Carnation Enterprises v. US Dept. of Commerce

• Citation: 13 CIT 604,719 F. Supp. 1084
• Decision Date: 21 July 1989
• Docket Number: Court No. 89-04-00216.
• Parties: CARNATION ENTERPRISES PVT. LTD., Commex Corporation, Crescent Foundry Company Private Limited, Govind Steel Co. Ltd., R.B. Agarwalla & Company, Super Castings (India), Tirupati International (P) Limited, and Uma Iron & Steel Co., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, International Trade Administration, and United States Customs Service, Defendants, and Alhambra Foundry Co., et al., Defendants-Intervenors.
• Court: U.S. Court of International Trade

719 F. Supp. 1084

13 CIT 604

CARNATION ENTERPRISES PVT. LTD., Commex Corporation, Crescent Foundry Company Private Limited, Govind Steel Co. Ltd., R.B. Agarwalla & Company, Super Castings (India), Tirupati International (P) Limited, and Uma Iron & Steel Co., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, International Trade Administration, and United States Customs Service, Defendants, and Alhambra Foundry Co., et al., Defendants-Intervenors.

Court No. 89-04-00216.

United States Court of International Trade.

July 21, 1989.

Kaplan Russin & Vecchi, Dennis James, Jr. and Kathleen F. Patterson, Washington, D.C., for plaintiffs.

Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis, New York City, and A. David Lafer, Washington, D.C., U.S. Dept. of Commerce, Office of Chief Counsel for Import Admin., Andrea Dynes and Andrew Fekkes Dynes, for defendants.

Collier Shannon & Scott, Paul C. Rosenthal, Carol A. Mitchell and Mary T. Staley, Washington, D.C., for defendants-intervenors.

MEMORANDUM DECISION AND ORDER

DiCARLO, Judge:

Several Indian exporters of iron construction castings allege that the United States Department of Commerce lacks authority to conduct administrative reviews of a dumping order. Alleging the Court's residual jurisdiction under 28 U.S.C. § 1581(i) (1982), they seek to enjoin Commerce from publishing any results in two pending administrative reviews covering iron construction castings from India. Defendants move pursuant to Rule 12(b) of the Rules of this Court to dismiss this action for lack of jurisdiction or, alternatively, for failure to state a claim as to which relief can be granted.

The Court finds that it has jurisdiction under 28 U.S.C. § 1581(i) (1982), but that the Indian exporters are not entitled to an injunction against publication of either the preliminary or final review results in the pending administrative reviews.

BACKGROUND

Commerce published a final affirmative determination on March 19, 1986 finding that iron castings from India, except those sold by RSI (India) Pvt. Ltd., Kejriwal and Kajaria, were being sold at less than fair value in the United States. Certain Iron Construction Castings From India; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9486 (Mar. 19, 1986). The antidumping duty order was published on May 9, 1986. Antidumping Duty Order; Iron Construction Castings From India, 51 Fed.Reg. 17,221 (May 9, 1986).

Fifteen domestic producers of iron construction castings challenged the exclusion from the dumping order of three Indian exporters—RSI, Kejriwal, and Kajaria. This litigation did not affect the exclusion of RSI or Kajaria, but did result in an affirmative dumping margin of 2.93 percent for Kejriwal. Alhambra Foundry Co., Ltd. v. United States, 12 CIT ___, 685 F.Supp. 1252, and 12 CIT ___, 701 F.Supp. 221 (1988).

In a separate action, Serampore Industries and the Engineering Export Promotion Council of India¹ challenged the affirmative findings for Serampore and the "all others." This litigation ultimately resulted in Serampore's exclusion from the dumping order because its dumping margin of 0.487 percent was found to be de minimis. Serampore Indus. Pvt., Ltd. v. United States Dep't of Commerce, 11 CIT ___, 675 F.Supp. 1354 (1987), 12 CIT ___, 696 F.Supp. 665 (1988), 13 CIT ___, 705 F.Supp. 602 (1989).

As a result of the litigation in both Alhambra and Serampore, the "all others" dumping margin shifted from Serampore's rate, 51 Fed.Reg. 17,221, to a combination of Serampore's and Kejriwal's rates, Alhambra, 12 CIT at ___, 701 F.Supp. at 225, and finally to Kejriwal's rate alone. Serampore, 13 CIT at ___, 705 F.Supp. at 604.

During litigation of Alhambra and Serampore, Commerce initiated two administrative reviews of the antidumping order on iron construction castings from India pursuant to timely requests under 19 U.S.C. § 1675(a) (1982 & Supp. V 1987). The first administrative review covers all entries of Indian iron castings, except those exported by the three companies excluded by the antidumping order, during the period of October 28, 1985 to April 30, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 53 Fed.Reg. 23,330 (June 19, 1987). The second covers all entries of Indian iron castings, again except those exported by the three companies excluded by the antidumping order, during the period from May 1, 1987 to April 30, 1988. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 53 Fed.Reg. 24,470 (June 29, 1988). To date, no preliminary or final results have been issued in either review.

On February 19, 1989, the Indian exporters sent a letter to Commerce asking it to terminate these reviews:

The basis—and only basis—for the two ... reviews was the original determination against Serampore. A copy of the original order shows that only Serampore was subject to an affirmative determination.... With the exclusion of Serampore, there is no affirmative finding or outstanding valid dumping order on which to base Section 751 reviews for 1985-87 or 1987-88. Reviews based on the original determination and order should, therefore, be terminated.

The domestic producers opposed the request to terminate the reviews on the basis that the Serampore litigation did not extinguish the existence of the antidumping duty order on iron construction castings from India, but rather altered the coverage of the order with respect to Serampore and Kejriwal. They argued that the status of the reviews with respect to all other companies remains unchanged.

On March 17, 1989, the Indian exporters replied that the "order" with respect to Kejriwal can only cover entries subsequent to the date of the order when it is issued. They argued that

while there will be an outstanding order as of the date the order against Kejriwal is published, there will no longer be an "outstanding" order having effect prior to that date on which to predicate reviews. ... The Court's determination with respect to Serampore does, indeed, extinguish the order issued in 1986 and the Kejriwal order cannot review the order. Commerce is thus without legal authority to review periods prior to issuance of a new order covering Kejriwal. Accordingly, the reviews now taking place should be terminated.

Commerce did not terminate the reviews or otherwise respond to the Indian exporters' letters. On March 23, 1989, Commerce published notice of its determination upon remand in Alhambra, which set a dumping margin for Kejriwal. Certain Iron Construction Castings From India; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order in Accordance With Decision Upon Remand, 55 Fed.Reg. 11,989 (Mar. 23, 1989). Kejriwal then filed an action in this Court on April 3, 1989 to contest the finding of dumping against it. Kejriwal Iron and Steel Works, Ltd. v. United States, Court No. 89-04-00172.

On April 28, 1989, the Indian exporters filed an action in this Court alleging that the original dumping order is void ab initio as a result of the Serampore litigation and thus no valid underlying order exists on which to base administrative reviews until March 23, 1989, when Commerce published notice of the dumping margin for Kejriwal. The complaint seeks a declaratory judgment that the pending reviews are invalid and therefore unlawful, and an injunction against continuing the reviews.

On May 1, 1989, Commerce published its determination upon remand in Serampore that Serampore should be excluded from the antidumping duty order on iron castings from India. Certain Iron Construction Castings From India; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order in Accordance With Decision Upon Remand, 54 Fed.Reg. 18,562 (May 1, 1989).

During oral argument, the Court was also informed that a third administrative review based on the allegedly invalid order has now been requested and may soon be initiated.

DISCUSSION

I. MOTION TO DISMISS

The Indian exporters allege that the Court has jurisdiction under 28 U.S.C. § 1581(i) (1982). This is the residual jurisdiction of the Court, which may be invoked as a basis for subject matter jurisdiction where another subsection of section 1581 is unavailable or the remedy provided by the other subsection is "manifestly inadequate." National Corn Growers Ass'n v. Baker, 840 F.2d 1547, 1557 (Fed.Cir.1988); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988).

Defendants argue that the action should be dismissed because the plaintiffs are attempting to circumvent the statutory scheme for judicial review after completion of an administrative review. Defendants argue that 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a specify "the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade." Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed.Cir. 1986). Section 1516a(a)(2)(B) lists several types of agency determinations that are explicitly subject to judicial review in the Court of International Trade, including the final results of administrative reviews. Defendants argue that the Indian exporters may challenge Commerce's authority to conduct administrative reviews only after the reviews have been completed and the final results published in the Federal Register. Defendants thus urge that the exclusive means by which the Indian exporters may obtain judicial review is pursuant to 28 U.S.C. § 1581(c) (1982).

Defendants also move to dismiss on the basis that the Indian exporters have not exhausted their administrative remedies before Commerce. Commerce is currently conducting administrative reviews, a process which provides the Indian exporters an opportunity to...