Trustees of N. Amer. Rubber Thread v. U.S.

• Decision Date: 18 October 2006
• Docket Number: Slip Op. 06-154. Court No. 05-00539.
• Citation: 464 F.Supp.2d 1350
• Parties: TRUSTEES IN BANKRUPTCY OF NORTH AMERICAN RUBBER THREAD CO., INC., Filmax Sdn. Bhd., Heveafil Sdn. Bhd., and Heveafil USA, Inc., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

464 F.Supp.2d 1350

TRUSTEES IN BANKRUPTCY OF NORTH AMERICAN RUBBER THREAD CO., INC., Filmax Sdn. Bhd., Heveafil Sdn. Bhd., and Heveafil USA, Inc., Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 06-154. Court No. 05-00539.

United States Court of International Trade.

October 18, 2006.

Miller & Chevalier Chartered (Peter J. Koenig), for Plaintiff Trustees in Bankruptcy of North American Rubber Thread Co., Inc.

White & Case, LLP (Emily Lawson), for Plaintiffs Filmax Sdn. Bhd., Heveafil Sdn. Bhd., and Heveafil USA, Inc.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, "and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stephen C. Tosini), for Defendant United States.

OPINION

GOLDBERG, Senior Judge.

This case, which seeks judicial review of a refusal by the U.S. Department of Commerce ("Commerce") to initiate a changed circumstances review of an antidumping duty order, is before the Court on a motion to dismiss for lack of subject matter jurisdiction.

I. BACKGROUND

A. The Antidumping Duty Order and Administrative Review

On October 7, 1992, Commerce published an antidumping duty order on extruded rubber thread from Malaysia (the "subject imports"). See Extruded Rubber Thread from Malaysia, 57 Fed.Reg. 46150 (Dep't Commerce Oct. 7, 1992) (antidumping duty order and amended final determination) (the "Order"). By its terms, the Order applied to Plaintiffs Filmax Sdn. Bhd., Heveafil Sdn. Bhd., and Heveafil USA, Inc. (collectively, "Heveafil"). Id.

Approximately six years later and at Heveafil's request, Commerce completed a periodic administrative review¹ of the Order for the period of October 1, 1995 through September 30, 1996. See Extruded Rubber Thread from Malaria, 63 Fed. Reg. 12752 (Dep't Commerce Mar. 16, 1998) (final results of administrative review). The results of that administrative review were largely unfavorable to Heveafil.² Id.

B. The First Request for Changed Circumstances Review

Dissatisfied with the results of the administrative review and noting dramatic changes in the makeup of the domestic industry in 2004, Heveafil requested that Commerce conduct a changed circumstances review.³ The basis for this request was Heveafil's observation that North American Rubber Thread Co., Inc. ("NART"),⁴ the sole manufacturer of the domestic like product, had filed for bankruptcy and ceased operations. Commerce granted Heveafil's request and initiated a changed circumstances review of the Order (the "First Changed Circumstances Review"). See Extruded Rubber Thread from Malaysia, 69 Fed.Reg. 10980 (Dep't Commerce Mar. 9, 2004) (notice of changed circumstances review, preliminary results, and notice of intent to revoke).

Commerce preliminarily found that changed circumstances warranted revocation of the Order effective October 1, 2003, the first day of the then most recent period of administrative review and the only period for which an administrative review had not been completed. Id. at 10981. For its part, NART agreed with this conclusion, reasoning that the changed circumstances should only apply to unliquidated entries of the subject imports which had not already been evaluated under an administrative review. See Issues and Decision Memorandum for the Changed Circumstances Review of Extruded Rubber Thread from Malaysia, Inv. No. A-557-805 (Dep't Commerce Aug. 11, 2004), available at http://ialta.doc.govarn/summary/ malaysia/E4-1895-1.pdf, at 5-7. In contrast, Heveafil argued that Commerce should revoke the Order effective as of October 1, 1995, a much earlier date which would cover all unliquidated entries of the subject imports, including those which previously had been under administrative review. Id. at 2-5.

Commerce ultimately determined to revoke the Order at the later effective date of October 1, 2003. See Extruded Rubber Thread from Malaysia, 69 Fed.Reg. 51989, 51989 (Dep't Commerce Aug. 24, 2004) (final results of changed circumstances review).⁵

C. The Second Request for Changed Circumstances Review

Notwithstanding its participation in the First Changed Circumstances Review and its support for the results of that review, on February 18, 2005, NART requested that Commerce initiate an additional changed circumstances review (the "Second and Changed Circumstances Review"). See Compl. dated Dec. 6, 2005, Ex. 2 (NART's Request for Changed Circumstances Review dated Feb. 18, 2005) 1. In this request, NART sought retroactive revocation of the Order to October 1, 1995 — the effective date requested by Heveafil (and opposed by NART) in the First Changed Circumstances Review. Id. The basis for this request was NART's representation that it no longer possessed an interest in the enforcement or existence of the Order as of that earlier date. Id.

On June 15, 2005, Commerce notified NART by letter ruling of its refusal to initiate the requested Second Changed Circumstances Review. See Compl. dated Dec. 6, 2005, Ex. 1 (Commerce's Response to Request for Changed Circumstances Review dated June 15, 2005) 1. Commerce explained that it could not conduct the requested review because "1) all administrative reviews of [the subject imports] have been completed; and 2) there is no existing order for which to initiate a changed circumstances review...." Id.

D. The Instant Action

On October 3, 2005 and December 6, 2005, NART and Heveafil respectively commenced separate actions in this Court, both challenging Commerce's refusal to initiate the Second Changed Circumstances Review. See Compl. dated Oct. 3, 2005; Compl. dated Dec. 6, 2005. Those actions were consolidated into the instant action, which seeks to invoke the Court's jurisdiction pursuant to 28 U.S.C. § 1581(i).

On March 3, 2006, Defendant the United States filed a motion to dismiss for lack of subject matter jurisdiction under USCIT Rule 12(b)(1) ("Def.'s Mot."). NART and Heveafil timely filed responses thereafter (respectively, "NART's Resp." and "Heveafil's Resp."), followed by a reply brief from Defendant ("Def.'s Reply"). This motion is thus now properly before the Court.

II. DISCUSSION

A. Guiding Principles for Exercise of Subject Matter Jurisdiction under 28 U.S.C. § 1581(i)

Like the rest of the Federal judiciary, the U.S. Court of International Trade ("CIT") is a court of limited jurisdiction and, as such, has the perpetual obligation to "determine that the matter brought before it remains within the metes and bounds of such delimitation." Agro Dutch Indus. Ltd. v. United States, 29 CIT ___, ___, 358 F.Supp.2d 1293, 1294 (2005). The CIT's principal jurisdictional statute is 28 U.S.C. § 1581. Subsections (a) through (h) of this statute grant the CIT jurisdiction over specific types of commonly-occurring disputes involving import transactions. Subsection (i) — the so-called "residual" grant of jurisdiction — is a

general grant of jurisdiction for any civil action against the United States, its agencies, or its officers, that arises out of any law of the United States providing for, inter alia, "tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue ... [or the] administration and enforcement with respect to the matters referred to in [section 1581]."

Duferco Steel, Inc. v. United States, 29 CIT ___, ___, 403 F.Supp.2d 1281, 1284-85 (2005) (quoting 28 U.S.C. § 1581(i) (2000)).

Recognizing section 1581(i)'s broad jurisdictional grant, this Court recently noted that "[t]he breadth of the residual jurisdiction could, if not interpreted restrictively, threaten to strip subsections (a) through (h) of any operative force." Id. at ___, 403 F.Supp.2d at 1285. Consequently, courts construing this statute have repeatedly held that "`[s]ection 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:" Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.Cir. 1992) (quoting Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987)). Thus, access to the CIT's residual jurisdiction requires the exhaustion of all adequate administrative remedies that could have resulted in a cause of action arising under subsections (a) through (h) of 28 U.S.C. § 1581.⁶ See id. The plaintiff has the burden of proving that the assertion of the CIT's residual jurisdiction is proper when a defendant moves to dismiss an action under USCIT Rule 12(b)(1) for lack of subject matter jurisdiction. See United States v. Gold Mountain Coffee, Ltd., 8 CIT 247, 248-49, 597 F.Supp. 510, 513 (1984).

B. Availability of Jurisdiction under 28 U.S.C. § 1581(i)

In light of these guiding principles, the Court next considers Defendant's motion to dismiss, which questions whether NART and Heveafil have properly invoked the CIT's residual jurisdiction in order to gain judicial review of Commerce's refusal to initiate the Second Changed Circumstances Review.

1. Analysis of Underlying Statutory/Regulatory Framework

The answer to this question first requires an understanding of the underlying statutory/regulatory framework. Pursuant to 19 U.S.C. § 1675(d)(1), Commerce may revoke an antidumping duty order (in whole or in part) based on a review of the underlying antidumping determination under 19 U.S.C. § 1675(b)(1) — i.e., a changed circumstances review. This latter provision requires Commerce to perform a changed circumstances review upon receipt of a request which shows changed circumstances sufficient to warrant such a review.⁷ Congress expressly provided for judicial review by the CIT of the substantive changed circumstances determination by Commerce. See 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000); 28 U.S.C. § 1581(c) (2000). However, it is not clear whether there is a grant of judicial review for a decision by Commerce not to initiate a changed circumstances...