Trustees in Bankruptcy of North American Rubber Thread Co. v. United States

Slip Op. 06-154

UNITED STATES COURT OF INTERNATIONAL TRADE

TRUSTEES IN BANKRUPTCY OF NORTH
AMERICAN RUBBER THREAD CO., INC.,
FILMAX SDN. BHD., HEVEAFIL SDN.
BHD., and HEVEAFIL USA, INC.,

Plaintiffs, Before: Richard W. Goldberg,
Senior Judge
v.
Consol. Court No. 05-00539
UNITED STATES,

Defendant.

OPINION

[Motion to dismiss denied.]

Date: October 18, 2006

Miller & Chevalier Chartered (Peter J. Koenig) for Plaintiff
Trustees in Bankruptcy of North American Rubber Thread Co.,
Inc.

White & Case, LLP (Emily Lawson) for Plaintiffs Filmax Sdn.
Bhd., Heveafil Sdn. Bhd., and Heveafil USA, Inc.

Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Jeanne E. Davidson, Deputy Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Stephen C. Tosini) for Defendant United States.

Goldberg, Senior Judge: This case, which seeks judicial review

of a refusal by the U.S. Department of Commerce (“Commerce”)

to initiate a changed circumstances review of an antidumping

duty order, is before the Court on a motion to dismiss for

lack of subject matter jurisdiction.
Consol. Court No. 05-00539 Page 2

I. BACKGROUND

A. The Antidumping Duty Order and Administrative Review

On October 7, 1992, Commerce published an antidumping

duty order on extruded rubber thread from Malaysia (the

“subject imports”). See Extruded Rubber Thread from Malaysia,

57 Fed. Reg. 46150 (Dep’t Commerce Oct. 7, 1992) (antidumping

duty order and amended final determination) (the “Order”). By

its terms, the Order applied to Plaintiffs Filmax Sdn. Bhd.,

Heveafil Sdn. Bhd., and Heveafil USA, Inc. (collectively,

“Heveafil”). Id.

Approximately six years later and at Heveafil’s request,

Commerce completed a periodic administrative review1 of the

Order for the period of October 1, 1995 through September 30,

1996. See Extruded Rubber Thread from Malaysia, 63 Fed. Reg.

12752 (Dep’t Commerce Mar. 16, 1998) (final results of

administrative review). The results of that administrative

review were largely unfavorable to Heveafil.2 Id.

1
A periodic review is an administrative process whereby
Commerce, upon request by an interested party, must review an
existing antidumping duty order and determine the appropriate
amount of duty (if any) that should continue to apply to the
imports under review. See 19 U.S.C. § 1675(a)(1) (2000).
When requested, Commerce must conduct at least one
administrative review during each 12-month period beginning on
the anniversary of the date of publication of the antidumping
duty order. Id.
2
Heveafil challenged those results before this Court and then
the U.S. Court of Appeals for the Federal Circuit (“Federal
Consol. Court No. 05-00539 Page 3

B. The First Request for Changed Circumstances Review

Dissatisfied with the results of the administrative

review and noting dramatic changes in the makeup of the

domestic industry in 2004, Heveafil requested that Commerce

conduct a changed circumstances review.3 The basis for this

request was Heveafil’s observation that North American Rubber

Thread Co., Inc. (“NART”),4 the sole manufacturer of the

domestic like product, had filed for bankruptcy and ceased

operations. Commerce granted Heveafil’s request and initiated

a changed circumstances review of the Order (the “First

Changed Circumstances Review”). See Extruded Rubber Thread

from Malaysia, 69 Fed. Reg. 10980 (Dep’t Commerce Mar. 9,

2004) (notice of changed circumstances review, preliminary

results, and notice of intent to revoke).

Commerce preliminarily found that changed circumstances

warranted revocation of the Order effective October 1, 2003,

Circuit”), which remanded the case back to this Court. That
case has been stayed pending the outcome of this case.
3
A changed circumstances review is a statutorily required
administrative process whereby Commerce, upon request, must
review a final affirmative determination resulting in an
antidumping duty order if an interested party has demonstrated
the existence of changed circumstances sufficient to warrant
review. See 19 U.S.C. § 1675(b)(1) (2000).
4
References to NART herein also encompass, where applicable,
Plaintiff Trustees in Bankruptcy of North American Rubber
Thread Co., Inc., the successor-in-interest to the now
bankrupt domestic petitioner.
Consol. Court No. 05-00539 Page 4

the first day of the then most recent period of administrative

review and the only period for which an administrative review

had not been completed. Id. at 10981. For its part, NART

agreed with this conclusion, reasoning that the changed

circumstances should only apply to unliquidated entries of the

subject imports which had not already been evaluated under an

administrative review. See Issues and Decision Memorandum for

the Changed Circumstances Review of Extruded Rubber Thread

from Malaysia, Inv. No. A-557-805 (Dep’t Commerce Aug. 11,

2004), available at http://ia.ita.doc.gov/frn/summary/

malaysia/E4-1895-1.pdf, at 5-7. In contrast, Heveafil argued

that Commerce should revoke the Order effective as of October

1, 1995, a much earlier date which would cover all

unliquidated entries of the subject imports, including those

which previously had been under administrative review. Id. at

2-5.

Commerce ultimately determined to revoke the Order at the

later effective date of October 1, 2003. See Extruded Rubber

Thread from Malaysia, 69 Fed. Reg. 51989, 51989 (Dep’t

Commerce Aug. 24, 2004) (final results of changed

circumstances review).5

C. The Second Request for Changed Circumstances Review

5
Heveafil appealed the results of the First Changed
Circumstances Review to this Court. That appeal has been
stayed pending the outcome of this case.
Consol. Court No. 05-00539 Page 5

Notwithstanding its participation in the First Changed

Circumstances Review and its support for the results of that

review, on February 18, 2005, NART requested that Commerce

initiate an additional changed circumstances review (the

“Second Changed Circumstances Review”). See Compl. dated Dec.

6, 2005, Ex. 2 (NART’s Request for Changed Circumstances

Review dated Feb. 18, 2005) 1. In this request, NART sought

retroactive revocation of the Order to October 1, 1995 – the

effective date requested by Heveafil (and opposed by NART) in

the First Changed Circumstances Review. Id. The basis for

this request was NART’s representation that it no longer

possessed an interest in the enforcement or existence of the

Order as of that earlier date. Id.

On June 15, 2005, Commerce notified NART by letter ruling

of its refusal to initiate the requested Second Changed

Circumstances Review. See Compl. dated Dec. 6, 2005, Ex. 1

(Commerce’s Response to Request for Changed Circumstances

Review dated June 15, 2005) 1. Commerce explained that it

could not conduct the requested review because “1) all

administrative reviews of [the subject imports] have been

completed; and 2) there is no existing order for which to

initiate a changed circumstances review . . . .” Id.

D. The Instant Action
Consol. Court No. 05-00539 Page 6

On October 3, 2005 and December 6, 2005, NART and

Heveafil respectively commenced separate actions in this

Court, both challenging Commerce’s refusal to initiate the

Second Changed Circumstances Review. See Compl. dated Oct. 3,

2005; Compl. dated Dec. 6, 2005. Those actions were

consolidated into the instant action, which seeks to invoke

the Court’s jurisdiction pursuant to 28 U.S.C. § 1581(i).

On March 3, 2006, Defendant the United States filed a

motion to dismiss for lack of subject matter jurisdiction

under USCIT Rule 12(b)(1) (“Def.’s Mot.”). NART and Heveafil

timely filed responses thereafter (respectively, “NART’s

Resp.” and “Heveafil’s Resp.”), followed by a reply brief from

Defendant (“Def.’s Reply”). This motion is thus now properly

before the Court.

II. DISCUSSION

A. Guiding Principles for Exercise of Subject Matter
Jurisdiction under 28 U.S.C. § 1581(i)

Like the rest of the Federal judiciary, the U.S. Court of

International Trade (“CIT”) is a court of limited jurisdiction

and, as such, has the perpetual obligation to “determine that

the matter brought before it remains within the metes and

bounds of such delimitation.” Agro Dutch Indus. Ltd. v.

United States, 29 CIT ___, ___, 358 F. Supp. 2d 1293, 1294

(2005). The CIT’s principal jurisdictional statute is 28
Consol. Court No. 05-00539 Page 7

U.S.C. § 1581. Subsections (a) through (h) of this statute

grant the CIT jurisdiction over specific types of commonly-

occurring disputes involving import transactions. Subsection

(i) – the so-called “residual” grant of jurisdiction – is a

general grant of jurisdiction for any civil action
against the United States, its agencies, or its
officers, that arises out of any law of the United
States providing for, inter alia, “tariffs, duties,
fees, or other taxes on the importation of
merchandise for reasons other than the raising of
revenue . . . [or the] administration and
enforcement with respect to the matters referred to
in [section 1581].”

Duferco Steel, Inc. v. United States, 29 CIT ___, ___, 403 F.

Supp. 2d 1281, 1284-85 (2005) (quoting 28 U.S.C. § 1581(i)

(2000)).

Recognizing section 1581(i)’s broad jurisdictional grant,

this Court recently noted that “[t]he breadth of the residual

jurisdiction could, if not interpreted restrictively, threaten

to strip subsections (a) through (h) of any operative force.”

Id. at ___, 403 F. Supp. 2d at 1285. Consequently, courts

construing this statute have repeatedly held that “‘[s]ection

1581(i) jurisdiction may not be invoked when jurisdiction

under another subsection of § 1581 is or could have been

available, unless the remedy provided under that other

subsection would be manifestly inadequate.’” Norcal/Crosetti

Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir.

1992) (quoting Miller & Co. v. United States, 824 F.2d 961,
Consol. Court No. 05-00539 Page 8

963 (Fed. Cir. 1987)). Thus, access to the CIT’s residual

jurisdiction requires the exhaustion of all adequate

administrative remedies that could have resulted in a cause of

action arising under subsections (a) through (h) of 28 U.S.C.

§ 1581.6 See id. The plaintiff has the burden of proving that

6
Access to the CIT’s residual jurisdiction also quite
obviously requires the satisfaction of all constitutional
requirements for bringing an action before a Federal court
established under Article III of the U.S. Constitution. See
U.S. Const. art. III, § 2, cl. 1; cf. 28 U.S.C. § 251 (2000)
(establishing the CIT as an Article III court). One such
requirement is that an action must be a “case” or
“controversy” within the meaning of that constitutional
provision. U.S. Const. art. III, § 2, cl. 1. Among other
things, this requirement calls for a plaintiff to have
standing to raise its claim to the court. Here, it is dubious
that NART has the requisite constitutional standing to bring
this claim, as the papers currently before the Court do not
establish that NART has suffered some injury-in-fact caused by
Defendant’s refusal to initiate the Second Changed
Circumstances Review. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992) (describing three-part injury-in-fact
test for Article III standing); Compl. dated Oct. 3, 2005 at 2
(alleging NART’s standing solely on basis of participation in
administrative proceedings as interested party); KERM, Inc. v.
FCC, 353 F.3d 57, 59 (D.C. Cir. 2004) (“That a petitioner
participated in administrative proceedings before an agency
does not establish that the petitioner has constitutional
standing to challenge those proceedings in federal court.”).
However, the Court need not dismiss one plaintiff for lack of
constitutional standing where another plaintiff seeking the
same relief has standing sufficient to satisfy Article III’s
case-or-controversy requirement. See, e.g., Rumsfeld v. Forum
for Academic & Institutional Rights, Inc., 548 U.S. ___, ___,
126 S. Ct. 1297, 1303 (2006); Bowsher v. Synar, 478 U.S. 714,
721 (1986). Here, Heveafil undeniably has the requisite
constitutional standing to bring this claim. Heveafil has
been “adversely affected or aggrieved by [Commerce’s] refusal
to conduct a changed circumstances review of [the Order]”
which, if not improperly withheld as alleged by Heveafil,
could have resulted in revocation of the Order and “refund
Consol. Court No. 05-00539 Page 9

the assertion of the CIT’s residual jurisdiction is proper

when a defendant moves to dismiss an action under USCIT Rule

12(b)(1) for lack of subject matter jurisdiction. See United

States v. Gold Mountain Coffee, Ltd., 8 CIT 247, 248-49, 597

F. Supp. 510, 513 (1984).

B. Availability of Jurisdiction under 28 U.S.C. § 1581(i)

In light of these guiding principles, the Court next

considers Defendant’s motion to dismiss, which questions

whether NART and Heveafil have properly invoked the CIT’s

residual jurisdiction in order to gain judicial review of

Commerce’s refusal to initiate the Second Changed

Circumstances Review.

1. Analysis of Underlying Statutory/Regulatory Framework

The answer to this question first requires an

understanding of the underlying statutory/regulatory

framework. Pursuant to 19 U.S.C. § 1675(d)(1), Commerce may

revoke an antidumping duty order (in whole or in part) based

on a review of the underlying antidumping determination under

19 U.S.C. § 1675(b)(1) - i.e., a changed circumstances review.

This latter provision requires Commerce to perform a changed

[of] the antidumping cash deposits made by Heveafil” for
entries covered by the Order. Compl. dated Dec. 6, 2005 ¶ 3;
see also Ont. Forest Indus. Ass’n v. United States, 30 CIT
___, Slip Op. 06-123, at 28-29 (Aug. 2, 2006) (identifying
economic injury from, inter alia, failure to receive tariff
refund as basis for standing). As such, the Court need not
consider the standing issue as to NART.
Consol. Court No. 05-00539 Page 10

circumstances review upon receipt of a request which shows

changed circumstances sufficient to warrant such a review.7

Congress expressly provided for judicial review by the CIT of

the substantive changed circumstances determination by

Commerce. See 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000); 28

U.S.C. § 1581(c) (2000). However, it is not clear whether

there is a grant of judicial review for a decision by Commerce

not to initiate a changed circumstances review in the first

place. This type of decision by Commerce was previously

expressly listed as a reviewable determination pursuant to 19

U.S.C. § 1516a(a)(1), but was deleted from that statute by an

amendment in 1984. See Pub. L. No. 98-573, § 623(a)(1), 98

Stat. 2948, 3040 (1984) (the “1984 Amendment”).

The parties disagree as to whether the 1984 Amendment was

intended to work as a prohibition on judicial review of all of

Commerce’s refusals to initiate changed circumstances review.

7
In its regulations, Commerce has elaborated on the type of
circumstances that would warrant review under this statutory
provision. These regulations state that Commerce will conduct
a changed circumstances review of an antidumping duty
determination and may revoke a resulting order (in whole or in
part) pursuant to such review if, inter alia, Commerce
determines that “[p]roducers accounting for substantially all
of the production of the domestic like product to which the
order . . . pertains have expressed a lack of interest in the
order, in whole or in part . . . .” 19 C.F.R. §
351.222(g)(1)(i) (2005); see also id. § 351.216. The Federal
Circuit has held that Commerce is authorized to revoke an
antidumping duty order on these grounds. See Or. Steel Mills
Inc. v. United States, 862 F.2d 1541, 1542 (Fed. Cir. 1988).
Consol. Court No. 05-00539 Page 11

This issue was previously taken up briefly in AOC

International v. United States, 17 CIT 1412, 1415 (1993)

(Restani, J.), where the court made the following observation

in dicta:

The court cannot say definitively that every
Commerce decision not to initiate a changed
circumstances review is exempt from 28 U.S.C. §
1581(i) review, but it seems fairly clear that
Congress intended to insulate all but the most
extraordinary decisions of this type from review on
more than an annual basis. . . . The court finds
that in view of the statutory change enacted by
Congress, 28 U.S.C. § 1581(i) jurisdiction should
attach, if at all, only upon a particularly strong
showing that adequate remedies are unavailable.

A more definitive interpretation of the effect of the 1984

Amendment was not required in AOC. The AOC court went on to

find that the availability of adequate prospective relief for

plaintiffs – in the form of a periodic review by Commerce or a

changed circumstances review by the U.S. International Trade

Commission (“ITC”)8 – would serve as a bar to invocation of the

8
Like Commerce, the ITC has the authority to reconsider its
antidumping determinations based on changed circumstances.
See 19 U.S.C. § 1675(b)(1) (2000). One ITC determination
subject to changed circumstances review involves a finding of
material injury or threat of material injury to a domestic
industry as a result of dumped imports. See id. § 1673(2).
If, for example, an injured domestic industry ceased to exist,
then this could constitute changed circumstances warranting
reconsideration of the ITC’s injury determination. If the ITC
chose to reverse its injury determination based on these
changed circumstances, then the underlying antidumping duty
order would be revoked. See id. § 1675(d)(1); see also 19
C.F.R. § 351.222(h) (2005).
Consol. Court No. 05-00539 Page 12

CIT’s residual jurisdiction even without the additional

complication of the 1984 Amendment. Id. at 1416.

2. Analysis of Available Prospective Relief

Unlike AOC, here there is no possibility of prospective

relief available for plaintiffs. There are no subsequent,

statutorily required administrative reviews of the underlying

antidumping determination (from which an appeal to the CIT

would clearly lie pursuant to 28 U.S.C. § 1581(c)). It is

perhaps possible that NART or Heveafil could petition Commerce

for another discretionary changed circumstances review, but

there is no reason to believe that such a request would meet

with a fate different from that of the Second Changed

Circumstances Review at issue here. Also, NART and Heveafil

It is noteworthy that, as demonstrated by AOC and this
case, the same result could be achieved by petitioning
Commerce for a changed circumstances review, since Commerce
may reconsider one of its own antidumping determinations if
there are no longer any interested parties. See supra note 7.
This overlap of authority between Commerce and the ITC is
unusual. A significant difference between these two
administrative remedies is that Congress expressly made the
ITC’s decision not to initiate a changed circumstances review
subject to judicial review by the CIT. See 19 U.S.C. §
1516a(a)(1)(B) (2000); 28 U.S.C. § 1581(c) (2000). However,
regardless of whether Commerce or the ITC makes the changed
circumstances determination resulting in revocation of an
antidumping duty order (which is not a transition order),
Commerce is the sole agency charged with effectuating that
revocation. See 19 U.S.C. § 1675(d)(1) (2000). Although
largely a ministerial role, Commerce’s exclusive authority
includes establishing the effective date of revocation. See
id. § 1675(d)(3); Okaya (USA), Inc. v. United States, 27 CIT
___, ___, Slip Op. 03-130 at 4 (Oct. 3, 2003).
Consol. Court No. 05-00539 Page 13

could not separately seek redress from the ITC in this case,

as only Commerce is vested with the authority to determine the

effective date for revocation of the Order based on changed

circumstances. See supra note 8. In short, on a prospective

basis, NART and Heveafil are seeking safe harbor in what

indeed appears to be their “port of last resort.” Duferco, 29

CIT at ___, 403 F. Supp. 2d at 1285.

3. Analysis of Formerly Available Relief

However, on a retrospective basis, the question remains

whether NART and Heveafil could have sought the more certain

shelter of one of the CIT’s specific grants of jurisdiction

through better maneuvering of the relevant administrative

channels. “A plaintiff waives its right to invoke section

1581(i)’s ‘manifest inadequacy’ safe harbor if jurisdiction

under another subsection of section 1581 could have been

available but no longer is available.” Id. at ___, 403 F.

Supp. 2d at 1286. The AOC court also noted this point,

finding that the CIT’s residual jurisdiction was further

precluded in that case by the past availability of an adequate

(if not ideal) administrative remedy subject to judicial

review.9 AOC, 17 CIT at 1415-16. To this point, Defendant

9
The adequate alternative remedy identified in AOC was the
plaintiff’s ability to challenge the standing of the
petitioner as a representative of the domestic industry in the
most recent annual administrative review. AOC, 17 CIT at
Consol. Court No. 05-00539 Page 14

argues that “not only could [P]laintiffs have availed

themselves of the same remedy pursuant to 28 U.S.C. § 1581(c),

but Heveafil has availed itself of that remedy.” Def.’s Mot.

9. That is, the First Changed Circumstances Review squarely

addressed what Defendant characterizes as the substantive

issue in this case: the appropriate effective date for

revocation of the Order. In Defendant’s view, that proceeding

afforded the parties an adequate forum to make their arguments

to Commerce and provided an assured vehicle to appeal the

substantive issue to the CIT. Id. Defendant contends that

NART should have supported the earlier effective date

advocated by Heveafil during the First Changed Circumstances

Review in order to properly invoke the CIT’s jurisdiction.

Id. NART and Heveafil counter that the First Changed

Circumstances Review and resulting appeal by Heveafil were

(and will continue to be) inadequate remedies because it was

not temporally possible for either of these proceedings to

take into consideration the critical changed circumstance and

true substantive issue in this case: the effect of NART’s

subsequent decision to no longer support the Order from

1416. The court noted that “[i]f the question of standing to
pursue the administrative review had been resolved in
plaintiff’s favor, it would have led to a request for
revocation based on lack of interested parties or lack of
injury . . . .” Id. Such a challenge would not have been
possible in this case because NART’s bankruptcy took place
after the last annual administrative review of the Order.
Consol. Court No. 05-00539 Page 15

October 1, 1995 onward. See NART’s Resp. 9-11; Heveafil’s

Resp. 5-10.

In virtually every other context imaginable, a sudden

volte-face by a party would not render inadequate a previous

opportunity to challenge agency action. For example, a party

that at first acquiesces to an agency determination involving

an import transaction, thereby foregoing an appeal pursuant to

28 U.S.C. 1581(a)-(h), would be summarily denied later

judicial review under the CIT’s residual jurisdiction if it

were sought solely on the basis of a change of heart about the

wisdom of that acquiescence. See, e.g., Siaca v. United

States, 754 F.2d 988, 991-92 (Fed. Cir. 1985) (defendant

estopped from arguing equitable claim against customs

officials for failure to subject issue to available

administrative procedures).

However, this case is unique because a change of heart by

the domestic industry is a well-established reason for

revisiting an antidumping determination through the changed

circumstances review process. See, e.g., 19 C.F.R. §

351.222(g) (2005) (regulation governing Commerce changed

circumstances review); Porcelain-on-Steel Cookware from

Mexico, 67 Fed. Reg. 19553, 19554 (Dep’t Commerce Apr. 22,

2002) (final results of changed circumstances review based on

industry change of heart); Or. Steel Mills, 862 F.2d at 1545
Consol. Court No. 05-00539 Page 16

(upholding final results of changed circumstances review based

on industry change of heart). Importantly, neither the

statute nor any of these sources places limits on when that

change of heart must occur, or how often. See Okaya (USA), 27

CIT at ___, Slip Op. 03-130 at 3 (noting that request for

changed circumstances review “may be made at any time”).

Viewed in this light, Defendant’s argument that NART had

only one opportunity to request or participate in changed

circumstances review based on reconsideration of its support

of the Order must fail. Put simply, nothing in the statutory

or regulatory framework requires the domestic industry to

speak once and then forever hold its peace. The First Changed

Circumstances Review antedated NART’s latest change of heart –

a change of heart which NART was entitled to make (and seek

agency review based on) at any time. Because of this timing,

the First Changed Circumstances Review (and any subsequent

case brought under 28 U.S.C. § 1581(c) reviewing that

determination) was a manifestly inadequate remedial forum for

NART and Heveafil to seek review of the substantive issue at

the core of this case: the appropriate effective date for

revocation of the Order in light of the domestic industry’s

newfound lack of support for the Order. The request for the

Second Changed Circumstances Review was therefore the earliest

opportunity for NART and Heveafil to seek Commerce’s review of
Consol. Court No. 05-00539 Page 17

this issue. NART and Heveafil dutifully exhausted this

administrative remedy before attempting to invoke the CIT’s

residual jurisdiction. Under these circumstances, another

subsection of section 1581 was not, and could not have been,

available.10

4. Analysis of the Effect of the 1984 Amendment

In light of the foregoing, the Court provisionally

concludes that Heveafil and NART have properly invoked the

CIT’s residual jurisdiction in this case. Consequently, the

final issue squarely before the Court is whether this judicial

review has been otherwise foreclosed by the 1984 Amendment.

Defendant contends that the 1984 Amendment evinces Congress’

intent to foreclose judicial review of Commerce’s refusals to

initiate changed circumstances review. Def.’s Mot. 5-6. As

in AOC, Defendant argues that, by deleting this type of agency

action from among those within the CIT’s specific

10
The Court additionally notes that, because Commerce did not
publish its refusal to initiate the Second Changed
Circumstances Review in the Federal Register, there is also no
current basis for jurisdiction under 28 U.S.C. § 1581(c). See
19 U.S.C. § 1516a(a)(2)(B)(iii) (specifying certain final
determinations made in connection with changed circumstances
review as reviewable determinations under 28 U.S.C. §
1581(c)); id. § 1516a(a)(2)(A)(i)(I) (2000) (authorizing
commencement of 28 U.S.C. § 1581(c) action within thirty days
of Federal Register publication of notice of relevant agency
action); accord AOC, 17 CIT at 1414. Neither NART nor
Heveafil has requested that the Court order Commerce to
publish its decision not to initiate the Second Changed
Circumstances Review.
Consol. Court No. 05-00539 Page 18

jurisdiction, Congress clearly intended to make these refusals

“purely discretionary” and “always nonreviewable.” AOC, 17

CIT at 1414.

Congress typically communicates its intent to foreclose

judicial review in one of two ways: (1) through the

divestiture of federal subject matter jurisdiction or (2)

through the preclusion of a specific cause of action. See

Whitman v. DOT, 547 U.S. ___, ___, 126 S. Ct. 2014, 2015

(2006) (framing the question as whether the relevant statute

removes jurisdiction given to a federal court or otherwise

precludes a class of litigants from pursuing remedies beyond

those listed in the statute).

By bringing its motion to dismiss under USCIT Rule

12(b)(1), Defendant has alleged congressional foreclosure of

judicial review of the first variety: that the 1984 Amendment

divested the CIT of federal subject matter jurisdiction.

However, the 1984 Amendment did not directly alter the CIT’s

principal jurisdictional statute, 28 U.S.C. § 1581. Rather,

the 1984 Amendment modified the text of 19 U.S.C. § 1516a, a

statute which enumerates the various agency determinations

reviewable by the CIT under subsection (c) of 28 U.S.C. §

1581. See 28 U.S.C. § 1581(c) (2000). An agency

determination identified in 19 U.S.C. § 1516a as reviewable

under subsection (c) is not reviewable under subsection (i).
Consol. Court No. 05-00539 Page 19

See id. § 1581(i). Accordingly, a change to the

determinations listed in 19 U.S.C. § 1516a may affect the

CIT’s residual jurisdiction by either expanding or contracting

the types of actions potentially reviewable under subsections

(c) and (i). Here, the 1984 Amendment removed a determination

from 19 U.S.C. § 1516a, thereby rendering the determination

unreviewable under subsection (c) but potentially reviewable

under subsection (i).

What the foregoing discussion reveals is that the

relationship between 19 U.S.C. § 1516a and 28 U.S.C. § 1581 is

certainly close – but not particularly unusual in the Federal

judicial system. It mirrors the familiar relationship which

exists between 28 U.S.C. § 1331, the statute conferring

federal question jurisdiction to district courts, and numerous

Federal statutes giving rise to civil actions reviewable under

that broad grant of jurisdiction. When Congress restricts the

scope of one of these latter statutes, the district courts are

not divested, in whole or in part, of federal question

jurisdiction. See Burks v. Lasker, 441 U.S. 471, 476 n.5

(1979) (noting that “whether a cause of action exists is not a

question of jurisdiction”). From this perspective, the Court

views 19 U.S.C. § 1516a as a statute that creates causes of
Consol. Court No. 05-00539 Page 20

action reviewable under the CIT’s jurisdictional statute.11 It

follows that, when Congress adjusts the scope of 19 U.S.C. §

1516a, the CIT is not divested of its subject matter

jurisdiction; rather, Congress makes a change to the causes of

action subject to review under that jurisdiction.

The Court therefore understands Defendant’s argument as

alleging the preclusion of a specific cause of action (i.e.,

the review of Commerce’s refusal to initiate changed

circumstances review), rather than the divestiture of subject

matter jurisdiction, and will analyze the remainder of

Defendant’s motion as such.12

11
This conclusion also finds support in a number of other
sources. See, e.g., 19 U.S.C. § 1516a(e) (2000) (ordering
liquidation in accordance with final court decision “[i]f the
cause of action is sustained”) (emphasis added); Co-Steel
Raritan, Inc. v. ITC, 357 F.3d 1294, 1304 (Fed. Cir. 2004)
(characterizing determinations listed in 19 U.S.C. § 1516a as
causes of action); Fujitsu Ten Corp. of Am. v. United States,
21 CIT 104, 109, 957 F. Supp. 245, 249-50 (1997) (same), aff’d
sub nom. Sandvik Steel Co. v. United States, 164 F.3d 596
(Fed. Cir. 1998); H.R. Rep. No. 96-1235, at 47 (1980),
reprinted in 1980 U.S.C.C.A.N. 3729, 3759 (noting 28 U.S.C. §
1581(i) was never intended to create new causes of action).
12
Because the standards of review for motions to dismiss for
lack of subject matter jurisdiction (USCIT Rule 12(b)(1)) and
motions to dismiss for failure to state a claim (USCIT Rule
12(b)(5)) may differ, courts must be mindful of the important
procedural due process interests of litigants to be able to
respond to arguments. Cf. Thoen v. United States, 765 F.2d
1110, 1114-15 (Fed. Cir. 1985) (discussing the due process
implications of converting a motion to dismiss under Rule
12(b)(6) of the federal rules into a motion for summary
judgment under Rule 56). How a court characterizes a motion
to dismiss may affect the litigants’ substantial rights. A
Consol. Court No. 05-00539 Page 21

Although this type of agency determination no longer

gives rise to a cause of action under 19 U.S.C. § 1516a,

another statute - the Administrative Procedure Act (“APA”) -

creates a cause of action for review of “final agency action

for which there is no other adequate remedy in a court . . .

.” 5 U.S.C. § 704 (2000). However, even the APA’s general

cause of action is unavailable where “(1) statutes preclude

judicial review; or (2) agency action is committed to agency

dismissal for failure to state a claim goes to the merits of
an action, and will have preclusive effect and serve as a bar
to future litigation. However, when converting a Rule
12(b)(1) motion into a Rule 12(b)(5) motion does not deprive a
litigant of the opportunity to defend itself or its claim,
notice of conversion is unnecessary. Accord Less v. Lurie,
789 F.2d 624, 625 n.1 (8th Cir. 1986). Such is the case here.
Defendant has made a facial challenge to the Court’s
jurisdiction. A facial challenge addresses the sufficiency of
the pleadings, does not require fact-finding by the judge, and
applies the same standard of review as a challenge to the the
underlying cause of action. See Morrison v. Amway Corp., 323
F.3d 920, 925 n.5 (11th Cir. 2003); Wheeler v. Hurdman, 825
F.2d 257, 259 (10th Cir. 1987). Further, the jurisdictional
question and the cause of action question, in this case, are
simply two iterations of the same fundamental question: does
the 1984 amendment impliedly preclude the asserted APA action?
In such circumstances, there is no unfair surprise to NART and
Heveafil. Accordingly, the Court will proceed with its
analysis of the remainder of Defendant’s motion by assuming
“all well-pled factual allegations are true” and construing
“all reasonable inferences in favor of the nonmovant” to
determine whether the complaint sets forth facts sufficient to
support a claim. Gould, Inc. v. United States, 935 F.2d 1271,
1274 (Fed. Cir. 1991) (discussing standard of review for
motion to dismiss for failure to state a claim).
Consol. Court No. 05-00539 Page 22

discretion by law.” Id. § 701(a) (2000).13 Under Defendant’s

theory, 19 U.S.C. § 1516a, as modified by the 1984 Amendment,

should be construed as a statute precluding judicial review of

Commerce’s refusals to initiate changed circumstances review

under the APA.14 If so, even with the CIT’s residual

13
As Heveafil notes, an APA cause of action has previously
been found to lie in “cases of agency inactivity” resulting
from a refusal to perform a requested review. Heveafil’s
Resp. 5 (citing Viraj Forgings Ltd. v. United States, 26 CIT
513, 206 F. Supp. 2d 1288 (2002) (reviewing Commerce refusal
to initiate a requested periodic administrative review based
on allegedly improper review request)). The Viraj court found
it appropriate to review that APA cause of action under the
CIT’s residual jurisdiction. Id. at 519, 206 F. Supp. 2d at
1294. However, unlike this case, the Viraj court was not
confronted with the question of whether review of that
particular APA cause of action was precluded by another
statute. As such, Viraj is of limited relevance to this case,
standing simply for the principle (conceded by Defendant) that
the APA typically provides the cause of action in 28 U.S.C. §
1581(i) cases. See Def.’s Reply 6. Whether an APA cause of
action may actually lie in a case invoking the CIT’s residual
jurisdiction depends on an analysis of the two factors in 5
U.S.C. § 701(a) (unless waived, as in Viraj).
14
In its reply brief, Defendant also argues that this case is
exempt from review as an APA cause of action because it
involves a matter “committed to agency discretion” by law.
Def.’s Reply 6 (quoting 5 U.S.C. § 701(a)(2)). Specifically,
Defendant notes that “an agency’s refusal to reopen a closed
case is generally committed to agency discretion . . . .” Id.
(quoting Your Home Visiting Nurse Servs. v. Shalala, 525 U.S.
449, 455 (1999)). Defendant characterizes the underlying
administrative proceedings as closed because “the [O]rder had
already been revoked when [NART] requested a changed
circumstances review . . . .” Id. As such, Defendant argues
that Commerce was “simply exercis[ing] its wide discretion to
refuse to reopen closed proceedings.” Id.
Setting aside the important question of procedural fairness
raised by Defendant’s presentation of this argument for the
first time in its reply brief, see Novosteel SA v. United
Consol. Court No. 05-00539 Page 23

jurisdiction having been properly invoked, the Court would be

unable to entertain NART and Heveafil’s claim. Accord Am. Air

Parcel Forwarding Co. v. United States, 1 CIT 293, 296, 515 F.

Supp. 47, 51 (1981) (“Although the [CIT] may have subject

matter jurisdiction, there remains the possibility that a

particular complaint may not state a cause of action upon

which relief may be granted.”).

“Whether and to what extent a particular statute

precludes judicial review is determined not only from its

States, 284 F.3d 1261, 1274 (Fed. Cir. 2002), the Court
observes that the propriety of judicial review of an agency’s
refusal to reopen a closed case based on changed circumstances
is well established. See Interstate Commerce Comm’n v. Bhd.
of Locomotive Eng’rs, 482 U.S. 270, 278 (1987) (“[A]ll of our
cases entertaining review of a refusal to reopen appear to
have involved petitions alleging ‘new evidence’ or ‘changed
circumstances’ that rendered the agency’s original order
inappropriate.”). In other words, agency discretion is
curtailed in the face of changed circumstances. Defendant
attempts to distinguish this case from Interstate Commerce
Comm’n on the grounds that this case involves “changed changed
circumstances.” Def.’s Reply 7. However, Defendant cites no
statutory or regulatory support for this distinction, and the
Court is likewise aware of none. Further, the Court questions
whether there is even factual support for this distinction.
The First Changed Circumstances Review was requested by
Heveafil to address the issue of the domestic industry’s
bankruptcy. The Second Changed Circumstances Review was
requested by NART to address the issue of the domestic
industry’s lack of interest in the Order. As such, the two
requests for changed circumstances review were made by
different parties and had different triggering events. It is
not clear how these facts lead to the characterization of
“changed changed circumstances” proposed by Defendant. For
these reasons, the Court rejects Defendant’s belated argument
that an APA cause of action is foreclosed in this case due to
agency discretion with respect to reopening closed cases.
Consol. Court No. 05-00539 Page 24

express language, but also from the structure of the statutory

scheme, its objectives, its legislative history, and the

nature of the administrative action involved.” Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 345 (1984); see also United

States v. Fausto, 484 U.S. 439, 444 (1988) (noting that courts

examine “the purpose of the [relevant law], the entirety of

its text, and the structure of review that it establishes”);

Bowen v. Mich. Acad. Of Family Physicians, 476 U.S. 667, 672-

73 (1986). When a court considers the potential preclusion of

an APA action in light of the factors enumerated in Block, it

must be remembered that “judicial review of a final agency

action by an aggrieved person will not be cut off unless there

is persuasive reason to believe that such was the purpose of

Congress.” Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967),

overruled on other grounds by Califano v. Sanders, 430 U.S. 99

(1977). In Abbott Laboratories, the Supreme Court stated

further that “only upon a showing of clear and convincing

evidence of a contrary legislative intent should the courts

restrict access to judicial review.”15 Id. at 141 (quotation

marks omitted). Like all presumptions, this presumption “may

be overcome by, inter alia, specific language or specific

15
The “clear and convincing evidence” standard is not meant in
the strict evidentiary sense, see Block, 467 U.S. at 350-51,
but rather serves as a reminder that courts should decline to
review a cause of action only where Congress has clearly
exhibited its intent to preclude that cause of action.
Consol. Court No. 05-00539 Page 25

legislative history that is a reliable indicator of

congressional intent, or a specific congressional intent to

preclude judicial review that is fairly discernible in the

detail of the legislative scheme.” Bowen, 476 U.S. at 673

(quotation marks omitted).

Block instructs courts to look to the express language of

the statute and the structure of the statutory scheme. The

Court agrees with the plaintiffs’ contention that there is no

express language of the statute specifically precluding

judicial review of Commerce decisions not to initiate changed

circumstances reviews. See Heveafil’s Resp. 7; NART’s Resp.

4. However, the statutory scheme does provide important

context. 19 U.S.C. § 1516a lists determinations made by

Commerce and the ITC in the course of antidumping and

countervailing duty proceedings that Congress has expressly

subjected to judicial review. Both parties agree that the

current version of 19 U.S.C. § 1516a cannot be construed to

include Commerce’s refusal to initiate changed circumstances

review as an agency determination subject to such review.16

16
See Def.’s Mot. 5 (“Congress specifically amended 19 U.S.C.
§ 1516a to remove judicial review of a determination by
Commerce not to initiate a changed circumstances review.”);
Heveafil’s Resp. 4-5 (“19 U.S.C. § 1516a(a)(2)(B) . . . does
not provide an avenue for parties to challenge [Commerce’s]
failure to initiate a changed circumstances review
determination.”); NART’s Resp. 4 (“[T]his appeal is not
specifically covered by § 1581(a)-(h).”).
Consol. Court No. 05-00539 Page 26

The absence of the Commerce refusal to initiate from the list

gives rise to a negative inference that Congress may have

intended to preclude judicial review of that determination.

The Supreme Court has recognized the “longstanding principle

that a statute whose provisions are finely wrought may support

the preclusion of judicial review, even though that preclusion

is only by negative implication.” Shalala v. Ill. Council on

Long Term Care, Inc., 529 U.S. 1, 34 n.3 (2000) (citing

Fausto, 484 U.S. at 452; Block, 467 U.S. at 351; Switchmen’s

Union of N. Am. v. Nat’l Mediation Bd., 320 U.S. 297, 305-06

(1943)).

This negative inference is supported by the fact that the

omission was not the result of congressional inadvertence, but

was instead the intended product of the 1984 Amendment.

Before Congress amended 19 U.S.C. § 1516a in 1984, that

statute had expressly permitted CIT review of “a determination

by the administering authority or the Commission . . . not to

review an agreement or a determination based upon changed

circumstances . . . .” 19 U.S.C. § 1516a(a)(1)(B) (1982).

The 1984 Amendment deleted reference to the administering

authority (i.e., Commerce) – thereby deliberately removing

Commerce’s refusal to initiate changed circumstances review

from the list of expressly reviewable determinations.

Congress acted with precision when revising 19 U.S.C. § 1516a
Consol. Court No. 05-00539 Page 27

to exclude this particular agency determination, and this

exactitude suggests that Congress may have meant to remove all

possibility of judicial review of this agency determination,

rather than shift the locus of judicial review from section

1516a to the APA.

Moreover, it is noteworthy that Congress did not

similarly excise a refusal to initiate changed circumstances

review by the ITC from 19 U.S.C. § 1516a’s list of reviewable

determinations. This agency decision remains an expressly

reviewable determination even after the 1984 Amendment. See

19 U.S.C. § 1516a(a)(1)(B) (2000). Congress carefully drew a

deliberate distinction between the two categories of refusals

to initiate changed circumstances review arising under the

antidumping duty statute. One category (ITC refusals) gives

rise to an express cause of action; the other category

(Commerce refusals) does not. Thus, the “structure of the

statutory scheme,” Block, 467 U.S. at 345, lends some support

to Defendant’s contention that Congress intended to preclude

this case.

Block also instructs courts to examine the legislative

history of the relevant statute. The legislative history of

the 1984 Amendment provides no explanation for the disparate

treatment of ITC and Commerce refusals to initiate changed

circumstances review, but does shed some light on Congress’
Consol. Court No. 05-00539 Page 28

general motivation. The U.S. House of Representatives Ways

and Means Committee report described the change to 19 U.S.C. §

1516a as “prohibit[ing] interlocutory appeals of

determinations made during an annual review proceeding under

section 751. Such appeals would instead occur after a final

determination has been made by [Commerce] or the ITC.” H.R.

Rep. No. 98-725, at 46-47 (1984), reprinted in 1984

U.S.C.C.A.N. 5127, 5173-74. The Committee noted further that

“[t]he purpose of eliminating interlocutory judicial review is

to eliminate costly and time-consuming legal action where the

issue can be resolved just as equitably at the conclusion of

the administrative proceedings.” Id. at 47, 1984 U.S.C.C.A.N.

at 5174.

The congressional record itself similarly demonstrates

that the animating purpose of the 1984 amendment was Congress’

concern with interlocutory appeals of determinations during

administrative review proceedings. See 1984 Amendment

(entitled “Elimination of Interlocutory Appeals”). When 19

U.S.C. § 1516a was expanded in 1979 to authorize judicial

review of interlocutory orders, Congress hoped that the

appeals would help refine and perfect the record, leading to

better final determinations with fewer errors. See H.R. Rep.

No. 98-725, at 47, 1984 U.S.C.C.A.N. at 5174. However, by

1984 Congress had determined that the apparatus for
Consol. Court No. 05-00539 Page 29

administrative-judicial review of antidumping and

countervailing duty determinations was collapsing under the

weight of endless appeals of intermediate determinations. See

id. Domestic and importing interests alike lamented that “the

many interlocutory appeals [were] costly and unnecessary[,]”

id., and Congress endeavored to address their concerns.

To best understand this legislative history, it is

necessary to revisit the underlying administrative framework.

Congress was correct that the vast majority of refusals to

initiate changed circumstances review constitute intermediate

agency action. In all but the rarest of cases, a request for

changed circumstances review may be followed by an

administrative review. An administrative review (1) may be

requested every twelve months by an interested party, (2) must

be initiated by Commerce upon proper request, and (3) must

conclude in a final determination reviewable by the CIT. See

19 U.S.C. § 1675(a)(1) (2000); id. § 1516a(a)(2)(B)(iii); 28

U.S.C. § 1581(c) (2000). As a result, the substance of a

request initially refused by Commerce in the context of a

stand-alone changed circumstances review will normally be

considered by the agency in the context of the next annual

administrative review. The matter as to which Commerce

refuses to initiate a changed circumstances review, then, will

be subsumed in the final determination.
Consol. Court No. 05-00539 Page 30

However, as this case demonstrates, a refusal to initiate

changed circumstances review is not always an intermediate

agency action. Here, there is no subsequent annual

administrative review, or any other compulsory review,

envisioned by the statute. See supra Part II.B.2. Commerce’s

refusal to initiate the Second Changed Circumstances Review

constitutes final agency action. Thus, the asserted APA cause

of action in this case is wholly unconnected to Congress’

concern for eliminating interlocutory appeals.

Recognizing that Commerce’s refusals to initiate changed

circumstances review may constitute either interlocutory or

final agency action, there appear to be two possible ways to

view the legislative history of the 1984 Amendment. Under the

first view (which is most favorable to NART and Heveafil), the

legislative history indicates that Congress was focused on

Commerce’s refusals to initiate changed circumstances review

constituting interlocutory agency decisions. If Congress had

only the limited goal of economizing judicial review with

respect to these intermediate agency decisions, then this

bolsters NART and Heveafil’s argument that Congress did not

intend to preclude review of final refusals to initiate.

Instead, Congress intended to precisely adjust the statutory

scheme to achieve its limited goal of eliminating judicial

review of interlocutory refusals to initiate. That is, by
Consol. Court No. 05-00539 Page 31

removing this agency decision from the list of causes of

action reviewable under the CIT’s specific jurisdiction,

Congress intended to eliminate only review of interlocutory

refusals to initiate, recognizing that the APA17 (or some other

statutory provision18) would provide a reviewable cause of

action for final refusals to initiate.

17
The Court notes that only those refusals to initiate changed
circumstances review constituting final agency action could
possibly give rise to an APA cause of action reviewable under
the CIT’s residual jurisdiction. That this must be so is
demonstrated by the Court’s analysis supra at Part II.B.2. As
noted therein, the availability of adequate prospective relief
in the form of final agency action by Commerce is an absolute
bar to accessing the CIT’s residual jurisdiction. It would
therefore be entirely consistent with the expressed intent in
the House Ways and Means Committee report had Congress
considered that the excision of refusals to initiate changed
circumstances review from 19 U.S.C. § 1516a(a)(1)(B) was the
most economical mode of removing the interlocutory appeal from
the CIT’s jurisdiction, but preserving the APA cause of action
for cases such as this.
18
As observed supra at note 10, 19 U.S.C. §
1516a(a)(2)(B)(iii) provides for judicial review of a “final
determination, other than a determination reviewable under
paragraph (1), by [Commerce] or the Commission under [19
U.S.C. § 1675]”. 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000). It
appears to the Court that this statutory provision could be
construed as encompassing a Commerce refusal to initiate
changed circumstances review constituting a final agency
decision, as this type of final determination technically
arises under 19 U.S.C. § 1675. If so, then judicial review of
this agency determination would be available upon Commerce’s
publication of its refusal to initiate in the Federal
Register. The Court expresses no opinion on the likelihood of
success of this possible 19 U.S.C. § 1516a claim, which has
not been properly raised in this action by NART or Heveafil
(who would first have had to seek a writ of mandamus
compelling publication of the refusal to initiate the Second
Changed Circumstances Review).
Consol. Court No. 05-00539 Page 32

Under the second view (which is most favorable to

Defendant), Congress intended to eliminate review of all

Commerce refusals to initiate changed circumstances review and

was simply indifferent to the fact that some refusals to

initiate could constitute final agency action unreviewable by

the CIT. On this view, Congress intended to legislate with a

broad brush and sweep away an entire category of causes of

action, even if in so doing it precluded rights of action that

were unrelated to its legislative purpose: i.e., eliminating

interlocutory appeals.

After careful analysis of the statute’s structural

ambiguity and the legislative history pertaining to the 1984

Amendment, the Court finds the first of the scenarios

described above is more plausible. It is true that the

statutory scheme, standing alone, could support a finding that

Congress intended to foreclose judicial review in this case by

negative implication. The legislative history, however,

demonstrates that Congress’ legislative purpose in

effectuating the 1984 amendment would not be served by

precluding the asserted APA cause of action in this case. Put

another way, the presumption against implied preclusion of

judicial review has not been overcome. In this case, it is

not appropriate to find implied preclusion by accident; the

inquiry must remain focused on Congress’ intent, and in the
Consol. Court No. 05-00539 Page 33

light of the cited legislative history the Court is unable to

find that Congress intended to eliminate judicial review over

this exceedingly rare type of case.

III. CONCLUSION

For the foregoing reasons, the Court denies Defendant’s

motion to dismiss.

/s/ Richard W. Goldberg_____
Richard W. Goldberg
Senior Judge

Date: October 18, 2006
New York, New York