Bags On Net Corp. v. U.S.

• Decision Date: 31 March 2009
• Docket Number: Slip Op. 09-24. Court No. 08-00332.
• Citation: 612 F.Supp.2d 1341
• Parties: BAGS ON the NET CORP., Plaintiff, v. UNITED STATES, Defendant, and Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

612 F.Supp.2d 1341

BAGS ON the NET CORP., Plaintiff, v. UNITED STATES, Defendant, and Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation, Defendant-Intervenors.

Slip Op. 09-24. Court No. 08-00332.

United States Court of International Trade.

March 31, 2009.

Peter S. Herrick, P.A. (Peter S. Herrick), North Beach, CA, for Plaintiff.

Michael F. Hertz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Antonia R. Soares); Thomas M. Beline, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel; for Defendant.

King & Spalding, LLP (Stephen A. Jones and Daniel L. Schneiderman), Washington, DC, for Defendant-Intervenors.

OPINION

RIDGWAY, Judge.

In this action, plaintiff Bags on the Net Corp. ("BOTN") contests the U.S. Department of Commerce's determination that a specific model of polyethylene bag manufactured in the People's Republic of China ("PRC")—which BOTN imports—is within the scope of the 2004 antidumping order covering polyethylene retail carrier bags from the PRC. See Polyethylene Retail Carrier Bags from the People's Republic of China—Final Scope Determination of the Request from Bags on the Net, Inv. No. A-570-886 (July 14, 2008) (P.R. Doc. No. 9) ("Final Scope Determination").¹

Pending before the Court is the Government's Motion to Dismiss this action for want of subject matter jurisdiction. See generally Defendant's Memorandum in Support of its Motion to Dismiss ("Def.'s Brief"); Defendant's Reply Memorandum in Support of its Motion to Dismiss ("Def.'s Reply Brief"). According to the Government, the court lacks jurisdiction because BOTN filed its summons more than 75 days after Commerce mailed the Final Scope Determination to BOTN's designated counsel of record—well beyond the statutory thirty-day deadline for commencing the action. 19 U.S.C. § 1516a(a)(2)(A)(ii) (2006); 28 U.S.C. § 1581(c); 28 U.S.C. § 2636(c).² The Government argues that this action must therefore be dismissed. The Defendant-Intervenors—domestic producers of polyethylene retail carrier bags—support the Government's motion. See generally Defendant-Intervenors' Reply to Plaintiffs Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Def.-Ints.' Response Brief").

Plaintiff BOTN opposes the Government's motion and maintains that the statutory thirty-day period for commencing an action in this court was never triggered, because Commerce never sent the Final Scope Determination directly to BOTN and instead mailed a copy only to BOTN's counsel of record. See generally Plaintiffs Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Pl.'s Response Brief").

For the reasons set forth below, the court lacks subject matter jurisdiction under 28 U.S.C. § 1581(c). Accordingly, the Government's Motion to Dismiss is granted, and this action is dismissed.

I. Background

In August 2004, Commerce published an antidumping duty order covering polyethylene retail carrier bags from the People's Republic of China. See Antidumping Duty Order: Polyethylene Retail Carrier Bags From the People's Republic of China, 69 Fed.Reg. 48,201 (Aug. 9, 2004) ("Antidumping Order").³ In late May 2008, BOTN, through its counsel, sought a ruling from Commerce as to whether a particular model of bag—which BOTN identified as "HOLIDAYINN-8410"—is within the scope of the Antidumping Order. See generally Scope Ruling Request (May 29, 2008) (P.R. Doc. No. 1) ("Request for Scope Ruling"). The first sentence of the Request for Scope Ruling stated: "This law firm [i.e., the law firm of "Peter S. Herrick, P.A."] is representing Bags on the Net ("BOTN") in [this] matter. See Request for Scope Ruling at 1. The Request for Scope Ruling was signed by Mr. Herrick personally, with Roy Leon, Esq. of the same law firm identified as "Of Counsel." See Request for Scope Ruling at 1, 5.

Attached as Exhibit A to BOTN's Request for Scope Ruling was a document captioned "Appointment and Authorization of Attorney." Signed by the president of BOTN, the Appointment and Authorization of Attorney expressly and unequivocally designated the law firm of Peter S. Herrick, P.A. as BOTN's counsel of record for purposes including BOTN's scope inquiry proceeding:

Peter S. Herrick, P.A. is hereby appointed, and authorized to act, as attorney at law for [BOTN] with respect to matters before the United States Customs and Border Protection and Department of Commerce.

Request for Scope Ruling, Exh. A ("Appointment and Authorization of Attorney").

Upon receipt of BOTN's Request for Scope Ruling, together with the Appointment and Authorization of Attorney, Commerce added BOTN's designated counsel of record to the agency's public service list for the newly-initiated scope inquiry proceeding. See Def.'s Reply Brief, Attachment.⁴ On at least three occasions during the pendency of the proceeding, Commerce communicated directly with BOTN's designated counsel of record concerning the Request for Scope Ruling. See Commerce Memorandum to File Regarding Telephone Conversation with Counsel for BOTN (June 5, 2008) (P.R. Doc. No. 3) (memorializing June 4, 2008 phone conversation with BOTN's counsel of record); Commerce Memorandum to File Regarding Telephone Conversation with Counsel for BOTN (June 12, 2008) (P.R. Doc. No. 4) (memorializing June 11, 2008 and June 12, 2008 phone conversations with BOTN's counsel of record).

By notice dated July 14, 2008, Commerce advised BOTN of the agency's Final Scope Determination, which concluded that the polyethylene bag in question is covered by the Antidumping Order. See Polyethylene Retail Carrier Bags from the People's Republic of China—Final Scope Determination of the Request from Bags on the Net, Inv. No. A-570-886 (July 14, 2008) (P.R. Doc. No. 9) ("Final Scope Determination").⁵ The notice was sent by certified mail to BOTN's counsel of record, the law firm of Peter S. Herrick, P.A., in accordance with Commerce's regulations. See Certified Mail Delivery Receipt addressed to Roy Leon, Esq., of the law firm of Peter S. Herrick, P.A. (P.R. Doc. No. 11); 19 C.F.R. §§ 351.225(d) (2008).⁶

Several months later, BOTN's counsel of record sent a letter to Commerce. See Pl.'s Response Brief, Exh. A. In that letter, dated September 25, 2008, BOTN's counsel acknowledged receipt of the copy of the Final Scope Determination which Commerce had mailed to the law firm in mid-July 2008. However, the September 25, 2008 letter further stated that "Bags on the Net has not received its copy of the referenced Final Scope Ruling through the mail." Id. The letter "request[ed] that Commerce mail directly to Bags On the Net its copy of the ... Final Scope Ruling dated July 14, 2008," and—"presum[ing]" that Commerce would mail a copy of the ruling to BOTN "no later than Friday, September 26, 2008"—stated that counsel for BOTN intended to "use this date [i.e., September 26, 2008] to file [BOTN's] summons and complaint." Id.

On September 29, 2008, more than 75 days after Commerce's July 14, 2008 notice apprising BOTN's counsel of record of the agency's Final Scope Determination, BOTN's counsel filed a summons and complaint commencing this action to challenge Commerce's ruling. See Summons (filed Sept. 29, 2008); Complaint (filed Sept. 29, 2008).

II. Standard of Review

The existence of subject matter jurisdiction is a threshold inquiry. See, e.g., Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Where—as here— subject matter jurisdiction is challenged pursuant to USCIT Rule 12(b)(1), "`the burden rests on plaintiff to prove that jurisdiction exists.'" Pentax Corp. v. Robison, 125 F.3d 1457, 1462 (Fed.Cir.1997), modified in part, 135 F.3d 760 (1998) (quoting Lowa, Ltd. v. United States, 5 CIT 81, 83, 561 F.Supp. 441, 443 (1983), aff'd, 724 F.2d 121 (Fed.Cir.1984)); see also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006) (citation omitted).

Moreover, where a waiver of sovereign immunity is at issue, the language of the statute must be strictly construed, and any ambiguities resolved in favor of immunity. See United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995); Blueport Co., LLC v. United States, 533 F.3d 1374, 1378 (Fed.Cir.2008) ("`[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.'") (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)).

III. Analysis

The proper filing of a summons and complaint is a jurisdictional prerequisite for the commencement of an action before the Court of International Trade. See NEC Corp. v. United States, 806 F.2d 247, 248 (Fed.Cir.1986); Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1311 (Fed.Cir.1986). "A civil action contesting a reviewable determination listed in [19 U.S.C. § 1516a] is barred unless commenced in accordance with the rules of [this court] within the time specified...." 28 U.S.C. § 2636(c). For purposes of this case, the "time specified" is found in 19 U.S.C. § 1516a, which states that, within thirty days after the date of mailing of, inter alia, a final scope determination (such as the determination at issue here)⁷:

an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons, and within thirty days thereafter a complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal conclusions upon which the determination is based.

19 U.S.C. § 1516a(a)(2)(A)(ii). See also ...