Thai Union Frozen Prods. Pub. Co. v. United States

2014 CIT 46

• Court: United States Court of International Trade
• Decided: April 23, 2014
• Docket: 13-00330
• Status: Published

Opinion

Slip Op. 14- 46

UNITED STATES COURT OF INTERNATIONAL TRADE

THAI UNION FROZEN PRODUCTS PUBLIC CO., LTD., THAI UNION SEAFOOD CO., LTD., THAI ROYAL FROZEN FOOD CO., LTD., MARINE GOLD PRODUCTS LIMITED, and PAKFOOD PUBLIC COMPANY LIMITED,

Plaintiffs,

.v. Before: Jane A. Restani, Judge

UNITED STATES, Court No. 13-00330

Defendant,

COALITION OF GULF SHRIMP INDUSTRIES,

Defendant-Intervenor.

OPINION

[Motions to dismiss complaint challenging Commerce’s negative determination in countervailing duty investigation granted.]

Dated: April23, 2014

Robert G. Gosselink, Trade Pacific, PLLC, of Washington, DC, for the plaintiffs.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the defendant. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Jessica M. Forton, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Elizabeth J. Drake, Terence P. Stewart, and Stephanie M. Bell, Stewart and Stewart, of Washington, DC, and Edward T. Hayes, Leake & Andersson, LLP, of New Orleans, LA, for the defendant-intervenors. Court No. 13-00330 Page 2

Restani, Judge: This matter is before the court on two motions to dismiss filed

pursuant to Rule 12(b)(1) of the United States Court of International Trade by defendant United

States and defendant-intervenor Coalition of Gulf Shrimp Industries (“COGSI”). Defendant-

Intervenor’s Motion to Dismiss Case, ECF No. 20; Defendant’s Motion to Dismiss Case, ECF

No. 22. COGSI and the United States move to dismiss the complaint filed by plaintiffs Thai

Union Frozen Products Public Co., Ltd., Thai Union Seafood Co., Ltd., Thai Royal Frozen Food

Co., Ltd., Marine Gold Products Limited, and Pakfood Public Company Limited Royal Thai

because plaintiffs lack standing under Article III of the Constitution as there is no live “case or

controversy.”

For the same reasons as those set out in the opinion in Royal Thai Government v.

United States, Ct. No. 13-00333, filed concurrently with this opinion, the motions to dismiss are

granted without prejudice. Plaintiffs attempt to distinguish their arguments from those raised in

Royal Thai Government by speculating that cash deposits could be required in the future during

the time in between a hypothetical affirmative determination on remand by the U.S. Department

of Commerce (“Commerce”) and a negative determination by the International Trade

Commission. See Pls.’ Opp. to Mots. to Dismiss, ECF No. 24, 4 n.1. This argument is nothing

more than speculation at this point, as no actual “injury in fact” will ever accrue to plaintiffs

unless and until COGSI succeeds in its appeal before the court and Commerce renders an

affirmative final determination on remand; at present, all that plaintiffs could obtain in this action

would be an advisory opinion from the court, rather than any concrete relief. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992); Georgetown Steel Corp. v. United States, 16

CIT 1084, 810 F. Supp. 318, 322 (1992) (cautioning against advisory opinions). Court No. 13-00330 Page 3

Judgment will issue accordingly.

/s/ Jane A. Restani Jane A. Restani Judge

Dated: April 23 , 2014 New York, New York