Slip Op. 02-37
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________________________
:
USINAS SIDERÚRGICAS DE MINAS GERAIS S/A,
COMPANHIA SIDERÚRGICA PAULISTA and :
COMPANHIA SIDERÚRGICA NACIONAL,
:
Plaintiffs,
:
v.
:
UNITED STATES,
:
Defendant,
:
and
: Court No. 99-08-00528
BETHLEHEM STEEL CORPORATION, U.S. STEEL
GROUP, A UNIT OF USX CORPORATION, ISPAT :
INLAND INC., LTV STEEL COMPANY, INC. and
NATIONAL STEEL CORPORATION, :
Defendant-Intervenors, :
and :
GALLATIN STEEL COMPANY, IPSCO STEEL INC., :
STEEL DYNAMICS, INC. and WEIRTON STEEL
CORPORATION, :
Defendant-Intervenors. :
________________________________________________
[Exporters’ action seeking to challenge continued final affirmative countervailing duty
determination without challenging related suspension determination dismissed for want of subject
matter jurisdiction.]
Decided: April 19, 2002
Willkie Farr & Gallagher (William H. Barringer, Christopher S. Stokes, and Sean M.
Thornton), for Plaintiffs.
Court No. 99-08-00528 Page 2
Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Lucius B. Lau); Terrence
J. McCartin, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S.
Department of Commerce, Of Counsel; for Defendant.
Dewey Ballantine (Alan Wm. Wolff and Michael H. Stein) and Skadden Arps, Slate,
Meagher & Flom (Robert E. Lighthizer, John J. Mangan, and Worth S. Anderson), for Defendant-
Intervenors Bethlehem Steel Corporation et al.
Schagrin Associates (Roger B. Schagrin, Brian E. McGill, and Roger B. Banks), for
Defendant-Intervenors Gallatin Steel Company et al.
OPINION
RIDGWAY, Judge:
Over the years, legal scholars and jurists have devoted much ink to the meaning in various
legal contexts of certain common words – the eternal debate over “shall” vs. “may” being one prime
example. See, e.g., Bryan A. Garner, A Dictionary of Modern Legal Usage 502 (“shall”), 516-17
(“Statute Drafting”) (1987). This is yet another such case.
As discussed more fully below, the disposition of the case at bar turns largely on the meaning
of the word “including.” The stakes may not be high in the whimsical world of fairy tales, when the
terms in question are “brillig” and “slithy”:
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just
what I choose it to mean – neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different
things.”
“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
Court No. 99-08-00528 Page 3
Lewis Carroll, Through the Looking Glass and What Alice Found There 124 (William Morrow &
Co. 1993) (1872). But the present case does not arise in Humpty Dumpty land, where words mean
whatever one wants them to mean; and the stakes here are very high indeed.
This action is one of a trilogy of cases involving antidumping duty and countervailing duty
investigations of certain hot-rolled flat-rolled carbon-quality steel products (“hot-rolled steel”) from
Brazil.1 In this case, the plaintiff Brazilian steel exporters – Usinas Siderurgicas de Minas Gerais
(“USIMINAS”), Companhia Siderurgica Paulista (“COSIPA”), and Companhia Siderurgica
Nacional (“CSN”) (collectively, “Brazilian Exporters”) – seek to challenge the continued final
affirmative countervailing duty determination of the U.S. Department of Commerce (“Commerce”).
See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed. Reg.
38,742 (Dep’t Commerce 1999) (“Continued Final Determination”). Commerce made that
determination the same day that it executed a suspension agreement with the Government of Brazil
(“Brazilian Government”) – an agreement which is itself contested in one of the two related actions
brought by certain of the U.S. steel producers who are Defendant-Intervenors in this action.2 See
Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed. Reg. 38,797
1
The two companion cases are Court No. 99-08-00524 (challenging an agreement suspending
an antidumping investigation of the Brazilian steel producers who are Plaintiffs here), and Court No.
99-08-00525 (challenging Commerce’s determination to enter into an agreement suspending the
countervailing duty investigation at issue in this proceeding).
The action challenging the suspension agreement in the antidumping duty investigation has
now been dismissed. See Bethlehem Steel Corp. v. United States, No. 99-08-00524, 2002 Ct. Int’l
Trade LEXIS 36 (CIT Apr. 2, 2002).
2
Defendant-Intervenors did not participate in the briefing on the jurisdictional issue
addressed in this opinion.
Court No. 99-08-00528 Page 4
(Dep’t Commerce 1999) (suspension of countervailing duty investigation and entry of suspension
agreement) (“Suspension Determination” or “Suspension Agreement”).
The Brazilian Exporters’ Complaint in this matter asserts five specific challenges to
Commerce’s Continued Final Determination. Complaint ¶ 7. However, the Complaint does not
seek review of any aspect of Commerce’s determination to suspend the countervailing duty
investigation or to enter into the Suspension Agreement with the Brazilian Government. Nor does
the Complaint allege that any changes made in Commerce’s Continued Final Determination
rendered the Suspension Determination defective in any way.
Pending before the Court is the Motion To Dismiss for Lack of Subject Matter Jurisdiction
filed by Defendant, the United States (“the Government”). According to the Government, the
sovereign has waived its immunity from suit to permit a party to challenge a continued final
countervailing duty determination that changes the size of the net countervailable subsidy (or the
underlying reasoning) at the time a suspension agreement is concluded only if that challenge is
raised as part of a challenge to Commerce’s decision to suspend the countervailing duty
investigation in question. Defendant’s Memorandum in Support of Its Motion To Dismiss For Lack
of Subject Matter Jurisdiction (“Defendant’s Memo”), passim. In other words, according to the
Government, the Court lacks jurisdiction because the Brazilian Exporters’ Summons and Complaint
do not attack both Commerce’s Continued Final Determination and the Suspension Determination
and Agreement.
For the reasons discussed below, the Government’s motion is granted and this action is
dismissed for want of subject matter jurisdiction.
Court No. 99-08-00528 Page 5
I. Background
A. Administrative Proceedings
On September 30, 1998, certain U.S. steel producers – including Defendant-Intervenors here3
– petitioned Commerce and the International Trade Commission (“ITC”), seeking the imposition
of countervailing duties on hot-rolled steel from Brazil.4 The petition was accepted, and the
requested investigation was initiated. Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products
From Brazil, 63 Fed. Reg. 56,624 (Dep’t Commerce 1998).
One month later, the ITC notified Commerce of its preliminary affirmative determination
on material injury. See Certain Hot-Rolled Steel Products From Brazil, Japan, and Russia, 63 Fed.
Reg. 65,221 (ITC 1998). Commerce’s own preliminary affirmative determination issued on
February 12, 1999, tentatively finding net subsidy rates of 9.45% for USIMINAS and COSIPA,
6.62% for CSN, and 7.85% for all others. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel
Products From Brazil, 64 Fed. Reg. 8313, 8321 (Dep’t Commerce 1999).
In June 1999, Commerce and the Brazilian Government initialed a proposed agreement to
suspend the then-ongoing countervailing duty investigation. See Suspension Determination, 64 Fed.
3
In addition to Defendant-Intervenors in the case at bar, the petitioners included California
Steel Industries, Geneva Steel, Gulf States Steel Inc., the Independent Steelworkers Union, and the
United Steelworkers of America. See Continued Final Determination, 64 Fed. Reg. 38,742 (Dep’t
Commerce 1999).
4
The chronology of the countervailing duty investigation at issue here and the Suspension
Agreement entered in that investigation is set forth more fully in Bethlehem Steel Corp. v. United
States, 25 CIT ____, 159 F. Supp. 2d 730 (2001). The parallel chronology of the related
antidumping duty investigation and the suspension agreement in that case is detailed in Bethlehem
Steel Corp. v. United States, 25 CIT ____, 146 F. Supp. 2d 927 (2001), dismissed per stipulation,
No. 99-08-00524, 2002 Ct. Int’l Trade LEXIS 36 (CIT Apr. 2, 2002).
Court No. 99-08-00528 Page 6
Reg. 38,797 (noting June 1999 initialing of proposed suspension agreement). The petitioners filed
comments opposing the proposed suspension agreement, but also requested that Commerce continue
the investigation in the event that a suspension agreement was executed over their objections. See
Continued Final Determination, 64 Fed. Reg. 38,742 (Dep’t Commerce 1999) (noting petitioners’
request for continuation of investigation even if suspension agreement executed).
Commerce and the Brazilian Government signed the Suspension Agreement on July 6, 1999.
See Suspension Determination, 64 Fed. Reg. 38,797. That same day, Commerce issued its final
determination in the underlying countervailing duty investigation, increasing the net subsidy rates
slightly to 9.67% for USIMINAS and COSIPA, and decreasing them to 6.35% for CSN and 7.81%
for all others. See Continued Final Determination, 64 Fed. Reg. at 38,755. The ITC’s final
determination, issued August 24, 1999, confirmed its preliminary affirmative finding as well. See
Certain Hot-Rolled Steel Products From Brazil and Russia, 64 Fed. Reg. 46,951 (ITC 1999).
As a result of the Suspension Agreement – which was the subject of Bethlehem Steel, 25 CIT
____, 159 F. Supp. 2d 730, and which remains in effect today – no countervailing duty order has
been issued covering hot-rolled steel from Brazil.
B. Proceedings Before the Court
The Brazilian Exporters timely filed a Summons with the Court, seeking to invoke the
Court’s jurisdiction under 28 U.S.C. § 1581(c) to contest “certain aspects of the final determination
of the International Trade Administration, Department of Commerce, issued in the countervailing
duty investigation of Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil,
Inv. No. C-351-829.” Summons ¶ 2.
Court No. 99-08-00528 Page 7
The Complaint, filed one month later, again identified the administrative determination to
be reviewed as the “Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled,
Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed. Reg. 38,742 (July 19, 1999).”
Complaint ¶ 2. The Brazilian Exporters once more invoked the Court’s jurisdiction under 28 U.S.C.
§ 1581(c), and asserted that the action was “commenced under 19 U.S.C. § . . . 1516a(a)(2)(B)(iv).”5
Id. ¶ 3. The Complaint further alleged that Commerce’s Continued Final Determination is not
supported by substantial evidence on the record and is otherwise not in accordance with law with
respect to five specific issues: (1) the methodology for handling pre-privatization subsidies; (2) the
treatment of certain equity infusions; (3) the methodology for converting Brazilian reals into U.S.
dollars; (4) the methodology for calculating repayment in a privatization transaction; and (5) certain
aspects of the net countervailable subsidy calculations. Id. ¶ 7.
Neither the Summons nor the Complaint challenges any aspect of either Commerce’s
Suspension Determination or the Suspension Agreement. Nor does either the Summons or the
Complaint allege that any changes made in Commerce’s Continued Final Determination rendered
its Suspension Determination defective in any way. Moreover, the Brazilian Exporters have not
challenged the ITC’s final determination. Only Commerce’s Continued Final Determination is at
issue in this case.
II. Standard of Review
5
The Complaint also referenced 19 U.S.C. § 1516a(2)(A)(i)(I). Complaint ¶ 3. That
subsection addresses the time period for commencement of an action in the Court of International
Trade, and is not at issue here.
Court No. 99-08-00528 Page 8
It is axiomatic that “ ‘[t]he United States, as sovereign, is immune from suit save as it
consents to be sued . . . , and that the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941) ); see also Federal Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 475 (1994) (“[s]overeign immunity is jurisdictional in nature”). A waiver of
sovereign immunity “ ‘ cannot be implied but must be unequivocally expressed.’ ” Mitchell, 445
U.S. at 538 (quoting United States v. King, 395 U.S. 1, 4 (1969) ); see also Lane v. Pena, 518 U.S.
187, 192 (1996) (waiver of sovereign immunity “must be unequivocally expressed in statutory text”
and “will be strictly construed, in terms of its scope, in favor of the sovereign”) (citations omitted).
Thus, to the extent that statutory language contains ambiguities concerning the waiver of
sovereign immunity, those ambiguities must be construed in favor of immunity. United States v.
Williams, 514 U.S. 527, 531 (1995) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33
(1992) ); see also Novacor Chems., Inc. v. United States, 171 F.3d 1376, 1382 (Fed. Cir. 1999)
(“[w]e must strictly construe the statute, for we may not imply a waiver”); RHI Holdings, Inc. v.
United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998) (“[a]ny statute which creates a waiver of
sovereign immunity must be strictly construed in favor of the Government”) (citing Sherwood, 312
U.S. at 590); NEC Corp. v. United States, 806 F.2d 247, 249 (Fed. Cir. 1986) (“[t]he terms of the
government’s consent to be sued in any particular court define that court’s jurisdiction to entertain
the suit” (citations omitted) ).
Court No. 99-08-00528 Page 9
III. Discussion
“[S]overeign immunity goes to the issue of the court’s power to hear the case, and therefore
is antecedent to the merits of the case.” Humane Soc’y of the U.S. v. Clinton, 236 F.3d 1320, 1326
(Fed. Cir. 2001). To establish jurisdiction here, the Brazilian Exporters must prove that Congress
waived the Government’s immunity from actions such as this. McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 188-89 (1936); see also Elkem Metals Co. v. United States, 23 CIT 170, 175,
44 F. Supp. 2d 288, 292 (1999) (plaintiff bears burden of pleading and proving facts required for
jurisdiction). This they cannot do.
A. The Language of The Statute
For purposes of this action, the terms of the United States’ consent to suit are reflected in
subsection (iv) of 19 U.S.C. § 1516a(a)(2)(B), invoked by the Brazilian Exporters’ Summons and
Complaint and set forth in context below:
(B) Reviewable determinations
The determinations which may be contested under subparagraph (A) are as follows:
(i) Final affirmative [antidumping or countervailing duty] determinations . . .
including any negative part of such a determination . . . .
(ii) A final negative [antidumping or countervailing duty] determination . . .
including . . . any part of a final affirmative determination which specifically
excludes any company or product.
(iii) ...
(iv) A determination by the administering authority, under section 1671c or
1673c of this title, to suspend an antidumping duty or a countervailing duty
investigation, including any final determination resulting from a continued
investigation which changes the size of the dumping margin or net
countervailable subsidy calculated, or the reasoning underlying such
calculations, at the time the suspension agreement was concluded.
Court No. 99-08-00528 Page 10
....
19 U.S.C. § 1516a(a)(2)(B) (1994) (emphases supplied.)
The “subparagraph (A)” referenced in 19 U.S.C. § 1561a(a)(2)(B) sets forth the procedure
for challenging an administrative determination reviewable under subparagraph (B). Specifically,
subparagraph (A) requires the filing of a summons within thirty days of publication of the
determination, followed by a complaint thirty days thereafter. As the U.S. Court of Appeals for the
Federal Circuit has explained, that procedure delimits the subject matter jurisdiction of the Court
of International Trade. See Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed. Cir.
1986) (citing Lehman v. Nakshian, 453 U.S. 156, 161 (1981) ) .
In Georgetown Steel, the Court of Appeals held that, since subparagraph (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, those limitations must be strictly observed and are not
subject to implied exceptions. If a litigant fails to comply with the terms upon which the United
States has consented to be sued, the court has no ‘jurisdiction to entertain the suit.’ ” Georgetown
Steel, 801 F.2d at 1312 (citing United States v. Mitchell, 445 U.S. 535, 538 (1980) ). In that case,
Georgetown Steel’s initial mailing of its complaint was returned for insufficient postage. The Court
of Appeals held that the plaintiff’s failure to comply with the statutory thirty day deadline for the
filing of its complaint deprived the Court of International Trade of subject matter jurisdiction.
The instant case turns on the interpretation of the jurisdictional provision immediately
following that at issue in Georgetown Steel, which similarly “specifies the terms and conditions
upon which the United States has waived its sovereign immunity.” As with subparagraph (A) in
Court No. 99-08-00528 Page 11
Georgetown Steel, subparagraph (B) here can be interpreted to waive sovereign immunity only if
such a waiver has been unequivocally expressed in the statute.
B. Dictionary Definitions of “Including”
The Brazilian Exporters’ claim to jurisdiction turns largely on the word “including” as it is
used in 19 U.S.C. § 1516a(a)(2)(B)(iv). However, the statute at issue does not define the term.
Accordingly, it is to be construed using its established meaning. See, e.g., NLRB v. Amax Coal Co.,
453 U.S. 322, 329 (1981) (“[w]here Congress uses terms that have accumulated settled meaning
under either equity or the common law, a court must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of these terms”); see also NSK Ltd. v.
United States, 115 F.3d 965, 974 (Fed. Cir. 1997) (to the same effect).
To establish the plain meaning of “including,” both the Government and the Brazilian
Exporters point to dictionary definitions – but with very different results. While the Government
maintains that the term as used in the statute is “illustrative,” the Brazilian Exporters read the term
as “conjunctive” or “expansive.”
Specifically, the Government relies on Merriam-Webster’s Collegiate Dictionary to argue
that Congress’ use of “including” reflects its intent that a challenge to a continued final
determination occur only “as a constituent, component, or subordinate part of a larger whole” – in
other words, as part of a challenge to a suspension determination. Defendant’s Memo at 15 (quoting
Merriam-Webster’s Collegiate Dictionary 588 (10th ed. 1999) (definition of “include”), and citing
Webster’s Third New International Dictionary 1143 (1963) (“include” means “to place, list, or rate
as a part or component of a whole or of a larger group, class, or aggregate ”) ). The Government contends that, had Congress intended to permit
parties to challenge a continued final determination without challenging the suspension
determination, the statute would have authorized challenges to suspension determinations “or”
continued final determinations. Instead, according to the Government, Congress chose the word
“including,” to require that any challenge to a continued final determination be made as a
subordinate part of a greater challenge – a challenge to a suspension determination. Defendant’s
Memo at 15-16.
Relying on Amax Coal, supra, and touting Black’s Law Dictionary as “[t]he authoritative
American legal dictionary,” the Brazilian Exporters argue that – for purposes of statutory
construction – the “legal” definition of “including” should take precedence over the “non-legal”
definitions on which the Government relies. Plaintiffs’ Opposition To Defendant’s Motion To
Dismiss For Lack of Subject Matter Jurisdiction (“Plaintiffs’ Opposition”) at 6-7. The Brazilian
Exporters emphasize that Black’s definition of “including” recognizes the “expansive” meaning of
the term:
To confine within, hold as in an enclosure, take in, attain, shut up, contain, enclose,
comprise, comprehend, embrace, involve. Term may, according to context, express
an enlargement and have the meaning of and or in addition to, or merely specify a
particular thing already included within general words theretofore used. “Including”
within a statute is interpreted as a word of enlargement or of illustrative application
as well as a word of limitation.
Black’s Law Dictionary 763 (6th ed. 1990) (emphasis in original). The Brazilian Exporters therefore
conclude that “ ‘including’ can be a word of enlargement, synonymous with ‘as well as,’ ” and that
– so read – 19 U.S.C. § 1516a(a)(2)(B)(iv) permits a party to challenge the final determination
Court No. 99-08-00528 Page 13
resulting from a continued investigation, as well as – or in addition to – the decision to suspend the
investigation. Plaintiffs’ Opposition at 7.
The Brazilian Exporters misread Amax Coal. That case does not hold that “legal” definitions
(such as those in Black’s) trump “non-legal” definitions. Indeed, in NSK Ltd. v. United States, the
Court of Appeals quoted the very language from Amax Coal on which the Brazilian Exporters rely,
and then placed equal reliance on Webster’s Third New International Dictionary and Black’s. NSK
Ltd. v. United States, 115 F.3d 965, 974 (Fed. Cir. 1997).6
Moreover, in interpreting statutes, the U.S. Supreme Court often relies on non-legal
dictionaries. See, e.g., Deal v. United States, 508 U.S. 129, 131-32 (1993) and Hartford Fire Ins.
Co. v. California, 509 U.S. 764, 781, 801 (1993) (citing Webster’s New International Dictionary and
Oxford English Dictionary, respectively); see also Note, Looking it up: Dictionaries and Statutory
Interpretation, 107 Harv. L. Rev. 1437, 1447-48 (1994). In fact, the Supreme Court recently
characterized one of the sources which the Government cites – Webster’s Third New International
Dictionary – as one of the “most authoritative” dictionaries. Johnson v. United States, 529 U.S.
694, 706 n.9 (2000).7
6
In any event, as the Government observes, the definition in Black’s is similar to the
definitions in the sources cited by the Government, in that Black’s notes that the word “include”
derives from the Latin Inclaudere, which means “to shut in, keep within.” Defendant’s Reply to
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
(“Defendant’s Reply”) at 8 (citing Black’s Law Dictionary 763 (6th ed. 1990) ). Indeed, even the
Brazilian Exporters concede that Black’s recognizes the use of “including” in an “illustrative” sense.
7
The Supreme Court also cited with approval the Oxford English Dictionary, which defines
“including” as something “[t]hat includes, shuts in, encloses, or comprises.” VII Oxford English
Dictionary 801 (2d ed. 1989). See Johnson, 529 U.S. at 706 n.9.
Court No. 99-08-00528 Page 14
More to the point, the Brazilian Exporters do not (and cannot) dispute the Government’s
claim that “including” can be used in a merely “illustrative” sense. See Plaintiffs’ Opposition at 6
(asserting that the term “is not always used in the ‘illustrative’ sense . . .,” and that the Government
“fails to acknowledge that the word ‘include’ can also mean . . .”) (emphases supplied). Rather, the
gravamen of the Brazilian Exporters’ argument is that the term “including” sometimes has an
“expansive” or “conjunctive” meaning instead. Id. (asserting that “The Plain Meaning of
‘Including’ Is Broader Than Defendant’s Selective Dictionary Definitions”). But that is not enough
to carry the day.
As discussed in section II above, any ambiguity in the language of the statute must be
construed in favor of sovereign immunity. Accordingly, the fact that the term “including” can be
used in a merely “illustrative” sense – a fact that the Brazilian Exporters concede – renders any
other potential definition irrelevant.
C. The Language of § 1516a(a)(2)(B)(iv) As A Whole
The language of 19 U.S.C. § 1516a(a)(2)(B)(iv) as a whole supports the conclusion that
challenges to continued final determinations are not permitted in isolation. See generally
Defendant’s Memo at 16-18.
As the Government observes, Congress limited the types of continued final determinations
that may be challenged under § 1516a(a)(2)(B)(iv) by “close reference” to the underlying suspension
agreement. See Defendant’s Memo at 18. By the terms of the statute, the only such determination
that may be challenged is one “resulting from a continued investigation” that “changes the size of
the dumping margin or net countervailable subsidy calculated, or the reasoning underlying such
Court No. 99-08-00528 Page 15
calculations, at the time the suspension agreement was concluded.” 19 U.S.C. § 1516a(a)(2)(B)(iv)
(1994).
The focus of § 1516a(a)(2)(B)(iv) is thus on Commerce’s determination to suspend the
investigation. Judicial review of continued final determinations under § 1516a(a)(2)(B)(iv) is
effectively limited to those cases where it is alleged that the assumptions underlying the suspension
determination – i.e., Commerce’s findings in the preliminary determination – have changed so as
to (arguably) render some aspect of the suspension determination defective. As the Government
puts it, “it would be absurd and illogical for Congress to limit the types of final determinations that
may be challenged by close reference to the underlying suspension agreement and then permit
challenges to those same final determinations in isolation, without regard to either the suspension
agreement or [the suspension] determination.”8 See Defendant’s Memo at 18.
8
In advancing this argument in its opening brief, the Government noted that a challenge to
a final determination which resulted from a continued investigation that changed the size of the net
countervailable subsidy would permit a party to demonstrate error in a suspension determination
based upon acceptance of an agreement under 19 U.S.C. § 1671c(c) – i.e., an agreement offsetting
at least 85% of the net countervailable subsidy. Defendant’s Memo at 17. While the 85%
requirement may be fulfilled at the time the suspension agreement is signed, the continuation of the
investigation and the resulting final determination may establish that the 85% requirement is no
longer met – for example, because the agency’s continued final determination finds a higher net
subsidy rate.
The Brazilian Exporters seize upon the Government’s example and argue that it does not
support the Government’s position here because the plaintiff in the hypothetical “would be using
the continued final determination as evidence that the determination to suspend the investigation was
contrary to law,” rather than challenging the legality of the continued final determination. Plaintiffs’
Opposition at 14. True enough, a plaintiff could seek to use the continued final determination’s
higher net subsidy rates to attack the suspension determination. But a plaintiff might also consider
the continued final determination’s rates themselves erroneous. Thus, the Government postulates,
suppose that Commerce preliminarily found a net subsidy rate of 10% and accepted a suspension
agreement based upon that 10% rate; but, then, after continuation of the investigation, Commerce’s
continued final determination found a net subsidy rate of 20%. Defendant’s Reply at 11-12. In
Court No. 99-08-00528 Page 16
D. The Use of “Including” in Other Parts of § 1516a(a)(2)(B)
The use of the term “including” elsewhere in 19 U.S.C. § 1516a(a)(2)(B) further reinforces
the Government’s position.
There is a “natural presumption that identical words used in different parts of the same act
are intended to have the same meaning.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S.
427, 433 (1932) (citation omitted). See also Helvering v. Stockholms Enskilda Bank, 293 U.S. 84,
87 (1934); Sorenson v. Sec. of the Treasury, 475 U.S. 851, 860 (1986); Sullivan v. Stroop, 496 U.S.
478, 484 (1990); Libbey Glass v. United States, 921 F.2d 1263, 1265 (Fed. Cir. 1990). See
generally 2A Norman J. Singer, Statutes and Statutory Construction § 46:06 (6th ed. 2000) (noting
existence of “presumption that the same words used twice in the same act have the same meaning”).
Applying that maxim of statutory construction, the word “including” in § 1516a(a)(2)(B)(iv) should
be read in parallel with its use in §§ 1516a(a)(2)(B)(i) and (ii).9
As the Brazilian Exporters concede, there is a substantial but subordinate relationship
between the agency determination listed after “including” and the agency determination listed before
“including” in both §§ 1516a(a)(2)(B)(i) and (ii); that is, in both of those subsections, “including”
is used in an “illustrative” sense, and the determinations listed after “including” must be challenged
challenging Commerce’s suspension determination, a party could argue that the increase in the
continued final determination demonstrates the invalidity of Commerce’s initial conclusions
concerning the amount of the subsidy to be offset by the suspension agreement. But a party could
also argue that the 20% rate found in Commerce’s continued final determination was too low. Such
a plaintiff would be challenging the continued final determination as part of its overall challenge to
the suspension determination. Id. at 12.
9
Logically, the maxim has even greater force here, where the term at issue is used not merely
within the same statute, but within the same section.
Court No. 99-08-00528 Page 17
in conjunction with the respective determinations that precede the term. See Plaintiffs’ Opposition
at 7-11.
The structure of § 1516a(a)(2)(B)(iv) is substantially the same. In that subsection – as in §§
1516a(a)(2)(B)(i) and (ii) – the determination after the word “including” is subsidiary to the
determination that precedes “including.”10 Thus, under § 1516a(a)(2)(B)(iv), any challenge to a final
determination resulting from a continued investigation that changes the size of the net
countervailable subsidy must be made in conjunction with a challenge to a suspension
determination. A final determination resulting from a continued investigation cannot be challenged
in isolation.
E. The Legislative History of § 1516a(a)(2)(B)(iv)
The Brazilian Exporters contend that the legislative history of 19 U.S.C. § 1516a(a)(2)(B)(iv)
supports their claim of jurisdiction. Specifically, they argue that the purpose of adding the
“including” clause to that subsection was to preclude appeals to the Court before a final agency
determination, thus eliminating piecemeal litigation. Plaintiffs’ Opposition at 11-13; see also
Defendant’s Memo at 13 and Defendant’s Reply at 14-15, including authorities cited there.
Asserting that this case does not raise any issues related to interlocutory appeals, the Brazilian
Exporters suggest that the action does not contravene Congressional intent.
10
The Brazilian Exporters attempt to distinguish § 1516a(a)(2)(B)(iv) by arguing that, in §§
1516a(a)(2)(B)(i) and (ii), the determination that follows the word “including” is itself a component
part of the determination that precedes that word. To the contrary, a final antidumping
determination by Commerce excluding certain companies cannot be said to be a part of a subsequent
negative injury determination by the ITC. See 19 U.S.C. § 1516a(a)(2)(B)(ii) (1994).
Court No. 99-08-00528 Page 18
But the Brazilian Exporters paint with too broad a brush. A continued final affirmative
determination has no practical effect, unless and until the related suspension agreement is dissolved
– at the wish of the foreign party, or because the agreement is successfully attacked under §
1516a(a)(2)(B)(iv), or because Commerce determines that a signatory has violated it under 19
U.S.C. § 1671c(i). Thus, many of the same jurisprudential concerns that militate against piecemeal
litigation also weigh against litigation of a challenge such as that advanced by the Brazilian
Exporters here – a challenge which is not yet (and may never be) ripe.
In any event, as the Government notes, it is immaterial whether or not this action implicates
the concerns over interlocutory appeals reflected in the legislative history of the statute. See
Defendant’s Reply at 15-16. The language of the statute is paramount, and this action conflicts with
the limited waiver of sovereign immunity found in the statute itself.
F. 19 U.S.C. § 1671c(f)(3)
The Brazilian Exporters also point to “the architecture of the suspension agreement statute”
– particularly 19 U.S.C. § 1671c(f)(3) – as evidence that Congress intended to allow challenges to
continued final determinations in isolation from related suspension determinations. According to
the Brazilian Exporters, the Government’s reading of § 1516a(a)(2)(B)(iv) would render §
1671c(f)(3) “meaningless.” Plaintiff’s Opposition at 14-15.
Invoking § 1671c(f)(3)(A), the Brazilian Exporters emphasize that the viability of a
suspension agreement depends upon a legally valid affirmative determination. Id. at 14-16. That
subsection provides that, if the results of a continued final determination are negative, “the
suspension agreement shall have no force or effect and the investigation shall be terminated.”
Court No. 99-08-00528 Page 19
According to the Brazilian Exporters, that provision is rendered meaningless unless the legal validity
of a continued final affirmative determination can be challenged in court. Id. at 15.
But the Brazilian Exporters’ reliance on § 1671c(f)(3)(A) is misplaced. Contrary to their
claim, it does not follow that a continued final affirmative determination is subject to judicial review
pursuant to § 1516a(a)(2)(B)(iv) independently of a challenge to the related suspension agreement.
A party that takes the position that a suspension agreement should have no force and effect because
Commerce should have made a final negative determination need only seek judicial review under
§ 1516a(a)(2)(B)(iv). In other words, the party need only challenge the suspension determination
and the continued final determination at the same time.
The Brazilian Exporters’ reliance on 19 U.S.C. § 1671c(f)(3)(B) is similarly unavailing.
Under that section, no countervailing duty order issues – notwithstanding a continued final
affirmative determination – provided that the suspension agreement continues to remain in force and
to meet all relevant requirements, and provided that the parties comply with the terms of the
agreement. The Brazilian Exporters apparently contend that Congress intended that parties be able
to seek judicial review of a continued final determination without challenging the suspension
determination in order to ensure that the agreement continues to meet the requirements of the statute.
Plaintiffs’ Opposition at 16-17.
However, the statute provides elsewhere for annual administrative reviews to “review the
current status of, and compliance with” suspension agreements and to “review the amount of any
net countervailable subsidy . . . involved in the agreement[s].” 19 U.S.C. § 1675(a)(1)(C) (1994);
see generally Elkem Metals Co. v. United States, 23 CIT 170, 44 F. Supp. 2d 288 (1999) (noting
Court No. 99-08-00528 Page 20
availability of Commerce review of compliance with suspension agreement, with results subject to
judicial review under 19 U.S.C. § 1516a(a)(2)(B)(iii)). There is thus no need to read into §
1516a(a)(2)(B)(iv) some right to independently challenge a continued final determination in order
to ensure that a suspension agreement continues to meet statutory requirements.
G. The Brazilian Exporters’ Asserted “Perpetual Choice”
The Brazilian Exporters’ final argument is predicated on their claim that the suspension
agreement statute was designed to accord responding governments a “perpetual choice” between a
suspension agreement and a continued final determination. Plaintiffs’ Opposition at 17-21.
Characterizing a suspension agreement as “a voluntary alternative to an order,” the Brazilian
Exporters assert that “the purpose of the suspension agreement is to allow . . . the responding
government[ ] to have the option of deciding, at any given moment, whether to pursue the
suspension agreement or abandon the suspension agreement and have an order based on a final
determination.” Id. at 18.11 The Brazilian Exporters maintain that a right to immediate judicial
review of the validity of a continued final determination is necessary to ensure that, in weighing its
options in the exercise of its “perpetual choice,” a responding government can make an informed
11
The Brazilian Exporters actually contend that a suspension agreement “may be terminated
at any time by either the U.S. government or the Respondent government.” Plaintiffs’ Opposition
at 17-18 (emphasis supplied). See also id. at 18 (“the purpose of the suspension agreement is to
allow the U.S. government, as well as the responding government, to have the option of deciding,
at any given moment, whether to pursue the suspension agreement or abandon the suspension
agreement”) (emphasis supplied). But the Brazilian Exporters appear to be mistaken. While Section
XI of the Suspension Agreement provides that the Government of Brazil may terminate the
agreement at any time, nothing in the agreement gives the U.S. Government the same right. See
Suspension Determination, 64 Fed. Reg. 38,797.
Court No. 99-08-00528 Page 21
decision based on full knowledge of the precise consequences of a decision to abandon the
suspension agreement. Id. at 19.
However, the fundamental premise of this argument is faulty. Nothing in either the language
of the statute or its legislative history evinces any concern on the part of Congress with ensuring
such a “perpetual choice.” Indeed, the legislative history indicates that the suspension agreement
statute was drafted not for the benefit of respondent government signatories, but rather to serve “the
interest of the public and the domestic industry affected.” S. Rep. No. 96-249 at 71, reprinted in
1979 U.S.C.C.A.N. 381, 457.
Nor is there any merit to the concern that denying the right to immediately challenge a
continued final determination in isolation will effectively insulate that determination from judicial
review. See Plaintiffs’ Opposition at 18, 20-21. A signatory’s withdrawal from a suspension
agreement would trigger 19 U.S.C. § 1671c(i). Under that provision of the statute, where – as here
– the investigation had already been completed, Commerce would issue a countervailing duty order.
Within thirty days after Federal Register publication of the order, any interested party who was a
party to the proceeding could contest Commerce’s final affirmative determination. 19 U.S.C. §
1516a(a)(2) (1994).
In short, contrary to the implication of the Brazilian Exporters’ argument, the statute does
indeed provide for meaningful judicial review of continued final determinations – albeit not
immediately and not “in the manner . . . most convenient to signatories.” See Defendant’s Reply at
19.
Court No. 99-08-00528 Page 22
IV. Conclusion
The Brazilian Exporters have failed to meet their burden of establishing the jurisdiction of
the Court. They essentially concede that the precise statutory language at issue can be read to
preclude their challenge of the continued final determination unless they also challenge the
underlying suspension agreement. It is axiomatic that any ambiguities concerning a waiver of
sovereign immunity must be construed in favor of immunity.
For all the reasons set forth above, the Court lacks subject matter jurisdiction over this
action. Accordingly, it must be dismissed.
____________________________
Delissa A. Ridgway
Judge
Decided: April 19, 2002
New York, New York