Tokyo Kikai Seisakusho, Ltd. v. U.S.
| Decision Date | 07 November 2005 |
| Docket Number | Court No. 05-00348.,Slip Op. 05-144. |
| Citation | 403 F.Supp.2d 1287 |
| Parties | TOKYO KIKAI SEISAKUSHO, LTD. and TKS (USA), Inc., Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sidley Austin Brown & Wood LLP (Neil R. Ellis, Lawrence R. Walders and Peter J. Toren) and Law Offices of Hoken S. Seki (Hoken S. Seki) for plaintiffs.
Stuart E. Schiffer, Deputy Assistant Attorney General, David M. Cohen, Director, Patricia M. McCarthy, Assistant Director, Kent G. Huntington, Trial Attorney, Commercial Litigation Branch, International Trade Field Office, United States Department of Justice; Elizabeth Cooper Doyle, Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, for defendant, of counsel.
Defendant United States moves, pursuant to USCIT Rule 12(b)(1), to dismiss for lack of subject matter jurisdiction the complaint of Tokyo Kikai Seisakusho, Ltd. ("TKS") and TKS (USA), Inc. ("TKS (USA)") (collectively "plaintiffs") challenging as unlawful the self-initiation by the United States Department of Commerce ("Commerce" or "the Department") of an antidumping "changed circumstances" review. The changed circumstances review pertains to an antidumping duty order directed to imports of large newspaper printing presses and their components ("LNPPs") from Japan. Commerce had issued the antidumping duty order in 1996 and revoked it in 2002.
Plaintiffs allege that "Commerce ha[d] no legal authority to initiate the review" under the relevant antidumping statute because no antidumping duty order was in effect on LNPPs from Japan when, on May 10, 2005, Commerce published its determination to self-initiate the changed circumstances review. Compl. at ¶ 3. Plaintiffs seek a declaratory judgment and an order permanently enjoining Commerce from continuing to conduct any such review. Under 19 U.S.C. § 1675(b)(1) (2000), Commerce is empowered to conduct a changed circumstances review when it receives information sufficient to warrant a review of a final affirmative determination resulting in an antidumping duty order.
As the basis for the changed circumstances review, Commerce cited information developed in a civil case tried in a U.S. district court in which TKS and TKS (USA) were sued by a domestic LNPP producer for violations of the Antidumping Act of 1916. In initiating the changed circumstances review, Commerce stated that the information developed at the trial established that TKS had imposed on one of its customers a fraudulent increase in the price of LNPP merchandise in exchange for the receipt by the customer of secret rebates.
In its motion to dismiss, defendant argues that this court lacks jurisdiction under the provision under which this action has been brought, 28 U.S.C. § 1581(i)(2000), because resort to that jurisdictional provision is permissible only if a remedy under any other provision of § 1581 would be unavailable or manifestly inadequate. Defendant points to § 1581(c), under which, defendant contends, plaintiffs could challenge in this Court any final action that Commerce takes as a result of the changed circumstances review. Defendant also urges dismissal for jurisdictional reasons on grounds of ripeness, standing, and failure to exhaust administrative remedies.
In opposing the motion to dismiss, plaintiffs argue that the act of initiating and maintaining an unlawful agency proceeding is regarded by relevant case law as a final agency action that may be challenged judicially without requiring plaintiffs to pursue their remedies by participating in the agency proceeding itself. Plaintiffs argue, further, that they have been injured by the decision of Commerce to self-initiate the changed circumstances review and that the issue presented by this case is ripe for judicial review as a purely legal question as to which no further legal development is necessary.
This court concludes that the issue plaintiffs have raised concerning the initiation of the changed circumstances review is not ripe for adjudication by this court. Accordingly, the court will enter judgment granting defendant's motion and dismissing this action for lack of subject matter jurisdiction.
TKS, a business incorporated in Japan, manufactures and distributes LNPPs in Japan, the Unites States, and other countries through its subsidiaries. TKS (USA), a wholly-owed subsidiary of TKS incorporated in Delaware, markets and sells in the United States LNPPs manufactured by TKS. See Comp. ¶ 2.
Commerce issued its antidumping duty order on imports of LNPPs from Japan on September 4, 1996, assessing a dumping margin of 56.28 percent ad valorem to imports manufactured and/or exported by TKS. See Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value for Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan, 61 Fed.Reg. 46,621, 41,622 (Sept. 4, 1996) ("Antidumping Duty Order"). In administrative reviews covering LNPPs from Japan entered for consumption during three consecutive periods of review, September 1, 1997 through August 31, 1998, September 1, 1998 through August 31, 1999, and September 1, 1999 through August 31, 2000, Commerce calculated a weighted-average antidumping duty margin of zero for TKS's entries. See Final Results of Antidumping Duty Administrative Review and Revocation in Part for Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 67 Fed.Reg. 2,190, 2,191-92 (Jan. 16, 2002). Based on the three consecutive zero margins, Commerce revoked the Antidumping Duty Order with respect to all entries of the subject merchandise manufactured or exported by TKS. See id. Commerce initiated a fiveyear sunset review on August 1, 2001 and revoked the Antidumping Duty Order with respect to all entries of LNPPs on February 25, 2002 due to insufficient domestic interest in the proceedings. See Notice of Final Results of Five-Year Sunset Reviews and Revocation of Antidumping Duty Orders on Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan (A-588-837) and Germany (A-428-821), 67 Fed.Reg. 8,522 (Feb. 25, 2002).
In May 2000, Goss International Corporation ("Goss") brought a civil action in the U.S. District Court for the Northern District of Iowa against TKS and TKS (USA), alleging that the two defendants violated the Antidumping Act of 1916, codified at 15 U.S.C. § 72 (1994).1 See Goss Int'l Corp. v. Tokyo Kikai Seisakusho, Ltd., 321 F.Supp.2d 1039, 1042 (N.D.Iowa 2004). On December 3, 2003, a jury returned a verdict in favor of Goss in the amount of $10,539,949, specifically finding that TKS and TKS (USA), with intent of destroying or injuring a domestic industry, caused Goss to lose profits and opportunity costs with respect to three sales of LNPPs that were made to the Dallas Morning News in 1996, the Orlando Sentinel in 1997, and the Newark Star Ledger in 1997. See Goss Int'l Corp., 321 F.Supp.2d at 1042-43; see also Verdict Form for Goss Int'l Corp. v. Tokyo Kikai Seisakusho, Ltd., No. C00-35 (N.D. Iowa Dec. 3, 2003) ( ( )). The jury verdict withstood a motion by TKS and TKS (USA) for a new trial and for judgment as a matter of law. See Goss Int'l Corp., 321 F.Supp.2d at 1055.
On May 10, 2005, Commerce, relying on its authority under section 751(b)(1) of the Tariff Act of 1930, codified at 19 U.S.C. § 1675(b)(1), self-initiated the changed circumstances review that is the subject of this action. Commerce stated that it was self-initiating the review based upon information contained in the opinion of the District Court issued on May 26, 2004 denying the motion of TKS and TKS (USA) for a new trial and judgment as a matter of law. See Initiation of Changed Circumstances Review for Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan, 70 Fed.Reg. 24,514, 24,515-16 (May 10, 2005) ("Initiation Notice"). This information consisted of evidence presented at trial that TKS and TKS (USA) "provided false information regarding its sale[] to the Dallas Morning News ..., the subject of the Department's 1997-1998 [administrative] review." Id. at 24,516. Such evidence concerned a secret arrangement between TKS and the Dallas Morning News by which TKS imposed a fraudulent "increase" in the price of the 1996 sale to the Dallas Morning News in exchange for rebates to the Dallas Morning News amounting to $2,200,000. See id.; see also Goss Int'l Corp., 321 F.Supp.2d at 1044-45. Evidence was presented at trial to establish the intent of this arrangement to conceal the fact that the "1996 sale to the [Dallas Morning News] was made at a dumped price." Goss Int'l Corp., 321 F.Supp.2d at 1044. Further evidence was presented at trial implicating TKS and its counsel in a "concerted effort to conceal the secret rebates," which involved the falsifying and destruction of documents. Id. at 1045; see also Initiation Notice, 70 Fed.Reg. at 24,516. Stating that "[t]he final results of the 1997-1998 administrative review were a factor in the Department's decisions to revoke TKS from the antidumping duty order, as well as to sunset the order," the Initiation Notice announced that Commerce placed on the record of the changed circumstances review the District Court's opinion in Goss International Corporation v. Tokyo Kikai Seisakusho, Ltd., 321 F.Supp.2d at 1039, and several public documents obtained from the record of that case. Initiation Notice, 70 Fed.Reg. at 24,516. Commerce invited comments from interested parties on the new information and the actions the Department should take with respect to this new information. See id.
In their complaint in this action, filed May 11, 2005, plaintiffs challenge Commerce's authority to...
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