Valeo N. Am., Inc. v. United States

• Decision Date: 20 November 2017
• Docket Number: Court No. 17–00264,Slip Op. 17–155
• Citation: 277 F.Supp.3d 1361
• Parties: VALEO NORTH AMERICA, INC., et al., Plaintiffs, v. UNITED STATES, Defendant, and Aluminum Association Trade Enforcement Working Group, et al., Defendant–Intervenors.
• Court: U.S. Court of International Trade

277 F.Supp.3d 1361

VALEO NORTH AMERICA, INC., et al., Plaintiffs,

v. UNITED STATES, Defendant,andAluminum Association Trade Enforcement Working Group, et al., Defendant–Intervenors.

Slip Op. 17–155

Court No. 17–00264

United States Court of International Trade.

Dated: November 20, 2017

Daniel J. Cannistra and Alexander Hume Schaefer, Crowell & Moring, LLP, of Washington, DC, and Frances Pierson Hadfield, Crowell & Moring, LLP, of New York, NY, for Valeo North America, Inc.

Kristen S. Smith, Sandler, Travis & Rosenberg, P.A., of Washington, DC; Arthur K. Purcell, Sandler, Travis & Rosenberg, P.A., of New York, NY; David John Craven, Sandler, Travis & Rosenberg, P.A., of Chicago, IL; and Emi Ito Ortiz, Sandler, Travis & Rosenberg, P.A., of Miami, FL, for Mahle Behr Dayton, L.L.C., Mahle Behr Charleston, Inc., Mahle Behr Troy Inc., and Mahle Industries, Inc.

Hardeep K. Josan, International Trade Field Office, U.S. Department of Justice, of New York, NY, and Joshua Ethan Kurland, Commercial Litigation Branch—Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With them on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of Counsel on the brief was Khalil N. Gharbieh, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

John M. Herrmann, II, Grace Whang Kim, Kathleen Weaver Cannon, Paul Charles Rosenthal, Kelley Drye & Warren, LLP, of Washington, DC, for Aluminum Association Trade Enforcement Working Group and its individual members.

OPINION AND ORDER

Kelly, Judge:

This matter is before the court on Plaintiffs' application for a temporary restraining order ("TRO"). Mot. [TRO] and Mem. Supp. Pl.'s Mot. App. [TRO], Nov. 6, 2017, ECF No. 6 ("Pl. TRO"). Plaintiffs Valeo North America, Inc., Mahle Behr Dayton, L.L.C., Mahle Behr Charleston, Inc., Mahle Behr Troy Inc., and Mahle Industries, Inc. (collectively "Plaintiffs")¹ are importers of subject merchandise in the antidumping investigation of certain aluminum foil from the People's Republic of China ("PRC" or "China"), in which the Department of Commerce issued an affirmative preliminary determination on November 2, 2017. Antidumping Duty Investigation of Certain Aluminum Foil from the [PRC], 82 Fed. Reg. 50,858 (Dep't Commerce Nov. 2, 2017) ("Prelim. Results"). Plaintiffs request the court to: 1) restrain Commerce from issuing instructions to the United States Customs and Border Protection ("CBP") to collect cash deposits for antidumping duties on Plaintiff's imports of certain aluminum foil from the PRC, pursuant to the preliminary determination, and 2) enjoin CBP from collecting cash deposits on Plaintiffs' aluminum foil imports.² See Pl. TRO 1; see also Prelim. Results. For the reasons that follow, the case is dismissed for lack of subject matter jurisdiction.

BACKGROUND

Plaintiffs' underlying action challenges as untimely Commerce's preliminary determination in this investigation.³ See Compl., Nov. 6, 2017, ECF No. 5. Plaintiffs allege that, because Commerce did not issue the preliminary determination within the statutorily prescribed timeframe, the preliminary determination "is invalid, unlawful, and due to be set aside." Id. at 1; see Section 733 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673b(c)(1) (2012).⁴ Plaintiffs request that the court therefore declare the affirmative preliminary determination invalid and declare that, in failing to issue a determination within the statutory timeframe, Commerce effectively issued a negative preliminary determination. Id. at 8. Plaintiffs allege jurisdiction under 28 U.S.C. § 1581(i)(2) (2012),⁵ see Compl. ¶ 6, which establishes the Court's jurisdiction over civil actions "commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for ... tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." 28 U.S.C. § 1581(i)(2).

During a telephone conference held with counsel to the parties on November 7, 2017, Defendant indicated that it opposed Plaintiffs' application for a TRO on both jurisdictional and substantive grounds. Teleconference, Nov. 7, 2017, ECF No. 20. The court requested that the parties brief the issue of jurisdiction. Order, Nov. 8, 2017, ECF No. 22. The parties submitted briefs in support of their respective positions regarding the Court's jurisdiction over this action. Pls.' Br. Supp. Jurisdiction, Nov. 13, 2017, ECF No. 30 ("Pls.' Br."); Def.'s Mem. Re. Jurisdiction, Nov. 13, 2017, ECF No. 31 ("Def.'s Br."). Plaintiffs argue that the preliminary determination is ultra vires because, in publishing the preliminary determination after the statutory deadline, Commerce created "a seriously and irredeemably flawed investigative process," Pls.' Br. 4, in which Plaintiffs contend they should not be required to continue participating. Id. at 9, 13–14. Plaintiffs contend that any relief available under 28 U.S.C. § 1581(c)"would be manifestly inadequate," because 19 U.S.C. § 1516a does not explicitly permit interested parties to challenge preliminary dumping determinations and alleging that there are significant "practical consequences" to challenging the preliminary determination in a challenge to the final determination under 28 U.S.C. § 1581(c). Id. at 12. Defendant responds that jurisdiction under 28 U.S.C. § 1581(i) is improper because, upon completion of the investigation, Plaintiffs could seek relief pursuant to 28 U.S.C. § 1581(c). Def.'s Br. 4–5. Defendant emphasizes that relief under 1581(c) is not manifestly inadequate because "[P]laintiffs will not lose the opportunity for full relief by awaiting the final determination," id. at 1, and the harm alleged—the paying of cash deposits—is speculative and impermanent. Id. at 5–8.

DISCUSSION

It is well established that "federal courts ... are courts of limited jurisdiction marked out by Congress." Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 358 (Fed. Cir. 1992) (quoting Aldinger v. Howard, 427 U.S. 1, 15, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), superseded by statute on other grounds ); see Judicial Improvements Act, Pub. L. No. 101–650, 104 Stat. 5089, as recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 557, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). The court must enforce the limits of its jurisdiction, including by dismissing a case for lack of subject matter jurisdiction on its own motion when necessary. See, e.g., Cabral v. United States, 317 Fed. Appx. 979, 980 n.1 (Fed. Cir. 2008) (citing Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988) ).

Under 28 U.S.C. § 1581(i), the Court has jurisdiction to hear "any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—... (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." 28 U.S.C. § 1581(i)(2). However, § 1581(i)"shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable[ ]by the Court of International Trade under section 516A(a) of the Tariff Act of 1930[, as amended, 19 U.S.C. § 1516a(a) ]....." 28 U.S.C. § 1581(i). The legislative history of § 1581(i) demonstrates Congress intended "that any determination specified in section 516A of the Tariff Act of 1930, [as amended,] or any preliminary administrative action which, in the course of the proceeding, will be, directly or by implication, incorporated in or superceded by any such determination, is reviewable exclusively as provided in section 516A." H.R.Rep. No. 96–1235, at 48 (1980), reprinted in 1980 U.S.C.C.A.N. 3729, 3759–60. Thus, the Court's § 1581(i) jurisdiction is available only if the party asserting jurisdiction can show the Court's § 1581(a) – (h) jurisdiction is unavailable, or the remedies afforded by those provisions would be manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987) (" 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." (citations omitted)).

When jurisdiction under another provision of 28 U.S.C. § 1581"is or could have been available, the party asserting § 1581(i) jurisdiction has the burden to show how that remedy would be manifestly inadequate." Miller & Co., 824 F.2d at 963 (citations omitted). That judicial review may be delayed by requiring a party to wait for Commerce's final determination is not enough to render judicial review under § 1581(c) manifestly inadequate. Gov't of People's Republic of China v. United States, 31 CIT 451, 461, 483 F.Supp.2d 1274, 1282 (2007). Neither the burden of participating in the administrative proceeding nor the business uncertainty caused by such a proceeding is sufficient to constitute manifest inadequacy. See, e.g., id., 31 CIT at 461–62, 483 F.Supp.2d at 1283 (citing FTC v. Standard Oil, 449 U.S. 232, 244, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) ); Abitibi–Consolidated Inc. v. United States, 30 CIT 714, 717–18, 437 F.Supp.2d 1352, 1356–57 (2006). Essentially, the type of review sought by a plaintiff asserting the Court's § 1581(i) jurisdiction must not already be provided for by 19 U.S.C. § 1516a. Abitibi–Consolidated Inc., 30 CIT at 717–18, 437 F.Supp.2d at 1356–57.

The Court's 28 U.S.C. § 1581(c) jurisdiction makes final determinations by Commerce reviewable pursuant to 19 U.S.C. § 1516a(a)(2). See 28 U.S.C. § 1581(c). The Court of Appeals for the Federal Circuit has held that § 1516a(a)(2) allows for judicial review of both matters of procedural correctness, as well as the substantive merits of the determination. See ...