Tianjin Magnesium Intern. Co., Ltd. v. U.S.

• Decision Date: 08 January 2008
• Docket Number: Slip Op. 08-1. Court No. 07-00427.
• Citation: 533 F.Supp.2d 1327
• Parties: TIANJIN MAGNESIUM INTERNATIONAL CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and US Magnesium LLC, Defendant-Intervenor.
• Court: U.S. Court of International Trade

533 F.Supp.2d 1327

TIANJIN MAGNESIUM INTERNATIONAL CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and US Magnesium LLC, Defendant-Intervenor.

Slip Op. 08-1. Court No. 07-00427.

United States Court of International Trade.

January 8, 2008.

Riggle & Craven, Chicago, IL (David A. Riggle and David J. Craven), for Plaintiff.

Jeffrey S. Bucholtz, Acting Assistant Attorney General; Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David S. Silverbrand); William Kovatch, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel; for Defendant.

King & Spalding, LLP, Washington, DC (Stephen A. Jones, Jeffrey M. Telep, and Elizabeth M. Duall), for Defendant-Intervenor.

OPINION

RIDGWAY, Judge.

In this action, Plaintiff Tianjin Magnesium International Company, Ltd. ("TMI") contests the decision of the U.S. Department of Commerce rescinding the deferral of the administrative review of TMI's entries under the antidumping duty order on Pure Magnesium from the People's Republic of China for the period of May 1, 2006 through April 30, 2007. According to Commerce, such a request must be denied where a petitioner objects, as U.S. Magnesium LLC ("USM") did here. TMI maintains that USM's objection was untimely, and that Commerce thus erred in rescinding the deferral (which the agency had granted earlier, at TMI's request).

TMI seeks to enjoin the ongoing administrative review of its entries, invoking the Court of International Trade's residual jurisdiction under 28 U.S.C. § 1581(i) (2000).¹ See Tianjin Magnesium International Co., Ltd. Memorandum in Support of the Motion for a Temporary Restraining Order and Preliminary Injunction ("Pl.'s PI Brief"); see also Tianjin Magnesium International Co., Ltd.'s Memorandum Response to the Motions to Dismiss of the Defendant and Defendant-Intervenor ("Pl.'s Response Brief").

Pending before the Court are Motions to Dismiss filed by both the Government and USM. The Government and USM argue that jurisdiction under § 1581(i) is not available here, because TMI would have adequate remedies in an action brought under 28 U.S.C. § 1581(c) after the administrative review is concluded, if TMI is dissatisfied with the final results. The Government and USM further contend that this matter is not yet ripe. See Defendant's Memorandum in Support of Its Motion to Dismiss and Opposition to Plaintiff s Motion for a Temporary Restraining Order ("Def's Brief"); US Magnesium's Memorandum in Support of Its Motion to Dismiss Plaintiff's Complaint and in Opposition to Plaintiffs Motions for Preliminary Injunction and Temporary Restraining Order ("Def.-Int.'s Brief"); Def.'s Reply in Support of Its Motion to Dismiss ("Def.'s Reply Brief"); US Magnesium's Reply to Tianjin Magnesium International Co. Ltd.'s Response to the Motions to Dismiss ("Def.-Int.'s Reply Brief'); see also Defendant's Opposition to Plaintiffs Motion for a Preliminary Injunction ("Def.'s PI Brief"); US Magnesium's Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction ("Def.-Int.'s PI Brief").

As discussed in detail below, TMI's claims are not ripe for judicial review. If TMI is dissatisfied with the final results of the review; TMI may challenge the results (including Commerce's underlying findings and conclusions) in an action under 28 U.S.C. § 1581(c). Moreover, because the relief available to TMI in such an action would not be "manifestly inadequate," jurisdiction under 28 U.S.C. § 1581(i) will not lie. The Motions to Dismiss filed by the Government and USM must therefore be granted.²

I. Background

Commerce issues antidumping duty orders covering imported merchandise sold in the United States below fair value that materially injures, or threatens to injure, a domestic industry. See 19 U.S.C. § 1673. Importers of merchandise covered by an antidumping duty order must make a deposit of estimated duties at the time the merchandise is entered. See 19 U.S.C. § 1673e(a)(3).

Recognizing that prices and costs change over the course of time, however, Congress has provided that Commerce shall conduct an annual administrative review of an exporter or producer covered by an antidumping duty order, if a request for such a review is received. See 19 U.S.C. § 1675(a)(1). Absent an administrative review, merchandise imported during the previous year (the period of review) is liquidated and duties are assessed at the preexisting rate. See 19 C.P.R. § 351.212(c)(1)(i) (2006).³ On the other Hand, if an administrative review is conducted, merchandise imported during the period of review is liquidated and duties are assessed in accordance with the results of the administrative review. See 19 U.S.C. § 1675(a)(2)(C). The duty rate established in the administrative review also becomes the new cash deposit rate for future entries of the subject merchandise. See 19 U.S.C. § 1675(a)(2)(C).

On May 1, 2007, Commerce published notice of the opportunity to request administrative review of the antidumping duty order on pure magnesium (ingots) from China for the period May 1, 2006 through April 30, 2007. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 72 Fed.Reg. 23,796 (May 1, 2007). Pursuant to that notice, requests for review were filed by TMI (an exporter of magnesium subject to the order), and by Economic. Consulting Services, LLC ("ECS"), acting on behalf of USM (the successor in interest to the original petitioner, Magnesium Corporation of America).

In its request for administrative review, TMI included a request that the review of its entries be deferred for one year and consolidated with the next administrative review. See 19 C.F.R. § 351.213(c) (2006).⁴ TMI stated that it had made relatively few shipments during the 2006-2007 period of review, and that combining the review of those shipments with a full year of shipments in the next administrative review would be most efficient, conserving Commerce's resources as well as those of the parties.⁵

TMI served its combined request for review/request for deferral on King & Spalding, LLP, the law firm which was then representing USM in litigation before this court arising out of the previous administrative review of the same antidumping duty order.⁶ However, TMI did not serve ECS, which had filed the request for review on behalf of USM some five days earlier. Nor did TMI serve USM directly.⁷

Commerce's regulations permit the agency, in its discretion, to defer the initiation of an administrative review, provided that (among other things), there is no timely objection by "a domestic interested party." See 19 C.F.R. 351.213(c).⁸ On June 20, 2007, TMI filed a letter with. Commerce stating that "there has been no objection to deferral filed," and urging Commerce to grant its request for deferral. TMI served a copy of its June 20 letter on ECS⁹ — albeit at an address that ECS had vacated in August 2006, rather than at ECS's current address (which was indicated on the request for review that ECS had filed three weeks earlier on behalf of USM). That error delayed ECS's receipt of TMI's June 20 letter for several days.

ECS and USM first learned of TMI's request for deferral on June 27, 2007, when ECS received TMI's June 20 letter. Although TMI had served Xing & Spalding with its combined request for "review/request for deferral, the law firm at that time had not entered an appearance in the proceeding on behalf of USM. The law firm therefore did not examine TMI's request for review/request for deferral when it was received, and, indeed, did not even realize that a request for deferral had been made.¹⁰ Nor did the law firm realize at the time that TMI had failed to serve the request for review/request for deferral on either ECS or USM.¹¹

On June 28, 2007, ECS responded to TMI's June 20 letter, voicing USM's vehement Objection to the deferral. USM's objection criticized TMI's failure to serve its combined request for review/request for deferral on ECS (USM's lead representative in the administrative review at issue, as well as in prior reviews), and explained that — as a result — ECS and USM had learned of TMI's request, for deferral only very recently. USM urged Commerce either to reject TMI's request for deferral as improperly served, or, in the alternative, to grant USM leave to late-file its objection.¹²

TMI responded to USM's objection to the deferral of TMI's review with a ten-page letter memorandum, filed on July 6, 2007, disputing USM's claim that it had not been properly served with TMI's combined request for review/request for deferral. In its submission, TMI argued, inter alia, that it had properly served USM through its "legal representative," and that TMI's counsel could not ethically serve ECS — a lay party — without specific direction from Commerce.¹³

In the meantime, Commerce's June 25, 2007 notice of the initiation of an administrative review of pure magnesium for Shanxi Datuhe Coke & Chemicals Co., Ltd. ("Datuhe") — the other Chinese entity for which review had been requested — had been published in the Federal Register on June 29, 2007. The same notice also announced the deferral of the initiation of the administrative review of TMI. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation in Part and Deferral of Administrative Review, 72 Fed.Reg. 35,690 (June 29, 2007). But on June 25, 2007 — the date of Commerce's notice — Commerce was not yet aware of USM's objection, because it had not yet been filed.

Over the course of the three months that followed, TMI contacted Commerce twice to inquire about the status of USM's objection to the deferral of TMI's review. Each time, TMI was advised that Commerce had taken no action on the, objection.¹⁴ In the meantime,...