San Vicente Camalu Spr De Ri v. U.S.
| Decision Date | 18 April 2005 |
| Docket Number | Court No. 03-00517.,SLIP OP. 05-50. |
| Citation | 366 F.Supp.2d 1373 |
| Parties | SAN VICENTE CAMALU SPR DE RI and Expo Fresh, LLC, Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Crowell & Moring LLP, Washington, DC (Matthew P. Jaffe and Robert A. Lipstein), for Plaintiffs.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Paul D. Kovac and Kent G. Huntington); Augusto Guerra, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant U.S. Department of Commerce, of counsel.
James M. Lyons, General Counsel, U.S. International Trade Commission (Charles A. St. Charles and Michael Diehl), for Defendant U.S. International Trade Commission.
Plaintiffs in this action — hereinafter collectively referred to as "SVC" — are San Vicente Camalu SPR de RI ("San Vicente"), a Mexican producer and exporter of fresh tomatoes, and Expo Fresh, LLC ("Expo Fresh"), a U.S. importer of the same. SVC here contests certain determinations made in the course of an antidumping investigation by the U.S. Department of Commerce ("Commerce") and the U.S. International Trade Commission ("ITC"). Specifically, invoking the court's residual jurisdiction under 28 U.S.C. § 1581(i) (2000),1 SVC challenges the two agencies' determinations to terminate (or, alternatively, not to reopen) the five year "sunset" review involving fresh tomatoes from Mexico.
Now before the court are parallel motions to dismiss for lack of subject matter jurisdiction filed on behalf of Commerce and the ITC, and opposed by SVC.2 As discussed in greater detail below, so-called "(i) jurisdiction" will not lie in this case, because jurisdiction was available under another provision of the statute — specifically, 28 U.S.C. § 1581(c). SVC failed to meet the statutory deadline for filing its appeal under § 1581(c), however. The pending motions are therefore granted, and this action is dismissed.
The underlying administrative proceedings began some nine years ago, when representatives of the U.S. tomato industry petitioned Commerce and the ITC, alleging that fresh tomatoes from Mexico were being dumped in this country (that is, sold at less than fair value), to the detriment of the domestic industry.3 Both agencies launched antidumping investigations, and in due course made affirmative preliminary determinations.4 The investigations were suspended in November 1996, however, when Commerce entered into a suspension agreement with certain Mexican tomato producers and exporters, who agreed to revise their prices.5 The statute authorizes Commerce to enter into such agreements where, inter alia, "exporters of the subject merchandise who account for substantially all of the imports of that merchandise" agree to measures that "eliminate completely the injurious effect" of the imports. 19 U.S.C. § 1673c(c) (emphasis added).6
Fast forward approximately five years, to October 2001. Commerce and the ITC began their five-year "sunset" review of the suspended antidumping investigations, to determine whether dumping (and material injury to domestic producers) would be likely to continue or resume if the suspended investigation were terminated.7 But, in late May 2002, while the agencies' sunset reviews were ongoing, Mexican tomato producers and exporters accounting for a large percentage of U.S. imports gave notice of their intent to withdraw from the 1996 Suspension Agreement. Because the suspension agreement no longer covered "substantially all of the imports," Commerce was forced to terminate it, effective July 30, 2002.8
The termination of the 1996 Suspension Agreement led perforce to the agencies' termination of their sunset reviews (since, as Commerce noted, "there [was] no longer a suspended investigation for which to perform a sunset review"), and to the resumption of the agencies' antidumping investigations initiated some six years earlier.9 However, those investigations were soon halted once again, by a new suspension agreement — the 2002 Suspension Agreement.10
San Vicente requested that the antidumping investigations be continued, notwithstanding the 2002 Suspension Agreement; but its request was denied.11 It did not seek to appeal that denial. Next, SVC asked the ITC to "reopen" its sunset review. The ITC denied SVC's request. SVC then set its sights on Commerce, requesting that it reopen its sunset review. That request, too, was denied. Commerce reiterated that it could not "conduct a sunset review of a non-existent suspension agreement."12
On July 29, 2003 — approximately one year after the agencies terminated their sunset reviews — SVC commenced this action, challenging those terminations. In the alternative, SVC challenges the agencies' denials of its requests to reopen their sunset reviews. See Complaint ¶¶ 25-30 (), ¶¶ 31-35 (), ¶¶ 36-41 (), ¶¶ 42-46 ().
Where a plaintiff's assertion of jurisdiction is challenged by a motion to dismiss pursuant to USCIT Rule 12(b)(1), the plaintiff bears the burden of proving the soundness of its jurisdictional allegations. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Elkem Metals Co. v. United States, 23 CIT 170, 175, 44 F.Supp.2d 288, 292 (1999). Here, SVC's claim to jurisdiction under 28 U.S.C. § 1581(i)13 turns on whether it could have availed itself of jurisdiction under some other provision of § 1581. See JCM, Ltd. v. United States, 210 F.3d 1357, 1359 (Fed.Cir.2000) (quoting Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.Cir.1992)) (jurisdiction lies under § 1581(i) only where there is no jurisdiction under any other subsection of § 1581, unless the remedy under that other subsection would be "manifestly inadequate").14 Commerce and the ITC maintain that the court would have had jurisdiction to review the agencies' determinations under § 1581(c),15 if SVC had filed its challenge within 30 days of their publication.
In a nutshell, SVC's argument is that jurisdiction under § 1581(c) could not lie, because — SVC contends — the contested agency actions did not constitute "final determinations" under the statute, since the agencies never reached the ultimate findings on the merits that are made when a sunset review is completed. In short, SVC reasons:
Section 1581(c) states that "[t]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a]." Among the actions that may be commenced pursuant to 19 U.S.C. § 1516a are "final determinations" by the [ITC] or [Commerce] made "under section 1675 of this title." Subsection (c) of 19 U.S.C. § 1675 addresses five-year reviews, the type of review at issue in this action. Therefore, for jurisdiction to exist in this case under 28 U.S.C. § 1581(c), there must be a "final determination" made pursuant to 19 U.S.C. § 1675(c).
SVC Response Brief at 1-2 (footnotes omitted). Quoting the text of § 1675(c),16 SVC further contends that there is a "final determination" in a sunset review case only if Commerce makes a finding as to whether "stopping the investigation will likely lead to dumping" and the ITC makes a finding as to whether "stopping the investigation will likely lead to material injury." SVC Response Brief at 2 () (footnote omitted). SVC concludes:
When Commerce ended its five-year review of the suspended antidumping investigation ..., it did not "determine ... whether... termination of the investigation suspended ... would be likely to lead to the continuation or recurrence of dumping." Similarly, when the [ITC] ended its five-year review, it did not "determine ... whether ... termination of the investigation suspended ... would be likely to lead to continuation or recurrence... of material injury." Therefore, neither agency made a "final determination" pursuant to 19 U.S.C. § 1675(c). Since 28 U.S.C. § 1581(c) requires such a "final determination" before it vests jurisdiction in the Court, the agency actions challenged by SVC clearly cannot be reviewed under that section.
SVC Response Brief at 2-3 () (footnotes omitted). However, SVC's strained argument ignores both the unambiguous finality of the agencies' determinations here, and the pertinent precedent.
The determinations by Commerce and the ITC terminating the sunset reviews were clearly the final and definitive actions in those proceedings. There was nothing whatsoever about the determinations that was in any way preliminary, interlocutory, interim, provisional, or temporary. They were final determinations terminating the sunset reviews, driven in turn by the termination of the 1996 Suspension Agreement. The statute provides for sunset reviews only where an antidumping order or a suspension agreement is in place. And, at the time, neither existed in this case. 19 U.S.C. § 1675(c); DOJ Reply Brief at 2-3; ITC Reply Brief at 3. Moreover, because the agencies' terminations were the final and definitive resolution of the sunset reviews and any issues presented therein, the agencies' determinations on termination were every bit as final as determinations on the merits of the ultimate substantive issues under 19 U.S.C. § 1675(c) would have been — and they were every bit as reviewable under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c), as well.
Even SVC does not contend that the agencies'...
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San Vicente Camalu Spr De Ri v. U.S.
...declining to reopen) their sunset reviews. However, that action was dismissed as untimely. See San Vicente Camalu SPR De Ri v. United States, 29 CIT ___, 366 F.Supp.2d 1373 (2005). 8. In response to Commerce's request for comments as to whether it should obtain updated information to comple......