Coal. for Fair Trade in Garlic v. United States

312 F.Supp.3d 1372

COALITION FOR FAIR TRADE IN GARLIC, Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 18–50

Court No. 18–00005

United States Court of International Trade.

Dated: May 4, 2018

Robert T. Hume, Hume & Associates, LLC, of Taos, NM, argued for Plaintiff Coalition for Fair Trade in Garlic.

Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant United States. With him 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 Emma T. Hunter, Attorney, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

OPINION AND ORDER

Barnett, Judge:

Pending before the court is Defendant's motion to dismiss this case for lack of subject matter jurisdiction. See Def.'s Mot. to Dismiss, ECF No. 15. Also pending are Plaintiff's motions for judgment on the agency record and for a preliminary injunction. See Mot. of Pl. Coalition for Fair Trade in Garlic for J. on the Agency R. ("Pl.'s MJAR"), ECF No. 10; Mot. for Prelim. Inj. ("Pl.'s Mot. for PI"), ECF No. 19. Defendant's motion to dismiss and Plaintiff's motion for preliminary injunction are fully briefed. The court held oral argument on April 26, 2016. See Docket Entry, ECF No. 25. For the following reasons, the court grants Defendant's motion to dismiss and denies, as moot, Plaintiff's motions for a preliminary injunction and for judgment on the agency record.

BACKGROUND

On November 1, 2017, Commerce published a notice informing interested parties that they could request an administrative review of the antidumping duty order covering fresh garlic from China for the November 1, 2016, through October 31, 2017 period of review. Antidumping of Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review , 82 Fed. Reg. 50,620 (Dep't Commerce Nov. 1, 2017). In the notice, Commerce set a deadline of November 30, 2017, for such requests. Id.

On November 27, 2018, the Coalition for Fair Trade in Garlic ("CFTG") filed a review request, asserting status as a domestic interested party to make such a request, and asking that Commerce review any "exporters of fresh garlic ... during the period of review." Compl. ¶ 6, ECF No. 5; id. , Ex. 3. In its review request, CFTG did not individually name any Chinese exporter of garlic. While CFTG did not expressly state why any particular exporter should be reviewed, it did state that it requested the review "to ensure that [the] Department [of Commerce] determines the proper amount of antidumping duties owed and estimated duties to be deposited for all subject garlic." Compl., Ex. 3. With the exception of Zhengzhou Harmoni Spice Co., Ltd. ("Harmoni") and Harmoni International Spice, Inc., CFTG did not serve any Chinese exporter with its review request.¹ Compl. ¶ 7; id. , Ex. 4. On November 29, 2017, CFTG restated its request that Commerce review "all Chinese exporters of the subject garlic," but again did not identify any individual exporters, explain why any particular exporter should be reviewed, or, with the exception of Harmoni, serve any exporter of Chinese garlic. Compl., Ex. 4.

On December 12, 2017, Commerce responded to CFTG's review request, stating that the request did "not conform to the requirements of 19 C.F.R. 351.213(b)(1)." Compl., Ex. 5. Commerce further stated that, pursuant to § 351.213(b)(1), "a domestic interested party ... may request in writing that the Secretary conduct an administrative review ... of specified individual exporters or producers covered by an order, ... if the requesting person states why the person desires the Secretary to review those particular exporters or producers." Id. (quoting 19 C.F.R. § 351.213(b)(1) (emphasis in original) ). Commerce stated that CFTG's review request was "invalid" because it "lack[ed] the requisite specificity." Id.

On December 18, 2017, CFTG requested a 10–day extension to supplement again its review request to specify (and serve) individual Chinese garlic exporters and producers for Commerce to review. Compl., Ex. 6. In the alternative, CFTG asked that Commerce reinterpret CFTG's review requests to cover Harmoni. Id. On January 2, 2018, Commerce responded to CFTG's December letter, indicating that, even if the December request was considered a timely request for administrative review, the letter did not meet applicable regulatory requirements. Compl., Ex. 1. CFTG "did not specify individual exporters or producers" and provided no explanation as to "why those particular exporters or producers should be reviewed." Id. (emphasis in original). Commerce again stated that CFTG's review request was invalid. Id.

On January 11, 2018, Commerce published the initiation notice for the 23rd administrative review of the antidumping duty order covering fresh garlic from China, based on the review requests filed by other interested parties. Initiation of Antidumping and Countervailing Duty Administrative Review , 83 Fed. Reg. 1,329, 1,332 –33 (Dep't Commerce Jan. 11, 2018). Commerce included Harmoni as a respondent in that review. Id. ; Compl. ¶ 12.

On January 29, 2018, CFTG filed its complaint in this court, seeking to invoke the court's residual jurisdiction pursuant to 28 U.S.C. § 1581(i), and asking the court to hold that CFTG's review request was valid. Compl. ¶¶ 1 and 2. On February 26, 2018, the court ordered the parties to confer and to file with the Clerk a proposed scheduling order by April 12, 2018. Letter from the Court to All Counsel (Feb. 26, 2018), ECF No. 9. The next day, on February 27, 2018, CFTG filed a motion for judgment on the administrative record, pursuant to United States Court of International Trade ("USCIT") Rule 56.1.² See Pl.'s MJAR. Pursuant to USCIT Rule 56.1(d), the Defendant's response to CFTG's motion for judgment on the administrative record was due on April 3, 2018. See USCIT Rule 56.1(d).

On March 29, 2018, the Defendant filed a motion to dismiss CFTG's complaint, arguing that the court does not possess subject matter jurisdiction. See generally Def.'s Mot. to Dismiss. That same day, the Defendant filed a motion to stay other deadlines while the court considered the motion to dismiss, Def.'s Mot. for Stay, ECF No. 16, which motion the court granted, Order (Apr. 4, 2018), ECF No. 18. On April 3, 2018, CFTG filed its response to the motion to dismiss and, within that response, proposed that Defendant's motion to dismiss (referenced incorrectly as a Motion to Strike) be treated as a responsive pleading such that the court should consider that issue was joined and the court should grant Plaintiff judgment on the pleadings pursuant to USCIT Rule 12(c). Resp. by Pl. Coalition for Fair Trade in Garlic in Opp'n to Def's Mots. to Dismiss and to Stay Deadlines and in Supp. of Pl's Mot. for J. on the Pleadings at 1, ECF No. 17 at ECF pp. 1–2, and Mem. in Opp'n in Opp'n to Def's Mots. to Dismiss and to Stay Deadlines and in Supp. of Pl's Mot. for J. on the Pleadings ("Pl.'s Resp."), ECF No. 17 at ECF pp. 4–19.

On April 6, 2018, each entity that had previously requested a review of Harmoni withdrew its review request. See Pl.'s Mot. for PI, Exs. 1–3. As of April 26, 2018, when the court held oral argument on the motions to dismiss and for a preliminary injunction, Commerce has taken no action on the review request withdrawals. Oral Arg. at 2:15–2:15.³

On April 9, 2018, CFTG filed a motion for preliminary injunction, Pl.'s Mot. for PI, and on April 19, 2018, the Defendant filed its response in opposition to the motion for preliminary injunction, Def.'s Resp. in Opp'n to Pl.'s Mot. for Prelim. Inj., ECF No. 22.

STANDARD OF REVIEW

It is well established that "[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A party seeking to invoke the Court's jurisdiction has the burden of establishing that jurisdiction exists. Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006). When a defendant challenges the Court's jurisdiction, the plaintiff cannot rely merely upon allegations in the complaint, but must instead bring forth relevant evidence, competent to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind. , 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). When deciding a motion to dismiss based upon a lack of subject-matter jurisdiction, the court assumes that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the plaintiff's favor. See Henke v. United States , 60 F.3d 795, 797 (Fed. Cir. 1995) ; Chemsol, LLC v. United States , 37 CIT ––––, 901 F.Supp.2d 1362, 1365–66 (2013), aff'd, 755 F.3d 1345 (Fed. Cir. 2014).

DISCUSSION

Pursuant to 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 that 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...