“the focus of an agency date of sale analysis is to determine when the contracting parties reached a ‘meeting of the minds’ on the material terms of sale”
How later courts described this case
- “the focus of an agency date of sale analysis is to determine when the contracting parties reached a ‘meeting of the minds’ on the material terms of sale”
Written by the judges who cited it.
The opinion
Slip Op. 09-56
UNITED STATES COURT OF INTERNATIONAL TRADE
AD HOC UTILITIES GROUP,
Plaintiff,
v.
Before: Pogue, Judge
UNITED STATES,
Court No. 06-00229
Defendant,
- and -
USEC INCORPORATED, et al.
Defendant-Intervenors.
OPINION
[Defendant’s and Defendant-Intervenors’ motions to dismiss
granted.]
June 15, 2009
Pillsbury Winthrop Shaw Pittman LLP (Nancy A. Fischer, Joshua
D. Fitzhugh, Christine J. Sohar, Kemba T. Eneas and Stephan E.
Becker) for Plaintiff Ad Hoc Utilities Group.
Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Stephen C. Tosini), and, of counsel, David W. Richardson, Office
of Chief Counsel for Import Administration, Department of Commerce
for Defendant United States.
Steptoe & Johnson LLP (Eric C. Emerson, Alexandra E.P. Baj,
Sheldon E. Hochberg, Richard O. Cunningham, Sohini Chatterjee,
Thomas J. Trendl and Wentong Zheng) for Defendant-Intervenors USEC
Inc. and United States Enrichment Corp.
Akin Gump Strauss Hauer & Feld LLP (Valerie A. Slater,
Margaret C. Marsh, Bernd G. Janzen and Lisa W. Ross) for Defendant-
Intervenors Power Resources, Inc. and Crowe Butte Resources, Inc.
Pogue, Judge: The issue before the court is whether the
Court No. 06-229 Page 2
Plaintiff, a group of American utility companies that obtain and
use enriched uranium from Russia, has standing to challenge the
Department of Commerce’s (“Commerce”) decision not to terminate its
antidumping duty investigation of that uranium. Because the
utility companies individually do not each qualify either as
producers or importers of the subject uranium and because the
companies as a group do not qualify as a trade or business
association a majority of the members of which are producers or
importers, the court concludes that the group lacks standing and
therefore dismisses this action.
BACKGROUND
The current dispute has its roots in Commerce’s 1991
initiation of an antidumping duty investigation of imports of
uranium from the U.S.S.R. See Uranium from the Union of Soviet
Socialist Republics, 56 Fed. Reg. 63,711 (Dep’t Commerce Dec. 5,
1991) (initiation of antidumping duty investigation). Following
the dissolution of the U.S.S.R., Commerce continued its
investigation and preliminarily concluded that uranium imports from
the newly-independent states of Kazakhstan, Kyrgyzstan, Russia,
Tajikistan, Ukraine and Uzbekistan were being “dumped,” i.e.,sold
in the United States at less than fair value. See Uranium from
Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine and Uzbekistan,
57 Fed. Reg. 23,380 (Dep’t Commerce June 3, 1992) (preliminary
determinations of sales at less than fair value); Uranium from
Court No. 06-229 Page 3
Armenia, Azerbaijan, Byelarus, Georgia, Moldova and Turkmenistan,
57 Fed. Reg. 23,380 (Dep’t Commerce June 3, 1992) (preliminary
determinations of sales at not less than fair value). Faced with
these preliminary determinations, Russian and American
representatives entered into negotiations concerning the trade of
nuclear materials. These negotiations led to a set of agreements
circumscribing the origin, amount and means for importation of
Russian low enriched uranium (“LEU”) into the United States, and a
further Agreement Between the Government of the United States of
America and the Government of the Russian Federation Concerning the
Disposition of Highly Enriched Uranium Extracted from Nuclear
Weapons (the “HEU Agreement”). As part of these agreements,
Commerce undertook to suspend -- which is not to terminate1 -- its
antidumping duty investigation. See Uranium from Kazakhstan,
Kyrgyzstan, Russia, Tajikistan, Ukraine and Uzbekistan, 57 Fed.
Reg. 49,220 (Dep’t Commerce Oct. 30, 1992) (notice of suspension of
investigations and amendment of preliminary determinations).
Further, also in accordance with the agreements and related
legislation, Defendant-Intervenor USEC, Inc. (“USEC”), as the
“United States Executive Agent,” was designated as the only entity
in the U.S. with authority to purchase enriched uranium from
1
Generally, suspension may be pursuant to agreements
restricting the importation of merchandise subject to
investigation. See Section 734 of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1673c. Further citations to the Act, unless
otherwise stated, are to the 2006 version of the United States
Code.
Court No. 06-229 Page 4
Russia, trade in such goods being generally restricted. See also
USEC Privatization Act of 1996 §§ 3102-15, as amended, 42 U.S.C. §§
2297h-1 to 2297h-13. Consequently, during the period of time
relevant here, American utility companies obtained LEU of Russian
origin by contracting with USEC,2 even though the utility companies
considered their purchase agreements to be contracts for uranium
enrichment services, and not sales of LEU subject to investigation
under the antidumping laws.
In related actions, Commerce also investigated sales of
uranium products from other countries, and in one of these
actions, USEC Inc. v. United States, 27 CIT 489, 259 F. Supp. 2d
1310 (2003) (“USEC I”), this Court held that, because of Commerce’s
“tolling regulation”3 and prior practice,4 Commerce’s decision to
2
USEC, the parent entity of the United States Enrichment
Corp., also has U.S. uranium-enrichment facilities, and sells its
enrichment services to U.S. utility companies.
3
The “tolling regulation,” now repealed, see Import
Administration, Withdrawal of Regulations Governing the Treatment
of Subcontractors (“Tolling” Operations), 73 Fed. Reg. 16,517
(Dep’t Commerce Mar. 28, 2008), stated that Commerce “will not
consider a toller or subcontractor to be a manufacturer or
producer [of merchandise under investigation for dumping] where
the toller or subcontractor does not acquire ownership, and does
not control the relevant sale, of the subject merchandise or
foreign like product.” 19 C.F.R. § 351.401(h) (2007).
4
In USEC I, the court noted that:
under the regulation, Commerce will not find tollers or
subcontractors to be producers where such toller or
subcontractor does not acquire ownership and does not
control the relevant sale of the subject merchandise or
foreign like product.
Court No. 06-229 Page 5
5
treat “SWU contracts” for uranium enrichment as sales of enriched
uranium subject to antidumping investigation -- rather than as
“tolling” or subcontracting arrangements -- was unsupported by
substantial evidence, as there was no evidence that the enricher
ever took ownership of the goods. 27 CIT at 506, 259 F. Supp. 2d at
1326.6 The Federal Circuit affirmed this holding, concluding that
the “SWU contracts” were contracts for services rather than for
goods. See Eurodif S.A. v. United States, 411 F.3d 1355, 1364 (Fed.
Cir. 2005) (“Eurodif I”).
Relying on Eurodif I, and pursuant to 19 U.S.C. §
USEC I, 27 CIT at 497, 259 F. Supp. 2d at 1318.
5
“SWU contracts” are sales transactions structured so that
a utility contracts for the enrichment of a certain amount of
converted uranium (called “feed uranium”), which it supplies.
The enricher provides enriched uranium to the utility, in
exchange for a comparable amount of feed uranium and cash payment
for the amount of separative work units (“SWU”) necessary to
enrich the feed uranium. Although the enriched uranium is
typically not the same uranium as the feed uranium provided for a
given transaction, it is contractually treated as such.
6
Thus, in USEC I the Court held that:
if the text of 19 C.F.R. § 351.401(h) and Commerce’s
prior decisions were applied to the evidence on this
record, the SWU contracts would be treated as contracts
for the performance of services, and the enrichers
would be treated as tollers and the utilities as the
producers of LEU. Here, however, Commerce determined
that the enrichers were the producers . . . .
Commerce’s determination that enrichers are producers
and not tollers is against the weight of the evidence
on the record and inconsistent with both the agency’s
regulations and its prior decisions involving tolling
services . . . .
27 CIT at 502, 506, 259 F. Supp. 2d at 1323, 1326.
Court No. 06-229 Page 6
7 8
1516(a)(2)(A), Plaintiff Ad Hoc Utility Group (“AHUG”), in 2006,
filed this action to challenge Commerce’s decision -- in its second
“sunset” review of the suspension of its antidumping duty
investigation of uranium from Russia -- that in the absence of the
Russian-American agreements, continued dumping of enriched uranium
was likely. See Uranium From the Russian Federation, 71 Fed. Reg.
32,517 (Dep’t Commerce June 6, 2006) (final results of five-year
sunset review of suspended antidumping duty investigation) (“Second
Sunset Review”) and the accompanying Issues and Decision
Memorandum, A-821-802, Sunset Review (June 6, 2006)
http://ia.ita.doc.gov/frn/summary/RUSSIA/E6-8758-1.pdf (last
visited May 18, 2009) (“Decision Mem.”).9
Addressing the issue of AHUG’s standing to participate in the
Second Sunset Review, Commerce treated AHUG as an “industrial user”
of subject merchandise pursuant to 19 C.F.R. § 351.312,10 and
7
19 U.S.C. § 1516(a)(2)(A) provides that “[a]s used in this
section, the term ‘interested party’ [entitled to seek judicial
review] means a person who is--
(A) a manufacturer, producer, or wholesaler in the United
States....”
8
AHUG is a group of American utility companies.
9
In the administrative proceedings for the Second Sunset
Review, and relying on USEC I and Eurodif I, AHUG argued that
Commerce’s inclusion of SWU contracts, in its sunset review
analysis -- as a basis for its decision that termination of its
investigation would be likely to lead to a continuance or
recurrence of dumping -- was contrary to law. See 19 U.S.C.
§1675(c)(1)(A).
10
“In an antidumping or countervailing duty proceeding
under title VII of the Act and this part, an industrial user of
Court No. 06-229 Page 7
concluded that, in that administrative proceeding, AHUG did not
have standing as an “interested party” that is a “producer” of LEU.
Decision Mem. 2 n.1; cf. USEC I, 27 CIT at 512-13, 259 F. Supp. 2d
at 1331 (granting AHUG’s motion to intervene as of right as an
“interested party” as possible “toll” “producers” of subject
merchandise, and remanding to Commerce to resolve whether AHUG
members are “producers”); USEC Inc. v. United States, 27 CIT 1419,
1433, 281 F. Supp. 2d 1334, 1346 (2003) (“USEC II”) (affirming
Commerce’s practice of declining to apply the tolling regulation,
and finding domestic utilities were thus not foreign producers of
uranium, in the industry support context), aff’d in part, Eurodif
I, 411 F.3d at 1361.
The court consolidated this case with Court No. 06-00228,
Techsnabexport v. United States,11 and remanded the consolidated
case to Commerce to reconsider its conclusions in light of Eurodif
I. Techsnabexport v. United States, 31 CIT __, 515 F. Supp. 2d 1363
(2007) (“Tenex”).12 The court found that Commerce’s denial of
the subject merchandise or a representative consumer
organization, as described in section 777(h) of the Act [19
U.S.C. § 1677f(h)], may submit relevant factual information and
written argument to the Department . . . concerning dumping or a
countervailing subsidy. . . .” 19 C.F.R. § 351.312(b) (2008).
11
Court No. 06-00228 was a case brought by Techsnabexport,
the Russian executive agent responsible for the export of uranium
and uranium enrichment services from Russia. After Commerce’s
determination had been remanded, on March 12, 2008, the cases
were severed and the court granted Techsnabexport’s motion to
dismiss pre-consolidated Court No. 06-00228.
12
Familiarity with the court’s prior decision is presumed.
Court No. 06-229 Page 8
“interested party” status did not reflect consideration of the
nature of the transactions at issue here, and that therefore
Commerce’s determination did not reflect “consider[ation of] an
important aspect of the problem.” Tenex, 31 CIT at __, 515 F.
Supp. 2d at 1364-65 n.4 (quoting Motor Vehicles Mfrs. Ass’n v.
State Farm Mut., 463 U.S. 29, 43 (1983)). Accordingly, the court
allowed Commerce the opportunity to review its position regarding
AHUG’s status in these proceedings. Id.13
After reconsidering its position on remand, Commerce issued
its remand results. See Final Results on Redetermination Pursuant
to Court Remand, A-821-802, Suspension Agreement (Dec. 21, 2007),
available at http://ia.ita.doc.gov/remands/07-143.pdf (last visited
June 11, 2009) (“Remand Results”). In these Remand Results,
Commerce determined that contracts pursuant to the HEU Agreement
did not meet the definition of “SWU contracts” determined in
Eurodif I to be contracts for services. Id. 29-32. Thus, Commerce
did not exclude these transactions from its likelihood
determination. Id. Further, Commerce, in its volume of future
imports analysis, relied on a public report from the International
Trade Commission (“ITC”). See Uranium from Russia, USITC Pub. No.
3872, Inv. No. 731-TA-539-C (Second Review) (Aug. 2006). Commerce
13
The court deferred ruling on AHUG’s standing in this
judicial review proceeding, finding this to be one of those rare
cases in which the questions regarding jurisdiction were
intertwined with the merits of the case, and that further
information would be necessary.
Court No. 06-229 Page 9
noted the ITC report’s mention of certain “contingent contracts”
that the Russian uranium industry had entered into with American
utilities.14 In light of ITC’s reliance on these “contingent
contracts,” AHUG now also claims that many of its members have
“entered into negotiations and signed agreements [i.e., contingent
contracts] with Techsnabexport . . . or its agent for the purchase
of Russian EUP [i.e., enriched uranium product] or enrichment
services,” and that these contracts confer upon the utility
companies entering into them status as importers of the subject
merchandise. Supplemental Br. of the Ad Hoc Utilities Group on the
Relevance and Effect of the Supreme Court’s Eurodif Decision 5.
In its Remand Results, Commerce also reconsidered AHUG’s
status as an “interested party,” but decided that AHUG did not so
qualify. Remand Results 49-52. First, Commerce determined that
AHUG members were not “producers,” given that AHUG members “do not
14
Commerce noted from the report:
the Russian uranium industry had had discussions with
U.S. nuclear utilities about sales in the event the
suspended investigation was terminated; in fact, the
ITC reported that the Russian uranium industry had
entered into a number of contingent contracts with U.S.
utilities. Specifically, the ITC’s report states that
16 out of 29 responding uranium purchasers advised that
they had solicited or had been solicited to negotiate
contingent contracts for Russian-sourced uranium during
the period 2000-2005. The ITC notes that these
contingent contracts covered: conversion to UF6,
natural uranium hexafluoride, enrichment services, and
the purchase of enriched uranium product, or EUP.
Remand Results 36 (footnote omitted).
Court No. 06-229 Page 10
contract directly with the Russian LEU producer . . . . [,] can
only receive Russian LEU [] from USEC itself, which USEC purchased
from Tenex[,] . . . . [and] have no control over the Russian
producer’s production activities.” Id. 50-51. In addition,
Commerce noted that “title to the Russian LEU from HEU does
transfer from Tenex to USEC, belying AHUG’s claim that it is the
only entity that owns the LEU as a whole.” Id. 51. Second,
Commerce found that, because “USEC is the only U.S. importer of all
Russian LEU down-blended from HEU,” AHUG members could not qualify
as “importers.” Id.
Meanwhile, and subsequent to Commerce’s remand determination
at issue here, following Eurodif I, Defendants and Defendant-
Intervenors petitioned the Supreme Court for certiorari. This
court then stayed the proceedings in this case pending the final
resolution of the Eurodif matter. Subsequently, in January of
2009, the Supreme Court decided United States v. Eurodif S.A.,
___U.S.___, 129 S.Ct. 878 (2009) (“Eurodif II”), which reversed
USEC I and Eurodif I. The Supreme Court concluded that Commerce
may reasonably treat SWU transactions as “mixed cash-commodity”
sales of goods, i.e., purchases of LEU with cash and a certain
amount of feed uranium, see id. at 887 & n.8, as the ownership of
the LEU is most reasonably viewed as lying with the uranium
enricher prior to delivery. Id. at 888-89 n.9.
Now, as a result of Eurodif II, the parties in this matter are
once again before the court. Specifically, the Defendants have
Court No. 06-229 Page 11
moved, pursuant to USCIT R. 12(b)(1), to dismiss AHUG’s complaint
for lack of subject matter jurisdiction, asserting that AHUG fails
to qualify as an interested party authorized to challenge
Commerce’s review decision. As noted above, prior to Eurodif II,
AHUG insisted that its members have standing as foreign “producers”
of LEU, and, more recently, has raised its members’ standing as
“importers” of LEU. See 28 U.S.C. § 2631(c); 19 U.S.C. §
1677(9)(A).
Standard of Review
Plaintiff, as the party seeking to invoke the Court’s
jurisdiction, bears the burden to establish its standing to bring
its action. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006); Raines v. Byrd, 521 U.S. 811, 818 (1997); AutoAlliance
Int’l, Inc. v. United States, 29 CIT 1082, 1088, 398 F. Supp. 2d
1326, 1332 (2005). Thus, AHUG must demonstrate that its members
satisfy the statutory standing requirements. See 28 U.S.C. §
2631(c);15 19 U.S.C. § 1677(9).16
15
“A civil action contesting a determination listed in
section 516A of the Tariff Act of 1930 [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) (emphasis added).
16
The meaning of the term “interested party,” as used in 28
U.S.C. § 2631(c), is found in 19 U.S.C. § 1677(9). See 28 U.S.C.
§ 2631(k)(1) (“In this section. . . ‘interested party’ has the
meaning given such term in section 771(9) of the Tariff Act of
1930 [19 U.S.C. § 1677(9)].”). 19 U.S.C. § 1677(9)(A) defines
“interested party” as “a foreign manufacturer, producer, or
exporter, or the United States importer, of subject merchandise
or a trade or business association a majority of the members of
Court No. 06-229 Page 12
At the same time, in deciding whether the Plaintiff has
standing, the court is not bound by Commerce’s determinations of
“interested party” status in the administrative proceedings below.
See Zenith Radio Corp. v. United States, 5 CIT 155, 156 (1983)
(“The decision of the administrative agency to accept the
participation of [a plaintiff], even if done in terms of
recognizing them as ‘interested parties,’ cannot control the
Court’s understanding of a matter primarily related to the
invocation of its powers of judicial review.”).
Analysis
I. Pursuant to Eurodif II, AHUG Members Do Not Have Standing
as “Producers”
In light of Eurodif II, AHUG does not urge, in its most
recently filed brief, that its members have standing as LEU
“producers.” See AHUG Supplemental Br. 5-9. The court agrees.
After Commerce’s revocation of its tolling regulation and the
Supreme Court’s Eurodif II decision, it is clear that Commerce may
reasonably treat SWU transactions as sales of goods owned by the
enricher. As AHUG’ members, as opposed to the enricher, may no
longer be considered the owners of the enriched LEU at issue, AHUG
may no longer claim to have standing as a producer.
II. AHUG Members Have Not Established Standing as “Importers”
which are producers, exporters, or importers of such
merchandise.”
Court No. 06-229 Page 13
As noted above, 28 U.S.C. § 2631(c) requires that, in order to
obtain judicial review, a party both be “interested” and have
participated in the administrative proceedings below. See also 19
U.S.C. § 1516a(a)(2)(A) (“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, . . . contesting any
factual findings or legal conclusions upon which the determination
is based.”).
AHUG undisputedly participated in the proceedings leading up
to the Second Sunset Review and the Remand Results. However, under
any of the statutory definitions of “importer” -- including either
as a group of individual companies or, arguably, as a trade or
business association -- AHUG does not meet the standing
requirements stated by section 2631(c).
The court has previously concluded that 19 U.S.C. §
1677(9)(A), which section 2631(c) applies -- because it requires a
majority of the members of an association or group to be producers,
exporters or importers -- precludes standing on the part of a group
with a majority of members that are not producers, exporter or
importers.17 Am. Grape Growers Alliance for Fair Trade v. United
17
To conclude otherwise would render the majority
requirement nugatory. 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 Mkt. Co. v.
Hoffman, 101 U.S. 112, 115 (1879))). This result may seem
Court No. 06-229 Page 14
States, 7 CIT 389 (1984). Therefore, AHUG must either show that it
would be considered a “trade or business association,” id., or it
must show that it is a “multiplied form of a single” importer. Id.
at 389-90 (the latter is identified as “the unified appearance of
those[,] who could appear separately[,] [for] administrative and
judicial convenience”). The former requires only a majority of
members, whereas the latter would require all members, to qualify
as “importers” to gain standing, where no member appears
individually. Cf. RSI (India) Pvt., Ltd. v. United States, 12 CIT
84, 86, 678 Fed. Supp. 304, 306 (1988) (“Congress has made an
exception [from the requirement that all members satisfy standing
requirements] only for importers when they are the majority of the
members of a trade or business association”).
In its briefing, AHUG has identified itself as a group of
individual companies, stating that it is not a trade or business
association and “has no legal existence or status separate from its
members.” Resp. of the Ad Hoc Utilities Group to the Court’s
Questions of Apr. 24, 200[9] (“AHUG Resp. to Apr. 2009 Questions”)
2. As a consequence, AHUG must demonstrate that all of its members
share the same qualities that qualify them for standing in the
action before the court.
anomalous where it precludes standing for a group even though an
individual member of that group would have standing, had that
member appeared as a plaintiff on its own behalf. Such a result
however is compelled by the majority requirement.
Court No. 06-229 Page 15
But according to AHUG’s evidence presented here, far fewer
than half of AHUG’s member signed:
agreements with the members or agents of members of the
Russian uranium industry on the record before the Court
in this proceeding under which the AHUG members would
clearly be the importers of record. . . .
Id. 4-5. Although AHUG claims that “a number of AHUG members
entered into negotiations with Russian uranium suppliers or their
agents,” id. 5, AHUG provides no specific number and refers only to
the record in a similar case before this court, Court No. 06-300
(challenging the Second Sunset Review of the International Trade
Commission’s decision on material injury to domestic industry).
AHUG itself concludes that its evidence demonstrates that far fewer
than half of its members “would qualify as United States importers
under 19 U.S.C. § 1677(9)(A).” AHUG Resp. to Apr. 2009 Questions 6.
AHUG’s evidence, at best, shows that a small minority of
utilities have fostered contingent contractual relationships with
Russian enrichers or may have conducted “face to face meetings”
with Russian enrichers to potentially contract. Id.; App. of
Confidential R. Docs. Cited in the Ad Hoc Utilities Group’s Initial
Br. in Supp. of Rule 56.2 Mot. for J. Upon the Agency R., Tab G.
It follows that even with a very broad interpretation of
“importer,” AHUG’s evidence does not suffice to show to the court
that all of its members are “importers.”
In any event, even if AHUG were a “trade or business
association,” standing would still be lacking. According to AHUG’s
Court No. 06-229 Page 16
revised corporate disclosure statement, AHUG includes nineteen
utility companies. See Revised Disclosure of Corp. Affiliations and
Financial Interest, Amended Attachment.18 Again, the evidence
before the court identifies that only a small minority of members
as potential importers. A small minority does not a majority make,
and will not give AHUG standing in this case. See Zenith Radio
Corp., 5 CIT at 156-57; Special Commodity Group on Non-Rubber
Footwear From Brazil, Am. Ass’n of Exps. & Imps. v. United States,
9 CIT 481, 483-84, 620 F. Supp. 719, 721-22 (1985); Matsushita
Elec. Indus. Co. v. United States, 2 CIT 254, 256-59, 529 F. Supp.
664, 667-69 (1981).
18
The utility companies include: Arizona Public Service
Co.; Constellation Energy Group, Inc.; Dominion Energy Kewaunee,
Inc.; Dominion Nuclear Connecticut, Inc.; Duke Energy Carolinas,
LLC; Entergy Services, Inc.; Exelon Corp.; Florida Power & Light
Co.; FPL Energy Seabrook, LLC; Luminant (formerly TXU Generation
Co.); Nebraska Public Power District; Pacific Gas & Electric Co.;
PPL Susquehanna, LLC; Progress Energy Carolinas, Inc.; Progress
Energy Florida, Inc.; Southern California Edison Co.; Southern
Nuclear Operating Co.; Union Electric Co. (d/b/a AmerenUE); and
Virginia Electric & Power Co. In a more recent filing in this
court, AHUG lists sixteen members - the above nineteen members
less Florida Power & Light Co.; FPL Energy Seabrook, LLC; and
Southern California Edison Co. See AHUG Resp. to Apr. 2009
Questions 3. However, this discrepancy does not change the
outcome in this case.
Court No. 06-229 Page 17
CONCLUSION
For the foregoing reasons, the court GRANTS the Defendant’s
and Defendant-Intervenors’ pending USCIT Rule 12(b)(1) motions to
dismiss for lack of subject matter jurisdiction.
Judgment will be entered accordingly.
/s/ Donald C. Pogue
Donald C. Pogue, Judge
Dated: June 15, 2009
New York, New York