Globe Metallurgical Inc. v. U.S.
| Decision Date | 31 October 2007 |
| Docket Number | Slip Op. 07-158. Court No. 07-00022. |
| Citation | 530 F.Supp.2d 1343 |
| Parties | GLOBE METALLURGICAL INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
DLA Piper U.S. LLP (William D. Kramer, Martin Schaefermeier, and James A. Earl), Washington, D.C., for Globe Metallurgical Inc., plaintiff.
Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael D. Panzera and Loren Misha Preheim); Of Counsel: Quentin M. Baird, U.S. Department of Commerce, New York, NY, for the United States, defendant.
Globe Metallurgical Inc. ("Globe"), plaintiff, brings this action pursuant to § 516A(a)(2)(A)(i)(I) and B(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and B(iii), and 28 U.S.C. § 1581(c). See Complaint ("Compl.") ¶ 1. In the alternative, Globe brings this action under 28 U.S.C. § 1581(i)(2) and (4). See Compl. ¶ 2. Globe challenges the U.S. Department of Commerce's ("Commerce") December 21, 2006 revocation of the antidumping duty order on silicon metal from Brazil (the "Revocation Determination").1 The United States, defendant, moves for dismissal of the Complaint for failure to state a claim upon which relief can be granted pursuant to USCIT R. 12(b)(5). Globe opposes the United States' Motion to Dismiss and files a cross-motion to stay the, proceedings.
For the reasons explained below, the Court finds in favor of the defendant, and dismisses the plaintiffs Complaint for failure to state a claim upon which relief can be granted. Plaintiffs Motion for Stay is denied.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and B(iii).
A court should not dismiss a complaint for failure to state a claim upon which relief may be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Halperin Shipping Co., Inc. v. United States, 13 CIT 465, 466, 1989 WL 61811, *1 (1989). Moreover, the Court must accept all wellpleaded facts as true and view them in the light most favorable to the non-moving party. See United States v. Islip, 22 CIT 852, 854, 18 F.Supp.2d 1047, 1051 (1998) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)). A pleading that sets forth a claim for relief must contain "a short and plain statement" of the grounds upon which jurisdiction depends and "of the claim showing that the pleader is entitled to relief." USCIT R. 8(a). "To determine the sufficiency of a claim, consideration is limited to the facts stated on the face of the complaint, documents appended to the complaint, and documents incorporated in the complaint by reference." Fabrene, Inc. v. United States, 17 CIT 911, 913 (1993). Accordingly, the Court must decide whether plaintiff is entitled to offer evidence in support of its claim, and not whether plaintiff will prevail in its claim. See Halperin, 13 CIT at 466.
On January 3, 2006, Commerce and the U.S. International Trade Commission ("ITC") published a notice of initiation and a notice of institution, respectively, of a five-year (sunset) review of the antidumping duty order on silicon metal from Brazil.2 On February 2, 2006, Globe Med a response to Commerce's notice of initiations and on February 23, 2006, Globe filed a response to ITC's notice of institution. On May 4, 2006, Commerce published its determination that a revocation of the antidumping duty order would likely lead to a continuation or recurrence of dumping.3
On December 11, 2006, the ITC published its determination that a revocation of the antidumping duty order would not likely lead to a continuation or recurrence of material injury within a reasonably foreseeable time.4 Plaintiff filed an appeal With this Court (Globe Metallurgical Inc. v. United States, Court No. 07-00011) challenging the ITC determination (the "ITC Determination Challenge"). On December 21, 2006, as a result of the ITC's negative sunset review determination, Commerce published the Revocation Determination that the plaintiff is challenging in this action.
Globe, a U.S. manufacturer of silicon metal, requests that this Court "determine that the required legal basis for revoking the antidumping duty order on silicon metal from Brazil does not exist; [and] order that the antidumping duty order on silicon metal from Brazil be reinstated or, in the alternative, that this case be remanded to [Commerce] for further proceedings consistent with the judgment of this Court." Compl. ¶¶ 4, 24.
Plaintiff is challenging Commerce's revocation of the antidumping duty order on silicon metal from Brazil. Globe's Complaint states that it is "seeking review and the correction of errors [through its ITC Determination Challenge] that, if corrected, Plaintiff believes will result in a finding of likely continuation or recurrence of material injury to an industry in, the United States." Compl. ¶ 22. For the purposes of the United States' Motion to Dismiss, Globe asks this Court to presume that it will eventually succeed in its ITC Determination Challenge. Such success, Globe argues, would render Commerce's revocation of the antidumping duty order improper. Plaintiff's Motion for Stay and Opposition to Defendant's Motion to Dismiss ("Motion for Stay") at 4.
The United States argues in moving to dismiss this case that "Globe cannot demonstrate, by any set of facts, that Commerce's revocation of the antidumping duty order ... which is the only action Globe has challenged in this case, is contrary to law." Motion to Dismiss at 6. The United States further argues that "Commerce had a clear, nondiscretionary, and indisputable duty to revoke the order ... [and that its] revocation pursuant to section 1675(d)(2) is a ministerial act that Commerce performed in accordance with a statutory mandate." Defendant's Combined Reply to Plaintiffs Response to the Motion to Dismiss and Response to Plaintiffs Motion to Stay Proceedings ("Defendant's Combined Reply") at 2.
The United States contends "Globe cannot establish that Commerce's revocation of the order was improper because the statute expressly mandated that Commerce revoke the order." Defendant's Combined Reply at 3. The Court agrees.
Section 1675(d)(2), states in relevant part:
In the case of a review conducted under subsection (c) of this section, the administering authority shall revoke ... an antidumping duty order or finding ... unless (A) the administering authority makes a determination that dumping ... would be likely to continue or recur, and (B) the Commission makes a determination that material injury would be likely to continue or recur as described in section 1675a(a) of this title. 19 U.S.C. § 1675(d)(2) (emphasis added).5
Globe argues that this Court should deny the United States' Motion to Dismiss because "for the purpose of such a motion, all undisputed facts alleged in the complaint are presumed to be true [and][i]n its complaint, Globe has alleged that it has sought review of errors in the [ITC determination], that if corrected, Globe believes will result in a finding of likely continuation or recurrence of material injury to the domestic industry [and thus] revocation would be improper." Motion for Stay at 3-4.
The United States argues that the "revocation of the antidumping duty order regarding silicon metal from Brazil pursuant to 19 U.S.C. § 1675(d)(2) comported with its statutory mandate to revoke an antidumping duty order where the [ITC] has issued a negative determination [and that] [g]ranting the relief sought by Globe in this action would be contrary to the statutory provisions governing revocation." Motion to Dismiss at 4. The United States points out that "[r]egardless of whether Globe has challenged the ITC determination, the statute does not permit Commerce to determine whether the ITC's determination contains errors, or whether the ITC's determination should be corrected." Id. at 5.
As the United States correctly notes, the language of the statute is clear and unambiguous and "the true nature of [Globe's] claim relates to events that may, or may not, eventually, transpire." Id. at 6. Assuming arguendo that Globe is correct about the ITC's determination (i.e., that it is flawed and that Globe will eventually succeed in its ITC Determination Challenge), this would have no bearing on this case, which strictly concerns the narrow issue of whether Commerce's revocation of the order was appropriate. To put it differently, the crux of Globe's Complaint, that if the ITC decided incorrectly then Commerce acted incorrectly, is based on a false premise. Globe will get its day in court to resolve the dispute with the ITC, but it cannot litigate that dispute in this action, and the eventual resolution of its ITC Determination Challenge is not relevant here. Accordingly, accepting all well-pleaded facts as true and viewing them in the light most-favorable to Globe, Globe has failed to state a claim upon which relief may be granted.
Globe's real concern is its ITC Determination Challenge and the relief it can expect should it succeed. Globe acknowledges in its pleadings that its true motivation in bringing this action "challenging [Commerce's] Revocation Determination [is] because Globe is concerned that parties may argue, and the Court may find, that in order to preserve its right to obtain reinstatement of the antidumping duty order and for the Court to order reinstatement if necessary,...
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