Bldg. Sys. De Mex., S.A. DE C.V. v. United States

• Decision Date: 03 November 2020
• Docket Number: Court No. 20-00069,Slip Op. 20-155
• Parties: BUILDING SYSTEMS DE MEXICO, S.A. DE C.V., Plaintiff, v. UNITED STATES, Defendant, and Full Member Subgroup of the American Institute of Steel Construction, LLC and Corey S.A. de C.V., Defendant-Intervenors.
• Court: U.S. Court of International Trade

476 F.Supp.3d 1401

BUILDING SYSTEMS DE MEXICO, S.A. DE C.V., Plaintiff,

v. UNITED STATES, Defendant,andFull Member Subgroup of the American Institute of Steel Construction, LLC and Corey S.A. de C.V., Defendant-Intervenors.

Slip Op. 20-155

Court No. 20-00069

United States Court of International Trade.

November 3, 2020

Matthew R. Nicely, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC, for plaintiff Building Systems de Mexico, S.A. de C.V. Also on the brief was Daniel M. Witkowski.

In K. Cho, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant United States. Also on the briefs were Michael D. Granston, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Brandon J. Custard, Senior Attorney, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Alan H. Price, Wiley Rein LLP, of Washington, DC, for defendant-intervenor Full Member Subgroup of the American Institute of Steel Construction, LLC. Also on the brief was Christopher B. Weld, Stephanie M. Bell, and Adam M. Teslik

Diana D. Quaia, Arent Fox LLP, of Washington, DC, for defendant-intervenor Corey S.A. de C.V. Also on the brief was John M. Gurley and Jessica R. DiPietro.

Matthew P. McCullough, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for amicus curiae the Government of Canada. Also on the brief was Tung Nguyen.

OPINION AND ORDER

Kelly, Judge:

Defendant moves to dismiss Plaintiff's complaint for lack of subject-matter jurisdiction. See Def.’s Memo. Supp. Mot. to Dismiss for Lack of Subject-Matter Jurisdiction & Opp'n to Mot. to Stay, July 9, 2020, ECF No. 31 ("Def.’s Br."). Defendant and Defendant-Intervenors, joined by the Government of Canada as amicus curiae ("Canada" or "amicus"), submit that section 516A(g) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(g) (2018)¹ precludes the Court from exercising jurisdiction over Building Systems de Mexico, S.A. de C.V.’s ("BSM") challenge to the U.S. Department of Commerce's ("Commerce") final affirmative determination in its less-than-fair-value ("LTFV") investigation of fabricated structural steel ("FSS") from Mexico because Corey S.A. de C.V. ("Corey") timely filed a request for binational panel review of the final determination pursuant to Article 1904 of the North American Free Trade Agreement ("NAFTA").² See Def.’s Br. at 6–13; Def.-Intervenor [Corey's Revised] Resp. Supp. Def.’s Mot. to Dismiss at 1–4, Aug. 13, 2020, ECF No. 43 ("Corey's Resp. Br."); Def.-Intervenor [Full Member Subgroup of the American Institute of Steel Construction, LLC's] Resp. to Mot. to Dismiss at 1–2, Aug. 13, 2020, ECF No. 40 ("AISC's Br."); see also Gov't of Canada's Amicus Curiae Br. Supp. Def.’s Mot. to Dismiss at 1–17, July 10, 2020, ECF No. 36-1 ("Canada's Amicus Br.").³ BSM counters that the Court retains jurisdiction over the dispute by operation of the § 1516a(g)(3) exception because Corey's NAFTA binational panel request cannot be deemed to have been made by an FTA country, and that the threshold question of whether the § 1516a(g)(3) exception applies belongs to the Court. See Pl.’s Resp. Opp'n Mot. to Dismiss at 1–15, Aug. 13, 2020, ECF No. 42 ("Pl.’s Br."). For the following reasons, Defendant's motion to dismiss is denied.

BACKGROUND

On February 25, 2019, in response to a petition filed by a subgroup of the American Institute of Steel Construction, LLC (specifically, "Full Member Subgroup of the American Institute of Steel Construction, LLC" or "AISC"),⁴ a trade association representing domestic producers of FSS, Commerce initiated an antidumping investigation of FSS from Canada, Mexico, and the People's Republic of China. See Certain [FSS] From Canada, Mexico, and the People's Republic of China, 84 Fed. Reg. 7,330 (Dep't Commerce Mar. 4, 2019) (initiation of [LTFV] investigations). Commerce affirmatively determined that imports of certain FSS from Mexico were being, or were likely to be, sold in the United States at LTFV, and its investigation yielded weighted-average dumping margins of 8.47 and 0.00 percent for BSM and Corey, respectively. See Certain [FSS] from Mexico, 85 Fed. Reg. 5,390, 5,392 (Dep't Commerce Jan. 30, 2020) (final determination of sales at [LTFV]) ("Final Results") and accompanying Issues and Decision Memo. for [Final Results ], A-201-850, (Jan. 23, 2020), ECF No. 21-6 ("Final Decision Memo").

On February 19, 2020, BSM filed a notice of intent to seek judicial review of Commerce's final determination. See Compl. ¶ 15, Mar. 30, 2020, ECF No. 6. On February 28, 2020, the United States Section of the NAFTA Secretariat received a request for binational review of Commerce's final determination filed on behalf of Defendant-Intervenor Corey. See [ NAFTA], Article 1904 Binational Panel Review, 85 Fed. Reg. 14,462 (Dep't Commerce Mar. 12, 2020) (notice of request for panel review; USA-MEX-2020-1904-01) ("NAFTA Req.").⁵

On March 30, 2020, Plaintiff BSM commenced this action pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) and § 1516a(d), challenging certain aspects of Commerce's final determination in its LTFV investigation of certain FSS from Mexico. See Summons, Mar. 30, 2020, ECF No. 1; Compl. at ¶¶ 1–2, 3–7; see also Final Results; Final Decision Memo. Defendant's motion to dismiss for lack of subject matter jurisdiction ensued.

DISCUSSION

The issue before the court is whether Corey fulfilled certain constitutional and statutory requirements for obtaining review of a final determination before a NAFTA binational panel, therefore precluding this court from exercising jurisdiction over this proceeding. The court holds that it has authority to determine whether it has jurisdiction over this proceeding. Moreover, the court holds that it has jurisdiction over this proceeding because the requirements to request a binational panel, and divest this court of jurisdiction, have not been met.

I. Court's Authority to Decide the Court's Jurisdiction

As a threshold matter, Defendant, Defendant-Intervenor Corey and amicus challenge the court's authority to reach the jurisdictional question that Defendant raises in this appeal. See Def.’s Br. at 6–13; Corey's Resp. Br. at 3; Canada's Amicus Br. at 5–7. Defendant, Defendant-Intervenor Corey and amicus submit that the issue of whether Corey has standing to request binational review of the final determination—and thus, whether Corey's request can be deemed filed by an FTA country such that the court would be precluded from exercising jurisdiction—belongs exclusively to the NAFTA binational panel. See Def.’s Br. at 6–13; Corey's Resp. Br. at 3; Canada's Amicus Br. at 5–7. For the following reasons, the court holds that it has authority to determine whether it has jurisdiction over this case.

The statutory framework and the separation of powers doctrine both envision that this Court will resolve jurisdictional questions. Congress provided, as an exception to NAFTA binational panel review, that this Court may review "a determination as to which neither the United States nor the relevant [free trade area ("FTA")] country requested review[.]" 19 U.S.C. § 1516a(g)(3)(A)(i). Pursuant to 19 U.S.C. § 3434(c) and NAFTA art. 1904(5),⁶ taken together, a person, as opposed to one of the NAFTA countries, can request a panel so long as that person would otherwise be permitted to sue under the law of the importing party. See 19 U.S.C. § 3434(c). Given that the law of the importing party is U.S. law, in order for a person to request binational review of Commerce's final determination, that person must be one with standing to challenge the determination. Id. ("[A] person, within the meaning of paragraph 5 of article 1904, may request a binational panel review of such determination ... [and] [t]he receipt of such request by the United States Secretary shall be deemed to be a request for binational panel review within the meaning of article 1904."); [NAFTA] art. 1904(5), U.S.-Can.-Mex., Dec. 17 1992, 32 I.L.M. 289, 683 (1993) ("An involved Party on its own initiative may request review of a final determination by a panel and shall, on request of a person who would otherwise be entitled under the law of the importing Party to commence domestic procedures for judicial review of that final determination, request such review.").

Section 1516a(g) reveals that this Court retains authority to determine its own jurisdiction. Here, § 1516a(g)(2) precludes the Court from exercising jurisdiction over an appeal from a final determination "[i]f binational panel review of [that] determination is requested pursuant to article 1904 of the NAFTA[.]" 19 U.S.C. § 1516a(g)(2). However, § 1516a(g) ’s preclusion is subject to various exceptions.⁷ Congress, when enumerating exceptions to § 1516a(g) ’s preclusion on the exercise of jurisdiction, allowed the Court to exercise jurisdiction where a determination sought to be reviewed was one "(i) ... which neither the United States nor the relevant FTA country requested review by a binational panel" or "(iv) ... which a binational panel has determined is not reviewable by the binational panel[.]" 19 U.S.C. § 1516a(g)(3)(A). If only the NAFTA binational panel could determine whether an exception to the statute has been met, exception (iv) would be superfluous, as every instance an exception applies would be one "which a binational panel has [so] determined[.]" See 19 U.S.C. § 1516a(g)(3)(A)(iv) ; see also, e.g., Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant[.]"). ⁸

Moreover, even assuming the separation of powers doctrine allows Congress to divert jurisdiction over an appeal from an administrative determination away from an Article III court,⁹ separation of powers does not permit ...