Usinas Siderurgicas De Minas Gerais v. U.S.

• Decision Date: 19 April 2002
• Docket Number: Court No. 99-08-00528.,Slip. Op. 02-37.
• Citation: 201 F.Supp.2d 1304
• Parties: USINAS SIDERÚRGICAS DE MINAS GERAIS S/A, Companhia Siderúrgica Paulista and Companhia Siderúrgica Nacional, Plaintiffs, v. UNITED STATES, Defendant, and Bethlehem Steel Corporation, U.S. Steel Group, a Unit of USX Corporation, Ispat Inland Inc., LTV Steel Company, Inc. and National Steel Corporation, Defendant-Intervenors, and Gallatin Steel Company, IPSCO Steel Inc., Steel Dynamics, Inc. and Weirton Steel Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

201 F.Supp.2d 1304

USINAS SIDERÚRGICAS DE MINAS GERAIS S/A, Companhia Siderúrgica Paulista and Companhia Siderúrgica Nacional, Plaintiffs, v. UNITED STATES, Defendant, and Bethlehem Steel Corporation, U.S. Steel Group, a Unit of USX Corporation, Ispat Inland Inc., LTV Steel Company, Inc. and National Steel Corporation, Defendant-Intervenors, and Gallatin Steel Company, IPSCO Steel Inc., Steel Dynamics, Inc. and Weirton Steel Corporation, Defendant-Intervenors.

Slip. Op. 02-37.

Court No. 99-08-00528.

United States Court of International Trade.

April 19, 2002.

[Exporters' action seeking to challenge continued final affirmative countervailing duty determination without challenging related suspension determination dismissed for want of subject matter jurisdiction.]

Willkie Farr & Gallagher (William H. Barringer, Christopher S. Stokes, and Sean M. Thornton), for Plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Lucius B. Lau); Terrence J. McCartin, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel; for Defendant.

Dewey Ballantine (Alan Wm. Wolff and Michael H. Stein) and Skadden Arps. Slate, Meagher & Flom (Robert E. Lighthizer, John J. Mangan, and Worth S. Anderson), for Defendant-Intervenors Bethlehem Steel Corporation et al.

Schagrin Associates (Roger B. Schagrin, Brian E. McGill, and Roger B. Banks), for Defendant-Intervenors Gallatin Steel Company et al.

OPINION

RIDGWAY, Judge.

Over the years, legal scholars and jurists have devoted much ink to the meaning in various legal contexts of certain common words — the eternal debate over "shall" vs. "may" being one prime example. See, e.g., Bryan A. Garner, A Dictionary of Modern Legal Usage 502 ("shall"), 516-17 ("Statute Drafting") (1987). This is yet another such case.

As discussed more fully below, the disposition of the case at bar turns largely on the meaning of the word "including." The stakes may not be high in the whimsical world of fairy tales, when the terms in question are "brillig" and "slithy":

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that's all."

Lewis Carroll, Through the Looking Glass and What Alice Found There 124 (William

Morrow & Co.1993) (1872). But the present case does not arise in Humpty Dumpty land, where words mean whatever one wants them to mean; and the stakes here are very high indeed.

This action is one of a trilogy of cases involving antidumping duty and countervailing duty investigations of certain hotrolled flat-rolled carbon-quality steel products ("hot-rolled steel") from Brazil.¹ In this case, the plaintiff Brazilian steel exporters — Usinas Siderurgicas de Minas Gerais ("USIMINAS"), Companhia Siderurgica Paulista ("COSIPA"), and Companhia Siderurgica Nacional ("CSN") (collectively, "Brazilian Exporters") — seek to challenge the continued final affirmative countervailing duty determination of the U.S. Department of Commerce ("Commerce"). See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 38,742 (Dep't Commerce 1999) ("Continued Final Determination"). Commerce made that determination the same day that it executed a suspension agreement with the Government of Brazil ("Brazilian Government")— an agreement which is itself contested in one of the two related actions brought by certain of the U.S. steel producers who are Defendant-Intervenors in this action.² See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 38,797 (Dep't Commerce 1999) (suspension of countervailing duty investigation and entry of suspension agreement) ("Suspension Determination" or "Suspension Agreement").

The Brazilian Exporters' Complaint in this matter asserts five specific challenges to Commerce's Continued Final Determination. Complaint ¶ 7. However, the Complaint does not seek review of any aspect of Commerce's determination to suspend the countervailing duty investigation or to enter into the Suspension Agreement with the Brazilian Government. Nor does the Complaint allege that any changes made in Commerce's Continued Final Determination rendered the Suspension Determination defective in any way.

Pending before the Court is the Motion To Dismiss for Lack of Subject Matter Jurisdiction filed by Defendant, the United States ("the Government"). According to the Government, the sovereign has waived its immunity from suit to permit a party to challenge a continued final countervailing duty determination that changes the size of the net countervailable subsidy (or the underlying reasoning) at the time a suspension agreement is concluded only if that challenge is raised as part of a challenge to Commerce's decision to suspend the countervailing duty investigation in question. Defendant's Memorandum in Support of Its Motion To Dismiss For Lack of Subject Matter Jurisdiction ("Defendant's Memo"), passim. In other words, according to the Government, the Court lacks jurisdiction because the Brazilian Exporters' Summons and Complaint do not attack both Commerce's Continued Final Determination and the Suspension Determination and Agreement.

For the reasons discussed below, the Government's motion is granted and this action is dismissed for want of subject matter jurisdiction.

I. Background

A. Administrative Proceedings

On September 30, 1998, certain U.S. steel producers — including Defendant-Intervenors here³ — petitioned Commerce and the International Trade Commission ("ITC"), seeking the imposition of countervailing duties on hot-rolled steel from Brazil.⁴ The petition was accepted, and the requested investigation was initiated. Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 63 Fed. Reg. 56,624 (Dep't Commerce 1998).

One month later, the ITC notified Commerce of its preliminary affirmative determination on material injury. See Certain Hot-Rolled Steel Products From Brazil, Japan, and Russia, 63 Fed.Reg. 65,221 (ITC 1998). Commerce's own preliminary affirmative determination issued on February 12, 1999, tentatively finding net subsidy rates of 9.45% for USIMINAS and COSIPA, 6.62% for CSN, and 7.85% for all others. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 8313, 8321 (Dep't Commerce 1999).

In June 1999, Commerce and the Brazilian Government initialed a proposed agreement to suspend the then-ongoing countervailing duty investigation. See Suspension Determination, 64 Fed.Reg. 38,797 (noting June 1999 initialing of proposed suspension agreement). The petitioners filed comments opposing the proposed suspension agreement, but also requested that Commerce continue the investigation in the event that a suspension agreement was executed over their objections. See Continued Final Determination, 64 Fed.Reg. 38,742 (Dep't Commerce 1999) (noting petitioners' request for continuation of investigation even if suspension agreement executed).

Commerce and the Brazilian Government signed the Suspension Agreement on July 6, 1999. See Suspension Determination, 64 Fed.Reg. 38,797. That same day, Commerce issued its final determination in the underlying countervailing duty investigation, increasing the net subsidy rates slightly to 9.67% for USIMINAS and COSIPA, and decreasing them to 6.35% for CSN and 7.81% for all others. See Continued Final Determination, 64 Fed.Reg. at 38,755. The ITC's final determination, issued August 24, 1999, confirmed its preliminary affirmative finding as well. See Certain Hot-Rolled Steel Products From Brazil and Russia, 64 Fed.Reg. 46,951 (ITC 1999).

As a result of the Suspension Agreement — which was the subject of Bethlehem Steel, 25 CIT ___, 159 F.Supp.2d 730, and which remains in effect today — no countervailing duty order has been issued covering hot-rolled steel from Brazil.

B. Proceedings Before the Court

The Brazilian Exporters timely filed a Summons with the Court, seeking to invoke the Court's jurisdiction under 28 U.S.C. § 1581(c) to contest "certain aspects of the final determination of the International Trade Administration, Department of Commerce, issued in the countervailing duty investigation of Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, Inv. No. C-351-829." Summons ¶ 2.

The Complaint, filed one month later, again identified the administrative determination to be reviewed as the "Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled, Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 38,742 (July 19, 1999)." Complaint ¶ 2. The Brazilian Exporters once more invoked the Court's jurisdiction under 28 U.S.C. § 1581(c), and asserted that the action was "commenced under 19 U.S.C. § ... 1516a(a)(2)(B)(iv)."⁵ Id. ¶ 3. The Complaint further alleged that Commerce's Continued Final Determination is not supported by substantial evidence on the record and is otherwise not in accordance with law with respect to five specific issues: (1) the methodology for handling pre-privatization subsidies; (2) the treatment of certain equity infusions; (3) the methodology for converting Brazilian reals into U.S. dollars; (4) the methodology for calculating repayment in a privatization transaction; and (5) certain aspects of the net countervailable subsidy calculations. Id. ¶ 7.

Neither the Summons nor the Complaint challenges any aspect of either Commerce's Suspension Determination or the Suspension Agreement. Nor does either the Summons or the Complaint allege that any changes made in Commerce's Continued Final Determination rendered its Suspension Determination defective in any way. Moreover, the Brazilian...