Techsnabexport, Ltd. v. US

• Decision Date: 21 May 1992
• Docket Number: Court No. 92-04-00248.
• Parties: TECHSNABEXPORT, LTD., et al., Plaintiffs, v. The UNITED STATES, et al., Defendants, and Ad Hoc Committee of Domestic Uranium Producers, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

795 F. Supp. 428

16 CIT 420

TECHSNABEXPORT, LTD., et al., Plaintiffs, v. The UNITED STATES, et al., Defendants and Ad Hoc Committee of Domestic Uranium Producers, et al., Defendant-Intervenors.

Court No. 92-04-00248.

United States Court of International Trade.

May 21, 1992.

COPYRIGHT MATERIAL OMITTED

Hogan & Hartson, William A. Bradford, Jr., Lewis E. Leibowitz, Steven J. Routh and T. Clark Weymouth, Frank J. Fahrenkopf, Jr., Washington, D.C., of counsel, for plaintiffs Techsnabexport Ltd., NUEXCO Trading Corp. and Globe Nuclear Services and Supply GNSS.

Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Neil R. Ellis, Jonathan A. Knee and Susan M. Matthews, Washington, D.C., for plaintiffs Ukraine and Republic of Tajikistan.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch; U.S. Dept. of Justice, Civ. Div., Jane E. Meehan and Marc E. Montalbine, David W. Richardson; Attorney-Advisor, Office of the Chief Counsel for Import Admin., Washington, D.C., of counsel, for defendants.

Akin, Gump, Hauer & Feld, Valerie A. Slater and Nicholas D. Giordano, Washington, D.C., for defendant-intervenors.

OPINION

RESTANI, Judge:

Pursuant to Rule 65(a) of the rules of this court, Ukraine, the Republic of Tajikistan, Techsnabexport Ltd. ("TENEX"),¹ NUEXCO Trading Corporation ("NUEXCO") and Globe Nuclear Services and Supply GNSS ("GNSS") (collectively "plaintiffs"),² request the court to grant a preliminary injunction enjoining the Department of Commerce, International Trade Administration ("Commerce"), from continuing its less than fair value ("LTFV") investigation initiated in Initiation of Antidumping Duty Investigation: Uranium from the Union of Soviet Socialist Republics, 56 Fed.Reg. 63,711 (Dep't Comm. Dec. 5, 1991), until the court renders final judgment on plaintiffs' request for permanent injunctive relief and declaratory judgment.³

Plaintiffs allege that Commerce's March 24, 1992 decision to continue the investigation violates the antidumping law and is causing, and will continue to cause, immediate and irreparable injury to plaintiffs. Plaintiffs argue that the antidumping investigation was initiated on the basis of uranium imports from the Union of Soviet Socialist Republics ("USSR") and since that country has ceased to exist, there can be no future imports at LTFV. The essence of the dispute is plaintiffs' contention that Commerce cannot apply the results of its investigation of past imports from one country (the USSR) to future uranium imports from other countries (the twelve constituent republics). Defendant and defendant-intervenors oppose the motions on both substantive and jurisdictional grounds.

Background

On November 8, 1991, the Ad Hoc Committee of Domestic Uranium Producers and the Oil, Chemical and Atomic Workers International Union ("petitioners") filed a petition with Commerce and the International Trade Commission ("ITC") requesting initiation of an antidumping duty investigation for imports of uranium products from the USSR and "each and every Republic which is ... a member" of the USSR.⁴ On December 5, 1991, Commerce published notice in the Federal Register that it was initiating an antidumping duty investigation of uranium imports from the USSR. 56 Fed. Reg. 63,711. The period of investigation covered imports of uranium from June 1991 through November 1991.

On November 19, 1991, ITC published notice that it was initiating its preliminary investigation. Uranium from the USSR, 56 Fed.Reg. 58,397 (Int'l Trade Comm. Nov. 19, 1991). On December 23, 1991, ITC made a preliminary affirmative injury determination. Uranium from the USSR, USITC Pub. 2471, Inv. No. 731-TA-539 (Dec.1991).

During the last several months of 1991, the USSR rapidly moved toward dissolution. Tajikistan declared its independence on September 9, and the Ukraine voted in favor of independence on December 1. The USSR ceased to exist on December 25, 1991. In view of the dissolution of the USSR, counsel for TENEX, NUEXCO and GNSS ("company respondents" or "company plaintiffs") requested on January 10, 1992, that Commerce terminate the investigation. While this matter was pending, Commerce issued questionnaires to the company respondents on January 16 and received the responses on February 21 and 28, and March 13.

During the last weeks of January, Commerce also issued questionnaires to the twelve newly-created republics. These questionnaires were sent to the Deputy Trade Representative of the Russian Federation in Washington, D.C.⁵ Commerce stated that it expected that the Deputy Trade Representative would transmit the copies to each of the new republics. Upon the refusal of the Russian Deputy Trade Representative to assume responsibility for proper delivery of the questionnaires to the republics, Commerce sent a copy of the questionnaire to the United Nations Mission of Ukraine.⁶ For the other countries, including Tajikistan, it sent copies to the U.S. Embassy in Moscow, to be delivered to the countries' permanent representatives to the Russian Federation.⁷

On March 24, 1992, Commerce issued an internal memorandum that stated its intent to continue the investigation against the independent republics. In this memorandum, Commerce stated that the antidumping law does not require rescission of an investigation when the country named in the petition ceases to exist. Commerce found no statutory guidance on this specific issue, but noted that termination of the investigation would create a gap in the coverage of the antidumping law between the time of termination and the time petitions were filed against the new countries.

On April 1, 1992, Commerce published notice that it was extending the deadline for the preliminary determination in this matter until May 18, 1992 because the investigation was "extraordinarily complicated." Postponement of Preliminary Antidumping Duty Determination: Uranium from the Former Union of Soviet Socialist Republics (USSR), 57 Fed.Reg. 11,064, 11,065 (Dep't Comm. Apr. 1, 1992). Commerce explained that it had been very difficult to communicate with the new republics. Commerce also restated its intention to continue the investigation.

On March 30, 1992, Commerce mailed the petition, initiation notice, questionnaire, and other memoranda to the governments of the independent republics. The permanent representatives of the independent states in Moscow were also served by hand with most of these documents. The deadline for submitting information was extended to April 15. The sovereign plaintiffs in this action have not responded to the questionnaires.

Discussion

1. This court's jurisdiction under 28 U.S.C. § 1581(i).

Plaintiffs carry the burden of demonstrating that jurisdiction exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Smith Corona Group, SCM Corp. v. United States, 8 CIT 100, 102, 593 F.Supp. 415, 417-18 (1984). In this case, plaintiffs argue that the court has jurisdiction pursuant to 28 U.S.C. § 1581(i)(4), which sets forth the court's residual jurisdiction.⁸ Defendants maintain that plaintiffs have an adequate remedy under 28 U.S.C. § 1581(c).⁹ That is, if the investigation ultimately results in a final affirmative antidumping duty determination and an antidumping duty order is published, plaintiffs will have an opportunity to contest Commerce's decision to continue the investigation. That decision would be subsumed in the final appealable determination. Plaintiffs respond by arguing that post-investigation judicial review pursuant to 28 U.S.C. § 1581(c) is manifestly inadequate because mere continuation of the investigation will cause irreparable harm whether or not the final determination is adverse.

Section 1581(i)(4) may be invoked as a basis for subject matter jurisdiction when another subsection of § 1581 is unavailable or the remedy provided by the other subsection is "manifestly inadequate." See 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, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988). Such residual jurisdiction is available if Congress has not defined another avenue for judicial review or if Congress has not precluded it entirely. See Macmillan Bloedel Ltd. v. United States, 16 CIT ___, ___, 1992 WL 107336 Slip Op. 92-67 at 3-4 (May 8, 1992). Although jurisdiction is limited in cases where the complainant seeks relief during the pendency of an investigation and the determination is finally reviewable under 28 U.S.C. § 1581(c), see id. at ___, Slip Op. 92-67 at 4, jurisdiction to review interim decisions has been found when failure to review the interim determination will effectively preclude review. See id. at ___, Slip Op. 92-67 at 3-4.

The United States does not seriously dispute that Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 717 F.Supp. 847 (1989), aff'd, 903 F.2d 1555 (Fed.Cir.1990), and Carnation Enterprises v. United States Dep't of Commerce, 13 CIT 604, 719 F.Supp. 1084 (1989), require that the court take jurisdiction. In Asocoflores, the court found jurisdiction under § 1581(i) where plaintiff sought to enjoin Commerce from proceeding with an allegedly unlawful administrative review. Plaintiffs, numerous small businesses, alleged hardship in expending time, effort and money to participate in the review. The court found that the remedy afforded after the final determination (under § 1581(c)) was manifestly inadequate because, by that time, plaintiffs' challenge would be moot. 13 CIT at 586-87, 717 F.Supp. at 850. Significantly, the court noted that Commerce's decision to initiate the review was neither a preliminary decision that would be superseded by a final determination, nor was it a decision related to methodology or procedure that could be reviewed effectively following the final determination....