Slip Op 09-15
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge ________________________________________ : SAHAVIRIYA STEEL INDUSTRIES PUBLIC : COMPANY LIMITED, : : Plaintiff, : : v. : : Court No. 08-00353 UNITED STATES, : : Defendant, : : and : : UNITED STATES STEEL CORPORATION, : : Defendant-Intervenor. : ________________________________________:
OPINION
Held: Defendant and Defendant-Intervenor’s motions for dismissal for lack of subject matter jurisdiction and lack of ripeness are granted. Plaintiff’s motion for preliminary injunction is denied.
Dated: February 24, 2009
Hughes Hubbard & Reed LLP, (Kenneth J. Pierce, Robert L. LaFrankie, Victor S. Mroczka) for Sahaviriya Steel Industries Public Company Limited, Plaintiff.
Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Of Counsel: Aaron P. Kleiner, Office of Chief Counsel for Import Administration, United States Department of Commerce, for the United States, Defendant. Court No. 08-00353 Page 2
Skadden, Arps, Slate, Meagher & Flom LLP, (Robert E. Lighthizer, John J. Mangan, Jeffrey D. Gerrish, Ellen J. Schneider, Nathaniel B. Bolin) for United States Steel Corporation, Defendant- Intervenor.
TSOUCALAS, Senior Judge: Pending before the Court are three
motions. On one side, Plaintiff, Sahaviriya Steel Industries
Public Company Limited (“SSI”) moves this Court, pursuant to USCIT
Rule 65(a), for a preliminary injunction to enjoin the United
States Department of Commerce (“Commerce” or “Dept.”) from
continuing the changed circumstances review of SSI’s sales of
certain hot-rolled carbon steel flat products from Thailand. See
Pl.’s Mot. for Prelim. Inj. & to Advance & Consol. Trial on the
Merits. SSI further moves, pursuant to USCIT R. 65(a)(2), to
advance and consolidate a trial on the merits with a hearing of its
application for injunctive relief. See id.
On the other side, Defendant and Defendant-Intervenor each
move for dismissal, pursuant to USCIT R. 12(b)(1) and 28 U.S.C. §
1581, for lack of subject matter jurisdiction and because the
action is not ripe for judicial review. See Def.’s Mot. to
Dismiss; Mot. to Dismiss of Def.-Int. On December 12, 2008, the
Court heard oral argument to determine whether preliminary
injunctive relief or dismissal was appropriate.
For the reasons set forth below, the Court finds it lacks
jurisdiction to hear the claims raised by Plaintiff, and grants
Defendant and Defendant-Intervenor’s motions to dismiss. The Court No. 08-00353 Page 3
Court, therefore, need not address Plaintiff’s stated grounds for
injunctive relief.
BACKGROUND
On November 29, 2001, Commerce issued an antidumping duty
order on certain hot-rolled carbon steel flat products from
Thailand. See Antidumping Duty Order: Certain Hot-Rolled Carbon
Steel Flat Products From Thailand, 66 Fed. Reg. 59,562 (Nov. 29,
2001). The order was based on separate findings by Commerce and
the U.S. International Trade Commission (“ITC” or “Commission”)
that certain hot-rolled steel from Thailand had been sold in the
United States at less than fair value resulting in material injury
to the domestic hot-rolled steel industry. See id. at 59,563-64.
SSI was among the Thai producers of subject merchandise included in
the antidumping duty order. See id. at 59,563.
Over the following three years, Commerce conducted a series of
administrative reviews of the order in which it determined that SSI
had not sold hot-rolled steel at less than normal value. See
Certain Hot-Rolled Carbon Steel Flat Products From Thailand: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review, 69 Fed. Reg. 19,388 (Apr. 13, 2004); Certain Hot-Rolled
Carbon Steel Flat Products from Thailand: Rescission of Antidumping
Duty Administrative Review, 69 Fed. Reg. 18,349 (Apr. 7, 2004)
(this second administrative review was rescinded when the parties
requesting the review withdrew their requests); Certain Hot-Rolled Court No. 08-00353 Page 4
Carbon Steel Flat Products from Thailand: Final Results of
Antidumping Duty Administrative Review, Partial Revocation of
Antidumping Duty Order and Partial Rescission of Antidumping Duty
Administrative Review (“Final Results”), 71 Fed. Reg. 28,659 (May
17, 2006). In November 2004, during the course of the third
administrative review, SSI requested partial revocation of the
order with respect to its sales of subject merchandise. See
Complaint ¶ 8; Mem. of Def.-Int. in Supp. of Mot. to Dismiss &
Opp’n to Pl.’s Mot. for Prelim. Inj. (“Def.-Int.’s Memorandum”),
Exhibit 2 (SSI’s Request for Administrative Review, Request for
Revocation of Antidumping Duty Order in Part, and Entry of
Appearance) (“SSI Request”). In its revocation request, SSI agreed
“to immediate reinstatement of the order, so long as any Thai
exporter or producer is subject to it, should the Department
determine that SSI, subsequent to the requested revocation, sold
the subject merchandise at less than fair value.” SSI Request at
3.
After having determined that SSI had sold the subject
merchandise at not less than normal value for a period of three
consecutive years, Commerce revoked the antidumping duty order for
SSI’s exports of hot-rolled steel. See Final Results, 71 Fed. Reg.
28,661; see also Issues and Decision Memorandum for the Final
Results of Antidumping Duty Administrative Review, Partial
Revocation of Antidumping Duty Order and Partial Rescission of Court No. 08-00353 Page 5
Antidumping Duty Administrative Review of Certain Hot-Rolled Carbon
Steel Flat Products from Thailand (“Issues and Decision
Memorandum”), cmt. 1, p. 12. Despite partial revocation of the
antidumping order with respect to SSI, the order itself remained in
effect as to other Thai producers and exporters. See Certain Hot-
Rolled Carbon Steel Flat Products from India, Indonesia, the
People’s Republic of China, Taiwan, Thailand, and Ukraine:
Continuation of Antidumping Duty and Countervailing Duty Orders, 72
Fed. Reg. 73,316 (Dec. 27, 2007).
On November 8, 2006, U.S. Steel submitted an allegation to
Commerce, claiming that SSI had resumed sales of hot-rolled steel
products at less than normal value subsequent to its removal from
the original antidumping order. See Initiation of Antidumping Duty
Changed Circumstances Review: Certain Hot-Rolled Carbon Steel Flat
Products from Thailand (“Notice of Initiation”), 73 Fed. Reg.
18,766 (Apr. 7, 2008). Consistent with agency regulations,1 U.S.
Steel requested that Commerce initiate a changed circumstances
review to reinstate the order with regard to SSI’s exports of
subject merchandise to the United States. See id. Accordingly,
1 The Department’s regulations provide that if Commerce finds that changed circumstances exist, it “will conduct a changed circumstances review under § 351.216.” 19 C.F.R. § 351.222(g)(2). Thus, “an interested party may request a changed circumstances review . . . of an order . . . . Within 45 days after the date on which a request is filed, the Secretary will determine whether to initiate a changed circumstances review.” 19 C.F.R. § 351.216(b). Court No. 08-00353 Page 6
Commerce conducted an analysis of the information it received from
U.S. Steel to determine the sufficiency of its allegations. While
U.S. Steel’s initial request for the changed circumstances review
was submitted on Nov. 8, 2006, additional information required by
Commerce was gathered over the course of a seventeen month period.
For example, Commerce issued several supplemental questionnaires
between December 2006 and February 2008 seeking additional
information regarding petitioner’s allegations. U.S. Steel filed
its last response with Commerce on March 5, 2008.
Finally, on March 28, 2008, Commerce, relying on its authority
under section 751(b)(1) of the Tariff Act of 1930,2 codified at 19
U.S.C. § 1675(b)(1),3 initiated the underlying changed
circumstances review to determine whether SSI had sold hot-rolled
2 Further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of the United States Code, 2000 edition. 3 The relevant portions of 19 U.S.C. § 1675(b) state: Reviews based on changed circumstances
(1) In general Whenever the administering authority . . . receives information concerning, or a request from an interested party for a review of-
(A) a final affirmative determination that resulted in an antidumping duty order under this subtitle . . . .
which shows changed circumstances sufficient to warrant a review of such determination . . ., the administering authority . . . shall conduct a review of the determination[.] Court No. 08-00353 Page 7
steel at less than normal value, during the period July 1, 2006
through June 30, 2007, and whether it should therefore be
reinstated in the original antidumping duty order. See Notice of
Initiation, 73 Fed. Reg. at 18,771. Following initiation, Commerce
issued several questionnaires to SSI in which it requested data on
the company’s U.S. sales, costs of production and other company
specific information for the period of review. See Def.-Int.’s
Memorandum, Exhibit 11 (Questionnaire Issued by the Dept. of
Commerce in Changed Circumstances Review of Certain Hot-Rolled
Carbon Steel Flat Products from Thailand (Apr. 11, 2008)); Exhibit
16 (The Department of Commerce’s First Supplemental Questionnaire
(July, 18, 2008)); Exhibit 17 (The Department of Commerce’s Second
Supplemental Questionnaire (Aug. 7, 2008)); The Department of
Commerce’s Supplemental Cost Information Questionnaire (Aug. 6,
2008); The Department of Commerce’s Third Supplemental
Questionnaire (Sept. 18, 2008). SSI responded to these requests
for information, while simultaneously challenging the Department’s
authority to conduct a changed circumstances review for the purpose
of reinstating a previously revoked antidumping duty order. See
Complaint, Exhibit 3 (SSI Request to Reconsider and Terminate
Initiation of Changed Circumstances Review (Aug. 25, 2008)).
Plaintiff commenced this action on October 7, 2008, and seeks
injunctive relief to prevent the Department from continuing with
its changed circumstances review. Defendant and Defendant- Court No. 08-00353 Page 8
Intervenor oppose Plaintiff’s motion, and urge this Court to
dismiss the instant action for lack of subject matter jurisdiction
and because the claims contained therein are not yet ripe.
ARGUMENTS OF THE PARTIES
I. Plaintiff’s Arguments
Plaintiff challenges the Department’s legal authority to
initiate a changed circumstances review for the purpose of
reinstating a previously revoked antidumping duty order because
“[s]ection 751(b) of the Act does not authorize the Department to
reinstate an order with respect to merchandise covered by a
revocation.” Mem. in Supp. of Pl.’s Mot. to Advance & Consol.
Trial on the Merits & for Prelim. Inj. Relief (“Pl.’s Memorandum”)
at 12 (internal citation omitted). SSI argues that section 1675(b)
only grants authority to Commerce and the ITC to conduct a changed
circumstances review of “a final affirmative determination that
resulted in an antidumping duty order” provided there are changed
circumstances sufficient to warrant a review. 19 U.S.C. §
1675(b)(1); see also Pl.’s Memorandum at 13. According to
Plaintiff, there are only two final affirmative determinations that
result in an antidumping duty order. See Pl.’s Memorandum at 13.
A final dumping determination made by Commerce in a less-than-fair
value investigation, and a final injury determination made by the
Commission. See id. SSI looks to section 1675(d)(1) as “the only
other section of the statute that mentions [section 1675(b)] or Court No. 08-00353 Page 9
sheds any light on the meaning of a changed circumstances review”
and notes that “[t]here is no reference anywhere in the statute to
‘reinstatement’ of an antidumping duty order.”4 Id. Since the
statute does not specifically address reinstatement, Plaintiff
claims, the only way SSI’s exports may be subject to antidumping
duties is if Commerce initiates a new investigation followed by a
dumping determination by the Department and an injury determination
by the ITC. See id. at 18.
Plaintiff relies on this Court’s decision in Asahi Chemical
Indus. Co. Ltd., v. United States, 13 CIT 987, 727 F. Supp. 625
(1989), as further evidence that section 1675(b) precludes Commerce
from reinstating an order against merchandise that was previously
revoked. See id. at 14. The Court in Asahi examined the
Department’s reinstatement regulation in effect at the time, 19
C.F.R. § 353.54(e) (1988), and whether its requirement that a party
agree to immediate suspension of liquidation and reinstatement of
the antidumping duty order was enforceable. Commerce’s previous
regulation read in pertinent part:
Before the Secretary may tentatively revoke a Finding or an Order . . . the parties who are subject to the revocation . . . must agree in writing to an immediate
4 Section 1675(d)(1) states in part that:
The administering authority may revoke, in whole or in part, . . . an antidumping duty order . . . after review under subsection (a) [administrative review] or (b) [changed circumstances review] of this section. Court No. 08-00353 Page 10
suspension of liquidation and reinstatement of the Finding or Order . . . if circumstances develop which indicate that the merchandise thereafter imported into the United States is being sold at less than fair value.
19 C.F.R. § 353.54(e) (1988). SSI interprets the Court’s holding
in Asahi as standing for the proposition that revocation of the
antidumping order renders the order moot with respect to the
merchandise covered by the previous revocation. See Pl.’s
Memorandum at 14. Therefore, “once the Department makes a
revocation determination, ‘the antidumping duty order ceases to be
operative and may not be reinstated.’” Id. (quoting Asahi, 13 CIT
at 990, 727 F. Supp. 625, 628). Plaintiff contends that the
Department’s current regulation, 19 C.F.R. § 351.222(b)(2)(i)(B),
is “substantively no different from the regulation at issue in
Asahi,” id. at 15, and contains the same defects identified by the
Court in that case. See id. at 16. Namely, that the regulation
abrogates the statutory requirement of affirmative dumping and
injury determinations necessary to impose duties. See id. at 15.
Commerce’s current reinstatement regulation provides:
In determining whether to revoke an antidumping duty order in part, the Secretary will consider:
Whether, for any exporter or producer that the Secretary previously has determined to have sold the subject merchandise at less than normal value, the exporter or producer agrees in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Secretary concludes that the exporter or producer, subsequent to the revocation, sold the subject merchandise at less than normal value. Court No. 08-00353 Page 11
19 C.F.R. § 351.222(b)(2)(i)(B). Therefore, Plaintiff concludes,
the Court’s holding in Asahi is equally applicable here, and
eliminates the Department’s legal authority to reinstate the order
over SSI. See Pl.’s Memorandum at 18.
Plaintiff submits that this Court has jurisdiction under 28
U.S.C. § 1581(i), specifically subparagraphs (i)(2) and (i)(4),5 to
hear the claim that “the Department’s initiation of a changed
circumstances review of SSI for the purpose of reinstating an
already revoked order is illegal and ultra vires.” Complaint ¶ 21.
SSI maintains that section 1581(i) jurisdiction exists in cases,
where as here, the other potential mechanism for judicial review
under 28 U.S.C. § 1581(c) is “manifestly inadequate.” Pl.’s
5 The relevant portions of 28 U.S.C. § 1581(i) read as follows:
In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section . . . the 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-
(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;
(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.
This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable . . . by the Court of International Trade under [19 U.S.C. § 1516a]. Court No. 08-00353 Page 12
Memorandum at 8. According to SSI, the “manifestly inadequate”
standard is met when an agency’s actions are ultra vires. See id.
Plaintiff references its earlier argument that section 1675(b)(1)
only provides for a changed circumstances review of final
affirmative dumping or injury determinations, and not for the
purpose of reinstating a previously revoked antidumping duty order.
Thus, any attempt by the Department to reinstate such an order in
a changed circumstances review is contrary to law, and beyond the
scope of its statutory authority. See id.
SSI maintains that the Court’s broad injunctive powers include
the ability to “halt an ultra vires proceeding,” id. at 7, and
offers as support for its position, a line of cases in which the
Court exercised its residual jurisdiction to prevent Commerce from
continuing with an allegedly unlawful proceeding. See Asociacion
Colombiana de Exportadores de Flores v. United States, 13 CIT 584,
717 F. Supp. 847 (“Ascoflores”) (1989); Techsnabexport, Ltd. v.
United States, 16 CIT 420, 795 F. Supp. 428 (1992); Jia Farn Mfg.
Co., Ltd. v. United States, 17 CIT 187, 817 F. Supp. 969 (1993);
Hysla S.A. v. United States, 22 CIT 44 (“Hysla II”) (1998); Dofasco
Inc. v. United States, 28 CIT 263, 326 F. Supp. 2d 1340 (2004).
Plaintiff attempts to apply a similar rationale as the cases
cited, and argues that section 1581(i) jurisdiction is proper
because it is challenging Commerce’s authority to conduct the
changed circumstances review in the first instance. Hence, the Court No. 08-00353 Page 13
relief SSI seeks cannot be obtained through a judicial challenge
instituted after the review has been completed. See Pl.’s
Memorandum at 8. By “forcing Plaintiff to wait until the
Department completes the unlawful proceeding renders the relief
sought moot.” Id.
Additionally, SSI complains that the remedy afforded under
section 1581(c) is “manifestly inadequate” because Plaintiff’s
forced participation in the changed circumstances review places a
substantial burden on the company. See id. at 9. Since the review
is one for possible reinstatement of a partially revoked order,
participation in it involves the same level of data collection
associated with an administrative review. This, according to SSI,
is “extremely burdensome,” and renders section 1581(c) “manifestly
inadequate.” Id.
The remainder of Plaintiff’s arguments focus on the factors a
court must consider in determining the propriety of injunctive
relief. Because these claims are unrelated to the threshold
determination of jurisdiction, the Court need not address them at
this time.
II. Defendants’ Arguments
Commerce and U.S. Steel, at times, present similar arguments
in their motions to dismiss and supporting memoranda, therefore the
Court will address the parties’ arguments collectively
(“Defendants”), with appropriate attribution as to the source of Court No. 08-00353 Page 14
each claim.
Defendants counter that Plaintiff may not bring its challenge
under section 1581(i) because it may seek judicial review pursuant
to another jurisdictional provision, specifically, 28 U.S.C. §
1581(c), after Commerce issues its final determination in the
changed circumstances review. See Def.’s Mem. in Supp. of Mot. to
Dismiss & Opp’n to Pl.’s Mot. for Prelim. Inj. (“Def.’s
Memorandum”) at 12; Def.-Int.’s Memorandum at 7. Defendants
reference the exclusionary language in section 1581(i) which
precludes jurisdiction under that subsection when the action being
challenged is reviewable under section 1516a. See Def.’s
Memorandum at 12; Def.-Int.’s Memorandum at 8. Because a changed
circumstances review is specifically identified as reviewable under
section 1516a(a)(2)(B)(iii), Defendants argue, the express
exclusion of section 1581(i) applies. See Def.’s Memorandum at 12-
13; Def.-Int.’s Memorandum at 9. Moreover, section 1581(c)
provides that the Court “shall have exclusive jurisdiction of any
civil action commenced under [19 U.S.C. § 1516a].” 28 U.S.C. §
1581(c). Therefore, another subsection of 1581 is available to SSI
which, according to Defendants, renders Plaintiff’s jurisdictional
argument unsound. See Def.’s Memorandum at 13; Def.-Int.’s
Memorandum at 9.
Furthermore, Defendants assert, the remedy provided for under
section 1581(c) is not “manifestly inadequate.” See Def.’s Court No. 08-00353 Page 15
Memorandum at 10; Def.-Int.’s Memorandum at 10. Noting that SSI is
contesting the Department’s authority to initiate a changed
circumstances review for the purpose of reinstating an antidumping
duty order, Defendants argue that “SSI will have a full opportunity
to seek relief from this Court pursuant to § 1581(c) to challenge
Commerce’s initiation of the review.” Def.-Int.’s Memorandum at 9.
Thus, there is nothing in the present case that would render review
under that section “manifestly inadequate.” See id. at 8.
Moreover, Defendants argue, “mere allegations of financial harm, or
assertions that an agency failed to follow a statute, do not make
the remedy established by Congress manifestly inadequate.” Id. at
10 (quoting Int’l Custom Prods., Inc. v. United States, 467 F.3d
1324, 1327 (Fed. Cir. 2006).
Defendants next contest Plaintiff’s characterization of
Commerce’s actions as ultra vires, and maintain that ultra vires
conduct is but one factor a court will consider in assessing
manifest inadequacy of the normal judicial review process. See id.
at 11. In order for the Court to find that a party can forgo
relief under the normal process, the party must first establish
that the agency conduct was “patently ultra vires,” or ultra vires
without question. Id. (quoting Gov’t of the People’s Republic of
China v. United States, 31 CIT __, 483 F. Supp. 2d 1274, 1282
(2007) (citation omitted). Defendants explain that, similar to the
Department’s revocation authority, Commerce’s authority to conduct Court No. 08-00353 Page 16
a changed circumstances review to assess reinstatement of a
producer in an antidumping order, is statutorily based (i.e., 19
U.S.C. § 1675(b)(1) and § 1675(d)). See Def.’s Memorandum at 18;
Def.-Int.’s Memorandum at 12, 22. Defendants submit that
Commerce’s authority under this section is extremely broad,
empowering the agency “to conduct a changed circumstances review
whenever there are ‘changed circumstances sufficient to warrant a
review’ of the antidumping order.” Def.-Int.’s Memorandum at 13
(quoting Mittal Canada, Inc. v. United States, 30 CIT 1565, 1572
n.7, 461 F. Supp. 2d 1325, 1332 (2006)). As a result, the
Department’s initiation of the review is proper and the “patently
ultra vires” standard is not met. See id. at 11-13. Defendants
also refute Plaintiff’s contention that its forced participation in
the changed circumstances review imposes a substantial burden on
SSI, thus rendering jurisdiction under section 1581(c) “manifestly
inadequate.” See id. at 15; Def.’s Memorandum at 10. The
“inconvenience and expense” associated with the review, according
to Defendants, are an inherent part of the “administrative and
judicial review process,” and “cannot therefore constitute manifest
inadequacy.” Def.-Int.’s Memorandum at 15 (quoting Gov’t of the
PRC, 31 CIT __, 483 F. Supp. 2d 1274, 1283) (citation omitted); see
also Def.’s Memorandum at 10.
Defendants offer an interpretation of this Court’s holding in
Asahi that does not invalidate Commerce’s authority to order Court No. 08-00353 Page 17
reinstatement. See Def.’s Memorandum at 20-22; Def.-Int.’s
Memorandum at 24-25. Contrary to Plaintiff’s argument, Defendants
maintain that the Court’s determination in Asahi was confined to
the regulation in place at the time. See Def.’s Memorandum at 20.
Pointing out that Commerce’s current reinstatement regulation has
since been substantively amended, Defendants claim that the new
regulation cures each of the defects identified by the Asahi Court.
See Def.-Int.’s Memorandum at 26.
Moreover, Defendants add, this action is not ripe for judicial
consideration because Commerce has not yet issued the final results
of its changed circumstances review, and SSI has failed to show the
requisite undue hardship. See Def.’s Memorandum at 7. Defendants
rely on the factors a court looks to in determining whether an
appeal from an administrative determination is ripe for review,
such as the fitness of the issue for judicial decision, and the
hardship to the parties of withholding court consideration. See
id. As to the first factor, Defendants argue that Commerce’s
decision to initiate a changed circumstances review does not
represent the Department’s final position on the matter, and is
more analogous to a “threshold determination” than final agency
action. Id. (quoting U.S. Ass’n of Imps. of Textiles & Apparel v.
U.S. Dept. of Commerce, 413 F3d 1344, 1349 (Fed. Cir. 2005). For
example, Commerce has not issued its final results, and may Court No. 08-00353 Page 18
determine that SSI has not resumed dumping.6 Referencing the
relevant statutory provisions,7 Defendants claim that permitting
SSI to “appeal nonfinal [agency] decisions would eviscerate the
finality requirements memorialized in the statute and legislative
history.” Id. at 8. Therefore, SSI’s claims should be dismissed
as unripe. See id. at 7.
With regard to the second factor, Defendants maintain that
there is no undue hardship to SSI of withholding court
consideration because SSI faces no exceptional burden from its
participation in the underlying changed circumstances review. See
id. at 9. No legal or practical effect emanates from its
involvement, except the burden of responding to the Department’s
inquiries. See id. Defendants contend that the “expense and risk
associated with the review are not functions of whether the
investigation is ultra vires, but merely an inherent feature of the
retrospective system designed by Congress.” Id. at 9-10 (citing D
& L Supply Co. v. United States, 17 CIT 1419, 1422, 841 F. Supp.
6 During the pendency of this action, Commerce issued its preliminary results with regard to the underlying review. See Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Preliminary Results of Changed Circumstances Review and Intent To Reinstate Sahaviriya Steel Industries Public Company Limited in the Antidumping Duty Order, 73 Fed. Reg. 79,809 (Dec. 30, 2008). 7 19 U.S.C. § 1516a authorizes judicial review of final agency determinations in antidumping proceedings. 28 U.S.C. § 2637(d) requires the exhaustion of administrative remedies “where appropriate” in certain civil actions against the United States. Court No. 08-00353 Page 19
1312, 1315 (1993).
Finally, Commerce insists that the cases offered by Plaintiff,
in which the Court exercised jurisdiction pursuant to section
1581(i), are distinguishable from the instant matter. See id. at
13-15. More specifically, the jurisdictional issues attendant in
the cases cited by Plaintiff were not “matters relating to the
merits of the action.” Id. at 14. By contrast, Plaintiff’s
jurisdictional claim is inextricably intertwined with the merits of
the present action, and the former cannot be decided without
considering and deciding the latter. See id. at 15-16. Since the
Court’s jurisdiction here turns in part on the substantive issue of
whether the Department’s initiation of the changed circumstances
review was proper or beyond the agency’s authority, Commerce
maintains that the Court is precluded from hearing SSI’s claims.
See id.
ANALYSIS
Plaintiff invokes the Court’s residual jurisdiction under 28
U.S.C. § 1581(i). By its terms, this section of the statute is an
expansive grant of exclusive jurisdiction over certain causes of
action against the United States. See 19 U.S.C. § 1581(i).
Because subject matter jurisdiction is treated as a threshold
determination, it must be examined separately and antecedently.
See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94
(1998). Absent jurisdiction, a “court cannot proceed at all in any Court No. 08-00353 Page 20
cause.” Id. Indeed, the rules of this Court dictate that if “the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” USCIT R.
12(h)(3).
It is well established that a plaintiff may not pursue an
action under section 1581(i) if any other subsection of section
1581 “is or could have been available, unless the remedy provided
under that other subsection would be manifestly inadequate.”
Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987);
see also Int’l Custom Prods., 467 F.3d 1324; Nippon Steel Corp. v.
United States, 219 F.3d 1348 (Fed. Cir. 2000); Shakeproof Indus.
Prods. Div. of Ill. Tool Works Inc. v. United States, 104 F.3d 1309
(Fed. Cir. 1997); Norcal/Crosetti Foods, Inc. v. United States, 963
F.2d 356 (Fed. Cir. 1992). Here, SSI does not contend that section
1581(c) is unavailable, but rather that the remedy provided under
this provision is “manifestly inadequate.” Pl.’s Memorandum at 8.
Where another remedy is or could have been available, the party
asserting section 1581(i) jurisdiction has the burden of showing
the manifest inadequacy of that remedy. See Miller & Co., 824 F.2d
at 964. SSI raises two main points in arguing that relief under
section 1581(c), after waiting for Commerce to complete its
inquiry, would be “manifestly inadequate.” First, Commerce has
acted ultra vires by initiating the changed circumstances review to
assess reinstatement of a partially revoked antidumping order. Court No. 08-00353 Page 21
Second, SSI’s forced participation in the underlying review imposes
a substantial burden on the manufacturer.
While neither Congress nor the courts have provided a precise
definition of the term “manifestly inadequate,” given the clear
Congressional preference expressed in section 1581(i) for review in
accordance with section 1516a,8 the Court must be careful not to
interfere in ongoing proceedings absent a clear indication of the
inadequacy of a section 1581(c) review. See Hysla, S.A. de C.V. v.
United States, 21 CIT 222, 228, 960 F. Supp. 320, 325 (“Hysla
I”)(1997).
I. Section 1581(c) Is Not “Manifestly Inadequate”
A. Ultra Vires
SSI’s principal argument for the invocation of the Court’s
residual jurisdiction, is that reinstatement of a partially revoked
antidumping order constitutes ultra vires agency conduct because
the provision authorizing the Department to conduct a changed
8 The House Report adopting amendments to 28 U.S.C. § 1581 contains the following remarks: “[I]t is the intent of the Committee that the Court of International Trade not permit subsection (i), and in particular paragraph (4), to be utilized to circumvent the exclusive method of judicial review of those antidumping and countervailing duty determinations listed in section [1516a] . . . . The Committee intends that any determination specified in section [1516a], or any preliminary administrative action which, in the course of proceeding, will be, directly or by implication, incorporated in or superceded by any such determination, is reviewable exclusively as provided in [section 1516a].” H.R. Rep. No. 96-1235, at 48 (1980), as reprinted in 1980 U.S.C.C.A.N. 3729, 3759-60. Court No. 08-00353 Page 22
circumstances review, 19 U.S.C. § 1675(b)(1), applies exclusively
to affirmative final dumping determinations made by Commerce or
injury determinations made by the Commission. Indeed, Plaintiff’s
ultra vires argument forms the basis for all of its other claims in
this matter. The alleged manifest inadequacy of section 1581(c);
the Court’s broad injunctive powers to halt an ultra vires review;
the substantial burden imposed on Plaintiff as a result of its
forced participation in an ultra vires proceeding; and even its
counter argument to Defendants’ ripeness challenge are all
predicated on the assertion that Commerce acted outside the scope
of its authority. For this reason, the Court agrees with SSI that
the gravamen of its case involves the single legal issue of whether
the Department’s initiation of a changed circumstances review for
the purpose of reinstating a partially revoked antidumping order
constituted ultra vires government action. See Pl.’s Memorandum
at 10.
Because Plaintiff’s claim regarding the inadequacy of a remedy
under section 1581(c) is inter-reliant with and contingent upon its
claim of ultra vires agency conduct, a determination of what
constitutes ultra vires activity becomes the focal point of the
Court’s review. In discussing this factor it is impossible to
separate completely matters relating to the merits of this action Court No. 08-00353 Page 23
from the discussion of jurisdiction.9 Therefore, in order for the
Court to adequately consider the jurisdictional issue it must
review at least in part this substantive question. A claim that an
action is ultra vires is different from a claim that the agency’s
regulation incorrectly implements the statute that the agency is
charged with administering. In other words, an agency action is
not ultra vires simply because it is “arguably a mistake of fact or
law.” State of Alaska v. Babbitt, 67 F.3d 864, 867 (9th Cir. 1995)
(citation omitted). An ultra vires act is one performed without
any authority to act whereas an error in the exercise of that power
is insufficient to support an ultra vires claim. See Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)
(citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682
(1949)). The scope of an agency’s authority turns on whether the
agency was empowered to engage in the challenged course of conduct
in the first place. For example, even if the Department acted
erroneously, was it within the scope of its delegated power to do
9 The Court takes this opportunity to recognize and reject, Commerce’s argument that section 1581(i) jurisdiction is barred where the jurisdictional issue is intertwined with the merits of the action. This position is based on a flawed interpretation of the Federal Circuit’s holding in Nippon Steel. The Court, in Nippon Steel, held that in the “unusual situation” where the jurisdictional issue and the merits are “inextricably intertwined” a court may bypass the jurisdictional question and proceed directly to the merits. See Nippon Steel, 219 F.3d at 1353. This Court, however, is not exercising its residual jurisdiction, but is only considering the threshold determination of whether jurisdiction exists at all. Court No. 08-00353 Page 24
so. See United States v. Yakima Tribal Court, 806 F.2d 853, 860
(9th Cir. 1986). In the case at bar, Commerce bases its authority
for reinstatement on sections 1675(b) (changed circumstances
review) and (d) (revocation of antidumping/countervailing duty
order). Although neither section specifically provides for
reinstatement, Commerce is endowed with both an explicit and
implicit grant of authority to adopt regulations administering the
antidumping statute.
It is well settled that when Congress leaves a gap within a
statute administered by an agency, Congress impliedly entrusts the
agency with the authority to fill such gap, but where, as here,
Congress has expressly authorized Commerce to engage in rulemaking,
the Court must infer that Congress has delegated authority to the
agency to address statutory ambiguities. See United States v. Mead
Corp., 533 U.S. 218, 229 (2001) (citing Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).
Congress’ express delegation of authority to Commerce is codified
under 19 U.S.C. § 1624, which provides:
In addition to the specific powers conferred by this chapter the Secretary of the Treasury is authorized to make such rules and regulations as may be necessary to carry out the provisions of this chapter.
Currently, one of the mechanisms by which Commerce has chosen to
administer sections 1675(b) and (d) is 19 C.F.R. § 351.222. This
regulation describes in detail the procedures to be followed and Court No. 08-00353 Page 25
the conditions imposed on a producer seeking to avail itself of
partial revocation. As such, it is a proper exercise of the
Department’s explicit authority to resolve the ambiguity left by
Congress in the relevant sections of the antidumping statute.
Plaintiff can point to no language in the statute or prior case law
which expressly denies Commerce the authority to reinstate a
partially revoked antidumping order. Absent any such legislative
or judicial constraints the agency’s actions in this matter cannot
be considered ultra vires.
An ultra vires claim cannot be construed to allege that
Commerce promulgated its reinstatement regulation based on an
erroneous interpretation of the statute, but rather that Commerce
acted outside the scope of its statutory authority, and was without
any legal basis to make that interpretation at all. Plaintiff’s
effort at re-casting its ultra vires argument, merely amounts to a
claim that Commerce committed a “mistake of law” in promulgating
the reinstatement regulation, not that the Department acted
“completely outside [its] governmental authority.” Alaska v.
Babbitt, 67 F.3d at 867. If, instead, SSI had proffered an
argument that Commerce’s decision in this case was an errant
application of the antidumping laws, the agency’s interpretation of
the statute, whether adopted pursuant to a rule-making or Court No. 08-00353 Page 26
adjudicative proceeding,10 would be accorded deference consistent
with the Supreme Court’s decision in Chevron.11 Plaintiff’s
reluctance to proceed in this manner is in no small measure due to
the finality requirements of section 1516a and 5 U.S.C. § 704
(which provides that legal challenges to “preliminary, procedural,
or intermediate” agency decisions are subject to review upon final
agency action).12 Regardless, the Court cannot alter its legal
10 The regulation on reinstatement of a partially revoked order, 19 C.F.R. § 351.222, was promulgated through notice and comment rule-making. Thus, Commerce’s policy is a “formal expression of an agency’s interpretation of a statute that it administers” and is “normally entitled to Chevron deference.” Motorola, Inc. v. United States, 436 F.3d 1357, 1365 (Fed. Cir. 2006). 11 As directed by the Supreme Court, a reviewing court must first consider “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. 12 Although its wording is less than clear, Plaintiff’s complaint is construed to bring this action under the Administrative Procedure Act (“APA”), i.e., 5 U.S.C. § 702. While not expressly stating that Plaintiff is filing suit under the APA, the complaint cites to 28 U.S.C. § 2631(i) in its allegation of standing, which provides for application of the APA. See Complaint ¶ 5. Construing Plaintiff’s complaint to bring an action under the APA, however, does not alter the jurisdictional analysis. This Court’s residual jurisdiction case law, including those decisions pertaining to the “manifestly inadequate” standard, is mirrored in section 704's requirement that “[a]gency action made reviewable by statute and final agency action for (continued...) Court No. 08-00353 Page 27
analysis to accommodate Plaintiff’s argumentum ab inconvenienti.
In support of its position, SSI points to this Court’s holding
in Asahi, and argues that because the regulation examined by the
Court in Asahi is substantively no different from the Department’s
current regulatory provision for reinstatement, the existing
regulation should be rejected as well. However, the source of the
dispute in Asahi was the proper interpretation of 19 C.F.R. §
353.54(e) as it applied to the facts of that case, not whether the
agency lacked the appropriate statutory basis for implementing the
regulation. Read in its proper context, the holding in Asahi is
inapposite for purposes of the instant matter, and the Court
declines Plaintiff’s invitation to review Commerce’s current
regulatory scheme under the aegis of an ultra vires rationale,
other than to say that SSI has failed to show a patent violation of
agency authority.13
12 (...continued) which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. 13 The Court does not find the decisions Plaintiff cites, relating to the economic consequences of participation in administrative reviews, to be of direct relevance. See Hylsa II, 22 CIT at 47 (exercising residual jurisdiction because of the “grave economic harm” not adequately addressed under other subsections of 19 U.S.C. § 1581); Ascoflores, 13 CIT at 587, 717 F. Supp. 847, 850 (exercising jurisdiction under section 1581(i) because of “the difficulties of participation under the facts of this case”). On the other hand, cases challenging the scope of agency authority support the Court’s rationale. See Techsnabexport 16 CIT 420, 795 F. Supp. 428 (residual (continued...) Court No. 08-00353 Page 28
B. Substantial Burden
The second prong of Plaintiff’s “manifestly inadequate”
argument suffers a similar fate. SSI claims that the burden
imposed on a participant in a changed circumstances review is
substantial because it would essentially require the same level of
data collection as an administrative review. But having already
determined that Commerce acted in conformity with a clearly
expressed delegation of authority by Congress, and that the
agency’s actions are not ultra vires, the obligations associated
with a lawfully commenced proceeding cannot be considered grounds
for jurisdiction under section 1581(i). Regardless, without more,
harm attributable to participation in a potentially unauthorized
antidumping proceeding is insufficient to render the remedy
afforded by section 1581(c) “manifestly inadequate.” See Hysla I,
21 CIT at 227, 960 F. Supp. 320, 324. Contrary to SSI’s claims,
the great weight of authority holds that “mere allegations of
financial harm, or assertions that an agency failed to follow a
statute, do not make the remedy established by Congress manifestly
inadequate.” Int’l Custom Prods., 467 F.3d at 1327 (quoting Miller
13 (...continued) jurisdiction found where the existence of the antidumping duty order itself was called into question); see also Jia Farn, 17 CIT at 191, 817 F. Supp. 969, 973 (while exercising its residual jurisdiction, the Court found Commerce’s initiation of a changed circumstances review for the purpose of reinstatement of an antidumping duty order, to be within the scope of agency authority under section 1675. Court No. 08-00353 Page 29
& Co., 824 F.2d 961, 964); see also F.T.C. v. Standard Oil, 449
U.S. 232, 244 (1980) (“the expense and annoyance of litigation is
part of the social burden of living under government”); Gov’t of
the PRC, 31 CIT __, 483 F. Supp. 2d 1274, 1283 (“the cost
associated with defending oneself in a trade remedy proceeding is
not the type of burden with which this Court concerns itself”);
Abitibi-Consolidated Inc. v. United States, 30 CIT 714, 724, 437 F.
Supp. 2d 1352, 1362 (2006) (holding that the inconvenience and
expense of the administrative and judicial review process cannot
constitute manifest inadequacy).
SSI has failed to demonstrate that adequate redress cannot be
obtained in an action brought under 28 U.S.C. § 1581(c) challenging
the final results of Commerce’s changed circumstances review. For
instance, should Commerce decide to reinstate the partially revoked
antidumping duty order as to SSI, Plaintiff will have the
opportunity to bring an action challenging those results. In such
an action, SSI is entitled to contest “any factual findings or
legal conclusions upon which the determination is based,” 19 U.S.C.
1516a(a)(2)(A), including the statutory and regulatory bases for
the Department’s initiation of the changed circumstances review.
See Tianjin Magnesium Int’l. Co., Ltd. v. United States, 31 CIT __,
533 F. Supp. 2d 1327, 1338-39 (2008). Thus, had SSI waited to
bring this action upon completion of the review, it could have
contested the legality of Commerce’s actions in a subsequent Court No. 08-00353 Page 30
challenge under section 1581(c).
II. Ripeness
SSI cannot invoke jurisdiction under section 1581(i) under the
circumstances presented here, because the remedy afforded by
section 1581(c) is not “manifestly inadequate.” Plaintiffs action,
however, suffers from an additional jurisdictional defect. SSI’s
failure to convince this Court of ultra vires agency conduct
renders ineffective its argument that the issues presented in this
case are ripe for judicial review.
The ripeness doctrine serves “to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in
abstract disagreements over administrative policies, and also to
protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in
a concrete way by the challenging parties.” Abbott Labs. v.
Gardner, 387 U.S. 136, 148-49 (1967). In determining the ripeness
of an issue, the Court must consider two factors: (1) “the fitness
of the issue for judicial decision;” and (2) “the hardship to the
parties of withholding court consideration.” See Tokyo Kikai
Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1362 (Fed. Cir.
2008) (quoting Abbott Labs., 387 U.S. 136, 149).
With respect to the first step, it is clear that non-final
agency action is not ripe for review. See id. (citing U.S. Ass’n
of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d Court No. 08-00353 Page 31
1344, 1349-50 (Fed. Cir. 2005) (“Textiles III”). SSI, however,
does not challenge the general ripeness principles set forth in the
surplus of cases regarding the need to establish final agency
action. Instead, Plaintiff argues that none of these cases are
relevant because they do not involve a challenge to ultra vires
agency conduct, and that courts routinely reject ripeness
challenges to otherwise non-final agency actions when a party has
challenged those actions as ultra vires.14 But SSI’s only reference
to the hardship requirement is to allege the imposition of a severe
hardship by virtue of the company’s forced participation in an
ultra vires proceeding. Insofar as this Court has already found
that Commerce acted within the scope of its legislatively delegated
authority, Plaintiff’s iteration of its ultra vires claim cannot
14 Inexplicably, SSI offers the holding from U.S. Ass’n of Imps. of Textiles & Apparel v. United States, 29 CIT 323, 366 F. Supp. 2d 1280 (2005) (“Textiles II”), as support for this position. See Pl.’s Mem. in Opp’n to Def.’s & Def.-Int.’s Mot. to Dismiss at 19 (“Pl.’s Response”). In a companion case, U.S. Ass’n of Imps. of Textiles & Apparel v. United States, 28 CIT 2115, 350 F. Supp. 2d 1342 (2004) (“Textiles I”), this Court granted plaintiff’s request for preliminary injunction while reserving judgment on a ripeness challenge from Commerce. In Textiles II, the Court exercised jurisdiction over plaintiff’s claims and rejected Commerce’s ripeness bid. In hearing the government’s appeal of the Textiles I decision, the Federal Circuit reversed the lower court’s judgment because the decision being challenged was “merely a threshold determination,” Textiles III, 413 F.3d at 1350, thus finding “the government’s argument as to ripeness sufficient.” Id. at n.3. The appeals court’s decision disposed of both Textiles I and Textiles II. Therefore, Plaintiff’s characterization of the Textiles III holding, as one not decided on ripeness grounds, is wholly inaccurate. See Pl.’s Response at 20 n.7. Court No. 08-00353 Page 32
succeed. Therefore, the decision by Commerce that SSI seeks to
challenge in connection with the yet to be completed changed
circumstances review does not constitute final agency action, and
dismissal of this action will not render any legally cognizable
hardship upon Plaintiff.
In sum, the changed circumstances review is ongoing and, upon
its conclusion, SSI will have the opportunity to challenge any
aspect of the review. Plaintiff has failed to convince this Court
that jurisdiction under section 1581(c) will be unavailable, or
that any remedy afforded in such action is “manifestly inadequate.”
Jurisdiction under section 1581(i) therefore cannot lie.
Accordingly, the exclusive means of judicial review for Plaintiff’s
claims falls under 28 U.S.C. § 1581(c).
Notwithstanding Plaintiff’s inability to establish subject
matter jurisdiction under section 1581(i), this matter would be
subject to dismissal on the grounds of lack of ripeness. Court No. 08-00353 Page 33
CONCLUSION
For the reasons set forth above, the motions to dismiss filed
by Defendant and Defendant-Intervenor are granted. Plaintiff’s
motion for a preliminary injunction is denied. Judgement to be
entered accordingly.
/s/ Nicholas Tsoucalas NICHOLAS TSOUCALAS SENIOR JUDGE
Decided: February 24, 2009 New York, New York ERRATA
Sahaviriya Steel Indus. Public Co. Ltd., Court No. 08-00353, Slip Op. 09-15, dated Feb. 24, 2009.
On page 24, Line 18: “19 U.S.C. § 1624” should read “5 U.S.C. § 301”
On page 24, Indented paragraph beginning on Line 19 should read:
“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, [and] the distribution and performance of its business . . . .”
Dated: February 25, 2009