Full Member Subgroup of the Am. Inst. of Steel Constr., LLC v. United States
| Decision Date | 03 November 2020 |
| Docket Number | Court No. 20-00089,Slip Op. 20-157 |
| Citation | 477 F.Supp.3d 1349 |
| Parties | FULL MEMBER SUBGROUP OF the AMERICAN INSTITUTE OF STEEL CONSTRUCTION, LLC, Plaintiff, v. UNITED STATES, Defendant and Building Systems de Mexico, S.A. de C.V. and Corey S.A. de C.V., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Alan H. Price, Wiley Rein LLP, of Washington, DC, for plaintiff 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.
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.
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 R. Nicely, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC, for defendant-intervenor Building Systems de Mexico, S.A. de C.V. Also on the brief was Daniel M. Witkowski.
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. 28 ("Def.’s Br."). Defendant and Defendant-Intervenor Corey S.A. de C.V. ("Corey") 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 Full Member Subgroup of the American Institute of Steel Construction's ("AISC") 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 timely filed a request for binational panel review of the final determination pursuant to Article 1904 of the North American Free Trade Agreement ("NAFTA"). See Def.’s Br. at 5–13; Def.-Intervenor [Corey's Revised] Resp. Supp. Def.’s Mot. to Dismiss, Aug. 13, 2020, ECF No. 37 ( ). Defendant-Intervenor Building Systems de Mexico, S.A. de C.V. ("BSM") agrees that the case should be dismissed, but for different reasons. See Def.-Intervenor [BSM]’s Resp. to Mot. to Dismiss, Aug. 13, 2020, ECF No. 36 ( ). AISC requests the court to issue its decision in accordance with the pending motion to dismiss in Building Systems de Mexico, S.A. de C.V. v. United States, Ct. No. 20-00069 ("Building Systems"). See Pl.’s Resp. to Mot. to Dismiss, Aug. 13, 2020, ECF No. 34 ("Pl.’s Resp."). For the reasons that follow, Defendant's motion to dismiss is denied.
On February 25, 2019, in response to a petition filed by AISC, a trade association representing domestic producers of FSS, Commerce initiated an antidumping investigation into 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 selected Defendant-Intervenors BSM and Corey as mandatory respondents. See Compl. ¶¶ 3–4, May 13, 2020, ECF No. 9. Commerce affirmatively determined that imports of certain FSS from Mexico into the United States were being, or were likely to be, sold 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. 25-6 ("Final Decision Memo").
On February 19, 2020, BSM filed a notice of intent to seek judicial review of Commerce's final determination. See Compl. ¶ 4, March 30, 2020, ECF No. 6 (from Dkt. Ct. No. 20-00069) ("Building Systems Compl."). 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.").2
Plaintiff AISC commenced this action pursuant to 28 U.S.C. § 1581(c) (2018) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I), (B)(i), contesting portions of Commerce's final affirmative determination. See Summons, Apr. 17, 2020, ECF No. 1; Compl. ¶ 5. In its complaint, AISC asserts that the court lacks jurisdiction over this action because of the request for review before a NAFTA binational panel. See Compl. at ¶¶ 2–5. Nonetheless, Plaintiff explains that it commences this action in light of arguments raised in a related case, Building Systems, Ct. No. 20-00069. Id. at ¶¶ 4-5. Specifically, the plaintiff in Building Systems, Ct. No. 20-00069 asserts that this Court has jurisdiction over an action involving the same Commerce determination despite the fact that an interested party requested review of that determination before a NAFTA binational panel. See Pl.’s Resp. Opp'n to Mot. to Dismiss, Aug. 13, 2020, ECF No. 42 (from Dkt. Ct. No. 20-00069). Plaintiff AISC therefore commences this action, reasoning that if the Court concludes that it has jurisdiction in Building Systems despite the request for binational panel review, it may do the same in this case. See Pl.’s Resp. at 1–3. Defendant's motion argues that the court lacks jurisdiction, and as explained above, Plaintiff does not disagree. BSM, for its part, argues that the case should be dismissed, not because a binational panel has been requested,3 but because Plaintiff failed to timely invoke the jurisdiction of this court. See BSM's Resp. Br. at 2–3. In its reply brief, Defendant adds that not only does this Court lack jurisdiction over the Commerce determination at issue, but that it lacks the power to decide whether it has jurisdiction. See Def.’s Reply Supp. Mot. to Dismiss for Lack of Subject-Matter Jurisdiction at 3–10, Sept. 17, 2020, ECF No. 42 ("Def.’s Reply Br.").
As a threshold matter the Defendant argues that the Court cannot decide the jurisdictional question at issue. See Def.’s Reply Br. at 5–6. Instead Defendant argues that this Court must await the NAFTA panel's decision as to whether a party had standing under U.S. law to request a binational panel. See id. 4 Defendant alternatively argues that even if this Court may decide whether it has jurisdiction, that 19 U.S.C § 1516a(g) precludes the Court from exercising jurisdiction. See Def.’s Reply Br. at 9–10. For the following reasons, both of Defendant's arguments fail.
Defendant's argument that this Court lacks the power to decide its own jurisdiction fails as: (i) the statute envisions that the Court will decide jurisdictional disputes; and (ii) separation of powers prevents the Court from abdicating its role to decide this jurisdictional issue. See Bldg. Sys. de Mexico, S.A. de C.V. v. United States, 44 CIT ––––, ––––, 476 F.Supp.3d 1401, 1405–08, Slip Op. 20-155 at 6–11, 2020 WL 6482051 (Nov. 3, 2020) (" Building Systems"). As discussed more fully in Building Systems, one exception to the Court's jurisdiction explicitly references a scenario where a NAFTA binational panel might decide whether it lacked jurisdiction. See id. at 1406–07, Slip Op. 20-155 at 7–9. The existence of other exceptions implies that the Court would also be called upon to assess its own jurisdiction. See id. Moreover, the Court must be mindful of its constitutional role in our system of government. See id. at 1407, Slip Op. 20-155 at 9–10. The Court cannot abdicate its role to interpret the contours of Congressional action even where that action involves diverting the Court's jurisdiction.5 See id.
The statutory scheme indicates that this Court has jurisdiction to hear this dispute. Although Congress gives the U.S. Court of International Trade exclusive jurisdiction over antidumping determinations, it has excluded certain antidumping determinations involving merchandise from NAFTA countries. In relevant part, 28 U.S.C. § 1581(c) (2018) vests the court with exclusive jurisdiction over any civil action commenced under section 516A of the Tariff Act of 1930, as amended 19 U.S.C. § 1516a. Under 19 U.S.C. § 1516a(a)(2)(B)(i) the court may review "[f]inal affirmative determinations by the administering authority and by the Commission under [ 19 U.S.C. §§ 1671d or 1673d ], including any negative part of such a determination (other than a part referred to in clause (ii))."6 However, 19 U.S.C. § 1516a(g) provides that if a party seeks binational review of "a determination ... described in [ 19 U.S.C. § 1516a(a)(2)(B)(i)–(iii), (vi)–(vii) ] ... the determination is not reviewable under [ 19 U.S.C. § 1516a(a).]" 19 U.S.C. § 1516a(g)(1)(B), (2)(A). Nonetheless, 19 U.S.C. § 1516a(g)(3) enumerates certain exceptions,7 and permits judicial review of "a determination as to which neither the United States nor the relevant [free trade area ("FTA")] country requested review[.]" Id. at § 1516a(g)(3)(A)(i).
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