Celik Halat ve Tel Sanayi A.S. v. United States

503 F.Supp.3d 1241

CELIK HALAT VE TEL SANAYI A.S., Plaintiff,

v. UNITED STATES, Defendant,andInsteel Wire Products Company et al., Defendant-Intervenors.

Slip Op. 21-31

Court No. 20-03843

United States Court of International Trade.

March 24, 2021

Irene H. Chen, Chen Law Group LLC of Rockville, MD for plaintiff.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, for defendant. Also on the briefs were Jeanne E. Davidson, Director, and Jeffrey Bossert Clark and Bryan M. Boynton, Acting Assistant Attorneys General. Of counsels on the briefs were Reza Karamloo and Jesus Saenz, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce of Washington, DC.

Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda, Brooke M. Ringel, and Joshua R. Morey, Kelley Drye & Warren LLP of Washington, DC, for defendant-intervenors Insteel Wire Products Company, Sumiden Wire Products Corporation, and Wire Mesh Corp.

OPINION

Kelly, Judge:

Before the court is Defendant's motion to dismiss Plaintiff Celik Halat ve Tel Sanayi A.S.’s ("Celik") complaint requesting relief from the U.S. Department of Commerce's ("Commerce") preliminary determination in its antidumping duty ("ADD") investigation into prestressed concrete steel wire strand ("PC Strand") from the Republic of Turkey ("Turkey"). See Mot. to Dismiss Compl. for Lack of Juris., Dec. 10, 2020, ECF No. 19 ("Mot. to Dismiss"); see also Compl., Nov. 19, 2020, ECF No. 2 ("Compl."). Defendant argues that the Court lacks jurisdiction over Celik's complaint, filed under 28 U.S.C. § 1581(i) (2018),¹ because the remedy available under § 1581(c) is not manifestly inadequate. See Mot. to Dismiss at 7–10. Defendant further argues that the preliminary results have been subsumed into the final determination; and, that Celik has challenged that final determination in a new complaint. See Reply Sup. Def.’s Mot. to Dismiss Compl.’s for Lack of Juris. at 2–4, Feb. 4, 2021, ECF No. 22 ("Def.’s Reply Br.").² Celik argues that jurisdiction under 28 U.S.C. § 1581(i) is proper because the remedy under § 1581(c) is manifestly inadequate. See Pl. [Celik's] Opp. to Def.’s Mot. to Dismiss Compl.’s at 15–21, Jan. 14, 2021, ECF No. 21 ("Pl.’s Br."). For the following reasons, Defendant's motion is granted, and the case is dismissed.

BACKGROUND

On May 6, 2020, Commerce initiated its ADD investigation of PC Strand from Turkey. See Compl. at ¶ 3; see also [ PC Strand] from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain, Taiwan, Tunisia, [Turkey], Ukraine, and the United Arab Emirates, 85 Fed. Reg. 28,605, 28,610 (Dep't Commerce May 13, 2020) (initiation of less-than-fair value investigations). On June 18, 2020, Commerce selected Celik for individual examination. See Compl. at ¶ 4. The next day, Commerce issued to Celik an antidumping questionnaire and set forth a deadline of July 17, 2020 for Celik's Section A response; August 10, 2020 for its Sections B and Section C responses; and August 13, 2020 for its Section D response. See id. at ¶ 5. Celik's questionnaire responses were to be uploaded electronically to Commerce's ACCESS website by 5:00 pm on the specified deadline for each section. See id.

Plaintiff states that although it timely filed its Section A and Section D questionnaire responses, it untimely filed portions of its Section B and Section C responses because some of its exhibits contained "no searchable text", the ACCESS platform did not accept those documents, and ACCESS sent Celik an error message notifying it of the error. See id. at ¶¶ 7–17. Namely, with respect to its Section B response, Plaintiff untimely submitted a supplementary "Domestic Sales Table" at 5:21 pm, and with respect to its Section C response, Plaintiff untimely submitted Exhibits C8–11—which comprised a part of Celik's response—at 5:06 pm. See id. at ¶ 8.³ Since Plaintiff did not meet the 5:00 pm deadline on August 10, 2020, Commerce refused to accept Plaintiff's Sections B and C questionnaire responses. See id. at ¶¶ 18–22. On September 30, 2020, Commerce issued a preliminary determination in which it found that Plaintiff did not cooperate with the investigation to the best of its ability, and thus Commerce used facts otherwise available with an adverse inference ("adverse facts available" or "AFA")⁴ to preliminarily assign Plaintiff a dumping margin of 53.65 percent. See [ PC Strand] from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain, Taiwan, Tunisia, [Turkey], Ukraine, and the United Arab Emirates, 85 Fed. Reg. 61,722 (Dep't Commerce Sept. 30, 2020) (prelim. affirmative determinations of sales at less than fair value & prelim. affirmative critical circumstances determinations, in part) ("Prelim. Results") and accompanying Decisions Memo. for the [Prelim. Results ] at 7–9, A-489-842, (Sept. 23, 2020), available at https://enforcement.trade.gov/frn/summary/turkey/2020-21546-2.pdf (last visited Mar. 18, 2021); see also Section 776 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677e (2018).⁵

On November 19, 2020, Celik filed a complaint alleging that Commerce improperly rejected its late questionnaire responses. See Compl. at ¶¶ 43–44. On the same day, Celik filed a motion for a temporary restraining order ("TRO") and preliminary injunction, see Pl.’s Mot. for [TRO] & Prelim. Injunction, Nov. 19, 2020, ECF No. 5, which the court subsequently denied. See Celik Halat ve Tel Sanayi A.S., v. United States, 44 CIT ––––, ––––, 485 F.Supp.3d 1404, 1410–15 (2020).⁶ On December 10, 2020, Defendant filed a motion to dismiss Celik's complaint, arguing that the Court lacked subject matter jurisdiction over Celik's complaint filed under 28 U.S.C. § 1581(i). See Mot. to Dismiss at 7–11. Celik filed a response in which it argued that it carried its burden of establishing that jurisdiction was proper under 28 U.S.C. § 1581(i), because jurisdiction under § 1581(c) is manifestly inadequate. See Pl.’s Br. at 15–21. Commerce subsequently published its final determination on January 29, 2021, see [ PC Strand] From Argentina, Colombia, Egypt, Netherlands, Saudi Arabia, Taiwan, Turkey, and the United Arab Emirates, 86 Fed. Reg. 7,564, 7,564 –65 (Dep't Commerce Jan. 29, 2021) (final determ.), and issued an ADD order on February 1, 2021. See [ PC Strand] From Argentina, Colombia, Egypt, Netherlands, Saudi Arabia, Taiwan, Turkey, and the United Arab Emirates, 86 Fed. Reg. 7,703 (Dep't Commerce Feb. 1, 2021) ([ADD] orders). On the same day the ADD order was issued, Celik filed a complaint challenging the determination. See Compl., Feb. 1, 2021, ECF No. 2 (from Dkt. Ct. No. 21-00045). In its reply, Defendant argues that Celik's complaint regarding the preliminary determination has now been subsumed into the final determination. See Def.’s Reply Br. at 2–4.

DISCUSSION

Defendant moves to dismiss Celik's complaint for lack of subject matter jurisdiction under 28 U.S.C. § 1581(i), because jurisdiction under § 1581(c) is available. See Mot. to Dismiss at 7–11. Moreover, Defendant argues that the final determination, now the subject of a complaint that Celik has filed, subsumes the preliminary determination. See Def.’s Reply Br. at 2–4. Celik contends that review under § 1581(c) is manifestly inadequate because, if required to file its complaint under this subsection, Celik will have suffered "irreversible and irreparable harm" by the conclusion of the regular judicial appeal proceedings. See Pl.’s Br. at 9, 15–17.

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 [ 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 [ 19 U.S.C. § 1516a ] 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 [ 19 U.S.C. § 1516a ]." 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) (" Miller & Co.") (" 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)).

Manifest inadequacy exists when, although there is jurisdiction under 28 U.S.C. § 1581(a) – (h), filing suit under one of those subsections would be an "exercise of futility," meaning that it is "incapable of producing any result." See Hartford Fire Ins. Co. v. United States, 544 F.3d at 1289 (Fed. Cir. 2008) (finding no futility where the plaintiff failed to make a required challenge directly to Customs after a Customs demand for payment, based on unsubstantiated claims that it would be futile to do so because Customs had a financial interest in the challenge and thus was allegedly biased). 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)...