Slip Op. 09-41
UNITED STATES COURT OF INTERNATIONAL TRADE
THYSSENKRUPP MEXINOX S.A. de C.V.,
et al.,
Plaintiffs,
Before: Pogue, Judge
v. Court No. 06-00236
UNITED STATES, et al.,
Defendants,
- and -
AK STEEL CORPORATION, ALLEGHENY LUDLUM
CORPORATION, NORTH AMERICAN STAINLESS,
Defendant-Intervenors.
OPINION
[Plaintiffs’ motion to amend complaint is denied.]
Dated: May 13, 2009
Hogan & Hartson LLP (Lewis E. Leibowitz, Jonathan L. Abram, H.
Christopher Bartolomucci, Helaine R. Perlman and Brian S. Janovitz)
for the Plaintiffs.
Michael F. Hertz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Franklin E. White, Jr., Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Michael J. Dierberg) for the Defendants.
Kelley Drye & Warren, LLP (Mary T. Staley, Daniel P. Lessard
and David A. Hartquist) for the Defendant-Intervenors.
Pogue, Judge: This action involves the distribution to
affected domestic producers, pursuant to the Continued Dumping and
Court No. 06-00236 Page 2
Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”),1 19
U.S.C. § 1675c (2000), of antidumping (“AD”) duties assessed and
collected on imports of certain steel products from Mexico. In
their complaint, Plaintiffs claim, correctly, that the Byrd
Amendment may not be applied to AD duties on goods from Mexico.
Currently before the court is Plaintiffs’ motion to amend that
complaint to add (1) a new cause of action, for unjust enrichment,
against the Defendant-Intervenors, Plaintiffs’ domestic
competitors, for receiving and retaining distributions under the
Byrd Amendment of AD duties collected upon the entry into the U.S.
of Plaintiffs’ goods, and (2) a claim for injunctive relief
requiring the Defendant-Intervenors to disgorge those illegally-
received distributions.
As will be explained further below, because Plaintiffs’ unjust
enrichment action is duplicative of Plaintiffs’ original complaint
1
The CDSOA, effective October 1, 2000, amended Title VII of
the Tariff Act of 1930 to add section 754, among other
provisions. See Pub. L. No. 106-387, § 1(a) [Title X, § 1003(a)],
114 Stat. 1549, 1549A-73 to 1549A-75. Section 754(a), in
pertinent part, read:
Duties assessed pursuant to a countervailing duty
order, an antidumping duty order, or a finding under
the Antidumping Act of 1921 shall be distributed on an
annual basis under this section to the affected
domestic producers for qualifying expenditures.
19 U.S.C. § 1675c(a) (2000). Congress repealed the Byrd
Amendment on February 8, 2006 as part of the Deficit Reduction
Act; however, the repeal applies only to duties on entries of
goods made and filed on or after October 1, 2007. See Pub. L. No.
109-171, 120 Stat. 4, 154 (2006).
Court No. 06-00236 Page 3
and unnecessary to the just resolution thereof, and because a
provision in the American Recovery and Reinvestment Act of 2009,
H.R. 1, Pub. L. No. 111-5, §§ 1-7002, 123 Stat. 115, 115-521 (2008)
(“ARRA”) has rendered moot Plaintiffs’ request for additional
injunctive relief, Plaintiffs’ motion to amend is denied.2
I.
The court has previously concluded that the U.S. Customs and
Border Protection (“Customs”)3 interpretation of the Byrd Amendment
-- to permit distribution to affected domestic producers of AD
duties collected on goods from NAFTA countries –- is contrary to
law. Canadian Lumber Trade Alliance v. United States, __ CIT __,
__, 425 F. Supp. 2d 1321, 1373 (2006) (“CLTA I”), vacated in part
on other grounds, 517 F.3d 1319 (Fed. Cir. 2008) (“CLTA II”), cert.
denied, 129 S. Ct. 344 (2008). In CLTA I, the court held that the
Byrd Amendment, read in conjunction with section 408 of the North
American Free Trade Agreement (“NAFTA”) Implementation Act, “states
that [Byrd Amendment] distributions should be made from duties
collected pursuant to antidumping and countervailing duty orders
except for duty orders on goods from Canada or Mexico.”4 CLTA I,
2
Because the parties’ briefs in this matter ably address
the issues raised, the court also denies Plaintiffs’ Motion for
Oral Argument.
3
Customs is the federal agency responsible for collecting
antidumping duties and distributing said duties to domestic
industry pursuant to former 19 U.S.C. § 1675c (2000).
4
Like Canada, of course, Mexico is a NAFTA country.
Court No. 06-00236 Page 4
425 F. Supp. 2d at 1372 (emphasis in original).
On appeal of CLTA I, the Federal Circuit affirmed in part and
vacated in part. See CLTA II, 517 F.3d at 1344 (vacating the
court’s judgment on the agency record as to lumber and magnesium
plaintiffs on grounds of mootness, but otherwise affirming the
court’s judgment, though on other grounds with regard to the
government of Canada’s standing to bring the lawsuit).
The case at bar constitutes the Mexican analog to CLTA I.
Thyssenkrupp Mexinox S.A. de C.V. (“Thyssenkrupp”), a Mexican
corporation, manufactures and exports stainless steel sheet and
strip (“SSSS”) products to the United States. Mexinox USA, Inc.
(“Mexinox”)5 imports, markets and distributes Thyssenkrupp’s
products into the U.S. Plaintiffs’ steel products are subject to
a July 27, 1999 antidumping duty order that is still in force. See
Stainless Steel Sheet and Strip in Coils From Mexico, 64 Fed. Reg.
40,560 (Dep’t Commerce July 27, 1999) (notice of amended final
determination of sales at less than fair value and antidumping duty
order) (“the antidumping duty order”). Up to and through October
1, 2007, Defendants United States, Customs and W. Ralph Basham,
then-Commissioner of Customs6 (collectively, “the government”) have
collected AD duties on Plaintiffs’ imports, and, pursuant to the
5
Mexinox is a U.S. company, incorporated in Texas, and is
Thyssenkrupp’s wholly-owned subsidiary.
6
Jayson P. Ahern is currently the Acting Commissioner of
Customs.
Court No. 06-00236 Page 5
Byrd Amendment, have paid a significant portion of the duties so
collected to certain “affected domestic producers,” see 19 U.S.C.
§ 1675c(a)-(b) (2000), which Plaintiffs allege include AK Steel
Corp., Allegheny Ludlum Corp. and North American Stainless
(collectively, “Defendant-Intervenors”) and other of Plaintiffs’
direct competitors.7 Plaintiffs further allege that, upon final
liquidation of all pre-October 2007 imports, Customs will
distribute the remainder of the AD duties so collected in
accordance with the CDSOA.8
Plaintiffs’ original complaint, filed in July 2006, requested
declaratory relief. In addition, Plaintiffs’ action sought a
7
Plaintiffs allege that the government illegally
distributed approximately $12 million in duties collected from
goods imported by Plaintiffs prior to the 2004 fiscal year, and
approximately $11 million in duties collected from goods imported
by Plaintiffs for the 2004 and 2005 fiscal years. Pls.’
[Proposed] Amended Compl. ¶ 4. Defendant-Intervenors AK Steel
Corp., Allegheny Ludlum Corp. and North American Stainless claim
to have received CDSOA disbursements totaling $5,536,218,
$2,449,596 and $2,073,793, respectively, from the antidumping
duty order during the 2004 and 2005 fiscal years, and other
disbursements from the order prior to 2004. Consent Mot. of AK
Steel Corp., Allegheny Ludlum Corp., and North American Stainless
to Intervene as Defs. 2.
8
Although Customs announced that no further CDSOA
distributions would be made from duties collected from Canadian
or Mexican exports, this announcement limited its effect “pending
the outcome of any appeal” in CLTA. Notice of Withholding of
Certain Distributions on Continued Dumping and Subsidy Offset to
Affected Domestic Producers, 71 Fed. Reg. 57,000 (U.S. Customs &
Border Protection Sept. 28, 2006). As final judgment has been
entered in CLTA, this notice is no longer in effect. However,
the government is still enjoined from making said distributions
by order of the court. See infra.
Court No. 06-00236 Page 6
permanent injunction prohibiting future CDSOA disbursements of AD
duties paid by Plaintiffs and directing Customs to reclaim certain
improperly-disbursed funds, see infra, through the “disgorgement”
or “claw back” provision contained in Customs’ regulations
implementing the CDSOA.9
On September 25, 2006, the court stayed this case until any
appeals in CLTA I were resolved. The court also enjoined Customs
from making any CDSOA payments “to the extent they derive from
duties assessed pursuant to antidumping orders . . . upon [SSSS]
products from Mexico.”10
After the February 25, 2008 decision of the Federal Circuit in
CLTA II, the CLTA I defendant-intervenor petitioned for a writ of
certiorari; the Supreme Court denied certiorari on October 6. See
9
19 C.F.R. § 159.64(b)(3), instructs that:
[o]verpayments to affected domestic producers resulting
from subsequent reliquidations and/or court actions and
determined by Customs to be not otherwise recoverable
from the corresponding Special Account as set out in
paragraph (b)(2) of this section will be collected from
the affected domestic producers. The amount of each
affected domestic producer’s bill will be directly
proportional to the total dumping and subsidy offset
amounts that the affected domestic producer previously
received under the related Special Account. All
available collection methods will be used by Customs to
collect outstanding bills, including but not limited
to, administrative offset. Interest at the same rate
set out at § 24.3a(c) of this chapter will begin to
accrue on unpaid bills 30 days from the bill date.
10
The next day, the court signed an order granting a
consent motion for Defendant-Intervenors to intervene pursuant to
USCIT R. 24(b).
Court No. 06-00236 Page 7
U.S. Steel Corp. v. Canadian Lumber Trade Alliance, 129 S. Ct. 344
(2008). By the terms of this court’s September 25, 2006 order, as
amended by its November 12, 2008 order, the stay in this matter has
now been lifted but the preliminary injunction remains in force.11
On November 11, 2008, Plaintiffs filed their current Motion
for Leave to Amend Complaint. Plaintiffs’ motion supplemented
their original complaint, which sought disgorgement of “payments
announced on December 17, 2004 and November 29, 2005 of AD duties
that had been assessed on imports of [SSSS] products from Mexico”
covered by the antidumping duty order. Pls.’ Compl. 10. In their
proposed amended complaint, Plaintiffs ask the court to order
Defendant-Intervenors to “return to the United States, together
with applicable interest” all CDSOA distributions of duties
assessed under the antidumping order. Pls.’ [Proposed] Amended
Compl. ¶ 61. Furthermore, Plaintiffs introduce their newly-
asserted cause of action for unjust enrichment, against Defendant-
Intervenors, “under federal common law and applicable state common
law.” Id. ¶ 63.
11
In accordance with the court’s September 25, 2006 order,
the stay expired with the Supreme Court’s denial of certiorari on
October 6. Although the injunction was to last “until two weeks
after the final judgment of the Court of International Trade,
including any appeals to the United States Court of Appeals for
the Federal Circuit or the Supreme Court” in CLTA I, the court
ordered, on November 12, 2008, that the injunction “shall be and
remain in effect until further order of the court.” As such,
Defendants are still currently enjoined from disbursing or
offsetting the relevant Byrd Amendment funds.
Court No. 06-00236 Page 8
Both the government and Defendant-Intervenors object to
Plaintiffs’ motion, claiming lack of jurisdiction and futility.
III.
Plaintiffs’ original complaint contains causes of action
seeking declaratory and permanent injunctive relief pursuant to 5
U.S.C. § 706.12
The court has jurisdiction over Plaintiffs’ complaint pursuant
12
Under the Administrative Procedure Act (“APA”), “[t]he
reviewing court shall”:
(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of statutory
right;
(D) without observance of procedure required by
law;
(E) unsupported by substantial evidence in a case
subject to sections 556 and 557 of this title or
otherwise reviewed on the record of an agency
hearing provided by statute; or
(F) unwarranted by the facts to the extent that
the facts are subject to trial de novo by the
reviewing court.
5 U.S.C. § 706. Section 706 relief stems from Plaintiffs’ right
of review of agency action pursuant to 5 U.S.C. § 702.
Court No. 06-00236 Page 9
to 28 U.S.C. § 1581(i).13 See CLTA I, 425 F. Supp. 2d at 1332. With
jurisdiction under section 1581(i) comes the power to fashion
appropriate relief. See 28 U.S.C. §§ 1585, 2643. However, “a grant
of jurisdiction over claims involving particular parties does not
itself confer jurisdiction over additional claims by or against
different parties.” Finley v. United States, 490 U.S. 545, 556
(1989). Plaintiffs’ unjust enrichment cause of action, against
Defendant-Intervenors, is not stated against the government;
consequently, section 1581 cannot supply jurisdiction for this
cause of action.14
13
Section 1581(i) reads:
the Court of International Trade shall have exclusive
jurisdiction of 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—
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other than
the raising of revenue;
(3) embargoes or other quantitative restrictions
on the importation of merchandise for reasons
other than the protection of the public health or
safety; or
(4) administration and enforcement with respect to
the matters referred to in paragraphs (1)–(3) of
this subsection and subsections (a)–(h) of this
section.
14
Plaintiffs likewise may not invoke 28 U.S.C. § 1583
jurisdiction. See Giorgio Foods, Inc. v. United States, __ CIT__,
__, 515 F. Supp. 2d 1313, 1322 (2007). The unjust enrichment
Court No. 06-00236 Page 10
Plaintiffs assert that the court has pendent and/or ancillary
jurisdiction15 over the unjust enrichment cause of action because
that action has a “close nexus” to Plaintiffs’ causes of action
against the government. See United Mine Workers of America v.
Gibbs, 383 U.S. 715, 725 (1966); see also Morris Costumes, Inc. v.
cause of action does not involve a co-party, see Augustin v.
Mughal, 521 F.2d 1215, 1216 (8th Cir. 1975) (per curiam) (“A
cross-claim is one asserted against a co-party. . . . Co-parties
are persons on the same side in the principal litigation”
(citations omitted)), does not respond to an opposing party’s
affirmative claim, see Local Union No. 38, Sheet Metal Workers’
Int’l Ass’n v. Pelella, 350 F.3d 73, 82 (2d Cir. 2003) (“A
counterclaim, by definition, is a ‘claim for relief asserted
against an opposing party after an original claim has been
made.’” (quoting Black’s Law Dictionary 353 (7th ed. 1999)
(emphasis in original)) (citing 3 James Wm. Moore et al., Moore’s
Federal Practice ¶ 13.90[2][a] (3d ed. 1997) (“Only defending
parties may assert counterclaims”))), and does not assert a
third-party claim against a nonparty. See USCIT R. 14(b).
15
Pendent and ancillary jurisdiction are “closely related
concepts.” Old Republic Ins. Co. v. United States, 14 CIT 377,
381, 741 F. Supp. 1570, 1574 (1990) (citing Aldinger v. Howard,
427 U.S. 1, 13 (1976) with regard to the cases that come before
the court). Pendent jurisdiction “concerns the adjudication of a
plaintiff’s state claims appended to a federal cause of action.”
Id. (citing Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
370 (1978)). Ancillary jurisdiction “is generally understood as
jurisdiction over those matters that are incidental to the
primary claims in a case,” id. (quoting Sederquist v. Court, 861
F.2d 554, 557 (9th Cir. 1988); 13 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3523 (2d ed. 1984)), and
usually “involves claims by a defending party haled into court
against his will, or by another person whose rights might be
irretrievably lost unless he could assert them in an ongoing
action in a federal court.” Id. (quoting Kroger, 437 U.S. at
376). Despite the fact that the U.S. Supreme Court considers
these concepts as “discrete,” Aldinger, 427 U.S. at 12, the Court
has “declined to decide if there are any ‘principled’ differences
between ancillary and pendent jurisdiction.” United States v.
Tabor, 9 CIT 233, 237 n.5, 608 F. Supp. 658, 662-63 n.5 (1985)
(quoting Kroger, 437 U.S. at 370 n.8).
Court No. 06-00236 Page 11
United States, __ CIT __, __, 465 F. Supp. 2d 1345, 1350-51 (2006);
Old Republic Ins., 14 CIT at 381-83, 741 F. Supp. at 1574-76;
United States v. Mecca Export Corp., 10 CIT 644, 646-47, 647 F.
Supp. 924, 926-27 (1986); Tabor, 9 CIT at 235-38, 608 F. Supp. at
660-64; United States v. Gold Mountain Coffee, Ltd., 8 CIT 247,
248-50, 597 F. Supp. 510, 513-15 (1984). This much of Plaintiffs’
argument is correct.
At the same time, in order for a federal court to have pendent
jurisdiction, the pendent claim must meet two conditions. The
claim must not be one subject to the exclusive jurisdiction of
another court, and:
the relationship between that claim and the state claim
[must] permit[] the conclusion that the entire action
before the court comprises but one constitutional “case.”
The federal claim must have substance sufficient to
confer subject matter jurisdiction on the court. The
state and federal claims must derive from a common
nucleus of operative fact. But if, considered without
regard to their federal or state character, a plaintiff’s
claims are such that he would ordinarily be expected to
try them all in one judicial proceeding, then, assuming
substantiality of the federal issues, there is power in
federal courts to hear the whole.
Gibbs, 383 U.S. at 725 (footnotes and internal citation omitted)
(emphasis added). In other words, “the connection between the main
proceedings and the pendent claim must be such that the exercise of
pendent jurisdiction is ‘necessary to the just resolution of the
main proceeding.’” Old Republic Ins., 14 CIT at 381, 741 F. Supp.
at 1575 (quoting Tabor, 9 CIT at 237, 608 F. Supp. at 662).
Similarly, “the power to exercise ancillary jurisdiction also
Court No. 06-00236 Page 12
requires, inter alia, a close nexus between the ancillary matter
and the primary claim.” Id. (citing Kroger, 437 U.S. at 376)
(emphasis added). Generally, a court has ancillary jurisdiction
over claims which secure or preserve the court’s judgment for the
claim over which the court has direct federal jurisdiction. Local
Loan Co. v. Hunt, 292 U.S. 234, 239 (1934) (“That a federal court
of equity has jurisdiction of a bill ancillary to an original case
or proceeding in the same court, whether at law or in equity, to
secure or preserve the fruits and advantages of a judgment or
decree rendered therein, is well settled. And this, irrespective of
whether the court would have jurisdiction if the proceeding were an
original one. The proceeding being ancillary and dependent, the
jurisdiction of the court follows that of the original cause, and
may be maintained without regard to the citizenship of the parties
or the amount involved. . . .” (citations omitted)). Four criteria
circumscribe the exercise of ancillary jurisdiction:
(1) the ancillary matter arises from the same transaction
that is the basis of the main proceeding, or arises
during the course of the main matter, or is an integral
part of the main matter; (2) the ancillary matter can be
determined without a substantial new fact finding
proceeding; (3) determination of the ancillary matter
will not deprive a party of a substantial procedural or
substantive right; and (4) the ancillary matter must be
resolved to protect the integrity of the main proceeding
or to insure that disposition of the main proceeding will
not be frustrated.
Old Republic Ins., 14 CIT at 382, 741 F. Supp. at 1575; Gold
Mountain Coffee, 8 CIT at 249, 597 F. Supp. at 514.
Court No. 06-00236 Page 13
The exercise of pendent and ancillary jurisdiction, however,
is not a matter of Plaintiffs’ right, but rather is a matter of the
court’s exercise of its discretion. Gibbs, 383 U.S. at 726 (“That
power need not be exercised in every case in which it is found to
exist. . . . Its justification lies in considerations of judicial
economy, convenience and fairness to litigants; if these are not
present a federal court should hesitate to exercise jurisdiction
over state claims, even though bound to apply state law to them. .
. .” (footnote and citation1 omitted)); Old Republic Ins., 14 CIT
at 382-83, 741 F. Supp. at 1576 (“As doctrines of discretion,
pendent and ancillary jurisdiction need not be exercised in every
case where the trial court finds it has the power to do so.”
(citations omitted)).
After considering these jurisprudential factors in the case at
hand, the court declines to exercise its pendent and/or ancillary
jurisdiction to entertain Plaintiffs’ unjust enrichment cause of
action. In essence, here, in pursuing their disgorgement claim,
Plaintiffs sue as a “private attorneys general,”16 under 5 U.S.C.
§ 702, to enforce allegedly unenforced governmental obligations;
Plaintiffs’ complaint invokes the court’s injunctive power, under
the APA, to cure Customs’ action in distributing, and inaction in
16
See Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 153 n.1 (1970); Nat’l Fed’n of Fed. Employees v.
Cheney, 883 F.2d 1038, 1052 (D.C. Cir. 1989); Scanwell Labs.,
Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970).
Court No. 06-00236 Page 14
failing to recoup, unlawful Byrd Amendment payments. Put
differently, Plaintiffs’ allegations in their complaint have no
substance except to the extent that it was illegal and an abuse of
Customs’ discretion for Customs to make the disbursements or to
fail to require reimbursement of the disbursements. But
Plaintiffs’ causes of action, pursuant to 5 U.S.C. § 706, seeking
declaratory and injunctive relief to address this alleged agency
action and inaction, afford complete remedy to Plaintiffs in this
matter. Plaintiff’s unjust enrichment cause of action is therefore
duplicative. Moreover, Plaintiffs have failed to demonstrate to
the court that the unjust enrichment cause of action is “necessary”
to “protect the integrity,” or to accomplish the “just resolution,”
of the main APA proceeding. This is true, not only because
Plaintiffs’ APA causes of action provide complete relief, but also
because Plaintiffs’ complaint, at its core, is not against
Defendant-Intervenors, it is against the government. Therefore,
the court will deny Plaintiffs’ motion for leave to amend its
complaint to add an unjust enrichment cause of action against
Defendant-Intervenors.
IV.
Plaintiffs also seek to amend their complaint to add the
following request for relief to their APA cause of action seeking
recoupment of past Byrd Amendment disbursements:
Plaintiffs seek an order from this Court requiring
[Defendant-Intervenors] to return to the United States,
Court No. 06-00236 Page 15
together with applicable interest, all distributions of
duties assessed on imports of [SSSS] products from Mexico
that they received pursuant to the CDSOA.
Pls.’ [Proposed] Amended Compl. ¶ 61. However, recent legislation
has removed Customs’ power, authority and obligation to recoup
these CDSOA funds, and thus has rendered moot Plaintiffs’ claim for
injunctive relief.
Specifically, in February 2009, about two and one half years
after Plaintiffs filed their action, Congress passed the “ARRA.”
Section 1701 of the ARRA, entitled “Prohibition on Collection of
Certain Payments Made Under the [CDSOA],” prohibits,
“[n]otwithstanding any other provision of law,” both “the Secretary
of Homeland Security” as well as “any other person” from
“requir[ing] repayment of, or attempt[ing] in any other way to
recoup, any payments”:
of antidumping or countervailing duties made pursuant to
the [CDSOA] that were–
(1) assessed and paid on imports of goods from
countries that are parties to [NAFTA]; and
(2) distributed on or after January 1, 2001, and
before January 1, 2006.
Id. § 1701(a)-(b), 123 Stat. 366. Moreover, section 1701 also
requires the Secretary of Homeland Security, “[n]ot later than the
date that is 60 days after the date of the enactment of this Act,”
to “refund any repayments, or any other recoupment, of payments”
described above. Id. § 1701(c), 123 Stat. 366. Based upon the
record currently before the court, all CDSOA distributions at issue
Court No. 06-00236 Page 16
in Plaintiffs’ complaint are covered by section 1701.17 This issue
17
See Def.-Intervenors’ Supplemental Resp. Br. on Issues
Related to Pl.’s Mot. to Amend Compl. 13. Plaintiffs have not
presented the court any evidence to the contrary. Thus, the only
live issue in this matter involves a prohibition on further
disbursements.
This fact becomes clear, first, because Plaintiffs filed
their summons challenging the relevant antidumping duty order A-
201-822 on July 21, 2006, and thus any viable cause of action
accrued on or after July 21, 2004. The court’s preliminary
injunction stopped CDSOA disbursements to Defendant-Intervenors
as of September 25, 2006 - almost nine months after January 1,
2006.
In addition, according to Customs’s CDSOA Fiscal Year 2006
Report, there were no disbursements for A-201-822 in the 2006
fiscal year (i.e., October 1, 2005 through September 30, 2006).
See U.S. Customs and Border Protection, FY 2006 CDSOA Annual
Disbursement Report (Nov. 30, 2006), available at
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/add_cvd/
cont_dump/cdsoa_06/fy_06_report/06_annual_rpt_web.ctt/06_annual_r
pt_web.pdf (last visited Apr. 21, 2009); U.S. Customs and Border
Protection, Updated FY 2006 CDSOA Annual Disbursement Report
(Mar. 5, 2007), available at
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/add_cvd/
cont_dump/cdsoa_06/fy_06_report/fy06_disburse.ctt/fy06_disburse.p
df (last visited Apr. 21, 2009).
Customs placed this money in a clearing account, and money
has been added to that clearing account as the 2007 Byrd
Amendment deadline passed and the relevant imports have been and
continue to be finally liquidated. See U.S. Customs and Border
Protection, FY 2006 Clearing Account Balances as of October 1,
2006 (Nov. 30, 2006), available at
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/add_cvd/
cont_dump/cdsoa_06/fy_06_report/06_clearing_account_rpt.ctt/06_cl
earing_account_rpt.pdf (last visited Apr. 21, 2009); see also
U.S. Customs and Border Protection, FY 2006 Clearing Account
Balances as of October 1, 2007 (Dec. 5, 2007), available at
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/add_cvd/
cont_dump/cdsoa_07/fy2007_annual_rpt/uncollected_duties_rpt07.ctt
/clearing_acct_bal_rpt07.pdf (last visited Apr. 21, 2009); U.S.
Customs and Border Protection, FY 2006 Clearing Account Balances
as of October 1, 2008 (Jan. 15, 2009), available at
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/add_cvd/
cont_dump/cdsoa_08/fy08_annual_rep/section3_balances.ctt/section3
_balances.pdf (last visited Apr. 21, 2009).
The last disbursements made pursuant to the A-201-822
Court No. 06-00236 Page 17
is therefore moot.
More specifically, in order to support federal court
jurisdiction, the Constitution requires the existence of an actual
case or controversy at every stage of litigation. U.S. Const. art.
III, § 2; Deakins v. Monaghan, 484 U.S. 193, 199 (1988); Steffel v.
Thompson, 415 U.S. 452, 459 n.10 (1974). A cause of action becomes
moot, and thus divests the court of jurisdiction, “if an event
occurs [pending review] that makes it impossible for the court to
grant ‘any effectual relief whatever’ to a prevailing party.”
Church of Scientology of California v. United States, 506 U.S. 9,
12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
Plaintiffs’ APA cause of action for additional injunctive relief
asks the court to compel Customs’ recoupment of allegedly
illegally-disbursed CDSOA funds. But “the only agency action that
can be compelled under the APA is action legally required.” Norton
v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004) (emphasis in
original); id. at 64 (“a claim under [APA section 706] can proceed
only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take” (emphasis in
original)). The ARRA now prevents Customs from recouping the CDSOA
dumping order were made, at the latest, by the end of fiscal year
2005. See U.S. Customs and Border Protection, FY 2005 CDSOA
Annual Disbursement Report (Nov. 29, 2005), available at
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/add_cvd/
cont_dump/cdsoa_05/fy_2005_annual_report/2005_annual_disbursement
.ctt/2005_annual_disbursement.pdf (last visited Apr. 21, 2009).
Court No. 06-00236 Page 18
payments. As a result, the court may not now order Customs or hold
Customs accountable to recoup these funds; Customs is no longer
“legally required” to do so, and, indeed, is statutorily precluded
from doing so.
Because the court cannot grant the injunctive relief
Plaintiffs request pursuant to their section 706 cause of action,
this claim is moot. Thus, it would be “futile” for the court to
allow Plaintiffs to amend this cause of action. See Foman v. Davis,
371 U.S. 178, 182 (1962); see also Tavory v. NTP, Inc., 297 F.
App’x 976, 984 (Fed. Cir. 2008) (“Leave to amend may properly be
denied where the amendment would be futile.” (citation omitted));
Net MoneyIN, Inc. v. Verisign, Inc., 545 F.3d 1359, 1373 (Fed. Cir.
2008) (“A district court acts within its discretion to deny leave
to amend when amendment would be futile. . . .” (quoting Chappel v.
Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000))).
Plaintiffs’ motion for leave to amend its section 706 claim for
additional injunctive relief is therefore denied.
ORDER
Upon consideration of Plaintiff’s Motion for Leave to Amend
Complaint, it is hereby ORDERED that Plaintiffs’ motion is DENIED.
/s/ Donald C. Pogue
Donald C. Pogue, Judge
Dated: May 13, 2009
New York, New York