Parkdale Intern. Ltd. v. U.S., Slip Op. 08-111. Court No. 07-00166.

• Decision Date: 20 October 2008
• Docket Number: Slip Op. 08-111. Court No. 07-00166.
• Citation: 581 F.Supp.2d 1334
• Parties: PARKDALE INTERNATIONAL LTD., Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corp., Def.-Int.
• Court: U.S. Court of International Trade

581 F.Supp.2d 1334

PARKDALE INTERNATIONAL LTD., Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corp., Def.-Int.

Slip Op. 08-111. Court No. 07-00166.

United States Court of International Trade.

October 20, 2008.

Hunton & Williams LLP (William Silverman and Richard P. Ferrin), for plaintiff.

Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael D. Panzera and Stephen C. Tosini); Office of the Chief Counsel for Import Administration, United States Department of Commerce (Mark B. Lehnardt), for defendant.

Skadden, Arps, Slate, Meagher & Flom LLP (Robert E. Lighthizer, John J. Mangan, Jeffrey D. Gerrish and M. Allison Guagliardo), for defendant-intervenor.

Before: Richard K. Eaton, Judge.

OPINION

EATON, Judge.

Before the court are the motions to dismiss for lack of subject matter jurisdiction of the United States ("defendant") and of United States Steel Corporation ("defendant-intervenor"). See Def.'s Mot. Dismiss ("Def.'s Mot."); Def.Int.'s Mot. Dismiss ("Def.-Int.'s Mot."). Plaintiff Parkdale International Ltd. ("Parkdale" or "plaintiff") has filed responses to each of the motions. See Pl.'s Resp. Def.'s Mot.; Pl.'s Resp. Def.-Int.'s Mot. By their motions, defendant and defendant-intervenor insist that the court does not have jurisdiction to hear plaintiff's claims under 28 U.S.C. § 1581(i).

For the reasons set forth below, the motions to dismiss are granted, and plaintiff's complaint is dismissed.¹

BACKGROUND

Parkdale is an importer of corrosionresistant carbon steel flat products ("CORE") from Canada. Compl. ¶ 3. In the early 1990s the United States Department of Commerce ("Commerce" or the "Department") issued an antidumping duty order on CORE from Canada (the "Order"). See Certain CORE and Certain Cut-to-Length Carbon Steel Plate From Canada, 58 Fed.Reg. 44,162 (Dep't of Commerce Aug. 19, 1993) (antidumping duty order). The Order was later amended in 1995. See Certain CORE and Certain Cut-to-Length Carbon Steel Plate From Canada, 60 Fed.Reg. 49,582 (Dep't of Commerce Sept. 26, 1995) (amended final determination). On September 1, 1999, Commerce and the United States International Trade Commission ("ITC" or the "Commission") commenced a "sunset review"² of the Order and determined, respectively that its revocation would likely lead to the continuation or recurrence of dumping and material injury to the domestic CORE industry. Thereafter, Commerce published notice of the continuation of the Order in the Federal Register, which by its terms was effective as of December 15, 2000. See Continuation of Antidumping and Countervailing Duty Orders on Certain Carbon Steel Prods. from Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, South Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, 65 Fed.Reg. 78,469, 78,470 (Dep't of Commerce Dec. 15, 2000) (notice).

Five years later, on November 1, 2005, Commerce and the ITC commenced the second sunset review of the Order. See Initiation of Five-year ("Sunset") Revs., 70 Fed.Reg. 65,884 (Dep't of Commerce Nov. 1, 2005) (notice). In that review, while Commerce determined that revocation of the Order would likely result in the continuation or recurrence of dumping, the ITC determined that revocation of the Order would not be likely to lead to the continuation or recurrence of material injury to the domestic CORE industry within a reasonably foreseeable time. See Certain Carbon Steel Prods. From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, 72 Fed.Reg. 4,529 (ITC Jan. 31, 2007) (final determination).³ As a result, the Order was revoked. See 19 U.S.C. § 1675(d)(2); 19 C.F.R. § 351.218(a) (2006) (providing for revocation of an order based on a sunset review if either Commerce's or the ITC's determination is negative); Certain CORE from Australia, Canada, Japan, and France, 72 Fed.Reg. 7,010 (Dep't of Commerce Feb. 14, 2007) (notice of revocation) ("Revocation Notice"). In its Revocation Notice, Commerce stated that "[p]ursuant to [19 U.S.C. § 1675(d)(2)] and 19 C.F.R. § 351.222(i)(2)(i), the effective date of revocation is December 15, 2005 (i.e., the fifth anniversary of the date of publication in the Federal Register of the notice of continuation of the [Order])." Revocation Notice, 72 Fed.Reg. at 7,011.

Parkdale then brought this action, pursuant to the Administrative Procedure Act, 5 U.S.C. § 702 (2000).⁴ Parkdale seeks judicial review of the effective date of the Revocation Notice and invokes the Court's residual jurisdiction provision, 28 U.S.C. § 1581(i)(4).⁵ Compl. ¶¶ 1, 2. Parkdale claims that revocation of the Order should have been effective as of September 26, 2000, i.e., the fifth anniversary of the September 26, 1995 amendment to the Order, not December 15, 2005, as Commerce found. Compl. ¶ 3.

JURISDICTION AND STANDARD OF REVIEW

A jurisdictional challenge to the court's consideration of this action raises a threshold inquiry. See Hartford Fire Ins. Co. v. United States, 31 CIT ___, ___, 507 F.Supp.2d 1331, 1334 (2007) ("Hartford Fire Ins. Co.") (citations omitted). Thus, before reaching the merits of plaintiff's complaint, this court must assess the motion to dismiss for lack of subject matter jurisdiction. In deciding a motion to dismiss that does not challenge the factual basis of plaintiff's allegations, a Court "assumes all factual allegations contained in the complaint to be true and draws all reasonable inferences in plaintiffs favor." Id. at ___, 507 F.Supp.2d at 1335 (citation and alteration omitted). "Nonetheless, . . . `the mere recitation of a basis for jurisdiction ... cannot be controlling[;]' rather, analysis of jurisdiction requires determination of the `true nature of the action.'" Id., 31 CIT at ___, 507 F.Supp.2d at 1335 (quoting Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006) (citation and quotation omitted)).

DISCUSSION

Parkdale has brought its challenge to the effective date of the revocation of the Order by claiming jurisdiction under 28 U.S.C. § 1581(i)(4). It is well-settled that § 1581(i) jurisdiction is only available to plaintiffs where jurisdiction under another subsection of § 1581 is not or could not have been available. Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987) ("Miller & Co."). Section 1581(i) jurisdiction "may not be invoked when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate." Id. at 963.

Defendants and defendant-intervenors (collectively, the "movants") argue that the effective date of revocation in a sunset review proceeding pursuant to 19 U.S.C. § 1675(d)(2) is a final determination reviewable under 28 U.S.C. § 1581(c).⁶ The thrust of the movants' argument is that Parkdale "could have participated in the Department's second sunset review and raised any arguments regarding the effective date of revocation of the order in the course of that review." Def.-Int.'s Mot. 6. They contend that, had Parkdale participated in the second sunset review before Commerce—which it did not—it would have been able to seek review of Commerce's determinations under § 1581(c), in which case it cannot now seek review under § 1581(i).

In addition, the movants argue that plaintiff's claims must be dismissed because of a separate failure to meet statutory requirements for judicial review. Namely, that plaintiff did not give notice of its intent to seek judicial review under a special rule covering North American Free Trade Agreement ("NAFTA") member countries. Specifically, defendant contends that under 19 U.S.C. § 1516a(g)(3)(B),

a party may challenge a final determination pursuant to 19 U.S.C. § 1675, only if it has provided proper notice to the specified parties in a timely manner. Because Parkdale did not provide notice in accordance with section 1516a(g)(3), Parkdale cannot establish jurisdiction for this Court to review the Revocation Notice here.

Def.'s Mot. 13 (citation omitted); see also Def.-Int.'s Mot. 10.

I. The Revocation Notice Is a Final Determination

Title 19 U.S.C. § 1675(d)(2) governs the revocation of an order in a sunset review:

the administering authority [Commerce] shall revoke a countervailing duty order or an antidumping duty order or finding, or terminate a suspended investigation, unless—

(A) the administering authority makes a determination that dumping or a countervailable subsidy, as the case may be, 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).

Judicial review of unfair trade determinations is governed by 19 U.S.C. § 1516a(a)(2)(B)(iii), which states that within 30 days of the publication of a "final determination . . . by the administering authority or the Commission under section 1675 of this title," an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in this Court by filing a summons. 19 U.S.C. § 1516a(a)(2)(B)(iii). In addition, the time for filing a complaint is tolled for thirty days where, as here, the product at issue is from a NAFTA country. 19 U.S.C. § 1516a(a)(5)(A).

Defendant argues that, because Commerce issued its Revocation Notice pursuant to 19 U.S.C. § 1675(d),⁷ Parkdale's challenge to the Revocation Notice was required to be brought within sixty days of its publication, i.e., by April 16, 2007. Def.'s Mot. 7; see 19 U.S.C. §§ 1516a(a)(2)(B)(iii) and (a)(5)(A). Parkdale filed its summons and complaint on May 15, 2007. As such, defendant argues, plaintiff's suit is untimely. Def.'s Mot. 7.

Plaintiff responds...