Associacao Dos Industriais de Cordoaria v. US, 92-12-00843.

Citation17 CIT 754,828 F. Supp. 978
Decision Date28 July 1993
Docket NumberNo. 92-12-00843.,92-12-00843.
PartiesASSOCIACAO DOS INDUSTRIAIS DE CORDOARIA E REDES, and Cordage Importers' Association of America, Plaintiffs, v. The UNITED STATES of America, The United States Department of Commerce, Ronald Brown, Secretary of the United States Department of Commerce, The United States International Trade Commission, Donald Newquist, Chairman of the United States International Trade Commission, The Cordage Institute, and Leighton and Regnery, Chartered, Defendants.
CourtU.S. Court of International Trade

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Klayman and Associates, P.C., Larry Klayman, Paul J. Orfanedes, Nicholas M. Fobe and Karen A. Zughaib, Washington, DC, for plaintiffs.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Cynthia B. Schultz, Stephen J. Claeys, Atty. Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel, for defendants U.S. and U.S. Dept. of Commerce, and Ronald Brown, Secretary, U.S. Dept. of Commerce, Washington, DC.

Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Commission, Kathryn A. Gilchrist for defendants Intern. Trade Com'n and Donald Newquist, Chairman, Intern. Trade Com'n, Washington, DC.

Leighton and Regnery, Douglas J. Behr, Washington, DC, for defendants Leighton and Regnery and Cordage Institute.

OPINION

RESTANI, Judge:

Three motions to dismiss have been filed against plaintiffs Associacao dos Industriais de Cordoaria e Redes and Cordage Importers' Association of America (collectively "Cordoaria") in this action. One motion was filed by defendant United States Department of Commerce ("Commerce"), one by defendant International Trade Commission ("ITC"), and one by defendant Cordage Institute, which filed the antidumping petitions at issue, and its counsel, Leighton and Regnery (collectively "petitioners"). The primary issue in controversy is whether Cordoaria may bring an action against defendants for injuries claimed from petitioners' repeated filing and withdrawal of antidumping petitions. The alleged injuries consist of substantial market disruption and travel expenses and inconvenience associated with coming before Commerce to defend against dumping allegations.

Cordoaria seeks issuance of a writ of mandamus against Commerce and ITC ordering them to terminate with prejudice the antidumping investigation concerning plaintiff and to publish a notice of termination in the Federal Register. Moreover, Cordoaria seeks to enjoin Commerce and ITC from accepting further filings from petitioners for one year. Cordoaria also asks this court to enjoin petitioners from filing an antidumping petition for one year and seeks monetary damages from petitioners. Petitioners in return have requested sanctions pursuant to Rule 11 of the Rules of the Court of International Trade.

Facts

On September 10, 1992, petitioners filed four antidumping petitions with Commerce and ITC. Petitioners alleged that importers of cordage products from Portugal, Costa Rica, the Republic of Korea and Mexico were selling their products in the United States at less than fair value.1

Commerce and ITC commenced antidumping proceedings pursuant to the filing of these petitions. Before Commerce could make its initial sufficiency determination to either initiate the investigation or dismiss the petitions, petitioners withdrew their petitions on September 15, 1992.

On November 25, 1992, petitioners filed four revised antidumping petitions with addenda. Commerce and ITC again initiated antidumping investigations. Petitioners submitted further addenda on December 3, 1992. ITC scheduled a hearing for December 16, 1992. Cordoaria members prepared a defense in anticipation of the meeting and traveled to Washington to testify.

On December 15, 1992, the day before ITC was to conduct its preliminary conference, petitioners withdrew their petitions. Simultaneously, they requested that the previous petitions along with the addenda of November 25, 1992 and December 3, 1992 be refiled by incorporation. Petitioners claimed that their difficulty in collecting additional supporting documentation requested by Commerce and the need for resolution of issues of confidentiality mandated the withdrawal and refiling. A third addendum was filed on December 29, 1992.

On December 21, 1992, Cordoaria attempted to file a status request with Commerce pursuant to 19 C.F.R. § 353.12(i) (1992). Commerce refused to accept it on the basis that the letter attempted to introduce legal arguments into the record rather than merely inquiring into the status of the investigation. Cordoaria submitted a second letter on December 23, 1992, arguing the first was improperly rejected. This letter was also refused by Commerce. Commerce similarly denied a subsequent status request submitted by the government of Portugal on December 30, 1992.

Cordoaria filed suit with the Court of International Trade on December 31, 1992, seeking issuance of a writ of mandamus, imposition of an injunction and grant of a temporary restraining order. The court denied Cordoaria's motion for a temporary restraining order on the same day, as plaintiffs were unable to demonstrate immediate and irreparable injury. A hearing on Cordoaria's motion for preliminary injunction was scheduled for January 6, 1993. ITC set another hearing for the newly refiled petition for January 5, 1993. Cordoaria members again traveled to Washington D.C. in preparation of a defense.

On January 4, 1993, petitioners filed the fourth and final addendum in support of their request for imposition of antidumping duties. Unable to cure deficiencies in the application, petitioners withdrew their petitions on the same day. ITC canceled the preliminary hearing scheduled for January 5, 1993. After Commerce informed Cordoaria of petitioners' withdrawal, Cordoaria notified Commerce and ITC of its intention to continue with the hearing on the motion for a preliminary injunction scheduled for January 6, 1993, unless petitioners withdrew their petitions with prejudice. In the alternative, Cordoaria stated it would also not proceed if it received assurance from Commerce that it would no longer entertain any filings from petitioners.

On January 6, this court heard oral argument and testimony from six witnesses for Cordoaria. As the petitions had been withdrawn and the relief sought was no longer proper, the court permitted Cordoaria to amend its complaint to seek to prevent further refilings and to file a new brief. The amended complaint now added petitioners as defendants. Commerce, ITC and petitioners subsequently filed respective motions to dismiss.

Discussion
I. Jurisdiction Over Commerce and ITC

The plaintiff has the burden of demonstrating jurisdiction is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Cordoaria claims jurisdiction under 28 U.S.C. §§ 1581(i), 1585, 1651(a) and 2643(c)(1) (1988).

A. 28 U.S.C. § 1581(i)

Section 1581(i)2 was enacted to avoid conflict in jurisdiction with the district courts and to ensure judicial review for various unspecified challenges to enforcement of import laws. See American Ass'n of Exporters and Importers v. United States, 751 F.2d 1239, 1245-46 (Fed.Cir.1985). To invoke jurisdiction under § 1581(i), jurisdiction under the other provisions of § 1581 must be unavailable or manifestly inadequate. Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988); Techsnabexport, Ltd. v. United States, 16 CIT ___, ___, 795 F.Supp. 428, 433 (1992).3 Cases involving challenges to antidumping duty determinations normally fall under 28 U.S.C. § 1581(c) (1988), and jurisdiction to hear cases pending an administrative determination that will eventually fall under 28 U.S.C. § 1581(c) is limited. Techsnabexport, 16 CIT at ___, 795 F.Supp. at 433.

This court has found § 1581(i) jurisdiction in certain situations where administrative remedies necessary to sustain jurisdiction under § 1581(c) had not been completed. The court has found jurisdiction present over pending administrative reviews alleged to be invalid where § 1581(c) jurisdiction could be unavailable after each succeeding periodic review. Carnation Enter. Pvt., Ltd. v. United States Dep't of Commerce, 13 CIT 604, 612, 719 F.Supp. 1084, 1091 (1989). The court has also found jurisdiction to preclude Commerce from conducting unlawful administrative reviews because appropriate remedies would be inadequate by the time § 1581(c) jurisdiction attached. Jia Farn Manufacturing Co. v. United States, 817 F.Supp. 969 (1993); Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 586-88, 717 F.Supp. 847, 850-51 (1989).4 Thus, in the case of actions potentially reviewable under § 1581(c), section 1581(i) review is appropriate where eventual standing may be speculative, or the opportunity for full relief would be lost by awaiting the final determination. See Techsnabexport, 16 CIT at ___, 795 F.Supp. at 434; Nissan Motor Corp. v. United States, 10 CIT 820, 822, 651 F.Supp. 1450, 1453 (1986); see also Nakajima All Co. v. United States, 12 CIT 585, 592, 691 F.Supp. 358, 364 (1988) (requiring Commerce to complete & publish final results in an annual § 751 review); UST, Inc. v. United States, 10 CIT 648, 651, 648 F.Supp. 1, 4 (1986) ("it is not too difficult to imagine circumstances where a possible recalcitrant ITA might determine never to complete a section 751 review simply to escape judicial scrutiny"), aff'd, 831 F.2d 1028 (Fed.Cir.1987).

Commerce argues that because Cordoaria may proceed under § 1581(c) after Commerce and ITC have completed their final determinations, an adequate remedy exists, and plaintiffs are thus precluded from obtaining review under...

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