Hilsea Investment Ltd. v. Brown

18 Ct. Int'l Trade 1068
CourtUnited States Court of International Trade
DecidedNovember 22, 1994
DocketCourt No. 94-08-00487
StatusPublished

This text of 18 Ct. Int'l Trade 1068 (Hilsea Investment Ltd. v. Brown) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hilsea Investment Ltd. v. Brown, 18 Ct. Int'l Trade 1068 (cit 1994).

Opinion

[1069]*1069Memorandum and Order

Goldberg, Judge:

This matter comes before the Court on plaintiffs’ motion for a preliminary injunction and defendants’ motion to dismiss for either lack of jurisdiction or for failure to state a claim. The Court finds that it lacks jurisdiction to entertain this action. The Court therefore grants defendants’ motion to dismiss.

Background

This case involves an antidumping investigation of fresh cut roses from Ecuador conducted by defendant, the United States Department of Commerce (“Commerce”). Plaintiff, Hilsea Investment Ltd. (“Hil-sea”), exports fresh cut roses from Ecuador to the United States. Co-plaintiff, Condor Farms, Inc., is the domestic importer of the roses.

On February 14, 1994, the U.S. Floral Trade Council filed petitions alleging that imports of fresh cut roses from Ecuador and Colombia at less than fair value cause or threaten to cause material injury to an American industry. On March 14,1994, Commerce initiated antidump-ing investigations of fresh cut roses from Colombia and from Ecuador. On April 13, 1994, Hilsea filed a request for exclusion from any anti-dumping order that might result from the investigation of Ecuadorian roses.

On April 26, 1994, Commerce issued a memorandum in connection with its antidumping investigations of Colombian and Ecuadorian roses. In the memorandum, Commerce discussed whether to investigate: (1) exporters requesting voluntary respondent status; and (2) exporters requesting exclusion from potential antidumping orders. Commerce recognized that in the past it had examined voluntary respondents to the extent practicable, as required by 19 C.F.R. § 353.14(c). Commerce determined, however, that it could not practicably examine voluntary respondents and exclusion requests in its investigations of Colombian and Ecuadorian roses.

Commerce proceeded to select mandatory respondents for its anti-dumping investigations of Colombian and Ecuadorian roses. Commerce determined that it had the administrative resources to investigate a total of 20 companies in the two investigations. Commerce attempted to distribute its limited resources equitably between the investigations, with a goal of examining 40% of the roses imported from each country.1 Commerce found that it could achieve its goal by investigating 16 Colombian exporters and 3 Ecuadorian exporters. Commerce used its remaining resources to investigate one additional Ecuadorian exporter. In May 1994, Commerce issued mandatory pricing and cost of production questionnaires regarding calendar year 1993 to the four Ecuadorian rose exporters which it had selected. Hilsea was not among the selected respondents.

[1070]*1070On May 9, 1994, Hilsea sent a letter to Commerce, requesting that Commerce reconsider its decision to deny all requests for exclusion and voluntary respondent status. Hilsea claimed that Commerce had disproportionately allocated resources to the Colombian investigation.

On May 26,1994, Hilsea attempted to file a voluntary response to one section of the questionnaire. Commerce rejected Hilsea’s response and sent Hilsea a copy of the April 26,1994 memorandum discussing why it could not investigate voluntary respondents. Commerce further informed Hilsea that it would return any future voluntary responses that Hilsea attempted to submit.

On June 6, 1994, Hilsea sent Commerce a letter protesting Commerce’s decision not to allow it to submit a questionnaire response in the antidumping investigation. Commerce again responded by sending Hil-sea a copy of its April 26,1994 memorandum.

Plaintiffs then filed suit in this court, asking the Court to compel Commerce either to accept Hilsea’s questionnaire responses or to exclude Hilsea from the scope of any potential antidumping order. Defendants now request that the Court dismiss plaintiffs’ action either for lack of jurisdiction or for failure to state a claim upon which relief can be granted.

Discussion

Because defendants have challenged the jurisdiction of the Court, plaintiffs bear the burden of demonstrating that jurisdiction exists. Lowa, Ltd. v. United States, 5 CIT 81, 83, 561 F. Supp. 441, 443 (1983) (citation omitted), aff’d, 2 Fed. Cir. (T) 27, 724 F.2d 121 (1984). Plaintiffs assert that the Court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(i).

The jurisdiction of this Court is set forth at 28 U.S.C. § 1581 (1988). Subsections (a) through (h) of this statute describe particular kinds of actions over which this Court has jurisdiction. Subsection (i) provides the Court with residual jurisdiction over importation actions for which Congress expected judicial review, but which are too varied for description. Techsnabexport, Ltd. v. United States, 16 CIT 420, 424, 795 F. Supp. 428, 433 (1992) (citation omitted). Subsection (i) comes into play only when the remedies provided by subsections (a) through (h) are unavailable or prove manifestly inadequate. Miller & Co. v. United States, 5 Fed. Cir. (T) 122, 124, 824 F.2d 961, 963 (1987) (citations omitted).

In certain cases, subsection (i) authorizes judicial review during the course of an investigation by Commerce. For example, if a party challenges the legality of the initiation of an administrative review, jurisdiction may exist during the review pursuant to subsection (i). In such a case, a party may seek to stop the allegedly unlawful review which will cost it considerable time, effort, and money. Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 584, 586, 717 F. Supp. 847, 850 (1989), aff’d, 8 Fed. Cir. (T) 126, 903 F.2d 1555 (1990). It would be futile for the party to try to stop the administrative review from tak[1071]*1071ing place after its completion. Therefore, judicial review after Commerce’s final determination pursuant to 28 U.S.C. § 1581(c) is manifestly inadequate, and jurisdiction exists during the pendency of the administrative review pursuant to subsection (i). Id. at 588, 717 F. Supp. at 581; see also Kemira Fibres Oy v. United States, 18 CIT 687, 858 F. Supp. 229 (1994); Carnation Enters. Pvt., Ltd. v. United States Dep’t of Commerce, 13 CIT 604, 719 F. Supp. 1084 (1989).

In most cases, however, subsection (i) does not provide the Court with jurisdiction to review Commerce’s actions during the pendency of an investigation. MacMillan Bloedel Ltd. v. United States, 16 CIT 331, 332 (1992) (citations omitted). Parties must usually wait for a final determination by Commerce, and then seek judicial review pursuant to subsection (c). At that time, the Court can review interlocutory decisions subsumed in the final determination, including those relating to methodology or procedure. Asociacion Colombiana de Exnortadores de Flores, 13 CIT at 587, 717 F. Supp. at 850 (citation omitted). Piecemeal review of Commerce’s interlocutory decisions prior to afinal determination is discouraged because it is generally inefficient.

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Related

Carnation Enterprises Pvt. Ltd. v. United States Department of Commerce
719 F. Supp. 1084 (Court of International Trade, 1989)
Asociacion Colombiana De Exportadores De Flores v. United States
717 F. Supp. 847 (Court of International Trade, 1989)
PPG Industries, Inc. v. United States
525 F. Supp. 883 (Court of International Trade, 1981)
Lowa, Ltd. v. United States
561 F. Supp. 441 (Court of International Trade, 1983)
Techsnabexport, Ltd. v. United States
795 F. Supp. 428 (Court of International Trade, 1992)
Kemira Fibres Oy v. United States
18 Ct. Int'l Trade 687 (Court of International Trade, 1994)
Miller & Co. v. United States
824 F.2d 961 (Federal Circuit, 1987)

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18 Ct. Int'l Trade 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilsea-investment-ltd-v-brown-cit-1994.