Bhullar v. U.S.
| Decision Date | 26 March 2003 |
| Docket Number | SLIP OP. 03-36. No. 02-00668. |
| Citation | 259 F.Supp.2d 1332 |
| Parties | Tony BHULLAR, Pro Se Plaintiff, v. UNITED STATES OF AMERICA, and United States International Trade Commission, Defendants. |
| Court | U.S. Court of International Trade |
Tony Bhullar, pro se.
Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Lucius B. Lau, Assistant Director, Michael D. Panzera, Attorney, U.S. Department of Justice, Civil Division, Commercial Litigations Branch; Michele D. Lynch, D. Michael Stroud, Jr., Attorneys, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for United States of America, of counsel.
Lyn M. Schlitt, General Counsel; James M. Lyons, Deputy General Counsel; Robin L. Turner, Attorney-Advisor; Mary Jane Alves, Attorney-Advisor, for United States International Trade Commission.
Pursuant to United States Court of International Trade Rule 12(b)(1), the defendants, the United States of America and the United States International Trade Commission, move to dismiss this action for lack of subject matter jurisdiction. Defendants contend that the Court does not have subject matter jurisdiction to hear this case. Plaintiff opposes Defendants' motions, asserting that this Court has subject matter jurisdiction under 28 U.S.C. § 1581(c) or alternatively, under § 1581(i). The Court has jurisdiction to resolve this question under 28 U.S.C. § 1581(c). For the following reasons, Defendants' Motions to Dismiss are granted. Plaintiffs Motion for Leave to File a Sur-Reply is denied. This case is dismissed for lack of subject matter jurisdiction.
Plaintiff is a shareholder in the Canadian forest products company, Doman Industries, Ltd. (Pl.'s Compl. at 1.) Plaintiff alleges that he has suffered material injury by reason of a decrease in Doman Industries Ltd.'s stock value resulting from antidumping and countervailing duty determinations issued by the United States Department of Commerce ("Commerce") and the United States International Trade Commission ("ITC") concerning certain softwood lumber from Canada. (Id, at 3.)
In April 2001, the ITC and Commerce received petitions seeking initiation of antidumping and countervailing duty investigations regarding imports of softwood lumber from Canada. Softwood Lumber From Canada, 66 Fed.Reg. 18,508 (Apr. 9, 2001) (ITC); Notice of Initiation of Antidumping Duty Investigation: Certain Softwood Lumber Products From Canada, 66 Fed.Reg. 21,328 (Apr. 30, 2001) (Commerce); Notice of Initiation of Countervailing Duty Investigation: Certain Softwood Lumber Products from Canada, 66 Fed.Reg. 21,332 (Apr. 30, 2001) (Commerce).
One year later, Commerce published its final affirmative determination of sales at less than fair value. Notice of Final Determination of Sales at Less Than Fair Value: Certain Softwood Lumber Products from Canada, 67 Fed.Reg. 15,539 (Apr. 2, 2002). Pursuant to Article 1904 of the North American Free Trade Agreement ("NAFTA"), the Government of Canada and various Canadian lumber industry associations filed a Request for Panel Review of Commerce's affirmative antidumping determination with the United States Section of the NAFTA Secretariat. North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Request for Panel Review, 67 Fed.Reg. 17,357 (April 10, 2002); see also Certain Softwood Lumber from Canada, Secretariat File No. USA-CDA-2002-1904-02 (Active).
On April 2, 2002, Commerce published its final affirmative countervailing duty determination in which it "calculated a single country-wide subsidy rate to be applied to all producers and exporters of the subject merchandise from Canada." Notice of Final Affirmative Countervailing Duty Determination and Final Negative Critical Circumstances Determination: Certain Softwood Lumber Products From Canada, 67 Fed.Reg. 15,545, 15,547 (Apr. 2, 2002). On the same day, the Government of Canada, various Canadian provincial governments, and various Canadian lumber industry associations filed requests for NAFTA Panel Review of Commerce's countervailing duty determination. North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Request for Panel Review, 67 Fed.Reg. 17,358 (Apr. 10, 2002); see also Certain Softwood Lumber from Canada, Secretariat File No. USA-CDA-2002-1904-03 (Active).
On May 22, 2002, the ITC published its final affirmative threat of injury determination in Softwood Lumber From Canada, 67 Fed.Reg. 36,022 (May 22, 2002). That same day, various Canadian lumber industry associations filed a request for NAFTA Panel Review of the ITC's threat of injury determination. North American Free-Trade Agreement, Article 19% NAFTA Panel Reviews; Request for Panel Review, 67 Fed.Reg. 41,955 (June 20, 2002); see also Certain Softwood Lumber from Canada, Secretariat File No. USA-CDA-2002-1904-07 (Active).
Also on May 22, 2002, Commerce published an amended final determination of sales at less than fair value, revising the final weighted average dumping margins, and issued an antidumping duty order. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Softwood Lumber Products From Canada, 67 Fed.Reg. 36,068 (May 22, 2002). On the same day, Commerce published a notice of amended final affirmative countervailing duty determinations revising the final countervailing duty rate to 18.79% ad valorum. Notice of Amended Final Affirmative Countervailing Duty Determination and Notice of Countervailing Duty Order: Certain Softwood Lumber Products From Canada, 67 Fed.Reg. 36,070, 36,076 (May 22, 2002).
On October 25, 2002, Plaintiff filed this action against Commerce and the ITC seeking injunctive relief and unspecified monetary and punitive damages. (PL's Compl. at 3.)
The burden of establishing jurisdiction lies with the party seeking to invoke this Court's jurisdiction. Old Republic Ins. Co. v. United States, 741 F.Supp. 1570, 1573 (CIT 1990) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In this action, the burden of establishing jurisdiction falls to Tony Bhullar, the plaintiff appearing pro se.
It is well settled that the United States is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Such a waiver of sovereign immunity "must be unequivocally expressed" in the statute and will be "strictly construed ... in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). For the purposes of antidumping and countervailing duty laws, the government's express waiver of sovereign immunity is contained in 28 U.S.C. § 1581 (2002).
Although Defendants have filed separate motions to dismiss and supporting memoranda because their contentions are substantially similar, they will be considered together for the purposes of this Opinion. Defendants contend that this Court does not have subject matter jurisdiction over this action for the following reasons: 1) under 19 U.S.C § 1516a(g), a NAFTA binational panel has exclusive review of the challenged determinations; 2) residual jurisdiction under § 1581 (i) cannot be asserted under these circumstances; 3) even if jurisdiction under §§ 1581(c) or (i) could be established, Plaintiff failed to fulfil the statutory timeliness requirements; and 4) Plaintiff lacks standing to bring this action. (Mem. of Law in Supp. of Def. U.S. Int'l Trade Comm'n's Mot. to Dismiss This Action ("ITC Br.") at 4, 7; Def. United States' Mem. in Supp. of Its Mot. to Dismiss for Lack of Subject Matter Jurisdiction ("Commerce Br.") at 7, 9-10, 11, 13.)
Defendants contend that under 19 U.S.C. § 1516a(g), this Court does not have jurisdiction to review antidumping and countervailing duty determinations involving imports from Canada when a NAFTA binational panel review of those determinations has been requested pursuant to Chapter 19, Article 1904 of the NAFTA. (ITC Br. at 7 n. 16; Commerce Br. at 7-9.) Defendants cite 19 U.S.C. § 1516a(g)(2) which states:
Exclusive review of determination by binational panels—
If binational panel review of a determination is requested pursuant to article 1904 of the NAFTA ... then, except as provided in paragraphs (3) and (4)—
(A) the determination is not reviewable under subsection (a) of this section, and
(B) no court of the United States has power or jurisdiction to review that determination on any question of law or fact by an action in the nature of a mandamus or otherwise.
(ITC Br. at 7 n. 16; Commerce Br. at 7 (citing 19 U.S.C. § 1516a(g)).) Defendants contend that the Government of Canada and various Canadian lumber industry associations have requested binational panel review of the challenged determinations. (ITC Br. at 7 n. 16); Commerce Br. at 8 (referencing North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Request for Panel Review, 67 Fed.Reg. 17,357) (April 10, 2002); Certain Softwood Lumber from Canada, Secretariat File No. USA-CDA-2002-1904-02 (Active); North American Free-Trade Agreement, Article 1904 NAFTA Panel Reviews; Request for Panel Review, 67 Fed.Reg. 17,358 (Apr. 10, 2002); Certain Softwood Lumber from Canada, Secretariat File No. USA-CDA-2002-1904-03 (Active). Defendants contend that the binational panel review is still pending. (ITC Br. at 7 n. 16; Commerce Br. at 8.)
Defendants admit that there are several exceptions to exclusive review by a binational panel under § 1516a(g)(3)(A), but Defendants assert that none of the exceptions apply to this case. (ITC Br. at 7 n. 16; Commerce Br. at 7-9.) Specifically, Defendants contend that: 1) the relevant...
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