Abitibi-Consolidated Inc. v. U.S.

437 F.Supp.2d 1352

ABITIBI-CONSOLIDATED INC. and its Affiliates Abitibi-Consolidated Company of Canada, Produits Forestiers Petits Paris Inc., Produits Forestiers La Tuque Inc., Produits Forestiers Saguenay Inc., Societe en Commandite Opitciwan; and Canfor Corporation and its Affiliates Canfor Wood Products Marketing Ltd., Canadian Forest Products, Ltd., and Bois Daaquam Inc. (a/k/a Daaquam Lumber Inc.), Lakeland Mills Ltd., and Winton Global Lumber Ltd. (formerly The Pas Lumber Company Ltd.), Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 06-83.

Court No. 06-00048.

United States Court of International Trade.

June 1, 2006.

COPYRIGHT MATERIAL OMITTED

Arnold & Porter, LLP, Washington, DC (Michael T. Shor) for Plaintiff Abitibi—Consolidated Inc. and its affiliates Abitibi— Consolidated Company of Canada, Produits Forestiers Petits Paris Inc., Produits Forestiers La Tuque Inc., Produits Forestiers Saguenay Inc., and Societe en Commandite Opitciwan.

Baker & McKenzie, LLP (Thomas Peele, Kevin M. O'Brien, and Kevin J. Sullivan) for Plaintiff Canfor Corporation and its affiliates Canfor Wood Products Marketing, Ltd., Canadian Forest Products, Ltd., Bois Daaquam Inc. (a/k/a Daaquam Lumber Inc.), Lakeland Mills Ltd., and Winton Global Lumber Ltd. (formerly the Pas Lumber Company Ltd.).

Steptoe & Johnson, LLP, Washington, DC (W. George Grandison, Mark A. Moran, Matthew Frumin, and Daniel J. Calhoun) for Plaintiff—Intervenors British Columbia Lumber Trade Council, Coast Forest Products Association, and Council of Forest Industries.

Wilmer, Cutler, Pickering, Hale, and Dorr, LLP, Washington, DC (Robert C. Cassidy, Jr., John D. Greenwald, Jack A. Levy, and Tammy J. Horn) for Plaintiff— Intervenors the Quebec Lumber Manufacturers Association.

Baker & Hostetler, LLP (Elliot J. Feldman, Bryan J. Brown, and John Burke) for Plaintiff—Intervenors Ontario Forest Industries Association and Ontario Lumber Manufacturers Association.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (Claudia Burke, Trial Attorney and Quentin M. Baird, Attorney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce) for Defendant United States.

Dewey Ballantine, LLP (Bradford L. Ward and David A. Bentley) for Defendant—Intervenor Coalition for Fair Lumber Imports Executive Committee.

OPINION

GORDON, Judge.

In this action, plaintiffs and plaintiff Intervenors challenge the United States Department of Commerce's ("Commerce") respondent selection determinations in the third administrative review of the antidumping duty order covering softwood lumber from Canada. Defendant and defendant-Intervenor move, pursuant to UCIT Rule 12(b)(1), to dismiss this action for lack of subject matter jurisdiction. For the following reasons, the motion is granted.

I. Background

The third review currently is proceeding with final results due in September, 2006 (or December, 2006 if extended). It covers imports of the subject merchandise for the period May 1, 2004 through April 30, 2005 and nearly 300 Canadian exporters or producers, including plaintiffs. Certain Softwood Lumber from Canada, 70 Fed. Reg. 37,749 (June 30, 2005) (initiation of administrative review).

Given the large number of companies in the third review, Commerce had to address the threshold question of respondent selection. In the first and second reviews, Commerce selected eight of the largest respondents based on volume of exports pursuant to Section 777A(c)(2)(B) of the Tariff Act of 1930, as amended, 19 U.S.C § 1677f-1(c)(2)(B) (2000) (all further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of the U.S.Code, 2000 edition). In the third review, Commerce changed course and decided to limit the number of respondents using a "probability proportional to size" sampling method pursuant to 19 U.S.C. § 1677f-1(c)(2)(A). Plaintiffs were examined in the first and second reviews, but were not selected for examination under Commerce's newly applied sampling method in the third.

When plaintiffs learned they were not selected, they voluntarily responded to Commerce's third review questionnaires and submitted their sales and cost data well in advance of the deadlines for such submissions, all of which Commerce declined to examine pursuant to 19 U.S.C. § 1677m(a). Rather than await the final results of the review, plaintiffs commenced this challenge to Commerce's respondent selection, seeking a writ of mandamus directing Commerce to accept plaintiffs as voluntary respondents. Alternatively, they seek to preliminarily enjoin the third review pending selection of a statistically valid sample under 19 U.S.C. § 1677f-1(c)(2)(A), or selection of "exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined," as provided for under 19 U.S.C. § 1677f-1(c)(2)(B).

II. Standard of Review

"Plaintiffs carry the burden of demonstrating that jurisdiction exists." Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court assumes "all factual allegations to be true and draws all reasonable inferences in plaintiff's favor." Henke v. United States, 60 F.3d 795, 797 (Fed.Cir. 1995). The court, however, does not similarly credit plaintiff's legal conclusions or arguments. See authorities cited in Falwell v. City of Lynchburg, 198 F.Supp.2d 765, 772 (W.D.Va.2002).

III. Discussion

A. Jurisdiction under 28 U.S.C. § 1581(c)

Plaintiffs do not assert jurisdiction under 28 U.S.C. § 1581(c) where challenges to Commerce decision-making in antidumping administrative reviews ordinarily lie. That avenue requires a "final determination," 19 U.S.C. § 1516a(a)(2)(B)(iii), and is available when Commerce publishes its final results of the third review in the Federal Register. 19 U.S.C. § 1516(a)(2). Although plaintiffs were not selected as mandatory respondents, and Commerce has declined to examine their voluntary responses, plaintiffs may continue to participate in the third review as interested parties. Plaintiffs may submit case briefs commenting on the preliminary results, including Commerce's respondent selection determinations. 19 C.F.R. § 351.309 (2004). No antidumping duty assessment will be made or cash deposit rate determined for any respondent until the final results are issued. Once those are issued, interested parties may challenge them in this Court under 28 U.S.C. § 1581(c) as a reviewable final determination under 19 U.S.C. § 1516a(a)(2)(B)(iii).

Plaintiffs, though, are not waiting for section 1581(c) jurisdiction to attach. They seek immediate relief under 28 U.S.C. § 1581(i), the Court's oft-litigated residual jurisdiction provision.

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

At first blush, plaintiffs' assertion of section 1581(i) jurisdiction during an ongoing antidumping proceeding appears to collide with the express direction that section 1581(i) does "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 ... ." 28 U.S.C. § 1581(i). Essentially, the requisites for section 1581(i) jurisdiction are not satisfied by a challenge to antidumping determinations that will be "incorporated in or superceded by" the final results of an ongoing administrative review because section 1581(c) is the exclusive method of judicial review. H.R.Rep. No. 96-1235, at 48 (1980), as reprinted in 1980 U.S.C.C.A.N. 3729, 3759-60 ("[I]t is the intent of the Committee that the Court of International Trade not permit section (i), and in particular paragraph (4), to be utilized to circumvent the exclusive method of judicial review of those antidumping and countervailing duty determinations listed in section 516A of the Tariff Act of 1930 (19 U.S.C. § 1516a), as provided in that section.... The Committee intends that any determination specified in section 516A of the Tariff Act of 1930, 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."). These requisites discourage piecemeal review of antidumping determinations. They are problematical for plaintiffs who are challenging preliminary administrative actions regarding respondent selection that will be incorporated in or superceded by the final results of the third review.

Admittedly, there are circumstances in which the Court has exercised its residual jurisdiction "to review certain actions taken by Commerce during the pendency of an [administrative proceeding]." MacMillan Bloedel Ltd. v. United States, 16 CIT 331, 331 (1992). See also, Sacilor, Acieries et Laminoirs De Lorraine v. United States, 3 CIT 191, 542 F.Supp. 1020 (1982) (exercising section 1581(i) jurisdiction during an antidumping investigation to enjoin the agency from disclosing confidential information); Dofasco Inc. v. United States, 28 CIT ___, 326 F.Supp.2d 1340, aff'd, 390 F.3d 1370 (Fed.Cir.2004) (exercising section 1581(i) jurisdiction to review timeliness of request for administrative review, which, if untimely, would have precluded the review); H.R.Rep. No. 96-1235, at 48 (1980), as reprinted in 1980 U.S.C.C.A.N. 3729, 3760 ("[S]ubsection (i), and in particular paragraph (4), makes it clear that the court is not prohibited from entertaining a civil action relating to an antidumping or countervailing duty proceeding so long as the action does not involve a...