Slip Op. 02 - 34
UNITED STATES COURT OF INTERNATIONAL TRADE
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ELKEM METALS COMPANY and GLOBE METAL-
LURGICAL INC., :
Plaintiffs, :
v. :
UNITED STATES, : Consolidated
Court No. 01-00098
Defendant, :
-and- :
COMPANHIA BRASILIERA CARBURETO DE :
CÁLCIO,
:
Intervenor-Defendant.
:
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Opinion & Order
[Motion to dismiss foreign plaintiff
from action for lack of standing denied.]
Dated: April 1, 2002
Baker Botts LLP (Samuel J. Waldon and Matthew T. West) for
Elkem Metals Company and Globe Metallurgical Inc.
Robert D. McCallum, Jr. Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Reginald T. Blades, Jr.); and Office of
Chief Counsel for Import Administration, U.S. Department of Com-
merce (John F. Koeppen), of counsel, for the defendant.
Dorsey & Whitney LLP (Philippe M. Bruno and Rosa S. Jeong) for
Eletrosilex S.A.
AQUILINO, Judge: This action consolidates complaints
filed by Companhia Brasileira Carbureto de Cálcio and Eletrosilex
S.A., CIT No. 01-00082, and by Elkem Metals Company and Globe
Metallurgical Inc., CIT No. 01-00098, each praying for relief from
Consolidated
Court No. 01-00098 Page 2
Silicon Metal From Brazil; Final Results of Antidumping Duty
Administrative Review and Determination Not to Revoke in Part, 66
Fed.Reg. 11,256 (Feb. 23, 2001), promulgated by the International
Trade Administration, U.S. Department of Commerce ("ITA"). The
plaintiffs in the second action ("Elkem & Globe") were granted
leave to intervene as parties defendant in the first matter, from
which resultant adverse posture they have filed a motion to dismiss
Eletrosilex as a party with any actionable claim herein, alleging
lack of standing.
I
This motion takes the position that that Brazilian enter-
prise does not have standing to proceed under (a) the Tariff Act of
1930, as amended, and (b) the U.S. Constitution.
A
The sum and substance of the motion is that in Brazil
Eletrosilex S.A. no longer manufactures, produces or exports
silicon metal and that it therefore has lost whatever standing it
may have had to participate in judicial review of the kind
authorized herein. That is, in
early 2000, Eletrosilex began experiencing difficulty
meeting its debt obligations. Press reports at that time
. . . noted that "Eletrosilex, a major silicon metal
producer, is looking for a capital partner to pay its
debt." . . . These reports also indicated that Rima
Industrial S/A ("Rima") was considering taking over
Eletrosilex's production capacity. . . .
During the summer of 2000, Rima took over [that]
capacity, and Eletrosilex ceased to produce silicon met-
Consolidated
Court No. 01-00098 Page 3
al. According to the Tex Report (a metal industry pub-
lication), silicon metal production in Brazil underwent
a "reorganization" in July and August 2000. . . . The Tex
Report specifically notes that "since Eletrosilex has
been depressed on their operations for a long period,
Rima has leased the equipment held by Eletrosilex and is
producing silicon metal by this leased equipment.". . .
As a result, Eletrosilex ceased all production and ex-
portation of silicon metal. The last imports of silicon
metal produced by Eletrosilex entered the U.S. market in
July 2000. Since August 2000, there have been no entries
into the U.S. market of silicon metal produced by
Eletrosilex.
On February 23, 2001, the [ITA] . . . found that
Eletrosilex had made sales at less than fair value during
the period of review. Based on Eletrosilex's failure to
provide critical information necessary for the [ITA] to
calculate a margin, the [agency] properly relied on facts
available, and imposed a dumping margin of 93.2% on
imports of silicon metal from Eletrosilex during the
period of review. . . . Eletrosilex filed an appeal of
the determination with this Court pursuant to 28 U.S.C.
§1581(c) and 19 U.S.C. §1516a.1
On its face, this representation does not advance the
relief that the movants seek. To begin with, ITA reviews pursuant
to 19 U.S.C. §1675, the final results of one of which is the
statutory basis of this consolidated action, invariably cover past
periods of importation. Here, that period was July 1, 1998 through
1
Elkem & Globe Motion to Dismiss for Lack of Standing, pp. 3-
4 (citations omitted).
Some of those omitted citations are to sources not part of the
ITA administrative record filed herein, which absence has caused
both Eletrosilex and the defendant to formally object to their
reference and reliability.
These objections are well-founded. See generally McKechnie
Brothers (N.Z.) Ltd. v. U.S. Dep't of Commerce, 10 CIT 707 (1986),
and cases cited therein. The court quotes this part of the motion
only for the purpose of exposing its innate inadequacy, as
discussed hereinafter.
Consolidated
Court No. 01-00098 Page 4
June 30, 1999. And there is no showing that Eletrosilex was not
doing then the business at issue. In fact, the firm denies that is
has
ceased to exist. Eletrosilex has been significantly
reorganized over the past several years. Nonetheless,
[it] still exists as a legal entity that leases produc-
tion equipment to Rima Industrial S/A . . . to produce
silicon metal. . . . Because of this arrangement,
Eletrosilex remains a participant in the industry and is
an interested party.
In addition, Eletrosilex was also an interested
party during the course of the initial action and at the
time that the appeal was initiated. [It] directly
produced silicon metal for import through August 2000,
and, as a result, [] received a separate dumping margin
from the [ITA] of 93.2% . . .. . . .Eletrosilex contin-
ues to be involved, if indirectly, in the sale of silicon
metal for import through its leasing agreement with Rima.
Thus, [it] maintains a stake in the outcome of this
appeal and is an interested party.2
Whatever its current role exactly may be, the administra-
tive record at bar does not show that either Elkem & Globe or the
ITA itself challenged Eletrosilex's standing to participate in the
agency's review of imports during 1998-99. That process was
governed by that part of the Tariff Act which defined "interested
party", in pertinent part, as "a foreign manufacturer, producer, or
exporter . . . of subject merchandise"3. And it is that adminis-
trative standing which becomes the basis for judicial review of
2
Eletrosilex Opposition to Defendant-Intervenors' Motion to
Dismiss for Lack of Standing, pp. 2-3.
3
19 U.S.C. §1677(9)(A) (1999). Subject merchandise, in turn,
was defined in part as "the class or kind of merchandise that is
within the scope of . . . a review", 19 U.S.C. §1677(25) (1999),
like the one at issue herein.
Consolidated
Court No. 01-00098 Page 5
that process per the Tariff Act and also the Customs Courts Act of
1980. While the former has been enacted in the present tense, to
wit,
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 . . . a complaint, . . . con-
testing any factual findings or legal conclusions upon
which the [ITA] determination is based[,4]
the latter is couched in the past tense viz.:
A civil action contesting a determination listed in
[19 U.S.C. §1516a] may be commenced in the Court of
International Trade by any interested party who was a
party to the proceeding in connection with which the
matter arose.
28 U.S.C. §2631(c). And subsection (k) of that section 2631 adopts
the Tariff Act meaning of "interested party", 19 U.S.C. §1677(9)-
(A), supra.
Reading these statutory sections together, and under-
standing the entire process to which they were enacted to apply,
illuminate Eletrosilex as still standing within their ambit. Elkem
& Globe read Brother Industries, Ltd. v. United States, 16 CIT 150,
787 F.Supp. 1454 (1992), to the contrary. The court cannot concur.
First, the Tariff Act's definition of interested party was
different when that case was decided. Section 1677(9)(A) in 1991
defined such a party to be "a foreign manufacturer, producer, or
exporter . . . of merchandise which is the subject of an investiga-
tion . . .." That is, linguistically at least, the definition was
predicated upon a present investigation within the meaning of the
4
19 U.S.C. §1516a(a)(2)(A) (1999).
Consolidated
Court No. 01-00098 Page 6
Tariff Act, which in Brother meant a material-injury investigation
by the International Trade Commission ("ITC"). While that agency
did not object to the standing of the companies Brother before it
until after it had decided upon its final, affirmative determina-
tion, the record showed that the erstwhile Brother producer in
Japan of merchandise which was the subject of the underlying
investigation had, in fact, transformed itself into a manufacturer
of those particular goods exclusively in the United States. Since
the focus of such an investigation by the Commission is on current
or possible future material injury to a domestic U.S. industry by
competing foreign imports, logic and the law coalesced in the Court
of International Trade's dismissal of the Brother companies' appeal
from the ITC's affirmative determination:
. . . The use of the present verb tense in the statute
suggests that if the merchandise manufactured, exported
or imported by the plaintiffs ceases to be the subject
of the investigation, then the plaintiffs are no longer
interested parties.5
5
Brother Industries, Ltd. v. United States, 16 CIT 150, 152,
787 F.Supp. 1454, 1456 (1992). In the only other case cited in
Elkem & Globe's motion with regard to the statutory standard,
Citrosuco Paulista, S.A. v. United States, 12 CIT 1196, 1199-1201,
704 F.Supp. 1075, 1081-82 (1988), the court denied a motion for
leave to intervene before it in that matter on the part of an
association of growers of Florida citrus fruit. While that group
was the petitioner before the ITA and the ITC for investigations
and relief, the object thereof was frozen concentrated orange juice
from Brazil. And since at that time the definition of interested
party was tied, in pertinent part, to "a like product", 12 CIT at
1200, 704 F.Supp. at 1081, the court could not equate the domestic
growers' fruit with the Brazilian merchandise:
As with grapes and wine, the Court holds that round
oranges and frozen concentrated orange juice are dif-
ferent products for a "like product" determination.
12 CIT at 1201, 704 F.Supp. at 1082.
Consolidated
Court No. 01-00098 Page 7
Clearly, that circumstance is not analogous to the one posed by
Eletrosilex herein.
B
In fact, reference to the constitutional requirement for
standing before a federal court buttresses that company's current
right to be heard on the merits of its complaint. That requirement
has been summarized by the Supreme Court to mean that a party must
show that (i) it has suffered an injury in fact that is concrete
and is actual or imminent, not conjectural or hypothetical; (ii)
the injury is fairly traceable to the challenged action; and (iii)
it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable federal court decision. Friends
of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 180-81 (2000). Probable economic injury suffices to
establish standing. E.g., Clinton v. City of New York, 524 U.S.
417, 432-33 (1998), citing Investment Company Institute v. Camp,
401 U.S. 617, 620 (1971). And the party need not establish with a
certainty that it will take advantage of the economic benefit if it
were to prevail. E.g., Bryant v. Yellen, 447 U.S. 352, 367 n. 17
(1980).
Moreover, for purposes of resolving herein Elkem &
Globe's motion to dismiss, the material allegations of the
complaint are to be taken as admitted and liberally construed in
favor of Eletrosilex. E.g., Jenkins v. McKeithen, 395 U.S.411,
421-22, reh'g denied, 396 U.S. 869 (1969), and cases cited therein.
Consolidated
Court No. 01-00098 Page 8
Following that required, traditional approach at bar leaves this
court unable to conclude that that Brazilian company has no cogniz-
able stake in the outcome of this action contesting an antidumping-
duty margin of 93.2 percent for exports in 1998-99. Cf. Japan
Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230-31 n.
4 (1986) (would-be watchers of whales on high seas found to have
standing in federal court to pursue U.S. enforcement of the
International Convention for the Regulation of Whaling against
other nations).
II
In view of the foregoing, the motion of Elkem & Globe to
dismiss Eletrosilex S.A. from this consolidated action must be, and
it hereby is, denied. And the court will therefore proceed to
consider the merits of that company's complaint.
So ordered.
Dated: New York, New York
April 1, 2002
Judge