did no more than provide the Government and other interested parties to the investigation with early notice of this action, something that is hard to characterize as prejudicial. The Government and RTAC identify no change between Icdas’ filing and the publication of the Order that might have affected Icdas’ cause of action. Additionally, Icdas did not gain any litigation advantage by filing early.
RTAC argues that allowing the action to go forward will prejudice both it and the Government because they will incur litigation costs while defending an action that would otherwise be dismissed. RTAC’s Cross-Mot. at 9-10. Dismissal here, though, creates more prejudice than it prevents. Commerce preliminarily made a negative determination before assigning a 1.25% countervailing duty rate for Idcas in the Final Determination. See Steel Concrete Reinforcing Bar From the Republic of Turkey, 79 Fed. Reg. 10771 (Dep’t of Commerce Feb. 26, 2014) (prelim. determ.). Icdas served its summons and complaint soon after the Final Determination, leaving no question that Icdas intended to challenge that determination.
As Icdas explains, the Amended Complaint contains all of the information that
would appear in a summons. While no rule lays out precisely what form a summons must
take, this Court’s form summons contains five blank fields: identification of the parties, the
plaintiff’s name and standing, a brief description of the contested determination, the date
of the contested determination, and the date of the notice of the contested determination’s
publication in the Federal Register. USCIT Rs., Form 3. Icdas provides a table outlining
where each of these pieces of information can be found in its Amended Complaint. Pl.’s
Mot. at 7-8 (citing Am. Compl. at pp. 1-2, 6-8 (Nov. 26, 2014), ECF No. 11). The court
therefore cannot identify a substantive difference between Icdas’ proposed re-captioned
Amended Complaint and a concurrently filed summons and complaint. Cf. Pollak Imp.-
Exp. Corp. v. United States,
Icdas also acted diligently and without bad faith. Icdas filed early, not late. Icdas
did so because it was apparently confused by the mixed affirmative and negative aspects
of the Final Determination. See Pl.’s Resp. at 28-30. Icdas’ confusion is somewhat
understandable given the complexity of the judicial review provision. Icdas thought the
Final Determination might be the kind of mixed determination that is challenged by filing
a summons within 30 days of the publication of the notice of the final determination, as
opposed to publication of the countervailing duty order. Id. Icdas was incorrect because
the Final Determination is labeled a “final affirmative determination,” Final Determination,
The court though must first address a potential jurisdictional issue because “it is
well-settled that this Court cannot, through its rules, enlarge its jurisdiction.” Am. Chain
Ass’n v. United States,
In Kontrick v. Ryan,
If the legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.
Arbaugh v. Y & H Corp.,
In analyzing whether “Congress imbued a procedural bar with jurisdictional
consequences,” the court turns to “traditional tools of statutory construction.” Id. at 1632.
These tools include consideration of a procedural rule’s text, context, and historical
treatment. Sebelius v. Auburn Reg’l Med. Ctr.,
The two provisions at issue here, 28 U.S.C. § 2636(c) and 19 U.S.C. § 1516a(a)(2)(A), prescribe an exception-free time period for filing a summons in order to commence an action challenging a final affirmative countervailing duty determination. Under 28 U.S.C. § 2636, an action “is barred unless commenced in accordance with the rules of the Court of International Trade within the time specified in such section.” 28 U.S.C. § 2636(c). 19 U.S.C. § 1516a(a)(2)(A) specifies that:
Within thirty days after . . . the date of publication in the Federal Register of . . . an antidumping or countervailing duty order based upon any [final affirmative antidumping or countervailing duty] determination[,] . . . an interested party . . . may commence an action in the United States Court of International Trade by filing a summons, and within thirty days thereafter a complaint . . . .
19 U.S.C. § 1516a(a)(2)(A).
The text and context of 28 U.S.C. § 2636(c) and 19 U.S.C. § 1516a(a)(2) indicate
that the time period is not jurisdictional. Neither provision mentions the word “jurisdiction”
or otherwise speaks in jurisdictional terms. See 28 U.S.C. § 2636(c); 19 U.S.C.
§ 1516a(a)(2); cf. United States v. Wong, 135 S. Ct. 1625, 1632-33 (explaining that
28 U.S.C. § 2401, which states that “every civil action commenced against the United
States shall be barred unless the complaint is filed” within a certain time period, does not
speak in jurisdictional terms). There is simply no “express jurisdictional language or
language implying that [§ 1516a(a)(2)’s] timing requirements are jurisdictional.” Baroque
Timber Indus. (Zhongshan) Co. v. United States,
Regarding historical treatment, the Supreme Court has clarified that “the relevant
question . . . is not . . . whether [a statute] itself has long been labeled jurisdictional, but
whether the type of limitation that [a statute] imposes is one that is properly ranked as
jurisdictional absent an express designation.” Reed Elsevier, 559 U.S. at 168-69
(emphasis added). When it comes to timing requirements, the Supreme Court has not
minced words: “[T]ime prescriptions, however emphatic, are not properly typed
jurisdictional.” Arbaugh,
In Bowles v. Russell,
Here the court is not faced with historical Supreme Court treatment of the time
period in § 1516a(a)(2). In fact, the Supreme Court has never considered whether the
time limitation imposed by § 1516a(a)(2) is one “that is properly ranked as jurisdictional.”
See Reed Elsevier,
Georgetown and NEC, however, both addressed late filings; in neither case did
the Federal Circuit consider or address the issue of an early filing. See NEC, 806 F.2d at
248; Georgetown, 801 F.2d at 249. Here, the summons was filed before
§ 1516a(a)(2)(A)’s deadlines expired. Returning to the guidance from the Supreme Court,
“Congress must do something special, beyond setting an exception-free deadline, to tag
a statute of limitations as jurisdictional.” Wong,
Georgetown and NEC interpreted § 1516a(a) as setting “[c]onditions upon which the
government consents to be sued” that “must be strictly observed and are not subject to
implied exceptions,” like the equitable tolling requested by the late-filing plaintiffs in those
cases. NEC,
The hard reality here is that Wong has extended Arbaugh and its progeny to
effectively supplant the Federal Circuit’s rationale in Georgetown and NEC. Wong, unlike
Henderson, involved statutory time limitations governing the commencement of actions
at an Article III court like this Court. Wong,
As a final note, the court acknowledges that Baroque Timber considered a similar
issue three years ago and came to a different conclusion. Baroque Timber evaluated
§ 1516a(a)(2)(A)’s text and context and concluded that there is “no indication” that
Congress intended the timing requirement to be treated as jurisdictional. Baroque Timber,
In sum, Congress did not “clearly state” that it intended for the time period in § 1516a(a)(2)(A) to be treated as jurisdictional. The existing Federal Circuit precedents, which predate that standard by almost two decades, are not controlling and have been supplanted by more recent Supreme Court decisions. Because the time period is not jurisdictional, the court may entertain Icdas’ motion. And as explained above, after measuring Icdas’ explanation for the early filing of its summons against the statutory scheme, the underlying administrative determination, the Court’s Rules, and the arguments of the parties, the court believes the only sensible outcome here is to grant Icdas’ motion.
III. Conclusion The court grants Icdas’ motion to amend the caption of the Amended Complaint to read “Summons and Complaint,” and deems the re-captioned document filed as of November 26, 2014. The court also denies the Government and RTAC’s cross-motions to dismiss.
Accordingly, it is hereby
ORDERED that Plaintiff’s motion to re-caption its Amended Complaint is granted; it is further
ORDERED that Plaintiff’s Amended Complaint is re-captioned as Plaintiff’s Summons and Complaint; it is further
ORDERED that Plaintiff’s re-captioned Summons and Complaint are deemed filed as of November 26, 2014; and it is further
ORDERED that Defendant and Defendant-Intervenor’s motions to dismiss are denied.
/s/ Leo M. Gordon Judge Leo M. Gordon Dated: September 24, 2015
New York, New York
Notes
[1] Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2012 edition.