American Chain Ass'n v. US

• Decision Date: 28 December 1989
• Docket Number: Court No. 89-09-00513.
• Citation: 13 CIT 1090,746 F. Supp. 112
• Parties: AMERICAN CHAIN ASSOCIATION, Plaintiff, v. UNITED STATES, Defendant, and Tsubakimoto Chain Co., Ltd and U.S. Tsubaki, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

746 F. Supp. 112

13 CIT 1090

AMERICAN CHAIN ASSOCIATION, Plaintiff, v. UNITED STATES, Defendant and Tsubakimoto Chain Co., Ltd and U.S. Tsubaki, Inc., Defendant-Intervenors.

Court No. 89-09-00513.

United States Court of International Trade.

December 28, 1989.

Covington & Burling (David E. McGiffert and David R. Grace), Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (Velta A. Melnbrencis), Pamela Green, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., of counsel, for defendant.

Barnes, Richardson & Colburn, (Robert E. Burke, Donald J. Unger and Kazumune V. Kano), Chicago, Ill., for defendant-intervenors.

MEMORANDUM OPINION

CARMAN, Judge:

The defendant United States (the government) moves pursuant to Rule 12(b) of this Court to dismiss this action for lack of jurisdiction. Plaintiff American Chain Association (plaintiff) opposes the motion. The complaint in this action seeks to contest the Commerce Department's (Commerce) determination to revoke the roller chain antidumping duty finding with respect to the Tsubakimoto Chain Company. See Roller Chain, Other Than Bicycle, From Japan, 54 Fed.Reg. 33,259 (Aug. 14, 1989). Also pending before this Court is plaintiff's request for a preliminary injunction to enjoin the government from liquidating any unliquidated entries of roller chain, other than bicycle, produced by the Tsubakimoto Chain Company in Japan during the pendency of this action¹

The issue before this Court is whether under Rule 5(g) of this Court a summons is deemed "mailed" for purposes of establishing jurisdiction in this Court when plaintiff's counsel caused the summons to be prepared and placed in an envelope properly addressed to the Clerk of the Court, with proper postage affixed and return receipt requested, ready for hand-delivery by counsel's messenger to a local post office, when, due to an accident involving the messenger while in route to the post office, plaintiff's counsel was unable to deliver the summons to the post office until one day outside the filing deadline. Because the government's waiver of sovereign immunity from suit must be strictly construed and no exceptions can be implied, this Court does not have jurisdiction to entertain this action and the government's motion to dismiss must be granted and this case dismissed.

BACKGROUND

On August 14, 1989, Commerce published its determination in the Federal Register revoking the roller chain antidumping duty as to the Tsubakimoto Chain Company. See Roller Chain, Other Than Bicycle, From Japan, 54 Fed.Reg. 33,259. According to affidavits accompanying plaintiff's opposition papers, thirty days thereafter, on September 13, 1989, plaintiff's counsel completed preparation of a summons and complaint seeking to contest Commerce's determination in this Court. Motion papers for a preliminary injunction were also prepared at that time.

All of these papers were placed in an envelope that was properly addressed to the Clerk of this Court. The envelope was weighed at counsel's internal mail facility and appropriate postage and certified mail receipts were affixed to the package. An employee of plaintiff's counsel was given the package for hand delivery to a local post office. While in route to the post office the messenger was struck by a car, which had apparently run a red light. The messenger was taken to a local hospital, treated and kept under observation for the night. Apparently, the envelope containing the pleadings was never delivered to the post office on September 13, 1989.

The next day, upon learning of the unfortunate occurrence, plaintiff's counsel caused the same pleadings and motion papers to be properly mailed to this Court. Pursuant to rules of this Court the summons and complaint and other papers were deemed filed by the Clerk of the Court on September 14, 1989, thirty-one days after the contested determination was published. The government subsequently filed the motion to dismiss.

DISCUSSION

The Tariff Act of 1930, section 516A, provides that an action challenging a final revocation determination must be commenced by filing a summons in this Court within thirty days after the date of publication of the determination in the Federal Register. 19 U.S.C. § 1516a.² Pursuit of a civil action contesting a final revocation determination is barred unless commenced within the thirty day period specified by section 516A. See 28 U.S.C. § 2636(c) (Supp. V 1987).³ It is well settled that these statutes, which supply the conditions for the waiver of the sovereign immunity of the United States, are jurisdictional in nature and must be strictly construed. Georgetown Steel Corp. v. United States, 4 Fed.Cir. (T) 143, 147, 801 F.2d 1308, 1312 (1986). This Court is not empowered to imply equitable exceptions. NEC Corp. v. United States, 5 Fed.Cir. (T) 49, 51, 806 F.2d 247, 249 (1986).

Despite the fact that plaintiff's summons was not deemed filed until one day after the statutory filing period, plaintiff argues that USCIT Rule 5(g)⁴ gives this Court the authority to order that the summons be deemed filed as of the date of the first attempted delivery by the messenger. Plaintiff argues that since Congress has delegated to this Court certain authority to prescribe the "manner" of commencing actions in this Court, see 19 U.S.C. § 1516a(a)(2)(A), "it is the CIT rules and this Court's interpretation of those rules which ultimately constitute the `terms and conditions upon which the United States waives its sovereign immunity.'" Plaintiff's Response at 5-6 (quoting NEC, 5 Fed.Cir. (T) at 50, 806 F.2d at 248.).

Plaintiff's argument is unpersuasive. Rule 5(g) conforms with the mandates of 28 U.S.C. § 2632(d) (1982) which provides that this Court

may prescribe by rule that any summons, pleading, or other paper mailed by registered or certified mail properly addressed to the clerk of the court with the proper postage affixed and return receipt requested shall be deemed filed as of the date of mailing.

(Emphasis added). Thus, this Court has been delegated extremely little authority to prescribe even the manner of service of papers, including filing actions, in this Court. Furthermore, it is well-settled that this Court cannot, through its rules, enlarge its jurisdiction.

Authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge that jurisdiction; and the statute authorizing this Court to prescribe rules of procedure in civil actions gave it no authority to modify, abridge or enlarge the substantive rights of litigants or to enlarge or diminish the jurisdiction of federal courts.

United States v. Sherwood, 312 U.S. 584, 589-90, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). This principle is also embodied in Rule 1 of this Court which specifies that the "rules of this Court shall not be construed to extend or limit the jurisdiction of the court."

The Court is especially proscribed from enlarging the time limits for suing the government. In NEC, the Court of Appeals upheld Judge Watson's dismissal of an action to contest an antidumping determination, due to untimely filing of the summons. 5 Fed.Cir. (T) 49, 806 F.2d 247. In that case, a summons was posted within the thirty day deadline, but the envelope containing the summons was returned to NEC's counsel for want of sufficient postage. The summons was then remailed, with appropriate postage, but out of time.

The Court of Appeals noted the jurisdictional nature of the filing of the summons and the age old principle that the "United States is immune from suit except in accordance with the terms and conditions under which it consents to be sued." 5 Fed. Cir. (T) at 50, 806 F.2d at 248. The Court observed the thirty day filing deadline was "plain and unambiguous," and that the filing had to be in accordance with the rules of this Court. Id. "The rules prescribing the manner and method for filing a summons constitute terms and conditions upon which the United States waives its sovereign immunity. Suit is barred unless the summons is filed in conformity with these rules. 28 U.S.C. § 2636(c)." Id. Concluding, the Court of Appeals stated:

Contrary to the NEC assertion that deviation from the Rules of the Court of International Trade may be subject to excuse and remedied upon equitable principles, the requirement of a properly and timely filed summons is a requisite of jurisdiction which cannot be waived. Georgetown Steel v. United States, 801 F.2d 1308, 1312 (Fed.Cir.1986). The terms of the government's consent to be sued in any particular court define that court's jurisdiction to entertain the suit. United States v. Testan, 424 U.S. 392, 399 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions. Lehman v. Nakshian, 453

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