Baroque Timber Indus. (Zhongshan) Co. v. United States

• Citation: 853 F.Supp.2d 1290,34 ITRD 1760
• Parties: BAROQUE TIMBER INDUSTRIES (ZHONGSHAN) COMPANY, LIMITED, et al., Plaintiffs, v. UNITED STATES, Defendant, and Zhejiang Layo Wood Industry Company, Limited, et al., Defendant–Intervenors.
• Decision Date: 27 June 2012
• Court: U.S. Court of International Trade

853 F.Supp.2d 1290

34 ITRD 1760

BAROQUE TIMBER INDUSTRIES (ZHONGSHAN) COMPANY, LIMITED, et al., Plaintiffs,

v.UNITED STATES, Defendant,andZhejiang Layo Wood Industry Company, Limited, et al., Defendant–Intervenors.

United States Court of

International Trade.

Slip Op. 12–90.

No. 12–00007.¹

June 27, 2012.

Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda, MD, and John B. Totaro, Jr., Neville Peterson, LLP, of Washington, DC, for Consolidated Plaintiff Coalition for American Hardwood Parity.

Alexander V. Sverdlov, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for Defendant. With him on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Claudia Burke, Assistant Director. Of counsel on the briefs was Shana Hofstetter, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Francis J. Sailer, Mark E. Pardo, Andrew T. Schutz, and Kovita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, of Washington, DC, for Defendant–Intervenors Baroque Timber Indus. (Zhongshan) Co., Ltd.; Riverside Plywood Corp.; Samling Elegant Living Trading (Labuan) Ltd.; Samling Global USA, Inc.; Samling Riverside Co., Ltd.; and Suzhou Times Flooring Co., Ltd.

Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for Defendant–Intervenors Zhejiang Layo Wood Industry Co., Ltd.; Changzhou Hawd Flooring Co., Ltd.; Dunhua City Jisen Wood Indus. Co., Ltd.; Dunhua City Dexin Wood Indus. Co., Ltd.; Dalian Huilong Wooden Products Co., Ltd.; Kunshan Yingyi–Nature Wood Indus. Co., Ltd.; and Karly Wood Products Ltd.

Jeffrey S. Neeley, Michael S. Holton, and Stephen W. Brophy, Barnes, Richardson & Colburn, of Washington, DC, for Defendant–Intervenor Zhejiang Yuhua Timber Co. Ltd.

Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Susan L. Brooks, Sarah M. Wyss, Keith F. Huffman, Mowry & Grimson, PLLC, of Washington, DC, for Defendant–Intervenors Fine Furniture (Shanghai) Ltd.; Great Wood (Tonghua) Ltd.; and Fine Furniture Plantation (Shishou) Ltd.

Kristen S. Smith and Mark R. Ludwikowski, Sandler, Travis & Rosenberg, P.A., of Washington, DC, for Defendant–Intervenors Lumber Liquidators Services, LLC; Armstrong Wood Products (Kunshan) Co., Ltd.; and Home Legend, LLC.

Daniel L. Porter, William H. Barringer, Matthew P. McCullough, and Ross Bidlingmaier, Curtis, Mallet–Prevost, Colt & Mosle LLP, of Washington, DC, for Defendant–Intervenor Bureau of Fair Trade for Imports & Exports, Ministry of Commerce, People's Republic of China.

OPINION AND ORDER

POGUE, Chief Judge:

This is a consolidated action seeking review of determinations made by the Department of Commerce (“the Department” or “Commerce”) in the antidumping duty investigation of multilayered wood flooring from the People's Republic of China (“China”).² Currently before the court is Defendant'sMotion to Dismiss the Complaint filed by Consolidated Plaintiff the Coalition for American Hardwood Parity (“CAHP”).

In its Motion to Dismiss, ECF No. 52 (docketed under Ct. No. 11–00452), Defendant alleges that CAHP's Complaint fails to comply with jurisdictional requirements established by Section 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2),³ because CAHP filed its summons in advance of Commerce's publication, in the Federal Register, of the antidumping order.

As explained below, the court agrees that CAHP's filing fails to comply with the statutory provisions governing the time for filing. However, in light of recent decisions by the Supreme Court and the Court of Appeals for the Federal Circuit, this court is not yet persuaded that such failure to timely file requires dismissal for lack of jurisdiction. Because the parties did not fully brief the question of whether the relevant statutes are jurisdictional requisites—as opposed to claim processing rules subject to equitable tolling—the court will reserve judgment and order further briefing on this issue.

Background

This case arises from Commerce's initiation, on November 18, 2010, of an antidumping duty investigation of multilayered wood flooring from China. Multilayered Wood Flooring from the People's Republic of China, 75 Fed.Reg. 70,714 (Dep't Commerce Nov. 18, 2010) (initiation of antidumping duty investigation) (“ Initiation Notice ”). Following the investigation, on October 18, 2011, Commerce published its Final Determination, finding that the subject merchandise was being sold at less than fair value in the United States, i.e., dumped. Final Determination, 76 Fed.Reg. at 64,323–24. In the Final Determination, Commerce calculated a zero margin for one mandatory respondent, Zhejiang Yuhua Timber Co., Ltd. (“Yuhua”). Id. at 64,323. On December 8, 2011, Commerce published its antidumping duty order. Multilayered Wood Flooring from the People's Republic of China, 76 Fed.Reg. 76,690 (Dep't Commerce Dec. 8, 2011) (amended final determination of sales at less than fair value and antidumping duty order) (“ Antidumping Duty Order ”). Yuhua, having received a zero rate in the Final Determination, was excluded from the order. Id.

Following publication of the Final Determination, but prior to publication of the Antidumping Duty Order, CAHP filed a summons giving notice that it would challenge various aspects of Commerce's Final Determination. Summons, Nov. 17, 2011, ECF No. 1 (docketed under Ct. No. 11–00452). Among the issues identified for challenge in the Summons were “certain aspects of the affirmative final determination of sales at less than normal value including the exclusion of one producer/exporter[, Yuhua]....” Summons at 1.

Discussion

I. CAHP's Summons Was Untimely Filed

The statute states specific timing requirements that a prospective plaintiff must follow when seeking review of Commerce's determinations in an antidumping duty investigation. The Motion to Dismiss turns on the proper interpretation of these statutory provisions, found at 19 U.S.C. § 1516a(a)(2), which are as follows:

(A) In general

Within thirty days after—

(i) the date of publication in the Federal Register of—

(I) notice of any determination described in clause (ii) ... of subparagraph (B), [ or]

(II) an antidumping or countervailing duty order based upon any determination described in clause (i) of subparagraph (B) ...

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....

(B) Reviewable determinations

The determinations which may be contested under subparagraph (A) are as follows:

(i) Final affirmative determinations by [Commerce] and by the Commission under section 1671d or 1673d of this title, including any negative part of such a determination (other than a part referred to in clause (ii)).

(ii) A final negative determination by [Commerce] or the Commission under section 1671d or 1673d of this title, including, at the option of the appellant, any part of a final affirmative determination which specifically excludes any company or product.

Commerce interprets this statute to have, depending on the nature of the complaint, two potential filing dates for a challenge to the exclusion of a company. If the sole challenge plaintiff brings addresses the exclusion of a company, then, according to Commerce, plaintiff may file within thirty days of publication of the affirmative determination, pursuant to § 1516a(a)(2)(A)(i)(I). Mot. to Dismiss at 6. If, however, plaintiff challenges both the exclusion of a company and other aspects of an affirmative determination, then Commerce interprets the statute to require that the summons be filed within thirty days of publication of the order, pursuant to § 1516a(a)(2)(A)(i)(II). Mot. to Dismiss at 6–7.

CAHP, in contrast, interprets § 1516a(a)(2)(B)(ii) to require a plaintiff to challenge the exclusion of a company by filing within thirty days of publication of the affirmative determination. Pl.'s Opposition to Def.'s Mot to Dismiss at 6–9, ECF No. 62 (docketed under Ct. No. 11–00452) (“Pl.'s Resp. Br.”). Therefore, under CAHP's interpretation, any action that includes the exclusion of a company must be filed within thirty days of publication of the affirmative determination.

On first read, the language of the statute may seem ambiguous. On the one hand, § 1516a(a)(2)(B)(i) appears to preclude challenges to exclusion of companies from its purview. By defining challenges to an affirmative determination to include all challenges to any negative part of the affirmative determination “other than a [negative part of an affirmative determination] referred to in clause (ii),” § 1516a(a)(2)(B)(i), challenges to the exclusion of a company, appear relegated to § 1516a(a)(2)(B)(ii). On the other hand, the language in § 1516a(a)(2)(B)(ii) does not unequivocally support such a reading. Rather, § 1516a(a)(2)(B)(ii) permits filing a challenge to the exclusion of a company within thirty days of the publication of the affirmative determination “at the option of the appellant.” If filing on the § 1516a(a)(2)(A)(i)(I) timeline (within thirty days of publication of the affirmative determination) is “at the option of the appellant,” then the appellant must have other filing options, i.e., there must be at least one other timeline for filing a challenge to the exclusion of a company.

Commerce argues that this ambiguity has been resolved by the Court of Appeals' opinion in Bethlehem Steel Corp. v. United States, 742 F.2d 1405 (Fed.Cir.1984). In Bethlehem Steel, the plaintiff challenged Commerce's negative finding that an export rebate program was not a countervailable subsidy—and this challenge was in the context of an otherwise affirmative countervailing duty determination, i.e., plaintiff filed a challenge to a negative part of...