Tokyo Kikai Seisakusho, Ltd. v. United States

Slip Op. 05-144

UNITED STATES COURT OF INTERNATIONAL TRADE

TOKYO KIKAI SEISAKUSHO, LTD.

and TKS (USA), INC.,

Plaintiffs, Before: Timothy C. Stanceu, Judge

v. Court No. 05-00348

UNITED STATES,

Defendant.

OPINION

[Defendant’s motion to dismiss for lack of subject matter jurisdiction is granted]

Dated: November 7, 2005

Sidley Austin Brown & Wood LLP (Neil R. Ellis, Lawrence R. Walders and Peter J.

Toren) and Law Offices of Hoken S. Seki (Hoken S. Seki) for plaintiffs.

Stuart E. Schiffer, Deputy Assistant Attorney General, David M. Cohen, Director,

Patricia M. McCarthy, Assistant Director, Kent G. Huntington, Trial Attorney, Commercial

Litigation Branch, International Trade Field Office, United States Department of Justice;

Elizabeth Cooper Doyle, Attorney, Office of Chief Counsel for Import Administration, United

States Department of Commerce, of counsel, for defendant.

Stanceu, Judge: Defendant United States moves, pursuant to USCIT Rule 12(b)(1), to

dismiss for lack of subject matter jurisdiction the complaint of Tokyo Kikai Seisakusho, Ltd.

(“TKS”) and TKS (USA), Inc. (“TKS (USA)”) (collectively “plaintiffs”) challenging as unlawful

the self-initiation by the United States Department of Commerce (“Commerce” or “the

Department”) of an antidumping “changed circumstances” review. The changed circumstances

review pertains to an antidumping duty order directed to imports of large newspaper printing

Court No. 05-00348 Page 2

presses and their components (“LNPPs”) from Japan. Commerce had issued the antidumping

duty order in 1996 and revoked it in 2002.

Plaintiffs allege that “Commerce ha[d] no legal authority to initiate the review” under the

relevant antidumping statute because no antidumping duty order was in effect on LNPPs from

Japan when, on May 10, 2005, Commerce published its determination to self-initiate the changed

circumstances review. Compl. at ¶ 3. Plaintiffs seek a declaratory judgment and an order

permanently enjoining Commerce from continuing to conduct any such review. Under 19 U.S.C.

§ 1675(b)(1) (2000), Commerce is empowered to conduct a changed circumstances review when

it receives information sufficient to warrant a review of a final affirmative determination

resulting in an antidumping duty order.

As the basis for the changed circumstances review, Commerce cited information

developed in a civil case tried in a U.S. district court in which TKS and TKS (USA) were sued

by a domestic LNPP producer for violations of the Antidumping Act of 1916. In initiating the

changed circumstances review, Commerce stated that the information developed at the trial

established that TKS had imposed on one of its customers a fraudulent increase in the price of

LNPP merchandise in exchange for the receipt by the customer of secret rebates.

In its motion to dismiss, defendant argues that this court lacks jurisdiction under the

provision under which this action has been brought, 28 U.S.C. § 1581(i)(2000), because resort to

that jurisdictional provision is permissible only if a remedy under any other provision of § 1581

would be unavailable or manifestly inadequate. Defendant points to § 1581(c), under which,

defendant contends, plaintiffs could challenge in this Court any final action that Commerce takes

as a result of the changed circumstances review. Defendant also urges dismissal for

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jurisdictional reasons on grounds of ripeness, standing, and failure to exhaust administrative

remedies.

In opposing the motion to dismiss, plaintiffs argue that the act of initiating and

maintaining an unlawful agency proceeding is regarded by relevant case law as a final agency

action that may be challenged judicially without requiring plaintiffs to pursue their remedies by

participating in the agency proceeding itself. Plaintiffs argue, further, that they have been injured

by the decision of Commerce to self-initiate the changed circumstances review and that the issue

presented by this case is ripe for judicial review as a purely legal question as to which no further

legal development is necessary.

This court concludes that the issue plaintiffs have raised concerning the initiation of the

changed circumstances review is not ripe for adjudication by this court. Accordingly, the court

will enter judgment granting defendant’s motion and dismissing this action for lack of subject

matter jurisdiction.

I. BACKGROUND

TKS, a business incorporated in Japan, manufactures and distributes LNPPs in Japan, the

Unites States, and other countries through its subsidiaries. TKS (USA), a wholly-owed

subsidiary of TKS incorporated in Delaware, markets and sells in the United States LNPPs

manufactured by TKS. See Comp. ¶ 2.

Commerce issued its antidumping duty order on imports of LNPPs from Japan on

September 4, 1996, assessing a dumping margin of 56.28 percent ad valorem to imports

manufactured and/or exported by TKS. See Notice of Antidumping Duty Order and Amended

Final Determination of Sales at Less Than Fair Value for Large Newspaper Printing Presses

Court No. 05-00348 Page 4

and Components Thereof, Whether Assembled or Unassembled, from Japan, 61 Fed. Reg.

46,621, 41,622 (Sept. 4, 1996) (“Antidumping Duty Order”). In administrative reviews covering

LNPPs from Japan entered for consumption during three consecutive periods of review,

September 1, 1997 through August 31, 1998, September 1, 1998 through August 31, 1999, and

September 1, 1999 through August 31, 2000, Commerce calculated a weighted-average

antidumping duty margin of zero for TKS’s entries. See Final Results of Antidumping Duty

Administrative Review and Revocation in Part for Large Newspaper Printing Presses and

Components Thereof, Whether Assembled or Unassembled, From Japan, 67 Fed. Reg. 2,190,

2,191-92 (Jan. 16, 2002). Based on the three consecutive zero margins, Commerce revoked the

Antidumping Duty Order with respect to all entries of the subject merchandise manufactured or

exported by TKS. See id. Commerce initiated a five-year sunset review on August 1, 2001 and

revoked the Antidumping Duty Order with respect to all entries of LNPPs on February 25, 2002

due to insufficient domestic interest in the proceedings. See Notice of Final Results of Five-Year

Sunset Reviews and Revocation of Antidumping Duty Orders on Large Newspaper Printing

Presses and Components Thereof, Whether Assembled or Unassembled, from Japan (A-588-837)

and Germany (A-428-821), 67 Fed. Reg. 8,522 (Feb. 25, 2002).

In May 2000, Goss International Corporation (“Goss”) brought a civil action in the U.S.

District Court for the Northern District of Iowa against TKS and TKS (USA), alleging that the

two defendants violated the Antidumping Act of 1916, codified at 15 U.S.C. § 72 (1994).1 See

1

The Antidumping Act of 1916 provides:

It shall be unlawful for any person importing or assisting in importing any articles

from any foreign country into the Unites States, commonly or systematically to

import, sell or cause to be imported or sold such articles within the United States

at a price substantially less than the actual market value or wholesale price of such

Court No. 05-00348 Page 5

Goss Int’l Corp. v. Tokyo Kikai Seisakusho, Ltd., 321 F. Supp. 2d 1039, 1042 (N.D. Iowa 2004).

On December 3, 2003, a jury returned a verdict in favor of Goss in the amount of $10,539,949,

specifically finding that TKS and TKS (USA), with intent of destroying or injuring a domestic

industry, caused Goss to lose profits and opportunity costs with respect to three sales of LNPPs

that were made to the Dallas Morning News in 1996, the Orlando Sentinel in 1997, and the

Newark Star Ledger in 1997. See Goss Int’l Corp., 321 F. Supp. 2d at 1042-43; see also Verdict

Form for Goss Int’l Corp. v. Tokyo Kikai Seisakusho, Ltd., No. C00-35 (N.D. Iowa filed Dec. 3,

2003) (Pls.’ Combined Opp’n To Mot. To Dismiss & Mem. In Supp. Of Mot. For Summ. J. Ex. 2

at Ex. A (“Pls.’ Opp’n”)). The jury verdict withstood a motion by TKS and TKS (USA) for a

new trial and for judgment as a matter of law. See Goss Int’l Corp., 321 F. Supp. 2d at 1055.

On May 10, 2005, Commerce, relying on its authority under section 751(b)(1) of the

Tariff Act of 1930, codified at 19 U.S.C. § 1675(b)(1), self-initiated the changed circumstances

review that is the subject of this action. Commerce stated that it was self-initiating the review

based upon information contained in the opinion of the District Court issued on May 26, 2004

denying the motion of TKS and TKS (USA) for a new trial and judgment as a matter of law. See

Initiation of Changed Circumstances Review for Large Newspaper Printing Presses and

articles, at the time of exportation to the United States, in the principal markets of

the country of their production, or of other foreign countries to which they are

commonly exported after adding to such market value or wholesale price, freight,

duty, and other charges and expenses necessarily incident to the importation and

sale thereof in the United States: Provided, [t]hat such act or acts be done with the

intent of destroying or injuring an industry in the United States, or of preventing

the establishment of an industry in the United States, or of restraining or

monopolizing any part of trade and commerce in such articles in the United

States.

15 U.S.C. § 72 (emphasis in original).

Court No. 05-00348 Page 6

Components Thereof, Whether Assembled or Unassembled, from Japan, 70 Fed. Reg. 24,514,

24,515-16 (May 10, 2005) (“Initiation Notice”). This information consisted of evidence

presented at trial that TKS and TKS (USA) “provided false information regarding its sale[] to the

Dallas Morning News . . . , the subject of the Department’s 1997-1998 [administrative] review.”

Id. at 24,516. Such evidence concerned a secret arrangement between TKS and the Dallas

Morning News by which TKS imposed a fraudulent “increase” in the price of the 1996 sale to the

Dallas Morning News in exchange for rebates to the Dallas Morning News amounting to

$2,200,000. See id.; see also Goss Int’l Corp., 321 F. Supp. 2d at 1044-45. Evidence was

presented at trial to establish the intent of this arrangement to conceal the fact that the “1996 sale

to the [Dallas Morning News] was made at a dumped price.” Goss Int’l Corp., 321 F. Supp. 2d

at 1044. Further evidence was presented at trial implicating TKS and its counsel in a “concerted

effort to conceal the secret rebates,” which involved the falsifying and destruction of documents.

Id. at 1045; see also Initiation Notice, 70 Fed. Reg. at 24,516. Stating that “[t]he final results of

the 1997-1998 administrative review were a factor in the Department’s decisions to revoke TKS

from the antidumping duty order, as well as to sunset the order,” the Initiation Notice announced

that Commerce placed on the record of the changed circumstances review the District Court’s

opinion in Goss International Corporation v. Tokyo Kikai Seisakusho, Ltd., 321 F. Supp. 2d at

1039, and several public documents obtained from the record of that case. Initiation Notice,

70 Fed. Reg. at 24,516. Commerce invited comments from interested parties on the new

information and the actions the Department should take with respect to this new information.

See id.

Court No. 05-00348 Page 7

In their complaint in this action, filed May 11, 2005, plaintiffs challenge Commerce’s

authority to self-initiate the changed circumstances review and seek a declaratory judgment and

an order permanently enjoining Commerce from conducting any such review. See Compl. ¶ 20

et seq. Defendant United States moved to dismiss the complaint on July 14, 2005, and plaintiffs

filed a combined opposition and motion for summary judgment on August 25, 2005, to which

defendant replied on September 23, 2005. Prior to the filing of defendant’s reply to plaintiffs’

opposition, Commerce published the preliminary results of the changed circumstances review.

See Preliminary Results of Changed Circumstances Review for Large Newspaper Printing

Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 70 Fed.

Reg. 54,019 (Sept. 13, 2005) (“Preliminary Results”). In the Preliminary Results, the

Department preliminarily determined that “in order to protect the integrity of the Department’s

proceedings,” Commerce would revise the zero margin assigned to TKS for the 1997-1998

administrative review,2 rescind the revocation of the Antidumping Duty Order for TKS and

reconsider the revocation of the Antidumping Duty Order under the sunset review provision

19 U.S.C. § 1675(c) (2000). See Preliminary Results, 70 Fed. Reg. at 54,019. Commerce

invited interested parties to comment on the Preliminary Results by October 13, 2005, thirty days

after the publication of the Preliminary Results in the Federal Register.

2

Commerce preliminarily assigned to the single TKS sale reviewed during the 1997-1998

administrative review (the 1996 sale to the Dallas Morning News) an antidumping duty margin

of 59.67 percent, the rate calculated for Mitsubishi Heavy Industries, Ltd., a respondent in the

administrative review, in the less-than-fair-value investigation, as amended and recalculated

pursuant to a Court-ordered remand redetermination. See Preliminary Results, 70 Fed. Reg. at

54,022. This rate of duty, which Commerce proposed to assign under its “facts available” and

“adverse inferences” authority under 19 U.S.C. § 1677e (2000), “is the highest calculated for any

respondent in the [less than fair value] investigation.” Id.

Court No. 05-00348 Page 8

II. DISCUSSION

Plaintiffs have claimed subject matter jurisdiction under 28 U.S.C. § 1581(i), specifically

citing subparagraphs (i)(2) and (i)(4), which grant this court exclusive jurisdiction of any civil

action commenced against the United States that arises out of any law of the United States

providing for “tariffs, duties, fees, or other taxes on the importation of merchandise for reasons

other than the raising of revenue” and the “administration of enforcement with respect to” such

matters, respectively. Compl. ¶ 4. The first argument in defendant’s motion to dismiss is that

subject matter jurisdiction is unavailable under 28 U.S.C. § 1581(i) because plaintiffs, upon

completion of the proceedings before Commerce, could bring a civil action to contest any final

results of the changed circumstances review, invoking this court’s jurisdiction under § 1581(c) of

that title, which grants this court exclusive jurisdiction of any civil action commenced under

section 516A of the Tariff Act of 1930, codified at 19 U.S.C. § 1516a (2000). See Def.’s Mot. To

Dismiss at 7-10. Defendant relies on the holding of the U.S. Court of Appeals for the Federal

Circuit in Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992), 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.’” (Citing Miller & Co. v. United States, 824 F.2d 961, 963

(Fed. Cir. 1987) (emphasis in original)). Defendant’s argument also relies on language in

subsection (i) providing that “[t]his subsection shall not confer jurisdiction over an antidumping

or countervailing duty determination which is reviewable . . . by the Court of International Trade

under section 516A(a) of the Tariff Act of 1930 . . . .” 28 U.S.C. § 1581(i). Defendant argues, in

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addition, that plaintiffs have not made a showing that a remedy under 28 U.S.C. § 1581(c) would

be manifestly inadequate. See Def.’s Mot. To Dismiss at 10-12.

Plaintiffs could not validly have asserted their particular claim under section 516A of the

Tariff Act of 1930, which provision would authorize judicial review of “[a] final determination .

. . under section 1675 of this title.” 19 U.S.C. § 1516a(a)(2)(B)(iii) (emphasis added). The court

does not construe plaintiffs’ complaint as an attempt to bring an action under that provision, and

the court is aware of no other provision of the Tariff Act of 1930 under which plaintiffs could

have brought an action to challenge the initiation and continuation of a changed circumstances

review that has not reached a conclusion. Although its wording is less than clear in specifying its

cause of action, plaintiffs’ complaint can be construed to bring a civil action against the United

States under the Administrative Procedure Act (“APA”), which provides that “[a] person

suffering legal wrong because of agency action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C.

§ 702 (2000). The complaint does not state expressly that plaintiffs are suing under the APA, but

it relies on this provision in its allegation of standing. See Compl. ¶¶ 6-8. The complaint does

not appear to plead a civil action against the United States under any other statute.3 Accordingly,

for purposes of considering defendant’s motion to dismiss, the court will construe the complaint

to bring an action under the APA.

3

The complaint invokes this court’s jurisdiction under 28 U.S.C. § 1581(i) but does not

assert that its action arises solely thereunder. See, e.g., Humane Soc’y of the U.S. v. Clinton,

236 F.3d 1320, 1328 (Fed. Cir. 2001) (stating that § 1581 is both a waiver of sovereign immunity

and a grant of jurisdiction). Construing the complaint as alleging a cause of action under

28 U.S.C. § 1581 would not overcome the jurisdictional shortcomings arising from the lack of

ripeness and the potential availability of jurisdiction under 28 U.S.C. § 1581(c), for the reasons

discussed in this opinion.

Court No. 05-00348 Page 10

Construing plaintiff’s complaint to bring an action under the APA, however, raises

jurisdictional problems that are insurmountable. The APA provides that “[a]gency action made

reviewable by statute and final agency action for which there is no other adequate remedy in a

court are subject to judicial review.” 5 U.S.C. § 704. As discussed previously, the Tariff Act of

1930 does not itself authorize an action against the United States for an agency’s initiation and

continuation of an ongoing changed circumstances review. As a result, the APA would make

reviewable an agency’s initiation and continuation of a changed circumstances review only if the

agency’s action constituted “final agency action for which there is no other adequate remedy in a

court.” Id. Concerning the scope and timing of review of agency action, the APA also provides

that “[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable

is subject to review on the review of the final agency action.” Id.

Courts have considered the question of finality of agency action for purposes of review

under the APA in the context of the larger judicial doctrine of ripeness. The purpose of the

ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative decision has been formalized and

its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S.

136, 148 (1966). The doctrine “is drawn both from Article III limitations on judicial power and

from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43, 57 n.18 (1993) (citing Buckley v. Valeo, 424 U.S. 1, 114 (1976) (per curiam) and

Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972)).

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In determining ripeness for judicial review, the court must “evaluate both the fitness of

the issues for judicial decision and the hardship to the parties of withholding court

consideration.” Abbott Labs., 387 U.S. at 149. The court concludes that plaintiffs’ challenge to

the agency action is not yet fit for judicial decision because Commerce’s initiation of the changed

circumstances review is a preliminary agency action. The court concludes, further, that

withholding court consideration will not cause a hardship to plaintiffs because participation in

the changed circumstances review requires essentially that plaintiffs file a brief as an interested

party in the proceeding. This is not a significant burden, the less so because plaintiffs already

have developed their arguments in prosecuting this action before this court. Placing those

arguments before Commerce will allow the agency to rule on the relevant issues and will avoid

judicial review of an agency action that is subject to change when Commerce issues final results

in the review. Each of these conclusions is discussed below.

A. The Challenge to the Initiation of the Changed Circumstances Review Is Not Fit for

Judicial Decision

Commerce’s initiation of the changed circumstances review and its publication of the

Preliminary Results each constitute a “preliminary, procedural, or intermediate agency action”

within the meaning of 5 U.S.C. § 704. Each would be “subject to review on the review of the

final agency action” under the APA were they not directly reviewable under section 516A(a) of

the Tariff Act of 1930 upon a review of the final changed circumstances determination. 5 U.S.C.

§ 704; see 19 U.S.C. § 1516a(a)(2)(B)(iii). If plaintiffs are dissatisfied with the outcome of the

changed circumstances review, they will have the opportunity to challenge, in an action brought

under 19 U.S.C. § 1516a, the authority of Commerce to initiate the review as well as other

Court No. 05-00348 Page 12

aspects of a final decision. Dismissing plaintiffs’ complaint, therefore, will not deprive plaintiffs

of their opportunity to be heard on the merits of their complaint.

Plaintiffs characterize their complaint as challenging the “very act of initiating and

conducting a plainly unlawful agency proceeding” and “ask[] to be relieved of [their] obligation

to participate.” Pls.’ Opp’n at 2, 13. Plaintiffs rely on a line of cases to support the proposition

that “a party may challenge the initiation of unlawful action by the Department under 28 U.S.C.

§ 1581(i),” citing Dofasco Inc. v. United States, 28 CIT ___, ___, 326 F. Supp. 2d 1340 (2004),

aff’d on other grounds, 390 F.3d 1370 (Fed. Cir. 2004), JIA Farn Manufacturing Co., Ltd. v.

United States, 17 CIT 187, 817 F. Supp. 969 (1993), Asociacion Colombiana de Exportadores de

Flores (Asocoflores) v. United States, 13 CIT 584, 717 F. Supp. 847 (1989), aff’d, 903 F.2d 1555

(Fed. Cir. 1990), and Carnation Enterprises Pvt. Ltd. v. United States, 13 CIT 604, 719 F. Supp.

1084 (1989). Pls.’ Opp’n at 7. Each of the cases on which plaintiffs rely, however, is readily

distinguished from the case at bar. All of the cases cited by plaintiffs address the issue of

whether the remedy for which jurisdiction is provided under 28 U.S.C. § 1581(c) would be

manifestly inadequate in an action challenging an agency determination to initiate, under

19 U.S.C. § 1675(a), a periodic administrative review of an antidumping or countervailing duty

order. Critical to the court’s conclusion in each of these cases was the burdensome and time-

consuming nature of participation in such an administrative review. See Dofasco Inc., 28 CIT at

___, 326 F. Supp. 2d at 1345; JIA Farn Mfg. Co., 17 CIT at 189, 817 F. Supp. at 971-72;

Asociacion Colombiana, 13 CIT at 587, 717 F. Supp. at 850; Carnation Enters. Pvt. Ltd., 13 CIT

at 609, 719 F. Supp. at 1088-89. Plaintiffs are challenging judicially the initiation of a changed

circumstances review that Commerce has commenced under 19 U.S.C. § 1675(b)(1), not the

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initiation of a periodic administrative review brought under 19 U.S.C. § 1675(a). The difference

between the two procedures is significant with respect to the burden imposed on a participant.

Plaintiffs are unable to show that the burden or cost of filing comments to the Preliminary

Results amounts to anything near the level of burden or cost associated with participating in a

periodic administrative review.

Plaintiffs also cite Abbott Laboratories v. Gardner, 387 U.S. at 149-50, arguing that this

court should take a “pragmatic” and “flexible” approach to determining finality for purposes of

judicial review. See Pls.’ Opp’n at 13. Plaintiffs add that, as did the claim in Abbott

Laboratories, this challenge to agency action raises a purely legal question fit for judicial

determination without further development of a factual record before the agency. See id. at 12.

Abbott Laboratories, however, does not lend authority to the proposition that Commerce has

taken an action that is final for purposes of APA judicial review.

In Abbott Laboratories, the Supreme Court held that promulgation by the Commissioner

of Food and Drugs of regulations requiring prescription drug manufacturers to accompany the

brand name of the drug with the government-established name every time the brand name was

used on packaging was a final agency action for purposes of 5 U.S.C. § 704. The Court

concluded therefore that a judicial challenge to the regulations seeking a declaratory judgment

and injunctive relief was ripe for review even though the case arose before the Commissioner of

Food and Drugs had brought an enforcement action under the regulations. See Abbott Labs.,

387 U.S. at 150-52. In its opinion in Abbott Laboratories, the Supreme Court observed that

the impact of the regulations upon the petitioners is sufficiently direct and

immediate as to render the issue appropriate for judicial review at this stage.

These regulations purport to give an authoritative interpretation of a statutory

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provision that has a direct effect on the day-to-day business of all prescription

drug companies; its promulgation puts petitioners in a dilemma that it was the

very purpose of the Declaratory Judgment Act to ameliorate. As the District

Court found on the basis of uncontested allegations, “Either they must comply

with the every time requirement and incur the costs of changing over their

promotional material and labeling or they must follow their present course and

risk prosecution.”

Id. (footnote and citation omitted).

Commerce’s initiation of the changed circumstances review and issuance of the

Preliminary Results do not confront plaintiffs with the obligation to comply with any regulatory

requirements or enforcement actions. The ripeness issue presented by this case is thus readily

distinguished from the ripeness issue decided by the Supreme Court in Abbott Laboratories. The

Commerce action challenged here more closely resembles the agency actions challenged in

Federal Trade Commission v. Standard Oil Co., 449 U.S. 232 (1980) (“Standard Oil”), and U.S.

Association of Importers of Textiles and Apparel v. United States, 413 F.3d 1344 (Fed. Cir.

2005) (“U.S. Association of Importers”).

In Standard Oil, the Federal Trade Commission (“FTC”) issued an administrative

complaint against a group of oil companies based upon a “reason to believe” that the Federal

Trade Commission Act had been violated. 449 U.S. at 234-35. Prior to the administrative

resolution of the complaint, Standard Oil sued the FTC in a U.S. district court “alleging that the

[FTC] had issued its complaint without having ‘reason to believe’ that” a violation of the Federal

Trade Commission Act had occurred. Id. at 235. The Standard Oil Court applied the test

established in Abbott Laboratories to conclude that the claim was not ripe for judicial review.

Under the “fitness for judicial decision” inquiry, the Supreme Court held that the administrative

complaint, although “definitive” on the issue of whether the FTC had “reason to believe” that a

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violation had occurred, nevertheless was a prerequisite for further agency action. See Standard

Oil, 449 U.S. at 241. The complaint had “no legal force comparable to that of the regulation at

issue in Abbott Laboratories, nor any comparable effect upon [Standard Oil’s] daily business,”

despite its burdening identified oil companies to respond to the charges made against them. Id. at

242.

In U.S. Association of Importers, the Court of Appeals for the Federal Circuit applied the

Supreme Court’s analysis in Standard Oil in holding that the acceptance for consideration by the

Committee for the Implementation of Textile Agreements, an agency of the Department of

Commerce, of certain petitions “to request consultations with China under a ‘safeguard

provision’ regarding the importation of textiles in the terms of China’s accession to the World

Trade Organization” was not a final agency action within the meaning of 5 U.S.C. § 704. U.S.

Ass’n of Imps., 416 F.3d at 1346. The Court of Appeals concluded that the acceptance of

petitions in U.S. Association of Importers “is more analogous to the ‘threshold determination’

warranting further investigation in Standard Oil . . . than to the issuance of a formal regulation

after notice and comment constituting a final agency action in Abbott Laboratories.” U.S. Ass’n

of Imps., 413 F.3d at 1349. Commerce’s initiation of the changed circumstances review and

issuance of the Preliminary Results are similar in effect to the acceptance by Commerce of the

petitions at issue in U.S. Association of Importers. Commerce, in the notices announcing these

actions, indicated its intention to conduct further proceedings by which it would reach its final

conclusions. See Initiation Notice, 70 Fed. Reg. at 24,514; Preliminary Results, 70 Fed. Reg. at

54,023.

Court No. 05-00348 Page 16

Plaintiffs argue that even if the court finds that Commerce’s “decision to initiate and

conduct the changed circumstances review is not ‘final agency action,’ the Court should

nonetheless find that this issue is fit for judicial consideration under the exception for non-final

actions that plainly contravene the agency’s statutory mandate.” Pls.’ Opp’n at 13. Plaintiffs

rely for this exception on Leedom v. Kyne, 358 U.S. 184 (1958). The court does not find

precedent in Leedom for invoking an exception to the finality requirement that would allow

judicial review of the agency action challenged by plaintiffs.

Leedom involved a suit brought by the president of an association of engineers and

scientists to strike down an order of the National Labor Relations Board that, in certifying a

group of workers as appropriate for collective bargaining purposes under the National Labor

Relations Act, had included in the group nine non-professional members along with 233

professional members. The Board had certified the group to include the nine non-professionals

without a vote of the professional members, in defiance of an express prohibition in the National

Labor Relations Act. The case reached the Supreme Court in a posture in which the Board “did

not contest the trial court’s conclusion that the Board, in commingling professional with

nonprofessional employees in the unit, had acted in excess of its powers and had thereby worked

injury to the statutory rights of the professional employees.” Leedom, 358 U.S. at 187. The

narrow jurisdictional question, decided by the Supreme Court in the affirmative, was whether the

District Court was granted jurisdiction to hear the case by Section 24(8) of the Judicial Code,

codified at 28 U.S.C. § 1337, when construed in a manner consistent with the judicial review

provisions of the National Labor Relations Act. The Court’s conclusion that jurisdiction existed

rested on the uncontested fact that the unlawful action of the Board, which was taken despite a

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statutory provision expressly prohibiting it, had inflicted an injury on the members of the

association for which the law, apart from the review provisions in the National Labor Relations

Act, afforded a remedy. See Leedom, 358 U.S. at 186-89.

Leedom, which did not involve finality for purposes of judicial review under the APA,

does not in any event constitute controlling authority for the exercise of subject matter

jurisdiction over the case plaintiffs have brought before this court. The critical fact underlying

the Supreme Court’s holding in Leedom was the injury inflicted on the members of the

association by a violation by the Board of an express statutory prohibition, for which the law

afforded a remedy. Plaintiffs are unable to show how Commerce “inflicted an injury” upon them

by the act of initiating the changed circumstances review. Nor have plaintiffs established that

Commerce, in initiating the changed circumstances review, committed a violation of an express

statutory prohibition for which the law affords a remedy. Read in pertinent part, the statute

provides that “[w]henever the administering authority . . . receives information concerning . . . a

final affirmative determination that resulted in an antidumping duty order under this subtitle . . .

which shows changed circumstances sufficient to warrant a review of such determination . . . the

administering authority . . . shall conduct a review of the determination . . . after publishing

notice of the review in the Federal Register.” 19 U.S.C. § 1675(b)(1). This statutory provision,

and the larger statutory scheme of which it is a part, do not grant to a party in the factual situation

of TKS or TKS (USA) an enforceable right not to be the subject of a changed circumstances

review that has yet to culminate in a regulatory action affecting that party’s substantive rights.

Plaintiffs allege that this court, in reviewing the Commerce action, must determine only

the narrow legal issue of whether Commerce exceeded the “authority granted [to it] by Congress

Court No. 05-00348 Page 18

in the statute or its ‘inherent authority’ as an administrative agency” by initiating a changed

circumstances review pursuant to 19 U.S.C. § 1675(b)(1) while no relevant “antidumping duty

order or suspension agreement [was] in effect.” Compl. ¶ 17; Pls.’ Opp’n at 13. Plaintiffs’

characterization appears to oversimplify the issues that could be relevant to judicial review of an

agency action that actually is ripe for such review, when and if that occurs. Commerce, in its

Initiation Notice and the Preliminary Results, alludes to evidence presented during the trial in the

matter of Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd., No. C00-35, in which the

jury returned a verdict in favor of Goss, and also refers to the District Court’s denial of the

motion of TKS and TKS (USA) for a new trial and judgment as a matter of law. Commerce’s

references to those events establish at least a possibility that judicial review would be concerned

not only with the fact that no antidumping duty order was in effect at the time the changed

circumstances review was initiated but also with the overall factual circumstances under which

the antidumping duty order was revoked with respect to TKS and, subsequently, with respect to

all other respondents. Because Commerce has yet to make any conclusive findings of fact or

otherwise take any action that constitutes its final regulatory response to the various factual

circumstances to which it refers in its notices, the issue plaintiffs urge this court to decide is not

justiciable at this time.

B. Withholding Court Consideration Will Not Cause Hardship to the Parties

Plaintiffs fail to show how “withholding court consideration” until the issuance of the

final results of the changed circumstances review would amount to a hardship. See Abbott Labs.,

387 U.S. at 149. As noted earlier, the Preliminary Results invited interested parties to comment

Court No. 05-00348 Page 19

through the filing of briefs.4 The filing of a brief commenting on the administrative proceeding

does not appear to require plaintiffs to do significantly more than they already have done by

briefing their issues before this court.

Because the court finds that the initiation by Commerce of the changed circumstances

review does not constitute a final agency action and does not fall within the exemption allowing

judicial review of non-final agency actions, and because the court further finds that plaintiffs will

not suffer hardship if the court withholds review of this action, the court need not address the

additional arguments raised by defendant in the motion to dismiss. All other motions filed in this

action, including the motion of Goss to intervene and for leave to file a reply to plaintiffs’

opposition to defendant’s motion to dismiss, will be denied as moot.

III. CONCLUSION

The initiation by Commerce of the changed circumstances review does not constitute a

final agency action fit for judicial decision, and dismissal of this action will not cause plaintiffs

any real hardship. Therefore, this action is not ripe for judicial review. Judgment dismissing this

action will be entered accordingly.

/s/ Timothy C. Stanceu

Timothy C. Stanceu

Judge

Dated: November 7, 2005

New York, New York

4

The Preliminary Results directed that any briefs commenting on the review be filed by

October 13, 2005, a date that recently has passed. At the time this opinion was issued,

Commerce had not yet issued a notice announcing any final conclusions it had reached as a result

of the changed circumstances review.