Icdas Celik Enerji Tersane Ve Ulasim Sanayi, A.S. v. United States

• Citation: 106 F.Supp.3d 1328
• Decision Date: 24 September 2015
• Docket Number: Slip Op. 15–109.,Court No. 14–00267.
• Parties: ICDAS CELIK ENERJI TERSANE VE ULASIM SANAYI, A.S., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

106 F.Supp.3d 1328

ICDAS CELIK ENERJI TERSANE VE ULASIM SANAYI, A.S., Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 15–109.

Court No. 14–00267.

United States Court of International Trade.

Sept. 24, 2015.

Matthew M. Nolan, Diana D. Quaia, and Nancy A. Noonan, Arent Fox LLP of Washington, DC, for Plaintiff Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S.

Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, for Defendant, United States. With him on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the briefs were Scott McBride, Senior Attorney, U.S. Department of Commerce, Office of the Chief Counsel for Trade Enforcement and Compliance of Washington, DC.

Alan H. Price, John R. Shane, and Maureen E. Thorson, Wiley Rein LLP of Washington, DC, for Defendant–Intervenors Rebar Trade Action Coalition, Gerdau Ameristeel U.S. Inc., Commercial Metals Company, and Byer Steel Corporation.

OPINION and ORDER

GORDON, Judge:

This action involves a U.S. Department of Commerce ("Commerce" or "the Government") final determination in the countervailing duty investigation of steel concrete reinforcing bar from the Republic of Turkey. Steel Concrete Reinforcing Bar from the Republic of Turkey, 79 Fed.Reg. 54,963 (Dep't of Commerce Sept. 15, 2014) (final affirmative countervailing duty determination, final affirmative critical circumstances determination) (" Final

Determination

"); see also Steel Concrete Reinforcing Bar from the Republic of Turkey, 79 Fed.Reg. 65,926 (Dep't of Commerce Nov. 6, 2014) (final countervailing duty order) ("Order "). Plaintiff Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S. ("Icdas") moves to have the court construe its Amended Complaint as a concurrently filed summons and complaint deemed filed as of November 26, 2014, or in the alternative, to amend the caption of the Amended Complaint to read "Summons and Complaint" and deem the revised document filed as of the same date. See Mot. of Pl. Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. to Construe Pl.'s Nov. 26, 2014 Am. Compl. as a Concurrently Filed Summons and Compl. and Deem the Summons and Compl. Filed as of Nov. 26, 2014, or, Alternatively, Mot. to Amend Pl.'s Nov. 26, 2014 Am. Compl. to Recaption it as Summons and Compl. and Deem the Recaptioned Summons and Compl. Filed as of Nov. 26, 2014 (Jan. 9, 2015), ECF No. 19 ("Pl.'s Mot.").

The Government and Defendant–Intervenor Rebar Trade Action Coalition ("RTAC") cross-move pursuant to USCIT Rule 12(b)(1) to dismiss Icdas' Amended Complaint for lack of jurisdiction. See Def.'s Cross–Mot. to Dismiss Pl.'s Am. Compl. for Lack of Jurisdiction and Def.'s Resp. to Pl.'s Jan. 9, 2015 Motion (Feb. 2, 2015), ECF No. 25 ("Def.'s Cross–Mot."); RTAC's Resp. in Opp. to Pl.'s Jan. 9, 2015 Mot.; RTAC's Mot. to Dismiss (Feb. 2, 2015), ECF No. 24 ("RTAC's Cross–Mot."); see also Resp. of Pl. Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. to Def. and Def.-Intervenor's Cross–Mots. to Dismiss (Mar. 25, 2015), ECF No. 29 ("Pl.'s Resp."); Def.'s Reply in Supp. of its Cross–Mot. to Dismiss (June 17, 2015), ECF No. 38 ("Def.'s Reply"); Rebar Trade Action Coalition's Reply to Pl.'s Mar. 25, 2015 Resp. to the Feb. 4, 2015 Cross–Mots. to Dismiss (June 17, 2015), ECF No. 37 ("RTAC's Reply").

The Government and RTAC argue that the court lacks subject matter jurisdiction under Section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a),¹ and 28 U.S.C. § 1581(c) (2012) because Icdas filed its summons before Commerce published the Order in the Federal Register. For the reasons set forth below, the court grants Icdas' requested relief and amends the caption of the Amended Complaint to read "Summons and Complaint" and deems the re-captioned document filed as of November 26, 2014. The court also denies the Government and RTAC's cross-motions to dismiss.

I. Standard of Review

"Plaintiffs carry the burden of demonstrating that jurisdiction exists." Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ). In deciding a Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant's allegations, the court assumes "all factual allegations to be true and draws all reasonable inferences in plaintiff's favor." Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995).

II. Discussion

Under 28 U.S.C. § 2636, an action contesting a final affirmative countervailing duty determination "is barred unless commenced in accordance with" 19 U.S.C. § 1516a. 28 U.S.C. § 2636(c).

Section 1516a(a)(2)(A), in turn, outlines a brief window of time for commencing such an action at the U.S. Court of International Trade. A party must file a summons "within thirty days after" the date the countervailing duty order is published in the Federal Register, and within 30 days thereafter, a complaint. 19 U.S.C. § 1516a(a)(2)(A)(i)(II). Though § 1516a(a)(2)(A) provides for a two-step process to commence an action challenging a countervailing duty order, the Court's Rules "encourage[ ]" commencement of a trade action "by the concurrent filing of a summons and complaint." USCIT R. 3, Prac. Cmt. (concurrent filing encouraged to "expedite" prosecution of action).

A countervailing duty order is based on both a final affirmative subsidy determination by Commerce and a final affirmative injury determination by the U.S. International Trade Commission ("ITC"). 19 U.S.C. § 1671d(c)(2). A party challenging either Commerce's final affirmative determination or the ITC's final affirmative determination may also contest any negative part of those determinations. 19 U.S.C. § 1516a(a)(2)(B)(i). The "negative part" language is limited to only those negative decisions subsumed in a final affirmative determination by Commerce or the ITC. Id.

Section 1516a differentiates a negative part from a final negative determination. The latter is (1) a separate type of reviewable determination, 19 U.S.C. § 1516a(a)(2)(B)(ii), and (2) challengeable under § 1516a(a)(2)(A), but a different subdivision, § 1516a(a)(2)(A)(i)(I). A challenge to a final negative determination may include a challenge to any part of a final affirmative subsidy or final injury determination that excludes a particular company or product. 19 U.S.C. § 1516a(a)(2)(B)(ii).

Both a "negative part" of a final affirmative determination and a final negative determination, including a certain affirmative part, are judicially reviewable, albeit under different provisions of § 1516a(a)(2)(A). The statute provides an identical time period, 30 days, for filing a summons to commence the challenge to either type of determination. The difference is the triggering event—the date of publication of the countervailing duty order in the Federal Register for a final affirmative determination (including any "negative part"), 19 U.S.C. § 1516a(a)(2)(A)(i)(II) ("order provision"), as opposed to the date of publication in the Federal Register of the notice of a final negative determination, including any part of a final affirmative determination that excludes a company or product, 19 U.S.C. § 1516a(a)(2)(A)(i)(I) ("final determination provision").

Icdas filed its summons on October 14, 2014, 29 days after Commerce published the Final Determination. The countervailing duty order on rebar from Turkey, however, was published on November 6, 2014. Although Icdas filed a complaint on November 10, 2014 and an amended complaint on November 26, 2014, Icdas did not file a new summons.

Icdas requests that the court construe its Amended Complaint as a concurrently filed Summons and Complaint pursuant to USCIT Rule 8(f). Pl.'s Mot. at 4–8. In the alternative, Icdas requests permission to amend the caption on the Amended Complaint to read "Summons and Complaint" pursuant to USCIT Rule 15. Id. at 2. Because Icdas filed the Amended Complaint on November 26, a date within 30 days of the Order's publication in the Federal Register, Icdas argues that either solution would satisfy the time period for filing a summons described in § 1516a(a)(2)(A).

In their briefs the parties argue about the applicability of equitable tolling. The doctrine of equitable tolling, though, does not seem to apply here because no time period needs to be "tolled." This action presents a different sort of problem because Icdas filed its summons early, not late. The question here is more basic and depends on whether the Court's Rules can accommodate Icdas' requested relief. The court believes that they can.

As noted, Icdas seeks relief under USCIT Rules 8 and 15. USCIT Rule 8 governs "General Rules of Pleading" and deals mainly with the sufficiency of statements within a pleading, whereas USCIT Rule 15 governs "Amended and Supplemental Pleadings." Of the two, USCIT Rule 15 seems to better cover Icdas' request to re-caption its Amended Complaint as a "Summons and Complaint." The court and the parties, however, are dealing with an early filed summons, a "notice" document, not a pleading. See Giorgio Foods, Inc. v. United States, 31 CIT 1261, 515 F.Supp.2d 1313, 1319 (2007) (citing DaimlerChrysler v. United States, 442 F.3d 1313, 1318 (Fed.Cir.2006) ("The purpose of a summons is to provide notice to other parties of commencement of an action.")). Re-captioning Icdas' Amended Complaint as a concurrently filed "Summons and Complaint" amends both the summons and (to a lesser extent) the Amended Complaint. The court therefore believes that USCIT Rule 3(e), which governs "Amending a Summons," is implicated as well.

USCIT Rule 3 provides that "[t]he court may allow a summons to be amended at any time on such terms as it deems just, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the...