Ad Hoc Utilities Group v. U.S.
| Citation | 650 F.Supp.2d 1318 |
| Decision Date | 15 September 2009 |
| Docket Number | Slip Op. 09-98. Court No. 06-00229. |
| Parties | AD HOC UTILITIES GROUP, Plaintiff, v. UNITED STATES, Defendant, and USEC Incorporated, et al., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Pillsbury Winthrop Shaw Pittman LLP (Nancy A. Fischer and Joshua D. Fitzhugh), Washington, DC, for Plaintiff Ad Hoc Utilities Group.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini), for Defendant United States.
Steptoe & Johnson LLP (Eric C. Emerson, Alexandra E.P. Baj, Sheldon E. Hochberg, Richard O. Cunningham and Thomas J. Trendl), Washington, DC, for Defendant-Intervenors USEC Inc. and United States Enrichment Corp.
Akin Gump Strauss Hauer & Feld LLP (Valerie A. Slater, Margaret C. Marsh, Bernd G. Janzen and Lisa W. Ross), Washington, DC, for Defendant-Intervenors Power Resources, Inc. and Crowe Butte Resources, Inc.
Before: POGUE, Judge.
Plaintiff in this case, Ad Hoc Utilities Group ("AHUG"), pursuant to USCIT Rule 59,1 requests rehearing of the court's dismissal of Plaintiff's action for lack of standing. See Ad Hoc Utils. Group v. United States, 625 F.Supp.2d 1330 (CIT 2009) ("AHUG").2 In AHUG, the issue presented was whether "a group of American utility companies that obtain and use enriched uranium from Russia" had standing "to challenge the Department of Commerce's ('Commerce') decision not to terminate its antidumping duty investigation of that uranium." Id. at 1331-32. The court dismissed AHUG's action "[b]ecause the utility companies individually d[id] not each qualify either as producers or importers of the subject uranium," id. at 1332 (emphasis added), and, in the alternative, because the companies would, even if treated as a group, fail to "qualify as a trade or business association a majority of the members of which are producers or importers." Id.
As explained below, as AHUG was correctly decided, and no individual utility company with standing is a plaintiff herein, the court denies Plaintiff's motion.
This dispute arose from AHUG's 2006 challenge to Commerce's second "sunset" review of the suspension of the antidumping duty investigation of uranium from Russia, pursuant to Uranium from Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine, and Uzbekistan, 57 Fed.Reg. 49,220 (Dep't Commerce Oct. 30, 1992) (notice of suspension of investigations and amendment of preliminary determinations). Commerce determined in its sunset review that, in the absence of suspension, Russia would likely continue dumping its enriched uranium in the U.S. market. See Uranium From the Russian Federation, 71 Fed. Reg. 32,517 (Dep't Commerce June 6, 2006) (final results of five-year sunset review of suspended antidumping duty investigation) and the accompanying Issues & Decision Memorandum, A-821-802, Sunset Review (May 30, 2006), Admin. R. Pub. Doc. 48, available at http://ia.ita.doc.gov/frn/summary/RUSSIA/E6-8758-1.pdf (last visited Sept. 9, 2009). AHUG sought court review of Commerce's determination.
Defendants United States and USEC moved the court to dismiss the case for lack of standing, putting in play the issue of whether AHUG could qualify as an "interested party" with a statutory right to judicial review. See Section 516 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516(a)(2)(A).3 The court, however, consolidated this case with Court No. 06-00228, Techsnabexport v. United States, and remanded the consolidated case to Commerce. Techsnabexport v. United States, ___ CIT ___, 515 F.Supp.2d 1363 (2007) ("Tenex").4 To assure consideration of all aspects of the standing issue, the court instructed that, on remand, Commerce review its denial, in the agency's initial proceedings, of "interested party" status to AHUG. ___ CIT at ___ n. 4, 515 F.Supp.2d at 1364-65 n. 4.5
Commerce subsequently issued its remand results. See Final Results on Redetermination Pursuant to Court Remand Techsnabexport v. United States, 515 F.Supp.2d 1363 (C.I.T. 2007), A-821-802, Suspension Agreement (Dec. 21, 2007), Admin. R. Pub. Doc. [Technsabexport v. United States] 20, available at http://ia.ita.doc.gov/remands/07-143.pdf (last visited Sept. 9, 2009) ("Remand Results"). Relevant to this litigation, Commerce, in its volume of future imports analysis, relied on a public report from the International Trade Commission ("ITC"). See Uranium from Russia, USITC Pub. 3872, Inv. No. 731-TA-539-C (Second Review) (Aug. 2006), available at 2006 ITC LEXIS 537. Commerce noted the ITC report's mention of certain "contingent contracts" that the Russian uranium industry had entered into with American utilities. Remand Results 36-37. Despite the reference to these "contingent contracts," Commerce once again denied AHUG status as an "interested party." Id. 49-52. First, Commerce determined that AHUG members were not "producers," given that AHUG members Id. 50-51. Furthermore, Commerce noted that "title to the Russian LEU from HEU does transfer from Tenex to USEC, belying AHUG's claim that it is the only entity that owns the LEU as a whole." Id. 51. Second, Commerce found that, because "USEC is the only U.S. importer of all Russian LEU down-blended from [high-enriched uranium ("HEU")]," AHUG members could not qualify as "importers." Id.
Reviewing Commerce's remand results, the court considered the standing issue raised by Defendants United States' and USEC's motions, pursuant to USCIT R. 12(b)(1), to dismiss AHUG's complaint for lack of subject matter jurisdiction. See AHUG, at 1336-38. Defendants argued that AHUG fails to qualify as an interested party statutorily authorized to challenge Commerce's review decision. In response, AHUG argued that many of its members have "entered into negotiations and signed agreements [i.e., contingent contracts] with Techsnabexport . . . or its agent for the purchase of Russian [enriched uranium product ("EUP")] or enrichment services," and that the contracts confer upon the utility companies entering into them status as importers of the subject merchandise.6 (Supplemental Br. of the Ad Hoc Utilities Group on the Relevance & Effect of Supreme Ct.'s Eurodif Decision ("AHUG Supplemental Br.") 5-6); see also 28 U.S.C. § 2631(c); 19 U.S.C. § 1677(9)(A).
The court agreed, in part, with the government and USEC and accordingly dismissed AHUG's complaint for lack of standing. In so doing, the court noted that 28 U.S.C. § 2631(c) and 19 U.S.C. § 1516a (a)(2)(A) require that, in order to obtain judicial review, a party must be "interested" as defined by 19 U.S.C. § 1677(9).7 AHUG, at 1336-37. After reviewing the record and the filings before it, the court determined that
under any of the statutory definitions of "importer"—including either as a group of individual companies or, arguably, as a trade or business association—AHUG does not meet the standing requirements stated by section 2631(c).
Id. at 1337. The court reasoned that 19 U.S.C. § 1677(9)(A) "precludes standing on the part of a group with a majority of members that are not producers, exporter or importers," id. (footnote omitted) (citing Am. Grape Growers Alliance for Fair Trade v. United States, 7 CIT 389 (1984)), and, accordingly, the court required AHUG to demonstrate either "that it would be considered a `trade or business association'" or "that it is a `multiplied form of a single' importer." Id. at 1337 (quoting Am. Grape Growers, 7 CIT at 389).8 "The former requires only a majority of members, whereas the latter would require all members, to qualify as `importers' to gain standing, where no member appears individually." Id. at 1337 ().
The court recognized that AHUG, in its briefing, identified itself as a group of individual companies, not a trade or business association, that "has no legal existence or status separate from its members." Id. at 1337 (citation omitted). Thus, AHUG would be required to demonstrate that "all of its members share the same qualities that qualify them for standing in the action before the court." Id. (emphasis added). However, AHUG only presented evidence that "a number of AHUG members entered into negotiations with Russian uranium suppliers or their agents." Id. (citation omitted). Indeed, "AHUG itself concludes that its evidence demonstrates that far fewer than half of its members `would qualify as United States importers under 19 U.S.C. § 1677(9)(A).'" Id. at 1338 (citations omitted).9
Furthermore, the court went on to note that "even if AHUG were a `trade or business association,' standing would still be lacking," as "[a] small minority [of interested parties within a group] does not a majority make, and will not give AHUG standing in this case." Id. at 1338.10
In moving for reconsideration of the dismissal, AHUG first argues that the court's treatment of it in a "unitary nature is a manifest error of fact." (Mot. of Certain Members of the Ad Hoc Utils. Group for
not a trade association, business group, or any other organized, unitary entity [but is rather] an ad hoc collection of independent...
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