Desert Glory, Ltd. v. U.S.
| Citation | 368 F.Supp.2d 1334 |
| Decision Date | 27 April 2005 |
| Docket Number | Court No. 03-00044.,Slip Op. 05-52. |
| Parties | DESERT GLORY, LTD., Plaintiff, v. UNITED STATES OF AMERICA, Defendant, and Caades Sinaloa, A.C., Consejo Agricola de Baja California, A.C., Asociacion Mexicana de Productores de Hortalizas de Invernadero, A.C., Union Agricola Regional de Productores de Hortalizas de Sonora, and Confederacion Nacional de Productores de Hortalizas, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Miller & Chevalier Chartered, Washington, DC (Matthew M. Nolan, Myles S. Getlan, Karl W. Abendschein, and Alexander D. Chinoy), for Plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Kent G. Huntington); Augusto Guerra, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant, of counsel.
Shearman & Sterling LLP, Washington, DC (Thomas B. Wilner and Christopher M. Ryan), for Defendant-Intervenors.
In this action, plaintiff Desert Glory, Ltd. — a Mexican producer and exporter, and a U.S. importer, of cocktail tomatoes-seeks to contest a December 2002 "scope determination" by the U.S. Department of Commerce, in which Commerce ruled that cocktail tomatoes are covered by the pending antidumping investigation of fresh tomatoes from Mexico initiated in 1996.
The Government has moved to dismiss the case,1 asserting that the court lacks subject matter jurisdiction because Desert Glory failed to give the timely notice of intent to commence judicial review required under the North American Free Trade Agreement ("NAFTA") and the NAFTA Implementation Act. See generally Defendant's Memorandum in Support of Its Motion to Dismiss ("Def.'s Brief"); Defendant's Reply to Plaintiff's Opposition to [Defendant's] Motion to Dismiss ("Def.'s Reply Brief"); 19 U.S.C. § 1516a (2000).2
For the reasons discussed below, the Government's motion is granted, and this action is dismissed.
As the party seeking to invoke the jurisdiction of the Court of International Trade, Desert Glory bears the burden of pleading and proving the requisite bases. See Former Employees of Sonoco Prods. Co. v. United States Sec'y of Labor, 27 CIT ___, ___, 273 F.Supp.2d 1336, 1338 (2003) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), aff'd sub nom. Former Employees of Sonoco Prods. Co. v. Chao, 372 F.3d 1291 (Fed.Cir.2004). Where — as here — a waiver of sovereign immunity is at issue, the language of the statute must be strictly construed, and any ambiguities must be 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); RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed.Cir.1998) ().
This case has its roots in the antidumping investigation concerning fresh tomatoes from Mexico, initiated by Commerce more than eight years ago, in April 1996. Initially, cocktail tomatoes were specifically and expressly excluded from the scope of that investigation. Before a final determination was reached in the investigation it was halted by a 1996 suspension agreement between Commerce and certain Mexican tomato producers and exporters.3 Six years later, after Mexican producers and exporters accounting for a large percentage of U.S. imports withdrew from the 1996 suspension agreement, Commerce was forced to terminate it, and the investigation was reopened. But, before reaching a final determination in the reopened investigation, Commerce "clarified" the scope of the investigation, to include cocktail tomatoes. The investigation was then halted once again, by a 2002 suspension agreement, which Commerce signed on the same day it issued the Scope Determination (and which remains in force today). See Notice of Suspension of Antidumping Investigation on Fresh Tomatoes from Mexico, 67 Fed.Reg. 77,044 (Dep't Commerce Dec. 16, 2002) ("2002 Suspension Agreement") (incorporating by reference Memorandum to Faryar Shirzad re: "Antidumping Duty Investigation on Fresh Tomatoes from Mexico: Scope Clarification" (Dec. 4, 2002) ("Scope Determination")); Notice of Termination of Suspension Agreement, Termination of Sunset Review, and Resumption of Antidumping Investigation: Fresh Tomatoes from Mexico, 67 Fed.Reg. 50,858 (Dep't Commerce Aug. 6, 2002).
This action ensued, seeking to contest — in the words of Desert Glory — Commerce's "determination ... to include cocktail tomatoes in the scope of [the] 2002 agreement suspending the antidumping investigation on tomatoes from Mexico, notwithstanding the Department's six-year practice of excluding cocktail tomatoes from the scope of that investigation." Plaintiff's Brief in Opposition to the Defendant's Motion to Dismiss ("Pl.'s Response Brief") at 1 (footnote omitted).4
Invoking jurisdiction under 28 U.S.C. § 1581(c), Desert Glory filed its Summons and Complaint with the court on January 28, 2003 — 55 days after Commerce issued its Scope Determination, and 43 days after Federal Register publication of notice of the 2002 Suspension Agreement (which notice incorporated by reference the Scope Determination). There was no prior notice of Desert Glory's intent to commence these proceedings.
Both the United States and Mexico are parties to the North American Free Trade Agreement ("NAFTA"). Under NAFTA and the NAFTA implementing legislation, in cases involving antidumping determinations such as the Scope Determination here at issue, interested parties have a period of 30 days following receipt of the determination by the country whose imports are subject to the investigation in which to decide whether to seek review before a NAFTA binational panel.5 During that 30-day period, parties are prohibited from seeking judicial review, and the statutory time limits for seeking judicial review are tolled.6 If a binational panel is not requested within the 30-day period, a plaintiff may seek judicial review — provided that timely notice of its intent to do so has been given to all parties concerned, as required under the "special rule" set forth in 19 U.S.C. § 1516a(g)(3)(B).7 Such notice of intent is timely if given within 20 days of a specific date described in 19 U.S.C. § 1516a(a)(5). See also NAFTA Art.1904:15(c)(ii) (requiring delivery of notice of intent to commence judicial review at least 10 days before deadline for requesting binational panel).
The Government here contends that Desert Glory was required to give notice of its intent to commence judicial review no later than 20 days after Mexico's receipt of notice of the Scope Determination. See, e.g., Def.'s Reply Brief at 5-9. In contrast, Desert Glory maintains that the 20-day period for giving notice of intent to commence judicial review did not even begin to run until much later — after the 30-day period for seeking review before a NAFTA binational panel had expired. Desert Glory thus asserts that notice was timely if delivered between the thirty-first and fiftieth days after Mexico learned of the Scope Determination. See Pl.'s Response Brief at 2, 7-9.
In essence, the parties' dispute boils down to whether or not the 20-day period for giving notice of intent to commence judicial review runs concurrently with the 30-day period for seeking review before a NAFTA binational panel — a question which turns on how three provisions of 19 U.S.C. § 1516a interrelate to define the start date of the 20-day period.
As discussed in greater detail below, the language of the statute, its purpose (as reflected in the legislative history), and the relevant case law all support the position of the Government here. Desert Glory was obligated to give notice of its intent to commence judicial review within 20 days of Mexico's receipt of notice of the Scope Determination.
The plain language of the three relevant provisions of 19 U.S.C. § 1516a clearly fixes the date of receipt of notice of the Scope Determination as the date on which the 20-day period begins to run.
The first of the three relevant provisions is the "special rule" governing notice of intent to commence judicial review, which is codified at 19 U.S.C. § 1516a(g)(3)(B). The "special rule" requires that a party intending to seek judicial review of a determination such as the Scope Determination at issue in this case give notice of that intent in a timely manner — that is, within 20 days of a specific date described elsewhere:
(B) Special rule
A determination ... is reviewable under subsection (a) of this section only if the party seeking to commence review has provided timely notice of its intent to commence such review to —
(i) the United States Secretary and the relevant FTA [Free Trade Area] Secretary;8
(ii) all interested parties who were parties to the proceeding in connection with which the matter arises; and
(iii) [Commerce] or the [International Trade] Commission, as appropriate.
Such notice is timely provided if the notice is delivered no later than the date that is 20 days after the date described in subparagraph ... (B) of subsection (a)(5) of this section....
19 U.S.C. § 1516a(g)(3)(B) (emphasis added).
The second relevant provision of § 1516a is the "tolling provision," in subsection (a)(5). In effect, the tolling provision prohibits parties from seeking judicial review of a determination such as the Scope Determination here until a particular day specified in the third provision — the "timing provision." The timing provision, found in subsection (a)(5)(B) of § 1516a, specifies both the day referenced in the tolling provision (i.e., the first day of the period during...
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