ASOCIACION COLOMBIANA de EXPORTADORES v. US

• Decision Date: 19 July 1989
• Docket Number: Court No. 89-05-00292.
• Citation: 13 CIT 584,717 F. Supp. 847
• Parties: ASOCIACION COLOMBIANA de EXPORTADORES de FLORES (ASOCOFLORES), et al., Plaintiffs, v. The UNITED STATES, Defendant, and Floral Trade Council of Davis, California, Defendant-Intervenor.
• Court: U.S. Court of International Trade

717 F. Supp. 847

13 CIT 584

ASOCIACION COLOMBIANA de EXPORTADORES de FLORES (ASOCOFLORES), et al., Plaintiffs, v. The UNITED STATES, Defendant and Floral Trade Council of Davis, California, Defendant-Intervenor.

Court No. 89-05-00292.

United States Court of International Trade.

July 19, 1989.

Arnold & Porter, Patrick F.J. Macrory, Spencer Griffith and Gwyn F. Murray, Washington, D.C., for plaintiffs.

Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Jeanne E. Davidson, Civ. Div., U.S. Dept. of Justice and Anne White, Attorney-Advisor, Office of the Deputy Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.

Stewart & Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and Charles A. St. Charles, Washington, D.C., for defendant-intervenor.

OPINION

RESTANI, Judge:

Plaintiffs, Asociacion Colombiana de Exportadores de Flores, et al., bring this action challenging a recent decision of the United States Department of Commerce, International Trade Administration (ITA) to initiate an administrative review of certain producers and exporters of fresh cut flowers from Colombia. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 54 Fed Reg. 18,320 (Apr. 28, 1989). ITA initiated this review pursuant to 19 U.S.C. § 1675 (1982 & Supp. V 1987) after it received a letter, dated March 29, 1989, from Floral Trade Council (FTC) requesting initiation of a review covering imports entered during the period March 1, 1988 through February 28, 1989. Plaintiffs contend that in making its request for review FTC failed to comply with 19 C.F.R. § 353.53a(a) (1988) which requires an interested party who requests a review of "specified individual manufacturers, producers, or exporters" to state "why the person desires the Secretary to review those particular producers or exporters." Plaintiffs allege that ITA's decision to initiate the review of 203 producers and exporters named in FTC's March 29 request did not satisfy the regulation and request that the court issue a preliminary and then permanent injunction enjoining ITA from conducting the review.¹

Plaintiffs assert jurisdiction under 28 U.S.C. § 1581(i)(4) (1982), which inter alia grants this court residual jurisdiction over any civil action commenced against the United States or its agencies relating to the administration and enforcement of the antidumping law with respect to matters referred to in 28 U.S.C. § 1581(c) (1982). Plaintiffs also invoke 28 U.S.C. § 1585 (1982) which grants this court "all the powers in law and equity of, or as conferred by statute upon, a district court of the United States."

Defendant and intervenor, FTC, oppose plaintiffs' motion for preliminary injunction and separately move to dismiss plaintiffs' complaint on the grounds that it lacks any jurisdictional basis and that it fails to state a claim for which relief may be granted. As a basis for jurisdiction must be established before the court may address plaintiffs' request for injunctive relief, the jurisdictional dispute will be discussed by the court first.

Jurisdiction under 28 U.S.C. § 1581(i)

Defendant and FTC challenge plaintiffs' assertion that the court possesses jurisdiction to entertain their complaint under 28 U.S.C. § 1581(i), which contains the court's residual jurisdictional grant, and argue that plaintiffs, instead, have an adequate remedy under 28 U.S.C. § 1581(c).² According to defendant, "under the statutory scheme, plaintiffs' challenge to Commerce's authority to conduct administrative reviews can only be entertained after the reviews have been completed and the final results have been published." Defendant's Brief at 8. Defendant and FTC argue that because plaintiffs have not demonstrated that relief under 28 U.S.C. § 1581(c) at the appropriate time will be unavailable or manifestly inadequate, section 1581(i) is an inappropriate jurisdictional basis.³

In support of their arguments, defendant and FTC cite various decisions of this court and the Court of Appeals for the Federal Circuit, as well as portions of the legislative history of the Customs Court Act of 1980, Pub.L. No. 96-417, 94 Stat. 1727 (1980), which enacted 28 U.S.C. § 1581(i). They argue that this authority unequivocally indicates that section 1581(i) was not intended to allow the court to assume jurisdiction to conduct interlocutory judicial review of interim agency decisions that will be incorporated into or superceded by a final determination and, moreover, that section 1581(i) should not be utilized to circumvent the exclusive methods of judicial review of antidumping and countervailing duty determinations set forth in 19 U.S.C. § 1516a.

The court agrees with defendant and FTC that the broad residual jurisdiction of the court under section 1581(i) may only be invoked when jurisdiction under another subsection of section 1581 is unavailable, or when the remedies provided under other subsections would be manifestly inadequate. Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988); American Air Parcel Forwarding v. United States, 718 F.2d 1546, 1549-51 (Fed.Cir.1983) cert. denied, 466 U.S. 937, 104 S.Ct. 1909, 80 L.Ed.2d 458 (1984). As this court recently noted, section 1581(i) "was not intended to create new causes of action, H.Rep. No. 1235, 96th Cong., 2d Sess. 47, reprinted in 1980 U.S.Code Cong. & Admin.News 3729, 3759; Haarman & Reimer Corp. v. United States, 1 CIT 148, 151, 509 F.Supp. 1276, 1279 (1981), nor was it meant to supercede more specific jurisdictional provisions." Koyo Seiko Co. v. United States, 13 CIT ___, 715 F.Supp. 1097, 1099 (1989). The question remains, however, as to whether 28 U.S.C. § 1581(c) provides an adequate avenue for relief, or the only Congressionally intended avenue, for plaintiffs in this case, thus making section 1581(i) jurisdiction inappropriate. The court finds it does not.

Plaintiffs' reasons for bringing this action are fairly clear. In short, they wish to stop ITA from proceeding with what they believe to be an unlawful administrative review. It is their hope that the court will agree with their arguments on the merits and find that ITA acted in a manner contrary to its own regulations when it initiated the subject administrative review of 203 producers and exporters and that they will be spared the considerable time, effort and money normally required of participants in such reviews. It is equally clear to the court that this desired objective cannot be obtained through a judicial challenge instituted after the administrative review has been completed. By that time, this aspect of plaintiffs' action would be moot. What plaintiffs seek here is not review of an interlocutory determination in the sense discussed by Congress when it eliminated review of preliminary determinations. See H.R.Rep. No. 1235, 96th Cong., 2d Sess. 48 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 3729, 3759-60. ITA's decision to initiate the administrative review is not a preliminary decision which will be superceded by a final determination, nor is it a decision related to methodology or procedure which may be reviewed by the court following the agency's final determination. See Koyo Seiko Co. v. United States, 13 CIT ___, 715 F.Supp. 1097 (1989). Here, the dispute does not concern just what rates ultimately will apply to the goods of companies to be reviewed (presumably the court could nullify any new rates established if the review was improper), but whether numerous small agricultural companies must participate in the review at all.⁴ Given the difficulties of participation under the facts of this case, this is not an insubstantial concern. Furthermore, plaintiffs cannot simply choose not to participate at this time because as a practical matter the risk of non-participation is simply too great.⁵ The court therefore finds the remedial approach suggested by defendant and FTC to be an inadequate avenue for effective judicial relief.⁶

Defendant acknowledges that "the relief sought here (review of Commerce's decision to initiate administrative reviews and an injunction barring the continuation of those reviews) does not properly fall within the ambit of 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c)" but, citing National Corn Growers Assoc. v. Baker, 840 F.2d 1547 (Fed.Cir.1988), argues that "simply because a desired remedy is unavailable under the statutory scheme does not mean that the remedies provided are inadequate or futile." Defendant's Brief at 11-12.

Defendant's reliance on National Corn Growers is misplaced. In that case, the Federal Circuit held that the proper jurisdictional predicate for an American manufacturer's protest of an administrative determination regarding imported merchandise is 28 U.S.C. § 1581(b) (1982) and not section 1581(i). In so holding, the court emphasized the fact that, "Congress established a clear administrative process through which domestic industry could object to the importation of merchandise at specific tariff levels, 19 U.S.C. § 1516, and through which the Court of International Trade could review protests by the domestic industry that were not sustained by the Secretary, 28 U.S.C. § 1581(b)." National Corn Growers, 840 F.2d at 1551. This case, however, does not involve a protest of a domestic industry under 19 U.S.C. § 1516 and 28 U.S.C. § 1581(b). Although Congress may have "with utmost clarity ... evinced its intent that section 1516 provide the exclusive remedy for American industry protests," id. at 1554, of customs classification and appraisement decisions, the court has not been made aware of any similar congressional intent with respect to complaints by foreign producers or exporters of the type asserted here. Nor has the court been made aware of any clearly expressed congressional desire to disallow the type of challenge of...