Arlanxeo U.S. LLC v. U.S. & U.S. Int'l Trade Comm'n

• Decision Date: 26 September 2018
• Docket Number: Slip Op. 18-128,Consol. Court No. 17-00247
• Parties: ARLANXEO USA LLC and Arlanxeo Brasil S.A., Plaintiffs, and Industrias Negromex, S.A. de C.V., INSA, LLC, Kumho Petrochemical Co., Ltd., and Synthos S.A., Consolidated Plaintiffs, v. UNITED STATES and United States International Trade Commission, Defendant, and Lion Elastomers LLC, Defendant-Intervenor.
• Court: U.S. Court of International Trade

337 F.Supp.3d 1350

ARLANXEO USA LLC and Arlanxeo Brasil S.A., Plaintiffs,andIndustrias Negromex, S.A. de C.V., INSA, LLC, Kumho Petrochemical Co., Ltd., and Synthos S.A., Consolidated Plaintiffs,

v. UNITED STATES and United States International Trade Commission, Defendant,andLion Elastomers LLC, Defendant-Intervenor.

Slip Op. 18-128

Consol. Court No. 17-00247

United States Court of International Trade.

September 26, 2018

William C. Sjoberg, Porter, Wright, Morris & Arthur, LLP, of Washington, D.C., for Consolidated Plaintiffs Industrias Negromex, S.A. de C.V. and INSA, LLC.

Jane C. Dempsey, Attorney, Office of General Counsel, U.S. International Trade Commission, of Washington, D.C., for Defendant U.S. International Trade Commission. With her on the brief were Dominic Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Matthew T. McGrath, Barnes, Richardson & Colburn, LLP, of Washington, D.C., for Defendant-Intervenor Lion Elastomers LLC.

OPINION AND ORDER

Choe-Groves, Judge:

This consolidated action challenges the final affirmative material injury determination issued by the U.S. International Trade Commission ("Defendant," "ITC," or "Commission") in the antidumping duty investigation of emulsion styrene-butadiene rubber ("ESBR") from Brazil, Mexico, the Republic of Korea ("Korea"), and Poland. See Emulsion Styrene-Butadiene Rubber From Brazil, Mexico, Korea, and Poland, 82 Fed. Reg. 43,402 (Int'l Trade Comm'n Sept. 15, 2017) ; see also Emulsion Styrene-Butadiene Rubber from Brazil, Korea, Mexico, and Poland, USITC Pub. 4717, Inv. Nos. 731-TA-1334-1337 (Aug. 2017), available at https://www.usitc.gov/publications/701_731/pub4717.pdf (last visited Sept. 21, 2018) (" USITC Pub. 4717"). Before the court are two motions. Defendant filed a Motion to Sever and Dismiss the Complaint Filed by Industrias Negromex, S.A. de C.V. and INSA, LLC (collectively, "Consolidated Plaintiffs" or "Industrias"). See Def. United States International Trade Commission's Mot. Sever & Dismiss Compl. Filed by Industrias Negromex, S.A. de C.V. & INSA, LLC, May 7, 2018, ECF No. 47; see also Mem. P. & A. Supp. Def. United States International Trade Commission's Mot. Sever & Dismiss Compl. Filed by Industrias Negromex, S.A. de C.V. & INSA, LLC, May 7, 2018, ECF No. 47 ("Def.'s Mot."). Consolidated Plaintiffs filed a cross-motion for leave to construe their complaint as a concurrently-filed summons and complaint, or, alternatively, to amend their complaint. See Cross-Mot. Leave Construe Pls.' November 7, 2017 Compl. Concurrently Filed Summons & Compl. & Deem Summons & Compl. Filed November 7, 2017, or, Alternatively, Cross-Mot. Leave Amend Pls.' November 7, 2017 Compl. & Deem Recaptioned Summons & Compl. Filed November 7, 2017 & Resp. Def.'s Mot. Sever & Dismiss, June 5, 2018, ECF No. 50 ("Pls.' Cross-Mot."). For the following reasons, the court denies Defendant's motion and grants Consolidated Plaintiffs' cross-motion.

PROCEDURAL HISTORY

After conducting an investigation, the ITC determined that an industry in the United States had been materially injured by reason of imports of ESBR from Brazil, Korea, Mexico, and Poland. See USITC Pub. 4717 at 1. The ITC's final material injury determination was published in the Federal Register on September 15, 2017.

See Emulsion Styrene-Butadiene Rubber From Brazil, Mexico, Korea, and Poland, 82 Fed. Reg. at 43,402.

Industrias filed their summons on October 10, 2017 and filed their complaint on November 7, 2017. Industrias pled jurisdiction on the basis of 28 U.S.C. § 1581(c) (2012), which grants the court exclusive jurisdiction over any civil action commenced to contest a final determination made by the ITC. The court consolidated four cases challenging the ITC's final determination on February 9, 2018. See Order, Feb. 9, 2018, ECF No. 35.

Defendant filed a motion to dismiss on May 3, 2018, alleging that the court does not have jurisdiction because Industrias initiated their case prematurely, before the statutory filing deadline. See Def.'s Mot. 1. Industrias filed a cross-motion in response, requesting that the court construe their complaint as a concurrently-filed summons and complaint. See Pls.' Cross-Mot. 1. Defendant-Intervenor Lion Elastomers LLC supports Defendant's motion. See Def.-Intervenor Lion Elastomers LLC's Resp. Def.'s Mot. Sever & Dismiss Compl. Filed by Industrias Negromex, S.A. de C.V., INSA, LLC, & Resp. Cross-Mot. Filed by Industrias Negromex, S.A. de C.V., INSA, LLC 1–2, June 11, 2018, ECF No. 51; Mem. P. & A. Supp. Def.-Intervenor Lion Elastomers LLC's Supp. Def.'s Mot. Sever & Dismiss Compl. Filed by Industrias Negromex, S.A. de C.V. & INSA, LLC, & Deny Cross-Mot. Filed by Industrias Negromex, S.A. de C.V. & INSA, LLC 1–2, June 11, 2018, ECF No. 51 ("Def.-Intervenor's Br.").

ISSUES PRESENTED

The court reviews the following issues:

1. Whether the statutory time limits set forth in 19 U.S.C. § 1516a deprive the court of jurisdiction to hear the claims brought by Consolidated Plaintiffs; and

2. Whether equitable considerations favor allowing Consolidated Plaintiffs to construe their complaint as a concurrently-filed summons and complaint.

ANALYSIS

I. Defendant's Motion to Sever and Dismiss the Complaint

Defendant and Defendant-Intervenor contend that the statutory time limits set forth in 19 U.S.C. § 1516a(A)(5) are jurisdictional in nature, and that Consolidated Plaintiffs' premature initiation of their action divests the court of jurisdiction. See Def.'s Mot. 3–4; Def.-Intervenor's Br. 3–4. Publication in the Federal Register occurred on September 15, 2017. Industrias initiated their case twenty-five days afterwards, on October 10, 2017. By statute, the first possible day for Industrias to file their summons was thirty-one days after publication in the Federal Register, on October 16, 2017. Because Industrias filed too early, Defendant argues that the court did not have subject matter jurisdiction over the action at the time of filing, the United States has not waived its sovereign immunity, and therefore the court must dismiss the case. See Def.'s Mot. 6–7. Consolidated Plaintiffs argue that because the time limits at issue are not jurisdictional, but rather claim-processing rules, the court should construe the complaint as a concurrently-filed summons and complaint. See Pls.' Mot. 7–17.

The U.S. Court of International Trade, like all federal courts, is one of limited jurisdiction and is "presumed to be without jurisdiction unless the contrary appears affirmatively from the record." DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (internal quotations omitted). The party invoking jurisdiction must "allege sufficient facts to establish the court's jurisdiction," id. (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ), and therefore bears the burden of establishing it. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). The Court is empowered to hear civil actions brought against the United States pursuant to the specific grants of jurisdiction enumerated under 28 U.S.C. § 1581(a) – (i). The court must draw all reasonable inferences in the non-movant's favor when deciding a motion to dismiss. See Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

28 U.S.C. § 1581(c) grants the Court with jurisdiction to decide actions contesting a final determination in an antidumping or countervailing duty investigation, as described in 19 U.S.C. § 1516a(a)(2)(B). When a final determination involves merchandise imported from a North American Free Trade Agreement country, an action may not be commenced in the Court until the thirty-first day after which the notice of the determination is published in the Federal Register. See 19 U.S.C. § 1516a(a)(5)(A). The tolled time frame applies to merchandise imported from Mexico. See id. at § 1516a(a)(f)(10)(B). "A civil action contesting a reviewable determination listed in [ 19 U.S.C. § 1516a ] is barred unless commenced in accordance with the rules of the Court of International Trade within the time specified in such section." 28 U.S.C. § 2636(c).

The Supreme Court of the United States has established a "readily administrable bright line" when analyzing whether a time limit is jurisdictional or nonjurisdictional:

If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.

Arbaugh v. Y & H Corp., 546 U.S. 500, 502, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citations and footnote omitted). This "clear-statement rule" continues to apply to cases "not involving the timebound transfer of adjudicatory authority from one Article III court to another," or, in other words, to an appeal. Hamer v. Neighborhood Hous. Servs. of Chicago, ––– U.S. ––––, 138 S.Ct. 13, 20 n.9, 199 L.Ed.2d 249 (2017).

A rule is jurisdictional if the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional.... In determining whether Congress intended a particular provision to be jurisdictional, we consider context ... as probative of Congress' intent. Even so, in applying the clear statement rule, we have made plain that most statutory time bars are nonjurisdictional.

Id. (internal citations and quotations omitted).

If a time limit rule is jurisdictional in nature, then "a litigant's failure to comply with the bar deprives a court of all authority to hear a case," and the court must dismiss the action. United States v. Kwai Fun Wong, ––– U.S. ––––, 135 S.Ct. 1625, 1631, 191 L.Ed.2d 533 (2015). "Given those harsh consequences," Defendant carries a high burden to show that the provision at issue is...