Slip Op. 05-146
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
x
ZHEJIANG NATIVE PRODUCE AND :
ANIMAL BY-PRODUCTS IMPORT & :
EXPORT GROUP CORP., :
:
Plaintiff, :
:
:
v. :
: Before: Richard K. Eaton, Judge
:
UNITED STATES, : Court No. 04-00268
:
Defendant, :
:
and :
:
THE AMERICAN HONEY PRODUCERS :
ASSOCIATION AND THE SIOUX :
HONEY ASSOCIATION, :
:
Def.-Intervenors. :
______________________________x
OPINION AND ORDER
[Defendant-Intervenors’ motion to dismiss denied]
Dated: November 8, 2005
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Mark E.
Pardo, Bruce M. Mitchell, Adam M. Dambrov, and Paul G. Figueroa),
for plaintiff.
Peter D. Keisler, Assistant Attorney General, United States
Department of Justice; David M. Cohen, Director, Civil Division,
Commercial Litigation Branch, United States Department of
Justice; Patricia M. McCarthy, Assistant Director, Civil
Division, Commercial Litigation Branch, United States Department
Justice (David S. Silverbrand); of counsel, Office of the Chief
Counsel for Import Administration, United States Department of
Commerce (James K. Lockett), for defendant.
Collier, Shannon, Scott, PLLC (Michael J. Coursey, Jennifer E.
McCadney, R. Alan Luberda, and Adam H. Gordon), for defendant-
intervenors.
Court No. 04-00268 Page 2
Eaton, Judge: Before the court is the Motion to Dismiss for
Lack of Subject Matter Jurisdiction of Defendant-Intervenors the
American Honey Producers Association and the Sioux Honey
Association. For the following reasons the motion is denied.
BACKGROUND
A. The 2271 Filing
On May 5, 2004, the United States Department of Commerce
(“Commerce”) published a notice of the results of its review of
the antidumping order covering “natural honey, artificial honey
containing more than 50 percent natural honey by weight,
preparations of natural honey containing more than 50 percent
natural honey by weight, and flavored honey” from the People’s
Republic of China (“PRC”). See Honey From the PRC, 69 Fed. Reg.
25,060, 25,060 (ITA May 5, 2004) (final determination) (“Final
Results”). By this publication, Commerce gave notice that the
Final Results assigned Plaintiff Zhejiang Native Produce and
Animal By-Products Import & Export Group Corporation (“Zhejiang”)
a weighted-average antidumping duty margin of 68.35%. See id. at
25,062. Commerce further gave notice that Zhejiang’s margin
“shall remain in effect until publication of the final results of
1
As an aid to the reader, the court refers to the two
filings relevant to its discussion, and the papers filed in
conjunction therewith, by the last three digits of the filings’
court-assigned docket numbers.
Court No. 04-00268 Page 3
the next administrative review.” Id.
On June 1, 2004, Plaintiff filed a summons with the Court
generally stating that it was contesting the Final Results. See
Summons of 6/1/04 (“227 Summons”) at ¶ 2. In that filing,
Plaintiff identified 28 U.S.C. § 1581(c) and 19 U.S.C. §§
1516a(a)(2)(A)(i)(I), (a)(2)(B)(iii) as the bases of the Court’s
jurisdiction. See id. The Clerk of the Court accepted this
filing and assigned it Court Number 04-00227 (“227 Filing”). See
generally Summons of 6/1/2004. The 227 Summons having been
accepted for filing pursuant to statute and the Court’s Rules,
Plaintiff had 30 days within which to file a complaint, thereby
commencing the action. See 19 U.S.C. § 1516a,2 USCIT R. 3(a)(2)
2
Section 1516a reads, in relevant part:
(A) In general. Within thirty days after–
(i) the date of publication in the Federal
Register of–
(I) notice of any determination
described in clause (ii), (iii),
(iv), (v), or (viii) of
subparagraph (B), . . .
an interested party who is a party to the proceeding in
connection with which the matter arises may commence an
action in the United States Court of International
Trade by filing a summons, and within thirty days
thereafter a complaint, each with the content and in
the form, manner, and style prescribed by the rules of
that court, contesting any factual findings or legal
(continued...)
Court No. 04-00268 Page 4
(“A civil action is commenced by filing with the clerk of the
court: . . . [a] summons, and within 30 days thereafter a
complaint, in an action described in 28 U.S.C. §
1581(c) . . . .”). On July 1, 2004, 30 days had elapsed from the
filing of the 227 Summons without the Plaintiff filing a
complaint. On July 30, 2004, the Clerk of the Court dismissed
the 227 Filing citing lack of prosecution. See Order of
Dismissal of 7/30/04 (“[I]t is hereby ordered that this action is
dismissed for lack of prosecution pursuant to USCIT Rules
41(b)(2) and 82(b)(7).”).
B. The 268 Filing
On June 10, 2004, Commerce published an amendment to the
Final Results. See Honey From the PRC, 69 Fed. Reg. 32,494 (ITA
June 10, 2004) (am. final determination) (“Amended Final
Results”). In the Amended Final Results, Commerce stated that
2
(...continued)
conclusions upon which the determination is based.
(B) Reviewable determinations. The determinations which
may be contested under subparagraph (A) are as
follows: . . .
(iii) A final determination, other than a
determination reviewable under paragraph (1),
by the administering authority or the
Commission under [19 U.S.C. § 1675] . . . .
19 U.S.C. § 1516a(a)(2)(A), (B) (2000).
Court No. 04-00268 Page 5
“we received timely-filed ministerial error allegations from
respondent, Zhejiang . . . . We did not receive comments from
petitioners. Based on our analysis of Zhejiang’s ministerial
error allegations, the Department has revised the antidumping
duty rate for Zhejiang. Accordingly, we are amending the final
results.” Id. (footnote omitted). Commerce cited 19 U.S.C. §
1675(h) as its authority for amending the Final Results.3 Id.
As a result of Commerce’s amendment, Zhejiang’s antidumping duty
margin was lowered from 68.35% to 67.70%. Id. at 32,495. The
notice further stated that “[t]he amended cash deposit
requirement is effective for all shipments of subject merchandise
from Zhejiang entered, or withdrawn from warehouse, for
consumption on or after the date of publication of this
3
Section 1675(h) provides:
The administering authority shall establish procedures
for the correction of ministerial errors in final
determinations within a reasonable time after the
determinations are issued under this section. Such
procedures shall ensure opportunity for interested
parties to present their views regarding any such
errors. As used in this subsection, the term
“ministerial error” includes errors in addition,
subtraction, or other arithmetic function, clerical
errors resulting from inaccurate copying, duplication,
or the like, and any other type of unintentional error
which the administering authority considers
ministerial.
19 U.S.C. § 1675(h) (2000); see also 19 C.F.R. § 351.224(f)
(2004) (setting out the procedures for correction of ministerial
errors).
Court No. 04-00268 Page 6
notice . . . .” Id.
On July 6, 2004, Plaintiff filed a second summons with the
Court. See Summons of 7/6/04. In this filing Plaintiff
generally stated that it was contesting the determination
contained in the Final Results as modified by the Amended Final
Results. See id. at ¶ 2. Again, Plaintiff alleged the bases of
the Court’s jurisdiction to be 28 U.S.C. § 1581(c) and 19 U.S.C.
§§ 1516a(a)(2)(A)(i)(I), (a)(2)(B)(iii). See id. The Clerk of
the Court accepted this filing and assigned it Court Number 04-
00268 (“268 Filing”). See id. at 1. On that same day, Plaintiff
filed a complaint to complete the commencement of the action.
See Compl. of 7/6/04.
STANDARD OF REVIEW
Where the Court’s jurisdiction is challenged, “the plaintiff
bears the burden of proving that the court’s jurisdiction is
invoked properly.” Pentax Corp. v. Robison, 125 F.3d 1457, 1462
(Fed. Cir. 1997)(citing Lowa, Ltd. v. United States, 5 CIT 81,
83, 561 F. Supp. 441, 443 (1983)). At the same time, “the Court
assumes that ‘all well-pled factual allegations are true,’
construing ‘all reasonable inferences in favor of the
nonmovant.’” United States v. Islip, 22 CIT 852, 854, 18 F. Supp.
2d 1047, 1051 (1998) (quoting Gould, Inc. v. United States, 935
Court No. 04-00268 Page 7
F.2d 1271, 1274 (Fed. Cir. 1991)).
DISCUSSION
Defendant-Intervenors advance three main arguments in
support of their claim that the court does not have jurisdiction
over the 268 Filing. First, they contend that the court cannot
base its review on the Amended Final Results because “[an]
amendment to the final results is not a ‘reviewable’
determination for purposes of 19 U.S.C. § 1516a(a)(2)(B)(iii).”
Br. in Supp. of Def.-Intervenors’ Mot. to Dismiss for Lack of
Jurisdiction (“Def.-Intervenors’ Mem.”) at 6. Second, in an
argument related to the first, they contend that the court does
not have jurisdiction over the 268 Filing under the doctrine of
sovereign immunity. See id. at 3. Finally, Defendant-
Intervenors argue that the court cannot review any questions
arising from the Amended Final Results because, as a result of
the dismissal of the 227 Filing, the court has adjudicated all
issues relating to the 268 Filing pursuant to USCIT Rule 41.
Thus, according to Defendant-Intervenors, the court is barred by
the doctrine of res judicata from hearing those issues. See id.
at 12.
Court No. 04-00268 Page 8
A. The Amended Final Results contain a “Final
Determination” Subject to Judicial Review
Defendant-Intervenors argue that “19 U.S.C. § 1516a(a)(2)(A)
does not permit Zhejiang to use the amended determination found
in the Amended Final Results as the basis for the start of the
jurisdictional clock,” because the determination contained in the
Amended Final Results is not a judicially reviewable “final
determination” within the meaning of the statute. See Def.-
Intervenors’ Mem. at 5–6.4 Specifically, they contend that the
Amended Final Results cannot serve as the basis of this Court’s
jurisdiction because “[t]he Amended Final Results have no
independent legal status under the statute apart from the Final
Results as published on May 5, 2004. The Amended Final Results
merely exist in reference back to the original Final Results
which establish the basis for any judicial review.” Id. at 6
(emphasis in original); see 19 U.S.C. § 1516a(a)(2)(A); 19 C.F.R.
§ 351.210 (2004).5 Thus, for Defendant-Intervenors the Final
4
Defendant United States agrees with Plaintiff’s
position that the court possesses jurisdiction over the 268
Filing. See Def.’s Resp. to Def.-Intervenors’ Motion to Dismiss
at 3 (“Because Zhejiang filed its summons and complaint within 30
days of the Amended Final Results, pursuant to 19 U.S.C. § 1516a
and 28 U.S.C. § 1581(c), this Court possesses subject matter
jurisdiction to entertain this action.”).
5
Commerce’s regulations provide that “[a] ‘final
determination’ in an antidumping or countervailing duty
investigation constitutes a final decision by the Secretary as to
whether dumping or countervailable subsidization is occurring.”
(continued...)
Court No. 04-00268 Page 9
Results contain a final determination within the meaning of 19
U.S.C. § 1516a(a) but the Amended Final Results do not.6
In response, Plaintiff argues that the Amended Final Results
contain a reviewable final determination because “[t]he amended
final results established a new dumping duty assessment rate and
new deposit rate effective only for entries made on or after the
date of publication of this ‘final determination’ in accordance
with Section [1516a (a)(2)(C)].” Pl.’s Br. in Opp’n to Def.-
Intervenors’ Mot. to Dismiss for Lack of Jurisdiction (“Pl.’s
Mem.”) at 6–7.
The court finds that the determination contained in the
Amended Final Results provides a jurisdictional basis for hearing
the issues raised in the 268 Filing for two reasons. First, the
determination contained in the Amended Final Results completed
the statutorily anticipated process of calculating Plaintiff’s
5
(...continued)
19 C.F.R. § 351.210(a). Furthermore, regulations provide that
“[t]he Secretary will publish in the Federal Register notice of
‘Affirmative (Negative) Final Antidumping (Countervailing Duty)
Determination,’ including the rates, if any.” 19 C.F.R. §
351.210(c).
6
The court cautions that nothing in this opinion should
be construed to suggest that the Final Results do not contain a
reviewable final determination. That question is not before the
court.
Court No. 04-00268 Page 10
antidumping duty margin. In order to properly calculate
Plaintiff’s margin in accordance with its statutory mandate and
in conformity with its regulations, Commerce submitted the
calculations underlying the determination contained in the Final
Results to interested parties for comment. See Amended Final
Results, 69 Fed. Reg. at 32,494 (citing 19 U.S.C. § 1675(h); 19
C.F.R. § 351.224(f)). After Commerce received and reviewed the
comments from Plaintiff, it found that the determination
contained in the Final Results was defective and, therefore,
recalculated Plaintiff’s margin and published this new
determination in the Amended Final Results. See Amended Final
Results, 69 Fed. Reg. at 32,494. Thus, it is the Amended Final
Results that contain Commerce’s ultimate determination of the
matters contained therein and which serve as the culmination of
the administrative process envisioned by the statute and the
regulations.
Second, the Amended Final Results contain a final
determination for the purpose of judicial review because they
changed the determination found in the Final Results. As this
Court has recognized, while Commerce publishes notices styled as
final determinations in the Federal Register,
dumping margin calculations can and do change after the
issuance of a final determination. Given Commerce’s
fairly routine procedure of amending final antidumping
Court No. 04-00268 Page 11
duty determinations, it is not a sufficient answer to
say that the margin calculated in the Final
Determination was binding. Here, the purported final
determination was not truly final until the amendment
issued approximately six weeks later.
Dupont Teijin Films USA, LP v. United States, 27 CIT __, __, 297
F. Supp. 2d 1367, 1374 (2003) (citation omitted).7 In the case
at bar, Plaintiff’s antidumping duty margin was changed by the
Amended Final Results, and that change was effective only
following their publication. See Amended Final Results, 69 Fed.
Reg. at 32,495 (“The amended cash deposit requirement is
effective for all shipments of subject merchandise from
Zhejiang . . . on or after the date of publication of this
notice . . . .”). Because Commerce changed Plaintiff’s margin,
the determination found in the Amended Final Results, upon
publication, became binding and truly final as to Plaintiff.
Dupont, 27 CIT at __, 297 F. Supp. 2d at 1374.
7
The court notes that the facts in Dupont and those of
the instant action are somewhat different. The parties in Dupont
were contesting Commerce’s determination regarding the issuance
of an antidumping order contained in a “final determination” in
an investigation, whereas in the 268 Filing the parties are
contesting Commerce’s final result regarding the periodic review
of an existing antidumping order. Whatever the label, however,
Commerce generally treats these two administrative proceedings in
the same manner. See 19 C.F.R. § 351.210(a) (“The procedures for
reviews are similar to those followed in investigations.”). As
Commerce has not specifically created a separate definition of
“final result” the court treats the terms “final determination”
and “final result” as being identical.
Court No. 04-00268 Page 12
Thus, the determination contained in the Amended Final
Results is a final determination properly subject to judicial
review and the date of the publication of the Amended Final
Results serves as the basis for the start of the jurisdictional
clock.8
8
A review of the Federal Register shows that Commerce
routinely changes final determinations and bases antidumping duty
margins on such changed determinations. See, e.g., Notice of Am.
Final Results of Antidumping Duty Admin. Review: Certain Cased
Pencils from the PRC, 70 Fed. Reg. 51,337, 51,338 (ITA Aug. 30,
2005) (“The Department shall determine, and CBP shall assess,
antidumping duties on all appropriate entries based on the
amended final results.”); Stainless Steel Wire Rod From India:
Am. Final Results of Antidumping Duty Admin. Review, 70 Fed. Reg.
47,177, 47,177 (ITA Aug. 12, 2005) (“The . . . deposit
requirements will be effective upon publication of these amended
final results . . . .”); Am. Final Results of Antidumping Duty
Admin. Review: Certain Small Diameter Carbon and Alloy Seamless
Standard, Line, and Pressure Pipe from Rom., 70 Fed. Reg. 14,648,
14,650 (ITA Mar. 23, 2005) (“The Department shall determine, and
CBP shall assess, antidumping duties on all appropriate entries
based on the amended final results.”); Notice of Am. Final
Results of Antidumping Duty Administrative Review: Small Diameter
Circular Seamless Carbon and Alloy Steel Standard, Line and
Pressure Pipe From Braz., 70 Fed. Reg. 13,459, 13,460 (ITA Mar.
21, 2005) (“The following antidumping duty deposits will be
required on all shipments . . . entered, or withdrawn from
warehouse, for consumption, effective on or after the publication
date of the amended final results of this administrative
review . . . .”); Stainless Steel Sheet and Strip in Coils From
Italy: Am. Final Results of Antidumping Duty Admin. Review, 70
Fed. Reg. 13,009, 13,010 (ITA Mar. 17, 2005) (“[T]he Department
will determine, and CBP will assess, antidumping duties on all
entries of subject merchandise . . . in accordance with these
amended final results.”).
Furthermore, a review of amended final determinations shows
that Commerce does not necessarily limit such amendments to
correcting mathematical errors. See, e.g., Notice of Am. Final
Results of Antidumping Duty Admin. Review: Certain Corrosion-
(continued...)
Court No. 04-00268 Page 13
B. The Doctrine of Sovereign Immunity Does Not Bar the
Court’s Jurisdiction Over the 268 Filing
Having found that the Amended Final Results contain a
judicially reviewable final determination pursuant to 19 U.S.C. §
1516a, the court turns to the related contention that the court
does not have jurisdiction over the 268 Filing under the doctrine
of sovereign immunity. Defendant-Intervenors argue that
“[b]ecause 19 U.S.C. § 1516a(a)(2)(A) specifies the terms and
conditions upon which the United States has waived its sovereign
immunity in consenting to be sued in the Court of International
Trade . . . , the limitations stipulated by statute must be
strictly observed.” Def.-Intervenors’ Mem. at 3–4 (citing
Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312–13
(Fed. Cir. 1986)). Put another way, because the United States
must specifically waive sovereign immunity to be sued, if the
Amended Final Results do not contain a final determination within
the meaning of 19 U.S.C. § 1615a(a)(2)(A), then the doctrine of
sovereign immunity prohibits the court from exercising subject
matter jurisdiction over the 268 Filing.
8
(...continued)
Resistant Carbon Steel Flat Prods. from Ca., 70 Fed. Reg. 22,846,
22,846 (ITA May 3, 2005) (amending final determination where
Commerce “identified an inadvertent error in the Final Results
regarding the timing of the issuance of assessment
instructions.”).
Court No. 04-00268 Page 14
There is no dispute that the United States must waive
sovereign immunity in order to be amenable to suit. As stated by
the Court of Appeals for the Federal Circuit: “Waivers of
sovereign immunity must be ‘unequivocally expressed.’ The
Supreme Court has found that ‘firmly grounded in [their]
precedents’ is the fact that ‘[a] waiver of the Federal
Government's sovereign immunity must be unequivocally expressed
in statutory text’ and ‘will not be implied.’” Yancheng Baolong
Biochem. Prods. Co. v. United States, 406 F.3d 1377, 1382 (Fed.
Cir. 2005) (citations omitted) (brackets in original).
Furthermore, there can be no disagreement that the United States
has “unequivocally expressed” its waiver of sovereign immunity as
to suits commenced pursuant to 19 U.S.C. § 1516a.9 As a result,
the United States has consented to be sued based on the results
found in a final determination. See 19 U.S.C. § 1516a(a)(2)(A),
(B). Therefore, the court having found that the Amended Final
Results contain a final determination for the purpose of judicial
review under 19 U.S.C. § 1516a, it necessarily follows that the
United States has waived its sovereign immunity with respect to
9
The Court of Appeals for the Federal Circuit has held
that the United States has explicitly waived sovereign immunity
as to actions commenced pursuant to 28 U.S.C. § 1581(c). See
Humane Soc'y of the U.S. v. Clinton, 236 F.3d 1320 (Fed. Cir.
2001). The Court stated “that § 1581 not only states the
jurisdictional grant to the Court of International Trade, but
also provides a waiver of sovereign immunity over the specified
classes of cases.” Id. at 1328.
Court No. 04-00268 Page 15
the 268 Filing.
C. The Doctrine of Res Judicata Does Not Bar the Court
From Hearing This Action
Finally, Defendant-Intervenors argue that the court is
precluded from hearing the matters raised in the 268 Filing
because it is barred from doing so by USCIT Rule 41(b):
According to Rule 41(b)(5), a dismissal under Rule
41(b)(2) operates as “an adjudication on the merits.”
Thus, this Court has issued an adjudication on the
merits against Zhejiang for all matters arising out of
the Final Results published by Commerce on May 5, 2004.
Any further actions arising out of the same
determination by Commerce are now barred by principles
of res judicata.
Def.-Intervenors’ Mem. at 12–13 (citing Encon Indus. v. United
States, 18 CIT 867, 869 (1994) (emphasis in original)); see also
USCIT R. 41(b) (2005).10 Defendant-Intervenors further contend
10
USCIT Rule 41(b) provides, in relevant part:
(b) Involuntary Dismissal; Effect Thereof.
(1) Actions on the Reserve Calendar or the
Suspension Disposition Calendar are subject
to dismissal for lack of prosecution at the
expiration of the applicable period of time
as prescribed by Rules 83 and 85.
(2) Actions commenced pursuant to 28 U.S.C. §
1581(c) by the filing of a summons only are
subject to dismissal for failure to file a
complaint at the expiration of the applicable
period of time prescribed by 19 U.S.C. §
1516a.
(3) Whenever it appears that there is a
(continued...)
Court No. 04-00268 Page 16
that “Zhejiang could have raised each of the issues it raises now
in its complaint under a timely complaint filed in response to
the first summons.” Def.-Intervenors’ Mem. at 13. Thus,
Defendant-Intervenors maintain that the court is barred from
hearing the matters raised in the 268 Filing by the doctrine of
res judicata or “claim preclusion.”11
10
(...continued)
failure of the plaintiff to prosecute, the
court may upon its own initiative after
notice, or upon motion of a defendant, order
the action or any claim dismissed for lack of
prosecution.
(4) For failure of the plaintiff to comply
with these rules or with any order of the
court, a defendant may move that the action
or any claim against the defendant be
dismissed.
(5) Unless the court in its order for
dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not
provided for in this rule, operates as an
adjudication on the merits.
USCIT R. 41(b)(1)–(5).
11
Recently, there has been substantial movement toward
treating the doctrine of res judicata broadly as encompassing the
individually significant phrase “claim preclusion.” See 18
Charles Alan Wright, Arthur R. Miller,& Edward H. Cooper, Federal
Practice and Procedure § 4402, at 7 (2d ed. 2002). Currently,
“[the] rules defining the matters that ought to have been raised
are most conveniently described as the rules of claim preclusion
and defense preclusion.” See id. § 4406, at 138. Specifically,
the doctrine of claim preclusion establishes that
when a court of competent jurisdiction has entered a
final judgment on the merits of a cause of action, the
(continued...)
Court No. 04-00268 Page 17
Plaintiff counters that Defendant-Intervenors’ argument “is
not supported by the plain language of the Court’s Rules, and it
seeks an overly expansive and punitive result in this case.”
Pl.’s Mem. at 10. Specifically, Plaintiff contends that because
it did not file a complaint in the 227 Filing, the court’s
jurisdiction over the 268 Filing is not barred by res judicata.
Plaintiff explains that,
[i]t is axiomatic that every court case is limited to
those issues which have been properly raised in the
particular proceeding. The act of filing an appeal
with this Court does not vest a plaintiff with the
right to challenge every conceivable issue from the
underlying administrative proceeding. The claims that
can be raised by a plaintiff are delineated by the
counts presented in the complaint. Thus, it would be
entirely proper and in accordance with Rule 41(b)(5) to
allow Zhejiang to proceed with all claims stated in its
complaint in the instant case (04-00268) since none of
these claims had been raised in case 04-00227 as of the
11
(...continued)
parties to the suit and their privies are thereafter
bound “not only as to every matter which was offered
and received to sustain or defeat the claim or demand,
but as to any other admissible matter which might have
been offered for that purpose.” The judgment puts an
end to the cause of action, which cannot again be
brought into litigation between the parties upon any
ground whatever, absent fraud or some other factor
invalidating the judgment.
See Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 597
(1948) (citing Cromwell v. County of Sac, 94 U.S. (4 Otto) 351,
352 (1876)). There is considerable doubt, however, that
involuntary dismissals pursuant to Federal Rule of Civil
Procedure 41(b), from which USCIT Rule 41(b)(5) is drawn, are
“entitled to claim-preclusive effect.” See Semtek Int’l, Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 503 (2001).
Court No. 04-00268 Page 18
time that case was dismissed.
Id. at 11 (citation omitted).
The court finds that dismissal of the 227 Filing does not
bar it from hearing the matters raised in the 268 Filing. Rule
41(b), relating to involuntary dismissals, is directed toward a
range of situations. In some of these, for instance dismissal
upon the Court’s own initiative, see USCIT R. 41(b)(3), or
dismissal for failure to comply with the Court’s Rules, see USCIT
R. 41(b)(4), a complaint in all likelihood will have been filed.
In those cases, Rule 41(b) truly “operates as an adjudication on
the merits,” because the complaint has set out the elements or
grounds of the suit.12 In cases where the elements or grounds
have not been set out, i.e., where no complaint has been filed,
Rule 41(b) does not result in an adjudication on the merits,
because there are no specified merits.13 This being the case,
12
The “merits” are defined as “[t]he elements or grounds
of a claim or defense; the substantive considerations to be taken
into account in deciding a case . . . .” See Black’s Law
Dictionary 1010 (8th ed. 2004).
13
It is also worth noting that, under 19 U.S.C. § 1516a,
the 227 Filing did not result in an action being commenced
because no complaint was filed. This section reads, in relevant
part:
(A) In general
Within thirty days after–
(continued...)
Court No. 04-00268 Page 19
Rule 41(b)(5) is best understood as providing for an adjudication
on the merits to the extent that the elements or grounds of the
case have been specified. Here, because no complaint was part of
the 227 Filing, the merits of the case were never specified, and
the doctrine of res judicata does not apply.
13
(...continued)
(i) the date of publication in the Federal
Register of–
(I) notice of any determination
described in clause . . .
(iii). . . of subparagraph (B),
an interested party who is a party to the proceeding in
connection with which the matter arises may commence an
action in the United States Court of International
Trade by filing a summons, and within thirty days
thereafter a complaint. . . .
See 19 U.S.C. § 1516a(2)(A); see also USCIT R. 3(a)(2) (“A civil
action is commenced by filing with the clerk of the court: . . .
[a] summons, and within 30 days thereafter a complaint, in an
action described in 28 U.S.C. § 1581(c) to contest a
determination listed in [19 U.S.C. § 1516a(2) or (3)] . . . .”).
The Court of Appeals for the Federal Circuit has held this
provision to be
plain and unambiguous. It imposes two requirements for
“commenc[ing] an action” in the Court of International
Trade . . . : (1) within 30 days of the publication of
the determination in the Federal Register, a summons
must be filed, and (2) “within thirty days thereafter a
complaint” must be filed. The statute requires both
steps and imposes precise time limits within which each
step must be taken.
See Georgetown Steel, 801 F.2d at 1311. This being the case, the
Rule 41(b)(5) dismissal of the 227 Filing merely terminated the
initiation of an action, rather than actually dismissing an
action.
Court No. 04-00268 Page 20
CONCLUSION
The court finds that Plaintiff has sustained its burden of
establishing that this court possesses jurisdiction to review the
268 Filing, and that the doctrine of res judicata does not bar
the court from hearing the matters raised in that filing.
Therefore, for the foregoing reasons, Defendant-Intervenors’
Motion to Dismiss for Lack of Subject Matter Jurisdiction is
denied. Judgment shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: November 8, 2005
New York, New York
ERRATA
Zhejiang Native Produce and Animal By-Products Import & Export Group Corp. v. United
States, Court No. 04-00268, Slip Op. 05-146, dated November 8, 2005.
Page 1: In the title line, replace “OPINION AND ORDER” with “OPINION.”
November 9, 2005