Borusan Mannesmann Boru Sanayi Ve Ticaret A. v. United States

Citation986 F.Supp.2d 1381
Decision Date06 June 2014
Docket NumberSlip Op. 14–61.,Court No. 14–00129.
PartiesBORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

986 F.Supp.2d 1381

BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., Plaintiff,
v.
UNITED STATES, Defendant.

Slip Op. 14–61.
Court No. 14–00129.

United States Court of
International Trade.

June 6, 2014.


[986 F.Supp.2d 1382]


Donald Bertrand Cameron, Brady Warfield Mills, Julie Clark Medoza, Mary Shannon Hodgins, Rudi Will Planert, and Sarah Suzanne Sprinkle, Morris, Manning, & Martin, LLP, of Washington, DC, for Plaintiff.

Loren Misha Preheim, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant.


Alan Hayden Price, Adam Milan Teslik, Robert Edward DeFrancesco, III, and Usha Neelakantan, Wiley Rein, LLP, of Washington, DC, for Defendant–Intervenor.

OPINION

KELLY, Judge:

Plaintiff Borusan Mannesmann Boru Sanayi ve Ticaret A.S. (“Plaintiff” or “Borusan”) brings this action for a writ of mandamus compelling the U.S. Department of Commerce (“Commerce”) to perform a verification in the ongoing countervailing duty investigation of Certain Oil Country Tubular Goods From India and Turkey, 78 Fed.Reg. 45,502 (Dep't Commerce July 29, 2013) (initiation of countervailing duty investigations) (“Investigation”), prior to Commerce's issuance of the final determination. Plaintiff alleges jurisdiction under 28 U.S.C. § 1581(i)(2) and (4) (2006),1 claiming the remedy provided for under the Court's 28 U.S.C. § 1581(c) jurisdiction is manifestly inadequate. The court, sua sponte, dismisses this action for lack of subject matter jurisdiction.

Background 2

Plaintiff is a producer, exporter and importer of oil country tubular goods (“OCTG”) from Turkey and is a mandatory respondent in the Investigation. In the proceedings, Commerce received questionnaire responses from both Plaintiff and the Government of Turkey (“GOT”). Commerce issued a negative preliminary determination in the Investigation on December 23, 2013. Certain Oil Country Tubular Goods From the Republic of Turkey, 78 Fed.Reg. 77,420 (Dep't Commerce Dec. 23, 2013) (preliminary negative countervailing duty determination and alignment of final determination with final antidumping determination) (“Preliminary Determination”). One of the alleged subsidy programs in the Investigation, at issue in this case, is the GOT's alleged provision of hot rolled steel (“HRS”) to Plaintiff for less than adequate remuneration (“LTAR”). In the Preliminary Determination, Commerce found Plaintiff received de minimis subsidies. However, Commerce explained in a section

[986 F.Supp.2d 1383]

of its Preliminary Determination titled “Programs and Issues That Require More Information” that it had initiated an investigation into whether two entities, Eregli Demir ve Celik Fabrikalari T.A.S. (“Erdemir”) and Iskenderun Iron Steel Works Co. (“Isdemir”), had provided respondents with HRS and that it needed more information from the GOT about Ordu Yardimlasma Kurumu (“OYAK”), the Turkish military pension fund that was the majority shareholder of the two entities. Pl.'s Mot. Writ Mandamus, Ex. 2 at 20, May 30, 2014, ECF No. 6–2 (Decision Memorandum for the Negative Preliminary Determination in the Countervailing Duty Investigation of Certain Oil Country Tubular Goods from the Republic of Turkey). Thus, Commerce deferred review of the HRS for LTAR program for a post-preliminary analysis. In the post-preliminary analysis published on April 18, 2014, Commerce found subsidy margins for Plaintiff of 25.76% based solely on the HRS for LTAR program. Pl.'s Mot. Writ Mandamus Ex. 4 at 7–9 (Post–Preliminary Analysis). On April 22, 2014, in response to a verification request from the GOT, Commerce stated that its verifiers “will not be verifying the HRS for LTAR program.” 3 Pl.'s Mot. Writ Mandamus, Ex. 7 at Exs. 1, 2 (Email Attachments to May 22, 2014 Letter from Veysel Parlak). On April 25, 2014, Commerce did conduct a one-day verification of the GOT, but its verification report did not verify the information on the HRS for LTAR program. Commerce later stated, on April 30, 2014, that as the program information was provided by the GOT and not by a company, “this [sort of information] is not something [Commerce] would verify as part of Borusan's company verification.” 4 Pl.'s Mot. Writ Mandamus, Ex. 5 (May 5, 2014 Memorandum to File from Shane Subler, International Trade Compliance Analyst).

Commerce's final determination is scheduled for publication on July 10, 2014. Pl.'s Mot. Expedited Consideration 1, May 30, 2014, ECF No. 7. Plaintiff brought this action on May 30, 2014, seeking expedited consideration and a writ of mandamus ordering Commerce to conduct verification of the information on the HRS for LTAR program. See Compl., May 30, 2014, ECF No. 5; see also Pl.'s Mot. Expedited Consideration. The court conducted a telephone conference that same day with both Plaintiff and Defendant. During the telephone conference, the court informed the parties that it was concerned it did not possess jurisdiction to hear the case. The court requested Plaintiff to address two specific issues: (1) why review under 28 U.S.C. § 1581(c) would not be adequate to remedy the alleged harm; and (2) whether there had been final agency action, which would be required under the Administrative Procedure Act (“APA”). Order, May 30, 2014, ECF No. 10. The court asked

[986 F.Supp.2d 1384]

the Plaintiff to address these two concerns in a memorandum addressed to the court no later than Tuesday, June 3, 2014, which the Plaintiff did.

Discussion

As is often repeated, “federal courts ... are courts of limited jurisdiction marked out by Congress.” Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 358 (Fed.Cir.1992) ( quoting Aldinger v. Howard, 427 U.S. 1, 15, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), superseded by statute on other grounds, Judicial Improvements Act, Pub.L. No. 101–650, 104 Stat. 5089,as recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 557, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005)). Therefore, the “court may and should raise the question of its jurisdiction sua sponte at any time it appears in doubt.” Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed.Cir.1988) (citations omitted). The court may dismiss a case for lack of subject matter jurisdiction on its own motion because the court must enforce the limits of its jurisdiction. See, e.g., Cabral v. United States, 317 Fed.Appx. 979, 980 n. 1 (Fed.Cir.2008) ( citingArctic Corner, Inc., 845 F.2d at 1000).

Under 28 U.S.C. § 1581(i), the Court has jurisdiction to hear “any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—... (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue,” and “(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.” However, § 1581(i) “shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable ... by the Court of International Trade under section 516A(a) of the Tariff Act of 1930....” 28 U.S.C. § 1581(i). The legislative history of § 1581(i) demonstrates Congress intended “that any determination specified in section 516A of the Tariff Act of 1930, [as amended,] or any preliminary administrative action which, in the course of the proceeding, will be, directly or by implication, incorporated in or superceded by any such determination, is reviewable exclusively as provided in section 516A.” H.R.Rep. No. 96–1235, at 48 (1980), reprinted in 1980 U.S.C.C.A.N. 3729, 3759–60. Thus, the Court's § 1581(i) jurisdiction is available only if the party asserting jurisdiction can show the Court's § 1581(a)-(h) jurisdiction is unavailable, unless the remedies afforded by those provisions would be manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987) (“Section 1581(i) jurisdiction may not be invoked when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.” (citations omitted)).

When jurisdiction under another provision of § 1581 “is or could have been available, the party asserting § 1581(i) jurisdiction has the burden to show how that remedy would be manifestly inadequate.” Id. at 963 (citations omitted). That judicial review may be delayed by requiring a party to wait for Commerce's final determination in a countervailing duty investigation is not enough to make judicial review under § 1581(c) manifestly inadequate. Gov't of People's Republic of China v. United States, 31 CIT 451, 461, 483 F.Supp.2d 1274, 1282 (2007). Neither the burden of participating in the administrative proceeding nor the business uncertainty caused by such a proceeding is sufficient to constitute manifest inadequacy. See, e.g., id. at 461, 483 F.Supp.2d at 1282

[986 F.Supp.2d 1385]

(citing FTC v. Standard Oil, 449 U.S. 232, 244, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980)); Abitibi–Consolidated Inc. v. United States, 30 CIT 714, 717–18, 437 F.Supp.2d 1352, 1356–57 (2006). Essentially, the type of review sought by a plaintiff asserting the court's § 1581(i) jurisdiction must not already be provided for by 19 U.S.C. § 1516a (2006).5Abitibi–Consolidated Inc., 30 CIT at 717–18, 437 F.Supp.2d at 1356–57.

The Court's § 1581(c) jurisdiction makes final determinations by Commerce reviewable via 19 U.S.C. § 1516a(a)(2). The Court of Appeals for the Federal Circuit has held that § 1516a(a)(2) allows for judicial review of both matters of procedural correctness, as well as the substantive merits of the determination. See Miller & Co., 824 F.2d at 964 (“Under 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a, the procedural correctness of a countervailing duty determination, as well as the merits, are subject to judicial review.” (citations omitted)). That Commerce...

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