Dofasco Inc. v. U.S.

Decision Date23 February 2004
Docket NumberSLIP OP. 04-16. Court No. 03-00819.
Citation326 F.Supp.2d 1340
PartiesDOFASCO INC., Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

Hunton & Williams LLP, Washington, DC (William Silverman, Douglas J. Heffner, Richard P. Ferrin, William H. Wright, Jr., and Michael R. Shebelskie), for plaintiff Dofasco Inc., of counsel.

Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of Justice; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Ada E. Bosque); and Scott McBride, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for defendant United States, of counsel.

Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC (Robert E. Lighthizer, John J. Mangan, Jeffrey D. Gerrish, and Daniel L. Schneiderman), for defendant-intervenor United States Steel Corporation.

OPINION

EATON, District Judge.

Before the court is plaintiff Dofasco Inc.'s motion for summary judgment pursuant to USCIT Rule 56. Defendant United States ("Government"), on behalf of the United States Department of Commerce ("Commerce"), and defendant-intervenor United States Steel Corporation ("USSC"), each cross-move for summary judgment. Also before the court is the Government's motion, pursuant to USCIT Rules 7 and 12(f), to strike Dofasco's annexed statement of undisputed facts. Pending resolution of this action, Dofasco further moved to stay the deadline by which it was to submit its responses to the questionnaire issued by Commerce in the administrative review that is the subject of this action.

By its motion Dofasco contests Commerce's administrative review of Dofasco's antidumping duty order, on the grounds that Commerce initiated the review based upon an untimely request by USSC. As discussed below, the court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i) (2000). Because the Government and USSC raise the same issues in their respective cross-motions, and because each seeks the same relief,1 the court will consider these motions jointly.

For the following reasons, Dofasco's motion for summary judgment is denied, the respective cross-motions of the Government and USSC are granted, the Government's motion to strike is denied, and Dofasco's motion for stay is denied.

STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." USCIT R. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the burden of demonstrating that there is no such issue. See Precision Specialty Metals, Inc. v. United States, 25 CIT ___, ___, 182 F.Supp.2d 1314, 1318 (2001) (citing United States v. F.H. Fenderson, Inc., 10 CIT 758, 760 (1986)). Here, the parties do not dispute any material facts; thus, summary judgment is appropriate. See Nippon Steel Corp. v. U.S. Int'l Trade Comm'n, 26 CIT ___, ___, 239 F.Supp.2d 1367, 1369 (2002).

DISCUSSION
I. The Court's Jurisdiction Pursuant to 28 U.S.C. § 1581(i)

Dofasco asserts jurisdiction under 28 U.S.C. § 1581(i), which is the Court's residual jurisdiction, and which lies where "jurisdiction under the other provisions of § 1581 [would] be unavailable or manifestly inadequate." Associacao Dos Industriais De Cordoaria E. Redes v. United States, 17 CIT 754, 757, 828 F.Supp. 978, 983 (1993) (internal citation omitted); see also Hilsea Inv. Ltd. v. Brown, 18 CIT 1068, 1070 (1994) ("[I]f a party challenges the legality of the initiation of an administrative review, jurisdiction may exist during the review pursuant to subsection (i)."). "Where another remedy is or could have been available, the party asserting § 1581(i) jurisdiction has the burden to show how that remedy would be manifestly inadequate." Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987). Dofasco contends that the complained of administrative review was unlawfully commenced and that it "would be manifestly inadequate ... to wait until the completion of [the administrative review] to challenge the review on an appeal pursuant to 28 U.S.C. § 1581(c), for the review that Dofasco seeks to prevent will have already occurred and Dofasco would be deprived of meaningful relief." Compl. at 2. Dofasco further argues that "[t]he questionnaire [issued to it by Commerce as part of the administrative review] is burdensome. It contains hundreds of questions requiring Dofasco to gather confidential and proprietary information regarding its costs and sales over an entire year." Id. at 7. In other words, Dofasco claims that being required to participate in an unlawfully commenced and burdensome review provides sufficient reason to invoke the Court's residual jurisdiction.

The Government argues that the Court's residual jurisdiction under section 1581(i) does not extend to, what it characterizes as, a "procedural decision." Def.'s Opp'n to Pl.'s Mot. Summ. J. and Cross-Mot. Summ. J. ("Gov't Br.") at 8. The Government maintains that section 1581(i) jurisdiction was not intended to permit "the appeal of a procedural determination, but rather, that all procedural considerations should be decided by this Court when the final agency determination is made." Id. (quoting Koyo Seiko Co. v. United States, 13 CIT 461, 464, 715 F.Supp. 1097, 1100 (1989) (internal citations omitted)).2 The Government distinguishes those cases in which this Court has previously considered, pursuant to section 1581(i), challenges to Commerce's authority to conduct administrative reviews, on the grounds that those cases contested Commerce's authority to conduct administrative reviews only where the validity of the underlying antidumping duty orders was challenged. See id.; see also generally, e.g., Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 584, 717 F.Supp. 847 (1989), aff'd 903 F.2d 1555 (Fed.Cir.1990); Carnation Enters. Pvt. Ltd. v. United States, 13 CIT 604, 719 F.Supp. 1084 (1989) (original antidumping duty order invalidated before administrative review). Because Dofasco challenges only a "routine procedural determination" of Commerce, i.e., the timing of USSC's request for review, and not the validity of the underlying antidumping duty order, the Government contends that jurisdiction under section 1581(i) is not available to Dofasco. Gov't Br. at 9. Thus, the Government would have Dofasco first submit to the review, and then seek relief in the context of an appeal to this Court from the review's final determination. See id.

Dofasco rejects the Government's characterization of the commencement of the administrative review as a procedural determination, stating that

[u]nlike the plaintiffs in [Koyo Seiko], Dofasco does not seek merely to postpone a deadline, compel a meeting with Department officials, or adjust some other step within the course of a pending administrative review. Dofasco seeks to terminate an unlawful proceeding entirely, and therefore the decision Dofasco challenges goes to more than mere procedure.

Dofasco's Reply Br. in Supp. Pl.'s Mot. Summ. J. and in Opp'n to Cross-Mots. Summ. J. at 5. Dofasco further disputes the Government's reading of Asociacion Colombiana on the grounds that section 1581(i) jurisdiction in that case was found to exist even though the plaintiff did not challenge the underlying antidumping duty order. Id. at 6.

In the leading case, Asociacion Colombiana, the plaintiffs brought suit under section 1581(i) to stop Commerce from proceeding with, what they believed to be, an unlawfully commenced3 administrative review, alleging hardship in the expense of time, effort, and money to participate in the review. See Asociacion Colombiana, 13 CIT at 586, 717 F.Supp. at 850. In finding jurisdiction pursuant to section 1581(i), the court stated:

It is ... clear to the court that [plaintiffs'] desired objective cannot be obtained through a judicial challenge instituted after the administrative review has been completed. By that time, this aspect of plaintiffs' action would be moot. What plaintiffs seek here is not review of an interlocutory determination in the sense discussed by Congress when it eliminated review of preliminary determinations. [Commerce's] decision to initiate the administrative review is not a preliminary decision which will be superceded by a final determination, nor is it a decision related to methodology or procedure which may be reviewed by the court following the agency's final determination. Here, the dispute does not concern just what rates ultimately will apply to the goods of companies to be reviewed (presumably the court could nullify any new rates established if the review was improper), but whether numerous small agricultural companies must participate in the review at all. Given the difficulties of participation under the facts of this case, this is not an insubstantial concern. Furthermore, plaintiffs cannot simply choose not to participate at this time because as a practical matter the risk of non-participation is simply too great. The court therefore finds the remedial approach suggested by defendant and [defendant-intervenor] [i.e., participation in the review and appeal to this Court following the review's completion] to be an inadequate avenue for effective judicial relief.

Id. at 586-87, 717 F.Supp. at 850 (internal citations omitted).

The plaintiffs in Carnation, on the other hand, sought to halt a claimed unauthorized administrative review, on the grounds that the review had become illegal because of errors found in the original antidumping duty order. See Carnati...

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