Abitibi-Consolidated Inc. v. United States

Slip Op. 06-83
UNITED STATES COURT OF INTERNATIONAL TRADE

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
Before: Leo M. Gordon, Judge
LUMBER LTD. (formerly THE PAS LUMBER
COMPANY LTD.),
Court No. 06-00048
Plaintiffs,

v.

UNITED STATES,

Defendant.

OPINION

[Motion to dismiss granted.]
Dated: June 1, 2006

Arnold & Porter, LLP (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 (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;
Court No. 06-00048 Page 2

Wilmer, Cutler, Pickering, Hale, and Dorr, LLP (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.

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

USCIT 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,
Court No. 06-00048 Page 3

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 (1936)). In deciding
Court No. 06-00048 Page 4

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).
Court No. 06-00048 Page 5

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
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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 challenge to a determination

specified in section 516A of the Tariff Act of 1930.”). The shorthand rule provides that

the Court’s residual jurisdiction under section 1581(i) attaches only if a remedy under

another section of 1581 is unavailable or “manifestly inadequate.” Miller & Co. v. United

States, 824 F.2d 961, 963 (Fed. Cir. 1987).

Applying this standard to other interlocutory challenges of ongoing antidumping

or countervailing duty proceedings, this Court has declined to exercise section 1581(i)

jurisdiction because the remedies under section 1581(c) were available, adequate, and

reviewable. See, e.g., Macmillan Bloedel, 16 CIT at 332 (dismissing for lack of
Court No. 06-00048 Page 7

jurisdiction an interlocutory challenge to initiation of countervailing duty investigation and

noting, “[I]f Macmillan Bloedel will have a meaningful opportunity after the final

determination to challenge Commerce's decision denying its exclusion request, then the

court must stay its hand at this stage of the proceedings”); NSK v. United States, 28

CIT , 350 F. Supp. 2d 1128 (2004) (dismissing for lack of jurisdiction an interlocutory

challenge to Commerce’s selection of model matching methodology for antidumping

administrative review). Tokyo Kikai Seisakusho, Ltd. v. United States, 29 CIT , 403 F.

Supp. 2d 1287 (2005) (dismissing for lack of jurisdiction an interlocutory challenge to

initiation of changed circumstances review that would be reviewable under 28 U.S.C.

§ 1581(c)).

C. Jurisdiction under § 1581(i) for Administrative Procedure Act Claim

To avoid the problem presented by the above-quoted language from section

1581(i), plaintiffs contend that their specific challenge to Commerce’s respondent

selection in the pending administrative review is not listed in section 516A, and that the

express exclusion in section 1581(i) does not apply to their action. (Motion Hr’g Tr. 69.)

Plaintiffs instead assert that their action arises under Section 702 of the Administrative

Procedure Act (“APA”), (Pls.’ Opp’n to Mot. to Dismiss 20 n.8.), which they have

standing to invoke pursuant to 28 U.S.C. § 2631(i) (2000). The plaintiffs in Tokyo Kikai

shared a similar theory of jurisdiction. As in Tokyo Kikai, the APA based action here

raises “jurisdictional problems that are insurmountable.” 403 F. Supp. 2d at 1292.

Section 702 of the APA provides that “[a] person suffering legal wrong because

of agency action, or adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702
Court No. 06-00048 Page 8

(2000). The APA further provides that “[a]gency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court are subject to

judicial review.” 5 U.S.C. § 704 (2000). (This APA provision is mirrored in the court’s

residual jurisdiction case law, which as noted above prescribes that section 1581(i)

supplies jurisdiction only if a remedy under another section of 1581 is unavailable or

manifestly inadequate.) Section 704 of the APA also provides that “[a] preliminary,

procedural, or intermediate agency action or ruling not directly reviewable is subject to

review on the review of the final agency action,” 5 U.S.C. § 704 (2000). Plaintiffs’

challenge to Commerce’s respondent selection thus implicates questions of ripeness,

which Defendant has raised in its motion to dismiss. (Def.’s Mem. in Support of Mot. to

Dismiss 12-15.)

1. Ripeness

Ripeness “is a justiciability doctrine designed ‘to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to protect the agencies from

judicial interference until an administrative decision has been formalized and its effects

felt in a concrete way by the challenging parties.’" Nat'l Park Hospitality Ass'n v. U.S.

Dep’t of Interior, 538 U.S. 803, 807-08 (2003) (quoting Abbott Labs. v. Gardner, 387

U.S. 136, 148-149 (1967)). The ripeness inquiry evaluates “(1) the fitness of the issues

for judicial decision and (2) the hardship to the parties of withholding court

consideration.” Nat'l Park Hospitality, 538 U.S. at 807 (citing Abbott Labs., 387 U.S. at

148).
Court No. 06-00048 Page 9

Plaintiffs challenge two specific Commerce actions regarding respondent

selection in the third review. The first is Commerce’s failure to examine plaintiffs’

voluntary submissions and to compute an individual dumping margins for each of them.

The second concerns Commerce’s decision to select a sample of respondents under 19

U.S.C. § 1677f-1(c)(2)(A). Neither decision is ripe for review.

a. Fitness of Issues for Judicial Decision

On the first question, namely of the fitness of the issues for judicial decision, the

court considers “whether the issue presented is a purely legal one, [and] whether

consideration of that issue would benefit from a more concrete setting.” Ciba-Geigy

Corp. v. U.S. Envtl. Prot. Agency, 801 F.2d 430, 435 (D.C. Cir. 1986). As explained

below, consideration of Commerce’s respondent selection decisions will benefit from a

more concrete setting.

(i) Voluntary Respondent Claim

In challenging Commerce’s refusal to examine their voluntary submissions,

plaintiffs contend that Commerce must accept voluntary respondents when the agency

limits the number of respondents examined in an administrative review. 19 U.S.C.

§ 1677m provides in pertinent part:

(a) Treatment of voluntary responses in countervailing or antidumping duty
investigations and reviews

In any investigation . . . or a review . . . in which the administering
authority has, under section 1677f-1(c)(2) . . ., limited the number of
exporters or producers examined, . . . the administering authority shall
establish . . . an individual weighted average dumping margin for any
exporter or producer not initially selected for individual examination
under such sections who submits to the administering authority the
information requested from exporters or producers selected for
examination, if--
Court No. 06-00048 Page 10

(1) such information is so submitted by the date specified—

. . . and

(2) the number of exporters or producers who have submitted such
information is not so large that individual examination of such
exporters or producers would be unduly burdensome and inhibit the
timely completion of the investigation.

19 U.S.C. § 1677m (emphasis added). As noted earlier, plaintiffs timely submitted their

voluntary questionnaire responses. Plaintiffs contend that under the plain meaning of

the statute they are entitled to an individual weighted average dumping margin.

According to plaintiffs, this action involves a review and not an “investigation,” and

Commerce therefore cannot apply the “unduly burdensome” and “timely completion”

factors of subparagraph (a)(2). Plaintiffs further contend that even if Commerce had the

authority to decline to examine voluntary respondents in an administrative review based

on the factors in subparagraph (a)(2), Commerce failed to make the necessary findings

that individual examination of the voluntary responses would in fact be “unduly

burdensome and inhibit the timely completion” of the review. 19 U.S.C. § 1677m.

The main thrust of plaintiffs’ challenge, though, concentrates on the proper

construction of section 1677m. To resolve that issue the court applies the two-step

inquiry of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-43 (1984). At this stage of the proceedings, however, Commerce has yet to

render a considered response to plaintiffs’ arguments, simply notifying plaintiffs in

separate one-page letters of Commerce’s refusal to examine their voluntary

submissions. (App. D24, D25.). The record only shows that Commerce declined to
Court No. 06-00048 Page 11

examine plaintiffs’ voluntary submissions based on Commerce’s belief that it has

discretion to do so under the statute. Id.

To apply the standard of review properly, the court must know Commerce’s

considered response to plaintiffs’ arguments, which will include Commerce’s

interpretation of section 1677m, and Commerce’s prior practices in dealing with large

numbers of respondents. To obtain this information now, the court would have to

remand the matter to Commerce and disrupt the administrative proceeding. By waiting

for completion of the review, this information will, in all likelihood, manifest itself in the

final results through Commerce’s response to plaintiffs’ case briefs. Exercising

jurisdiction at this time would deprive Commerce of the opportunity to provide “an

explanation of the basis for its determination that addresses relevant arguments . . . .”

19 U.S.C. § 1677f(i)(3)(A), which in this instance is not helpful or efficient for the court,

the interested parties, or the agency.

(ii) Sampling Selection Claim

Commerce announced its “probability proportional to size” sampling method for

respondent selection in a detailed memorandum analyzing hundreds of pages of

comments from the parties and culminating in a recommendation to the Deputy

Assistant Secretary for Import Administration, with which he agreed. (App D.23.) In

challenging Commerce’s “probability proportional to size” sampling method, plaintiffs

allege that the selection of only eight respondents lacked statistical validity and was

solely based, impermissibly, on Commerce’s purported resource constraints.

Commerce divided the review population into two strata—one comprising the 16 largest

producers (based on production volume), and one comprising the 283 remaining small
Court No. 06-00048 Page 12

producers. Commerce then randomly picked six companies from the large producer

stratum and two from the small. The applicable statutory provision, 19 U.S.C.

§ 1677f-1, provides in pertinent part:

(b) Selection of averages and samples

The authority to select averages and statistically valid samples shall rest
exclusively with the administering authority. The administering authority shall,
to the greatest extent possible, consult with the exporters and producers
regarding the method to be used to select exporters, producers, or types of
products under this section.

(c) Determination of dumping margin

(1) General rule

In determining weighted average dumping margins under section
1673b(d), 1673d(c), or 1675(a) of this title, the administering authority
shall determine the individual weighted average dumping margin for each
known exporter and producer of the subject merchandise.

(2) Exception

If it is not practicable to make individual weighted average dumping
margin determinations under paragraph (1) because of the large number
of exporters or producers involved in the investigation or review, the
administering authority may determine the weighted average dumping
margins for a reasonable number of exporters or producers by limiting its
examination to--

(A) a sample of exporters, producers, or types of products that is
statistically valid based on the information available to the
administering authority at the time of selection, or

(B) exporters and producers accounting for the largest volume of the
subject merchandise from the exporting country that can be reasonably
examined.

19 U.S.C. § 1677f-1 (emphasis added).

Plaintiffs’ argument that Commerce’s approach is not statistically valid may have

merit. Whatever the merits of plaintiffs’ claim, however, immediate judicial intervention
Court No. 06-00048 Page 13

in the third review is inappropriate because further development of the administrative

record will enable more efficient judicial review of Commerce’s sampling methodology

than at present. The statute vests Commerce with exclusive authority to select a

statistically valid sample, a grant of authority bounded by the requirement of statistical

validity. The court cannot direct Commerce which sampling approach to use. Instead,

the court can only review Commerce’s chosen method to determine whether it is

statistically valid. To do so, the court must know the measure of statistical validity,

which the statute does not define. Commerce, and not the court, needs to wrestle with

this issue in the first instance. The court should not entangle itself in this issue before

Commerce has had the opportunity to formalize its determination in the final results. In

short, the administrative proceeding needs to be completed. That process has begun; it

needs to finish.

b. Hardship of Withholding Court Consideration &
Adequacy of Remedy under § 1581(c).

The second prong of the ripeness test concentrates on the “the hardship to the

parties of withholding court consideration.” Nat'l Park Hospitality, 538 U.S. at 807 (citing

Abbott Labs., 387 U.S. at 178). This hardship prong is reflected in the “manifest

inadequacy” requirement of the court’s residual jurisdiction case law.

Plaintiffs advance three principal reasons why their remedy under section

1581(c) is manifestly inadequate: (1) their records, documentation, and personnel will

degrade in some form or another waiting for a corrective remedy under section 1581(c),

subjecting them to a potential adverse facts available finding when it arrives

(Compl. ¶ 4.); (2) their businesses have been beset by unnecessary operational
Court No. 06-00048 Page 14

uncertainty that can only be cured by immediate action under section 1581(i)

(Compl. ¶ 5-6.), and; (3) their pursuit of remedies under section 1581(c) will require that

a time-consuming and expensive administrative proceeding essentially has “to be

restarted anew” if they prevail. (Compl. ¶ 8.) These hardships, however real and

difficult, do not prevent section 1581(c) from affording plaintiffs an adequate remedy.

(i) Records and Personnel Degradation

Plaintiffs contend that Commerce’s respondent selection decisions have deprived

them of their statutory rights to their own weighted average dumping margins and duty

assessment rates and that it “likely would be early 2008” before that deprivation can be

remedied under section 1581(c). At that time, plaintiffs claim they will be exposed to an

“increased and high risk” of application of adverse facts available by Commerce

because, due to the passage of time, their documentation and records may likely be

more difficult or impossible to locate years from now, and plaintiffs’ personnel will no

longer be employed or recall the precise reasons for their transactions and entries years

after the fact. (Compl. ¶ 4.) Assuming this allegation is true, it nevertheless does not

render plaintiffs’ remedy under section 1581(c) manifestly inadequate.

Plaintiffs’ allegation reflects a basic requirement of the antidumping statute—the

maintenance of necessary records and documentation to substantiate questionnaire

responses during the process of verification. See 19 U.S.C. § 1677m(i). It also reflects

a potential consequence for failing to do so—Commerce draws an adverse inference

from an interested party’s failing “to cooperate by not acting to the best of its ability to

comply with a request for information.” 19 U.S.C. § 1677e(b). A continuing obligation to

maintain records and institutional information during subsequent judicial review of the
Court No. 06-00048 Page 15

administrative proceeding is an unremarkable condition of the antidumping statute and

of litigation generally. That reality, though, does not render the remedy under section

1581(c) manifestly inadequate and establish a basis for section 1581(i) jurisdiction.

Instead, plaintiffs know the posture of their case and can evaluate the prospects and

relative benefits of pursuing relief under section 1581(c) and take whatever measures

they deem necessary to achieve the desired result, including the preservation of

documents, records, and personnel.

(ii) Business Uncertainty

Plaintiffs also contend that Commerce’s unlawful respondent selection has

caused them to suffer an unnecessary competitive disadvantage in the market because

key competitors including Tembec, West Fraser, and Weyerhaeuser are mandatory

respondents and are able to obtain their own margins of dumping, duty assessment

rates, and cash deposit rates, whereas plaintiffs cannot. (Compl. ¶ 5.) Armed with the

superior knowledge of their own circumstances, these competitors “can plan their

lumber production and sales over the next couple of years,” whereas plaintiffs cannot.

Id. Additionally, Plaintiff Abitibi alleges that the uncertainty now plaguing its operating

decisions is further magnified by its “difficult financial circumstances, following three

consecutive years of substantial operating losses.” (Compl. ¶ 6.) Plaintiff Abitibi

contends that it is now critical to evaluate the profitability and cash flow implications of

new sawmill acquisitions or joint ventures to access raw material inputs, which it cannot

do given the “high degree of uncertainty regarding Abitibi’s future antidumping duty

assessment and cash deposit rates.” Id.
Court No. 06-00048 Page 16

Again, assuming these allegations to be true, they do not render the relief

available under section 1581(c) manifestly inadequate. Such uncertainty is an ordinary

effect of the antidumping regime, and therefore, the disruptions it entails cannot

constitute a basis under which the court bypasses section 1581(c) jurisdiction in favor of

section 1581(i). The court cannot sensibly hold otherwise and thereby invite challenges

to Commerce’s interim determinations that introduce such business uncertainty during

an administrative review. The absence of certainty regarding the dumping margins and

final assessment of antidumping duties is a characteristic of the retrospective system of

administrative reviews designed by Congress. See D&L Supply Co. v. United States,

17 CIT 1419, 1422, 841 F. Supp. 1312, 1315 (1993) (“the uncertainty of knowing the

final amount of duties due at the time of entry is simply an inherent part of importing

merchandise into the United States.”).

(iii) Repeating a Time Consuming and Expensive Administrative Proceeding

Plaintiffs contend that if they wait and ultimately prevail in a challenge under

section 1581(c), a “time-consuming and expensive administrative proceeding” would

essentially have to be started anew. (Compl. ¶ 8.) Assuming that this is indeed the

likely result of a court ordered remand under section 1581(c), such inconvenience and

expense are inherent in the administrative and judicial review process and cannot

therefore constitute manifest inadequacy for what is the normal jurisdictional scheme.

See Nippon Steel Corp. v. United States, 219 F.3d 1348, 1353 (Fed. Cir. 2000) (citing

FTC v. Standard Oil Co., 449 U.S. 232, 244 (1980) (“Mere litigation expense, even

substantial and unrecoupable cost, does not constitute irreparable injury.”)). Plaintiffs’

situation is no different from any other respondent that disagrees with an approach or
Court No. 06-00048 Page 17

methodology Commerce has taken that requires different information and documents

from those that would be necessary under an interested party’s preferred approach.

IV. CONCLUSION

Commerce’s respondent selection determinations are interim in nature, and will

be incorporated in or superceded by the final results of the third review. Those final

results are reviewable under 19 U.S.C. § 1516a(a)(2)(B)(iii), and therefore 28 U.S.C.

§ 1581(c) is the exclusive means of judicial review for plaintiffs’ claims. Alternatively,

Commerce’s respondent selection determinations are not ripe for review. In sum,

plaintiffs’ remedy under 28 U.S.C. § 1581(c) is not manifestly inadequate. Therefore,

section 1581(i) jurisdiction is not available for plaintiffs’ action. The court does not reach

the question of standing raised by defendant-intervenors. Judgment dismissing this

action will be entered accordingly.

/s/ Leo M. Gordon
Leo M. Gordon
Judge

Dated: New York, New York
June 1, 2006