Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States, Slip Op. 19-136

• Decision Date: 04 November 2019
• Docket Number: Slip Op. 19-136,Court No. 19-00122
• Citation: 413 F.Supp.3d 1334
• Parties: COMMITTEE OVERSEEING ACTION FOR LUMBER INTERNATIONAL TRADE INVESTIGATIONS OR NEGOTIATIONS, Plaintiff, v. UNITED STATES, Defendant, and Fontaine Inc., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

413 F.Supp.3d 1334

COMMITTEE OVERSEEING ACTION FOR LUMBER INTERNATIONAL TRADE INVESTIGATIONS OR NEGOTIATIONS, Plaintiff,

v.UNITED STATES, Defendant,andFontaine Inc., et al., Defendant-Intervenors.

Slip Op. 19-136

Court No. 19-00122

United States Court of International Trade.

November 4, 2019

Lisa W. Wang, Andrew W. Kentz, David A. Yocis, Nathanial M. Rickard, Heather N. Doherty, Sophia J.C. Lin, and Zachary J. Walker, Picard Kentz & Rowe LLP, of Washington, DC, for Plaintiff Committee Overseeing Action for Lumber International Trade Investigations or Negotiations.

Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Jessica DiPietro and Nikki Kalbing, Attorneys, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Elliot J. Feldman, Michael S. Snarr, John J. Burke, Mark B. Lehnardt, Lindita V. Ciko Torza, and Jake R. Frischknecht, Baker & Hostetler, LP, of Washington, DC, for Defendant-Intervenor Fontaine, Inc.

Lynn G. Kamarck, Joanne E. Osendarp, Dean A. Pinkert, Alan G. Kashdan, Daniel M. Witkowski, and Stephen R. Halpin, III, Hughes Hubbard & Reed LLP, of Washington, DC, for Defendant-Intervenor the Government of Canada.

Yohai Baisburd, Myles S. Getlan, Jonathan M. Zielinski, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Defendant-Intervenor Scierie Alexandre Lemay & Fils Inc.

OPINION AND ORDER

Barnett, Judge:

Plaintiff, Committee Overseeing Action for Lumber International Trade Investigations or Negotiations, seeks to challenge the final results of the countervailing duty expedited review of certain softwood lumber products from Canada. Compl. ¶¶ 1–2, ECF No. 2; Certain Softwood Lumber Products From Canada , 84 Fed. Reg. 32,121 (Dep't Commerce July 5, 2019) (final results of countervailing duty expedited review) (" Final Results of Expedited Review "), and accompanying Issues and Decision Mem. ("I&D Mem."), C-122-858 (June 28, 2019), available at https:// enforcement.trade.gov/frn/summary/canada/2019-14338-1.pdf (last visited Nov. 4, 2019). Defendant, United States ("the Government"), moves to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to United States Court of International Trade ("USCIT") Rule 12(b)(1). Def.'s Mot. to Dismiss and Opp'n to Pl.'s Mot. for a Prelim. Inj. ("Def.'s Mot."), ECF No. 21.¹ Plaintiff opposes the motion. Pl.'s Resp. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n"), ECF No. 74. Several Defendant-Intervenors support the Government's motion. Resp. of Def.-Int. Scierie Alexandre Lemay & Fils Inc. in Opp'n to Pl.'s Mot. for Temporary Restraining Order and for Prelim. Inj. and in Supp. of Def.'s Mot. to Dismiss ("Lemay's Resp."), ECF No. 68; Resp. of Def.-Int. Gov't of Canada in Supp. of Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction ("GOC's Resp."), ECF No. 75; Resp. of Def.-Int., Fontaine Inc., to Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction ("Fontaine's Resp."), ECF No. 76.² For the reasons discussed herein, the court denies the Government's motion.

BACKGROUND

On January 3, 2018, following affirmative determinations of dumping, countervailable subsidization, and material injury, Commerce published the countervailing duty ("CVD") and antidumping ("AD") duty orders. See Certain Softwood Lumber Products From Canada , 83 Fed. Reg. 347 (Dep't Commerce Jan. 3, 2018) (am. final aff. CVD determination and CVD order) ("CVD Order "); Certain Softwood Lumber Products From Canada , 83 Fed. Reg. 350 (Dep't Commerce Jan. 3, 2018) (AD order and partial am. final determination).

On March 8, 2018, in response to requests filed by certain Canadian producers, Commerce initiated an expedited review of the CVD Order . See Certain Softwood Lumber Products From Canada , 83 Fed. Reg. 9,833 (Dep't Commerce March 8, 2018) (initiation of expedited review of the CVD Order ) ("Initiation Notice "). The companies subject to the expedited review (and their affiliates) are companies that were not selected for individual examination during the investigation and had been assigned the "all-others" rate of 14.19 percent. CVD Order , 83 Fed. Reg. at 348–49. The "period of review" for the expedited review was January 1, 2015, through December 31, 2015. Initiation Notice , 83 Fed. Reg. at 9,833.

On July 5, 2019, Commerce issued the Final Results of Expedited Review , pursuant to which the agency calculated reduced or de minimis rates for the eight companies as follows: (1) Les Produits Forestiers D&G Ltée and its cross-owned affiliates ("D&G"): 0.21 percent; (2) Marcel Lauzon Inc. and its cross-owned affiliates ("MLI"): 0.42 percent; (3) North American Forest Products Ltd. and its cross-owned affiliates ("NAFP"): 0.17 percent; (4) Roland Boulanger & Cie Ltée and its cross-owned affiliates ("Roland"): 0.31 percent; (5) Scierie Alexandre Lemay & Fils Inc. and its cross-owned affiliates ("Lemay"): 0.05 percent; (6) Fontaine and its cross-owned affiliates: 1.26 percent; (7) Mobilier Rustique (Beauce) Inc. and its cross-owned affiliates ("Rustique"): 1.99 percent; and (8) Produits Matra Inc. and Sechoirs de Beauce Inc. and their cross-owned affiliate ("Matra"): 5.80 percent. Final Results of Expedited Review , 84 Fed. Reg. at 32,122.

The rates calculated for D&G, MLI, NAFP, Roland, and Lemay are considered de minimis , therefore, Commerce stated it would instruct CBP "to discontinue the suspension of liquidation and the collection of cash deposits of estimated countervailing duties on all shipments of softwood lumber produced and exported by" those companies that were entered on or after July 5, 2019; "liquidate, without regard to countervailing duties, all suspended entries of shipments of softwood lumber produced and exported by" those companies; and "refund all cash deposits of estimated countervailing duties collected on all such shipments." Id. As to the companies receiving a lower—but not de minimis —rate (Fontaine, Rustique, and Matra), Commerce stated it would instruct CBP "to collect cash deposits of estimated countervailing duties" at the lower rates calculated in the Final Results of Expedited Review . Id.

On July 15, 2019, Plaintiff initiated this action challenging the Final Results of Expedited Review . Summons, ECF No. 1; Compl., ECF No. 2. Plaintiff alleged jurisdiction pursuant to 28 U.S.C. § 1581(i)(4)³ or, alternatively, 28 U.S.C. § 1581(c).⁴ Compl. ¶¶ 3–6. Plaintiff alleged that Commerce's promulgation of the regulatory provision governing expedited reviews, 19 C.F.R. § 351.214(k), violated the Administrative Procedure Act, 5 U.S.C. § 706 (count one); the Final Results of Expedited Review contravened subsection (k)(3)(iii) of the regulation by providing for the assessment of countervailing duties (count two); and the Final Results of Expedited Review are otherwise unsupported by substantial evidence and unlawful (counts three and four). Compl. ¶¶ 14–22. The Government responded by filing a motion to dismiss the complaint in its entirety, arguing that (c) jurisdiction is premature and (i) jurisdiction is unavailable. See generally Def.'s Mot.

DISCUSSION

I. Legal Standard for Subject Matter Jurisdiction

To adjudicate a case, a court must have subject-matter jurisdiction over the claims presented. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety." Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

The plaintiff bears the burden of establishing subject-matter jurisdiction. See Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006). When, as here, the motion challenges the existence of jurisdiction as opposed to the sufficiency of a plaintiff's allegations of jurisdiction, "the factual allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true." Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States , 672 F.3d 1021, 1030 (Fed. Cir. 2012) ; cf. H & H Wholesale Servs., Inc. v. United States , 30 C.I.T. 689, 691–92, 437 F. Supp. 2d 1335, 1339 (2006) (when the motion challenges the sufficiency of the pleadings, the court assumes that the allegations within the complaint are true). To "resolv[e] these disputed predicate jurisdictional facts, [the] court is not restricted to the face of the pleadings" and may, if necessary, "review evidence extrinsic to the pleadings." Shoshone Indian Tribe , 672 F.3d at 1030 (internal quotation marks and citation omitted).

II. Relevant Statutory and Regulatory Provisions

As noted, 28 U.S.C. § 1581(i)(4) provides the court with exclusive jurisdiction over a civil action commenced against the United States "that arises out of any law ... providing for" the "administration and enforcement" of matters referenced in 28 U.S.C. § 1581(a) – (h). Subsection (i) cannot confer jurisdiction over an AD or CVD determination that is judicially reviewable pursuant to 19 U.S.C. § 1516a. Id. § 1581(i). Judicial review of those determinations is reserved to the court's (c) jurisdiction. Id. § 1581(c).

Relevant here, section 1516a provides for the judicial review of a Commerce determination issued pursuant to 19 U.S.C. § 1675. 19 U.S.C. § 1516a(a)(2)(B)(iii). Section 1675 describes several proceedings and determinations: annual administrative reviews of an AD or CVD order upon request, 19 U.S.C. § 1675(a)(1) ; reviews of an AD or CVD order by a new producer or exporter that did not export subject merchandise during the period of investigation (termed "new shipper...