986 F.Supp.2d 1381 (CIT 2014), 14-00129, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States

Docket Nº:Court 14-00129
Citation:986 F.Supp.2d 1381
Opinion Judge:Claire R. Kelly, Judge.
Party Name:BORUSAN MANNESMANN BORU SANAYI VE TICARET A.Ş., Plaintiff, v. UNITED STATES, Defendant
Attorney:Court No. 14-00129 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, Civi...
Case Date:June 06, 2014
Court:Court of International Trade

Page 1381

986 F.Supp.2d 1381 (CIT 2014)

BORUSAN MANNESMANN BORU SANAYI VE TICARET A.Ş., Plaintiff,

v.

UNITED STATES, Defendant

Court No. 14-00129

United States Court of International Trade

June 6, 2014

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

Page 1382

Claire R. Kelly, Judge.

Plaintiff Borusan Mannesmann Boru Sanayi ve Ticaret A.Ş . (" 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.

Background2

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

Page 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

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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) (citing Arctic 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)...

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6 practice notes
  • The Court of International Trade's application of 28 U.S.C. [section] 1581(I) jurisdiction in 2014.
    • United States
    • Georgetown Journal of International Law Vol. 47 Nbr. 1, September 2015
    • 22 Septiembre 2015
    ...Co. v. United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008). (14.) Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 986 F. Supp. 2d 1381, 1384-85 (Ct. Int'l Trade 2014). (15.) Miller & Co. v. United States, 824 F.2d 961, 964 (Fed. Cir. 1987). (16.) Ford Motor Co. v. Unite......
  • M S International, Inc. v. United States, 013020 USCIT, 19-00132
    • United States
    • Federal Cases Court of International Trade
    • 30 Enero 2020
    ...or otherwise not in accordance with law..." Borusan Mannesmann Boru Sanayi v. Ticaret A.S., 38 CIT ___, ___, 986 F.Supp.2d 1381, 1384-85 (2014). To this, the court would add the helpful reminder that Plaintiff's 1581(i) claim is nothing more than an Administrat......
  • 312 F.Supp.3d 1372 (CIT. 2018), 18-00005, Coalition for Fair Trade in Garlic v. United States
    • United States
    • Federal Cases United States District Court, Federal Circuit
    • 4 Mayo 2018
    ...pursuant to § 1581(c) manifestly inadequate, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 38 C.I.T. __, 986 F.Supp.2d 1381, 1384 (2014), and CFTG’s suggestion that it would otherwise lose it chance to challenge the rescission is legally incorrect. As ......
  • Coalition For Fair Trade In Garlic v. United States, 050418 USCIT, 18-00005
    • United States
    • Federal Cases Court of International Trade
    • 4 Mayo 2018
    ...relief pursuant to §1581(c) manifestly inadequate, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 38 CIT__, 986 F.Supp.2d 1381, 1384 (2014), and CFTG's suggestion that it would otherwise lose it chance to challenge the rescission is legally incorrect. A......
  • Free signup to view additional results
5 cases
  • M S International, Inc. v. United States, 013020 USCIT, 19-00132
    • United States
    • Federal Cases Court of International Trade
    • 30 Enero 2020
    ...or otherwise not in accordance with law..." Borusan Mannesmann Boru Sanayi v. Ticaret A.S., 38 CIT ___, ___, 986 F.Supp.2d 1381, 1384-85 (2014). To this, the court would add the helpful reminder that Plaintiff's 1581(i) claim is nothing more than an Administrat......
  • 312 F.Supp.3d 1372 (CIT. 2018), 18-00005, Coalition for Fair Trade in Garlic v. United States
    • United States
    • Federal Cases United States District Court, Federal Circuit
    • 4 Mayo 2018
    ...pursuant to § 1581(c) manifestly inadequate, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 38 C.I.T. __, 986 F.Supp.2d 1381, 1384 (2014), and CFTG’s suggestion that it would otherwise lose it chance to challenge the rescission is legally incorrect. As ......
  • Coalition For Fair Trade In Garlic v. United States, 050418 USCIT, 18-00005
    • United States
    • Federal Cases Court of International Trade
    • 4 Mayo 2018
    ...relief pursuant to §1581(c) manifestly inadequate, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 38 CIT__, 986 F.Supp.2d 1381, 1384 (2014), and CFTG's suggestion that it would otherwise lose it chance to challenge the rescission is legally incorrect. A......
  • Diamond Sawblades Manufacturers' Coalition v. United States Department of Commerce, 092314 USCIT, 13-00391
    • United States
    • Federal Cases Court of Appeals of International Trade
    • 23 Septiembre 2014
    ...be lost." (citations omitted)); see also Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 38 CIT __, __, 986 F.Supp.2d 1381, 1388–89 (2014) (recognizing a line of cases in which plaintiffs "sought to stop an allegedly unnecessary or ultra vires administrative proce......
  • Free signup to view additional results
1 books & journal articles
  • The Court of International Trade's application of 28 U.S.C. [section] 1581(I) jurisdiction in 2014.
    • United States
    • Georgetown Journal of International Law Vol. 47 Nbr. 1, September 2015
    • 22 Septiembre 2015
    ...Co. v. United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008). (14.) Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 986 F. Supp. 2d 1381, 1384-85 (Ct. Int'l Trade 2014). (15.) Miller & Co. v. United States, 824 F.2d 961, 964 (Fed. Cir. 1987). (16.) Ford Motor Co. v. Unite......