Jilin Henghe Pharmaceutical Co. v. U.S.
| Decision Date | 29 June 2004 |
| Docket Number | Court No. 04-00151.,No. SLIP OP. 04-77.,SLIP OP. 04-77. |
| Citation | 342 F.Supp.2d 1301 |
| Parties | JILIN HENGHE PHARMACEUTICAL CO. and Jilin Pharmaceutical USA, Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
White & Case, LLP, Washington, DC (William J. Clinton, Adams Lee, and Kathleen D. Wallender) for Plaintiffs.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, Ada E. Bosque, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Elizabeth Cooper Doyle, Attorney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant, of counsel.
In this action, Plaintiffs Jilin Henghe Pharmaceutical Co. and Jilin Pharmaceutical USA ("Jilin") challenge the validity of liquidation1 instructions issued by the United States Department of Commerce ("Commerce") to the United States Bureau of Customs and Border Protection ("Customs")2 regarding Jilin's entries of bulk aspirin from China.
Before the Court is Plaintiffs' motion requesting mandamus relief, which the parties have agreed to treat as a motion for declaratory relief. Defendant has filed a motion to dismiss, alleging a lack of subject matter jurisdiction, that its own actions were in accordance with law, and that the equitable relief sought by Plaintiffs is inappropriate. By agreement of the parties, the Court has issued a preliminary injunction temporarily enjoining liquidation of Plaintiffs' entries and expediting consideration of this matter.
Because this Court has jurisdiction to consider Plaintiffs' challenge under 28 U.S.C. § 1581(i) (2000), and because Commerce's liquidation instructions are not in accordance with law, the Court enters a declaratory judgment for Plaintiffs.
Commerce's liquidation instructions seek to impose antidumping duties on Plaintiffs' entries pursuant to an antidumping order which was invalidated, with regard to Plaintiffs, by the Court's decision in Rhodia, Inc. v. United States, 26 CIT ___, 240 F.Supp.2d 1247 (2002) ("Rhodia II"). Specifically, Commerce instructed Customs to impose antidumping duties on entries made prior to the Court's decision in Rhodia II but which remained unliquidated as of the date of the "Timken" notice of that order.3
The Court of Appeals for the Federal Circuit affirmed the Court's decision in Rhodia II on October 14, 2003. See Stmt of Relevant Agreed-Upon Facts para. 9 ("Jt.Stmt").
The administrative background of this dispute dates to May 25, 2000, when Commerce published notice of the final determination in Bulk Aspirin from the People's Republic of China, 65 Fed.Reg. 33,805 (Dep't Commerce May 25, 2000) (notice of final determination of sales at less than fair value), as amended, 65 Fed.Reg. 39,598 (Dep't Commerce June 27, 2000) (notice of amended final determination of sales at less than fair value). Commerce's final determination established dumping margins for a number of producers of bulk aspirin, including Jilin. Jilin's initial cash-deposit rate4 was set at 10.85 percent. See Bulk Aspirin from the People's Republic of China, 65 Fed.Reg. at 39,599. Commerce published notice of the antidumping duty order on bulk aspirin from China on July 11, 2000. Bulk Aspirin from the People's Republic of China, 65 Fed.Reg. 42,673, 42,674 (Dep't Commerce, July 11, 2000) (notice of antidumping duty order). Jilin appealed the final determination and antidumping duty order, and Jilin's appeal was consolidated into Rhodia, Inc. v. United States, 25 CIT 1278, 1278, 185 F.Supp.2d 1343, 1345 (2001) ("Rhodia I"). The Court's opinion in that case remanded the final determination to Commerce for further consideration. See Rhodia I, 25 CIT at 1293, 185 F.Supp.2d at 1358. On remand, Commerce found that Jilin's duty margin was de minimis, and that Jilin should be excluded from the dumping order on bulk aspirin from the People's Republic of China. See Jt. Stmt at para. 5. The Court upheld Commerce's determination on remand. See Rhodia II, 26 CIT at ___, 240 F.Supp.2d at 1255. Pursuant to the decision in Rhodia II, Commerce issued its "Timken" notice. See Bulk Aspirin from the People's Republic of China, 67 Fed.Reg. 61,315, 61,315-16 (Dep't Commerce Sept. 30, 2002) (notice of court decision and suspension of liquidation) ("the Timken notice").
In addition, during the pendency of the two Rhodia cases, Jilin participated in two administrative reviews of the dumping order on bulk aspirin from the People's Republic of China. See Jt. Stmt at para. 12. The results of the two reviews, however, were not published until after the decision in Rhodia II was issued. See Jt. Stmt at paras. 17, 30. With regard to both the first and second administrative reviews of the order, covering the periods from July 6, 2000 through June 30, 2001, and July 1, 2001 through June 30, 2002, Commerce found that Jilin's dumping margin was de minimis or zero. See Bulk Aspirin from the People's Republic of China, 68 Fed.Reg. 6,710, 6,711 (Dep't Commerce Feb. 10, 2003) ( final results of antidumping duty review); Bulk Aspirin from the People's Republic of China, 68 Fed.Reg. 48,337, 48,338 (Dep't Commerce Aug. 13, 2003) (final results of antidumping duty review).
Jilin was originally a participant in a third administrative review, as well, but the request for review as to Jilin was withdrawn. See Jt. Stmt at para. 38.5 Commerce thereafter rescinded the third administrative review as to Jilin. See Bulk Aspirin from the People's Republic of China, 69 Fed.Reg. 5,126, 5,127 (Dep't Commerce Feb. 3, 2004) (notice of partial rescission of antidumping duty administrative review).
On February 12, 2004, Commerce issued the liquidation instructions in dispute here, directing Customs to liquidate Jilin's entries of bulk aspirin made between July 1, 2002 and September 29, 2002, the period between the end of the second review and Commerce's publication of the Timken notice of judgment in Rhodia II.6 See Jt. Stmt at para. 40. Commerce instructed Customs to liquidate Jilin's entries during this period at the cash-deposit rate that was in effect at the time of entry, i.e., the rate set in the final administrative determination and antidumping order discredited in Rhodia II. See Jt. Stmt at para. 43.
While jurisdiction in a case challenging the validity of Commerce's liquidation instructions is provided by 28 U.S.C. § 1581(i), the cause of action, in such a case arises from the Administrative Procedure Act ("APA"). See 28 U.S.C. § 2640(e); Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1312 (Fed.Cir.2004). The APA provides that a court may set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Commerce's liquidation instructions are not subject to deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The instructions do not contain any statutory interpretation; moreover, the issuance of liquidation instructions is not subject to any formal hearing; nor are notice and comment procedures afforded. See United States v. Mead Corp., 533 U.S. 218, 229-30, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). The instructions are only binding on the party for which they were issued, Plaintiffs. See id. at 232, 121 S.Ct. 2164. Accordingly, there is nothing on the record here which would indicate any Congressional intent to give Commerce's liquidation instructions the force of law.
The Court has consolidated its consideration of Defendant's motion to dismiss with the merits of the case. Accordingly, this opinion will first discuss subject matter jurisdiction, then the question of whether Commerce acted in accordance with law, and finally the question of what relief is appropriate here.
Defendant's challenge to subject matter jurisdiction rests on two arguments. The first argument is that Plaintiffs should have brought their complaint under 28 U.S.C. § 1581(c) rather than 28 U.S.C. § 1581(i). See Def.'s Mot. Dismiss & Opp'n to Request for Injunctive & Mandamus Relief at 16 ("Def.'s Mot. Dismiss"). Second, Defendant claims that Plaintiffs' failure to bring a § 1581(c) challenge to Defendant's published notice of the Court's decision in Rhodia II at the time of the notice's publication deprives Plaintiffs of the right to bring suit now. See Def.'s Mot. Dismiss at 20. The Court will address each argument in turn.
First, Defendant argues, correctly, that jurisdiction under 28 U.S.C. § 1581(i), the Court's residual grant of jurisdiction, may be invoked only if no other grant of jurisdiction could have been invoked to provide an adequate remedy. See Def.'s Mot. Dismiss at 14. Defendant further argues that Plaintiffs could have challenged Commerce's decision to give Rhodia II only prospective application by filing under 28 U.S.C. § 1581(c), which grants this Court jurisdiction over, among other things, disputes arising out of antidumping duty orders and the reviews thereof.7 See Def.'s Mot. Dismiss at 16; see also 28 U.S.C. § 1581(c). However, the Court of Appeals for the Federal Circuit recently concluded that jurisdiction here is proper under 28 U.S.C. § 1581(i), the statutory grant claimed by Plaintiffs. See Shinyei Corp. of Am. v. United States, 355 F.3d at 1305 ( )).
Despite the holding in Shinyei Corp. of Am., Defendant argues that this Court should be deprived of jurisdiction over Pla...
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