Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States

Slip Op. 12-90

UNITED STATES COURT OF INTERNATIONAL TRADE

BAROQUE TIMBER INDUSTRIES
(ZHONGSHAN) COMPANY, LIMITED,
et. al,

Plaintiffs,

v.
Before: Donald C. Pogue,
UNITED STATES, Chief Judge

Defendant, Consol. Court No. 12-000071

and

ZHEJIANG LAYO WOOD INDUSTRY
COMPANY, LIMITED, et al.,

Defendant-Intervenors.

OPINION AND ORDER

[ordering further briefing with regard to Defendant’s Motion to
Dismiss]

Dated: June 27, 2012

Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda,
MD and John B. Totaro, Jr., Neville Peterson, LLP, of Washington,
DC, for Consolidated Plaintiff Coalition for American Hardwood
Parity.

Alexander V. Sverdlov, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of
Washington, DC, for Defendant. With him on the briefs were
Stuart F. Delery, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director. Of
counsel on the briefs was Shana Hofstetter, Attorney, Office of
the Chief Counsel for Import Administration, U.S. Department of
Commerce, of Washington, DC.

1
This action was consolidated with Court Nos. 11-00452, 12-
00013, and 12-00020. Order at 1, May 31, 2012, ECF No. 37.
Consol. Ct. No. 12-00007 Page 2

Francis J. Sailer, Mark E. Pardo, Andrew T. Schutz, and
Kovita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman &
Klestadt, of Washington, DC, for Defendant-Intervenors Baroque
Timber Indus. (Zhongshan) Co., Ltd.; Riverside Plywood Corp.;
Samling Elegant Living Trading (Labuan) Ltd.; Samling Global USA,
Inc.; Samling Riverside Co., Ltd.; and Suzhou Times Flooring Co.,
Ltd.

Gregory S. Menegaz, J. Kevin Horgan, and John J.
Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for
Defendant-Intervenors Zhejiang Layo Wood Industry Co., Ltd.;
Changzhou Hawd Flooring Co., Ltd.; Dunhua City Jisen Wood Indus.
Co., Ltd.; Dunhua City Dexin Wood Indus. Co., Ltd.; Dalian
Huilong Wooden Products Co., Ltd.; Kunshan Yingyi-Nature Wood
Indus. Co., Ltd.; and Karly Wood Products Ltd.

Jeffrey S. Neeley, Michael S. Holton, and Stephen W.
Brophy, Barnes, Richardson & Colburn, of Washington, DC, for
Defendant-Intervenor Zhejiang Yuhua Timber Co. Ltd.

Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer,
Susan L. Brooks, Sarah M. Wyss, Keith F. Huffman, Mowry &
Grimson, PLLC, of Washington, DC, for Defendant-Intervenors Fine
Furniture (Shanghai) Ltd.; Great Wood (Tonghua) Ltd.; and Fine
Furniture Plantation (Shishou) Ltd.

Kristen S. Smith and Mark R. Ludwikowski, Sandler,
Travis & Rosenberg, P.A., of Washington, DC, for Defendant-
Intervenors Lumber Liquidators Services, LLC; Armstrong Wood
Products (Kunshan) Co., Ltd.; and Home Legend, LLC.

Daniel L. Porter, William H. Barringer, Matthew P.
McCullough, and Ross Bidlingmaier, Curtis, Mallet-Prevost, Colt &
Mosle LLP, of Washington, DC, for Defendant-Intervenor Bureau of
Fair Trade for Imports & Exports, Ministry of Commerce, People’s
Republic of China.

Pogue, Chief Judge: This is a consolidated action

seeking review of determinations made by the Department of

Commerce (“the Department” or “Commerce”) in the antidumping duty

investigation of multilayered wood flooring from the People’s
Consol. Ct. No. 12-00007 Page 3

Republic of China (“China”).2 Currently before the court is

Defendant’s Motion to Dismiss the Complaint filed by Consolidated

Plaintiff the Coalition for American Hardwood Parity (“CAHP”).

In its Motion to Dismiss, ECF No. 52 (docketed under

Ct. No. 11-00452), Defendant alleges that CAHP’s Complaint fails

to comply with jurisdictional requirements established by Section

516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C.

§ 1516a(a)(2),3 because CAHP filed its summons in advance of

Commerce’s publication, in the Federal Register, of the

antidumping order.

As explained below, the court agrees that CAHP’s filing

fails to comply with the statutory provisions governing the time

for filing. However, in light of recent decisions by the Supreme

Court and the Court of Appeals for the Federal Circuit, this

court is not yet persuaded that such failure to timely file

requires dismissal for lack of jurisdiction. Because the parties

did not fully brief the question of whether the relevant statutes

2
Multilayered Wood Flooring from the People’s Republic of
China, 76 Fed. Reg. 64,318 (Dep’t Commerce Oct. 18, 2011) (final
determination of sales at less than fair value) (“Final
Determination”) and accompanying Issues & Decision Memorandum, A-
570-970, POI Apr. 1, 2010 - Sept. 30, 2010 (Oct. 11, 2011) Admin.
R. Pt. 2 Pub. Doc. 31, 32, available at
http://ia.ita.doc.gov/frn/summary/PRC/2011-26932-1.pdf (“I & D
Mem.”) (adopted in Final Determination, 76 Fed. Reg. at 64,318).
3
All subsequent citations to the Tariff Act of 1930 will be
to Title 19 of the U.S. Code, 2006 edition, unless otherwise
noted.
Consol. Ct. No. 12-00007 Page 4

are jurisdictional requisites – as opposed to claim processing

rules subject to equitable tolling – the court will reserve

judgment and order further briefing on this issue.

Background

This case arises from Commerce’s initiation, on

November 18, 2010, of an antidumping duty investigation of

multilayered wood flooring from China. Multilayered Wood Flooring

from the People’s Republic of China, 75 Fed. Reg. 70,714 (Dep’t

Commerce Nov. 18, 2010) (initiation of antidumping duty

investigation) (“Initiation Notice”). Following the

investigation, on October 18, 2011, Commerce published its Final

Determination, finding that the subject merchandise was being

sold at less than fair value in the United States, i.e., dumped.

Final Determination, 76 Fed. Reg. at 64,323–24. In the Final

Determination, Commerce calculated a zero margin for one

mandatory respondent, Zhejiang Yuhua Timber Co., Ltd. (“Yuhua”).

Id. at 64,323. On December 8, 2011, Commerce published its

antidumping duty order. Multilayered Wood Flooring from the

People’s Republic of China, 76 Fed. Reg. 76,690 (Dep’t Commerce

Dec. 8, 2011) (amended final determination of sales at less than

fair value and antidumping duty order) (“Antidumping Duty

Order”). Yuhua, having received a zero rate in the Final

Determination, was excluded from the order. Id.
Consol. Ct. No. 12-00007 Page 5

Following publication of the Final Determination, but

prior to publication of the Antidumping Duty Order, CAHP filed a

summons giving notice that it would challenge various aspects of

Commerce’s Final Determination. Summons, Nov. 17, 2011, ECF No. 1

(docketed under Ct. No. 11-00452). Among the issues identified

for challenge in the Summons were “certain aspects of the

affirmative final determination of sales at less than normal

value including the exclusion of one producer/exporter[, Yuhua]

. . . .” Summons at 1.

Discussion

I. CAHP’s Summons Was Untimely Filed

The statute states specific timing requirements that a

prospective plaintiff must follow when seeking review of

Commerce’s determinations in an antidumping duty investigation.

The Motion to Dismiss turns on the proper interpretation of these

statutory provisions, found at 19 U.S.C. § 1516a(a)(2), which are

as follows:

(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) . . . of
subparagraph (B), [or]
(II) an antidumping or countervailing
duty order based upon any
determination described in clause
(i) of subparagraph (B) . . .
an interested party who is a party to the
Consol. Ct. No. 12-00007 Page 6

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
. . . .
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
(i) Final affirmative determinations by
[Commerce] and by the Commission under
section 1671d or 1673d of this title,
including any negative part of such a
determination (other than a part
referred to in clause (ii)).
(ii) A final negative determination by
[Commerce] or the Commission under
section 1671d or 1673d of this title,
including, at the option of the
appellant, any part of a final
affirmative determination which
specifically excludes any company or
product.

Commerce interprets this statute to have, depending on

the nature of the complaint, two potential filing dates for a

challenge to the exclusion of a company. If the sole challenge

plaintiff brings addresses the exclusion of a company, then,

according to Commerce, plaintiff may file within thirty days of

publication of the affirmative determination, pursuant to

§ 1516a(a)(2)(A)(i)(I). Mot. to Dismiss at 6. If, however,

plaintiff challenges both the exclusion of a company and other

aspects of an affirmative determination, then Commerce interprets

the statute to require that the summons be filed within thirty

days of publication of the order, pursuant to

§ 1516a(a)(2)(A)(i)(II). Mot. to Dismiss at 6–7.

CAHP, in contrast, interprets § 1516a(a)(2)(B)(ii) to
Consol. Ct. No. 12-00007 Page 7

require a plaintiff to challenge the exclusion of a company by

filing within thirty days of publication of the affirmative

determination. Pl.’s Opposition to Def.’s Mot to Dismiss at 6–9,

ECF No. 62 (docketed under Ct. No. 11-00452) (“Pl.’s Resp. Br.”).

Therefore, under CAHP’s interpretation, any action that includes

the exclusion of a company must be filed within thirty days of

publication of the affirmative determination.

On first read, the language of the statute may seem

ambiguous. On the one hand, § 1516a(a)(2)(B)(i) appears to

preclude challenges to exclusion of companies from its purview.

By defining challenges to an affirmative determination to include

all challenges to any negative part of the affirmative

determination “other than a [negative part of an affirmative

determination] referred to in clause (ii),” § 1516a(a)(2)(B)(i),

challenges to the exclusion of a company, appear relegated to

§ 1516a(a)(2)(B)(ii). On the other hand, the language in

§ 1516a(a)(2)(B)(ii) does not unequivocally support such a

reading. Rather, § 1516a(a)(2)(B)(ii) permits filing a challenge

to the exclusion of a company within thirty days of the

publication of the affirmative determination “at the option of

the appellant.” If filing on the § 1516a(a)(2)(A)(i)(I) timeline

(within thirty days of publication of the affirmative

determination) is “at the option of the appellant,” then the

appellant must have other filing options, i.e., there must be at
Consol. Ct. No. 12-00007 Page 8

least one other timeline for filing a challenge to the exclusion

of a company.

Commerce argues that this ambiguity has been resolved

by the Court of Appeals’ opinion in Bethlehem Steel Corp. v.

United States, 742 F.2d 1405 (Fed. Cir. 1984). In Bethlehem

Steel, the plaintiff challenged Commerce’s negative finding that

an export rebate program was not a countervailable subsidy – and

this challenge was in the context of an otherwise affirmative

countervailing duty determination, i.e., plaintiff filed a

challenge to a negative part of an affirmative determination. Id.

at 1407–08. The plaintiff’s summons was filed within thirty days

of publication of the countervailing duty order but beyond thirty

days from the publication of the affirmative determination. Id.

at 1408. This Court held that the challenged finding was a

negative determination, and therefore, the complaint was untimely

pursuant to § 1516a(a)(2)(A)(i) and § 1516a(a)(2)(B)(ii) because

it was filed more than thirty days after the publication of the

final determination. Id. The Court of Appeals reversed, holding

that the challenged finding was only a negative part or aspect of

an affirmative determination, and, because it is only the whole

determination that is appealable, any challenge to a negative

part or aspect of an affirmative determination is subject to the

time limits for challenges to affirmative determinations. Id.

at 1410–11.
Consol. Ct. No. 12-00007 Page 9
Contrary to Commerce’s assertion, Bethlehem Steel does

not resolve the issue because the Court of Appeals was reviewing

an earlier version of 19 U.S.C. § 1516a(a)(2)(B). When the Court

of Appeals rendered its decision in Bethlehem Steel, the relevant

provision of the statute read as follows:

(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
(i) Final affirmative determinations by the
Secretary and by the Commission under section
1303 of this title, or by [Commerce] and by
the Commission under section 1671d or 1673d
of this title.
(ii) A final negative determination by the
Secretary, the administering authority, or
the Commission under section 1303, 1671d, or
1673d of this title.

19 U.S.C. § 1516a(a)(2)(B) (1982). The Court of Appeals’ holding

in Bethlehem Steel fit well with the structure of the statute

then in force. As the statute was cleanly divided between

affirmative and negative determinations, the Court of Appeals

held that it was the nature of the determination as a whole that

governed which timing requirements applied.

However, amendments to § 1516a(a)(2)(B) in the Trade

and Tariff Act of 1984, Pub. L. No. 98-573, § 623, 98 Stat. 2948,

3040,4 inserted the language establishing the unique character of

challenges to the exclusion of a company. Thus, while the Court

4
The Trade and Tariff Act of 1984 became law on October 30,
1984, two months after the decision in Bethlehem Steel was
issued. Trade and Tariff Act of 1984, 98 Stat. at 2948.
Consol. Ct. No. 12-00007 Page 10
of Appeals’ holding in Bethlehem Steel — that the character of

the challenged determination as a whole decides which timing

requirements apply — remains good law, it does not resolve the

question of how challenges to the exclusion of a company are to

be characterized. Rather, the provision for challenging the

exclusion of a company may elude the clear division of

determinations into the affirmative and negative categories

recognized in Bethlehem Steel. Instead of easily resolving into

one of the two Bethlehem Steel categories, the determination to

exclude a company is capable of being either a negative part of

an affirmative determination or a negative determination. How it

is characterized is, pursuant to the statute, at the option of

the appellant. Thus, a plaintiff challenging the determination

may either bring the challenge as challenge to a negative

determination, filing pursuant to the timing requirements of

§ 1516a(a)(2)(A)(i)(I), or as a challenge to a negative part of

an affirmative determination, filing pursuant to the timing

requirements of § 1516a(a)(2)(A)(i)(II).

This is consistent with a reading of the text that

gives effect to all parts of the statute. See Duncan v. Walker,

533 U.S. 167, 174 (2001) (“[A] statute ought, upon the whole, to

be so construed that, if it can be prevented, no clause,

sentence, or word shall be superfluous, void, or insignificant.”

(quoting Wash. Market Co. v. Hoffman, 101 U.S. 112, 115–16 (1879)
Consol. Ct. No. 12-00007 Page 11
(internal quotation marks omitted)); FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must . . .

interpret the statutes as a symmetrical and coherent regulatory

scheme, and fit, if possible, all parts into an harmonious

whole.” (citations omitted) (internal quotation marks omitted)).

CAHP reads the parenthetical in § 1516a(a)(2)(B)(i) as

an exception that excludes “a part referred to in clause (ii)”

from the universe of negative parts of affirmative

determinations. Therefore, in CAHP’s view the exclusion of a

company, which is referred to in § 1516a(a)(2)(B)(ii), is

categorically excluded from § 1516a(a)(2)(B)(i), and a challenge

to such a determination must be filed pursuant to

§ 1516a(a)(2)(A)(i)(I). But this reading of the statute ignores

the language in § 1516a(a)(2)(B)(ii) that permits such a filing

“at the option of the appellant.” Thus, an interpretation of the

statute that gives effect to all its parts must read the

parenthetical of § 1516a(a)(2)(B)(i) together with

§ 1516a(a)(2)(B)(ii) to permit the appellant to characterize the

exclusion of a company as either a negative part of an

affirmative determination or as a negative determination and to

file accordingly.5

The legislative history of the Trade and Tariff Act of

5
An appellant’s choice in this matter is not without
limits, as is discussed below in Part II.
Consol. Ct. No. 12-00007 Page 12
1984 further supports the interpretation that an appellant has

the option to characterize a challenge to the exclusion of a

company as either a negative part of an affirmative determination

or as a negative determination. The Conference Report for the

Trade and Tariff Act of 1984 states that the bill

[c]larifies when negative portions of affirmative
determinations may be reviewed: any part of a final
affirmative determination by the administering
authority which specifically excludes any company or
product may, at the option of the appellant, be treated
as a final negative determination and may be subject to
appeal within 30 days of publication; other negative
aspects of an affirmative determination would be
appealable within 30 days after publication of a final
order, and if an appellant so chooses, appeal of those
portions of an affirmative finding which exclude a
product or a company may also be appealed within 30
days of publication of a final order, instead of within
30 days of the determination.

H.R. Rep. No. 98-1156, at 179 (1984) (Conf. Rep.), reprinted in

1984 U.S.C.C.A.N. 5220, 5296. Thus, according to the Conference

Report, the amendments to § 1516a(a)(2)(B) were intended to give

the appellant flexibility to challenge the exclusion of a company

either as a negative determination pursuant to the timing

requirements of § 1516a(a)(2)(A)(i)(I) or as a negative part of

an affirmative determination pursuant to § 1516a(a)(2)(A)(i)(II).

This is further supported by the House Report. In addition to

stating the reasoning that appears in the Conference Report, the

House Report explains that “[t]he purpose of clarifying when

negative portions of an affirmative determination may be reviewed

is to permit appeals of determinations which exclude entire
Consol. Ct. No. 12-00007 Page 13
companies or products on the timetable most acceptable to the

appealing party.” H.R. Rep. No. 98-725, at 47 (1984), reprinted

in 1984 U.S.C.C.A.N. 5127, 5174.

It follows that CAHP’s interpretation is incorrect,

and, as a result, its summons was untimely filed. This is

because CAHP also seeks to challenge other aspects of Commerce’s

affirmative determination; such a challenge must be filed within

the thirty day period following the publication of the order.

Importantly, CAHP incorrectly believed that it was required to

file its challenge to the exclusion of Yuhua within thirty days

of the affirmative determination — before the order was issued —

or lose the opportunity to bring that challenge. On the

contrary, however, the “at the option of the appellant” language

in § 1516a(a)(2)(B)(ii) would have permitted CAHP to file that

aspect of the challenge under the timing rules of

§ 1516a(a)(2)(B)(i) and § 1516a(a)(2)(A)(i)(II). But no such

flexibility exists for the remainder of CAHP’s Complaint. See

Horner v. Andrzjewski, 811 F.2d 571, 575 (Fed. Cir. 1987) (“[A]s

a general rule of statutory construction, the expression of one

exception indicates that no other exceptions apply.”).

Therefore, all of the challenges brought by CAHP, excepting the

challenge to Yuhua’s exclusion, are untimely pursuant to

§ 1516a(a)(2)(B)(i) and § 1516a(a)(2)(A)(i)(II), as well as the

Court of Appeals’ holding in Bethlehem Steel. CAHP cannot
Consol. Ct. No. 12-00007 Page 14
bootstrap these untimely challenges alongside its challenge to

the exclusion of Yuhua because that challenge could have been

timely filed within thirty days after publication of the order

along with all other challenges to the affirmative determination.

Correctly read, § 1516a(a)(2) permits the filing of a

challenge to an affirmative determination within thirty days of

the order. It permits the filing of a challenge to a negative

determination within thirty days of the final determination. And

it permits a challenge to the exclusion of a company from the

order to be filed, at the option of the complaining party, either

with a challenge to an affirmative determination or as a

challenge to a negative determination. As explained below,

however, the statute does not permit piecemeal litigation;

therefore, CAHP’s summons was untimely filed.

II. The Challenge to the Exclusion of Yuhua is Not Severable
from the Remainder of the Complaint

Determining the proper interpretation of

§ 1516a(a)(2)(B) does not fully resolve the Motion to Dismiss.

In its Reply Brief, Commerce suggests that the complaint may be

severed, arguing that “the Court should dismiss all parts of

[CAHP’s] complaint that do not specifically relate to Yuhua.”

Def.’s Reply in Supp. of Its Mot. to Dismiss at 4, ECF No. 38

(“Def.’s Reply Br.”). Commerce is correct that, in light of the

foregoing analysis, CAHP properly filed the summons challenging

the exclusion of Yuhua within thirty days of publication of the
Consol. Ct. No. 12-00007 Page 15
determination. However, because CAHP also untimely challenged

other aspects of the affirmative determination prior to

publication of the Antidumping Duty Order, the court must

determine whether the challenge to the exclusion of Yuhua can be

severed from the remaining counts of the Complaint or if the

Complaint must be dismissed in full.

Because severing the Complaint would create the

possibility of piecemeal litigation, such severance is not

consistent with the statute. In the House Report pertaining to

the Trade and Tariff Act of 1984, the Ways and Means Committee

stated that

the Committee is aware of the decision of the CIT in
Bethlehem Steel Corp. v. United States (Slip Op. 83-
97),[6] in which the court refused to permit an appeal
of certain negative findings (with respect to certain
products or companies) that were part of an overall
affirmative determination in accordance with the
timetable for appeal of affirmative determinations.
The court recognized that its ruling might lead to
“undesirable piecemeal” litigation, but said that the
corrections must be made by “legislative fiat.” The
purpose of the Committee’s change is to permit an
election by appellants of when to appeal such
determinations and thereby to prevent piecemeal
litigation.

H.R. Rep. No. 98-725, at 47, 1984 U.S.C.C.A.N. at 5175. To read

the statute as permitting severability in this case would be to

reintroduce the possibility of piecemeal litigation under the

guise of the appellant’s option when that option was intended to

6
Bethlehem Steel Corp. v. United States, 6 CIT 164, 571 F.
Supp. 1265 (1983), rev’d, 742 F.2d 1405 (Fed. Cir. 1984).
Consol. Ct. No. 12-00007 Page 16
correct the very problem of piecemeal litigation. Given the

Committee’s clear rejection of piecemeal litigation in the House

Report, it makes more sense to read the statute as permitting the

appellant to choose between challenging the exclusion of a

company as a negative determination, if this is the only

challenge appellant is making, or as a negative part of an

affirmative determination, if the appellant is challenging other

aspects of the affirmative determination. Otherwise, the

appellant could choose to challenge the exclusion of a company

within thirty days of the publication of the affirmative

determination and then file a subsequent suit within thirty days

of the publication of the order challenging other aspects of the

affirmative determination. Not only would this create piecemeal

litigation, but it runs afoul of the Court of Appeals’ statement

in Bethlehem Steel that “under our reading of the statute

Congress did not normally contemplate such a proliferation (and

perhaps duplication) of appeals.” Bethlehem Steel, 742 F.2d at

1411. While the statute has changed since the Court of Appeals

made that statement, it is not necessary to read the statute as

creating multiple opportunities for appeal of the same

determination in order to read the statute coherently.

Nor does the Court of Appeals’ suggestion in Bethlehem

Steel that severability might be an option in limited cases

support severability in this case. In Bethlehem Steel, the Court
Consol. Ct. No. 12-00007 Page 17
of Appeals noted in dicta that

we leave open the question whether there may possibly
be occasions on which a negative subsidy finding can be
severed from affirmative subsidy findings respecting
the same product, and then judicially challenged on a
separate “interlocutory” basis. We do decide, however,
that if such an earlier appeal is ever permissible, it
could be taken only on the ground that Congress gave
for specifically providing interlocutory appeals in the
Trade Agreements Act of 1979 . . . .

Id. at 1411. However, the Trade and Tariff Act of 1984 struck

the interlocutory appeal provisions from § 1516a. Compare 19

U.S.C. § 1516a(a)(1) (1982), with 19 U.S.C. § 1516a(a)(1) (2006);

see also H.R. Rep. No. 98-1156, at 178, 1984 U.S.C.C.A.N. at 5295

(“Eliminates all interlocutory judicial reviews by the U.S. Court

of International Trade during the course of CVD and AD

investigations.”). Thus, the basis upon which the Court of

Appeals considered severability a possibility was subsequently

stricken from the statute.

Because permitting severability in this case would

endorse the possibility of piecemeal legislation, which is both

undesirable and contrary to the statutory provision, the court

finds that severability is not an option.7

7
Should the court find that the timing requirements of
§ 1516a(a)(2) are jurisdictional requisites, see infra Part III,
CAHP may seek a voluntary dismissal of the untimely portion of
its complaint pursuant to USCIT R. 41(a)(2).
Consol. Ct. No. 12-00007 Page 18
III. Further Briefing Is Necessary on the Issues of Jurisdiction
and Equitable Tolling

In prior opinions both the Court of Appeals and this

Court have treated the timing requirements of § 1516a(a)(2) as

conditions of the government’s waiver of sovereign immunity and,

therefore, as jurisdictional requisites. See NEC Corp. v. United

States, 806 F.2d 247, 248–49 (Fed. Cir. 1986); Georgetown Steel

Corp. v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986);

Advanced Tech. & Materials Co. v. United States, 33 CIT __, Slip

Op. 09-115, at *4–5 (Oct. 15, 2009); Allegheny Ludlum Steel Corp.

v. United States, 7 CIT 56, 61 (1984); British Steel Corp. v.

United States, 6 CIT 200, 202–04, 573 F. Supp. 1145, 1147–49

(1983). Furthermore, the Court of Appeals has interpreted these

timing requirements strictly, thereby precluding equitable

tolling, by this Court, of these provisions. See NEC Corp., 806

F.2d at 249; Georgetown Steel, 801 F.2d at 1312.

However, intervening case law from both the Supreme

Court and the Court of Appeals has called these holdings into

question. See Ocean Duke Corp. v. United States, 35 CIT __, 781

F. Supp. 2d 1374, 1379 n.4 (2011) (noting that “[a] recent dearth

of clarity in the holdings of relevant Supreme Court and Federal

Circuit precedents” prevented the court from assuming a statute

of limitations was jurisdictional). In a recent line of cases,

the Supreme Court has begun to question the strict,

jurisdictional construal of timing requirements. See Henderson ex
Consol. Ct. No. 12-00007 Page 19
rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011); Reed

Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); Bowles v.

Russell, 551 U.S. 205 (2007); Arbaugh v. Y & H Corp., 546 U.S.

500 (2006). Furthermore, in a recent opinion, the Court of

Appeals held that the 28 U.S.C. § 2636(d) bar to an untimely

filed challenge to a trade adjustment assistance determination

was subject to equitable tolling. Former Emps. of Sonoco v.Chao,

372 F.3d 1291, 1298 (Fed. Cir. 2004). This holding calls into

question whether the 28 U.S.C. § 2636(c) bar to challenges filed

out of time pursuant to 19 U.S.C. § 1516a(a)(2) could also be

equitably tolled.

In light of these recent developments, the continued

viability of the prior opinions from the Court of Appeals and

this Court – holding the § 1516a(a)(2) timing requirements to be

strict jurisdictional requisites – may be in question. Because

the parties did not address these issues in their initial

briefs,8 the court will order a second round of briefing.

Conclusion

The court finds that CAHP’s summons should have been

filed within thirty days following the publication in the Federal

8
The court acknowledges that Commerce argued for the
jurisdictional nature of the § 1516a(a)(2) timing requirements in
its Motion to Dismiss. However, because Commerce did not address
the recent developments in the law, the court is not yet
persuaded by Commerce’s position.
Consol. Ct. No. 12-00007 Page 20
Register of the Antidumping Duty Order. Because it was filed

prior to publication of the Antidumping Duty Order, the summons

was untimely. However because questions remain regarding the

jurisdictional nature of the timing requirements found at 19

U.S.C. § 1516a(a)(2) and the possibility of equitable tolling,

and because the parties did not address these issues in their

prior briefs, the court orders additional briefing to address

these issues. In particular, the court directs that the parties

address the following questions:

1. Are the timing requirements of 19 U.S.C.

§ 1516a(a)(2) jurisdictional requisites or claim

processing rules when considered in light of the

Supreme Court’s decisions in Henderson, et al.,

and any other relevant law?

2. Are the timing requirements of 19 U.S.C.

§ 1516a(a)(2) subject to equitable tolling in

light of the Court of Appeals’ decision regarding

28 U.S.C. § 2636(d) in Former Emps. of Sonoco or

any other relevant law? Does the statutory

structure of 19 U.S.C. § 1516a in relation to 28

U.S.C. § 2636(c) differ sufficiently to

distinguish it from 19 U.S.C. §§ 2273, 2341 & 2371

as they relate to 28 U.S.C. § 2636(d)?

3. Assuming, arguendo, that Former Emps. of Sonoco
Consol. Ct. No. 12-00007 Page 21
supports the possibility of equitable tolling in

this case, do equitable grounds exist for the

court to permit CAHP’s untimely filed summons and

complaint?

All parties will have until July 12, 2012 to file

initial briefs on these issues. Parties shall then have until

July 20, 2012 to file a response brief. Initial briefs shall be

limited to fifteen pages. Response briefs shall be limited to

ten pages.

It is SO ORDERED.

/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge

Dated: June 27, 2012
New York, New York