The opinion
Slip Op. 04-93
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Judge Judith M. Barzilay
---------------------------------------------------------------x
NORTH DAKOTA WHEAT COMMISSION, :
U.S. DURUM GROWERS ASSOCIATION, and
DURUM GROWERS TRADE ACTION :
COMMITTEE,
:
Plaintiffs,
:
v.
: Court No. 03-00838
UNITED STATES,
:
Defendant,
:
and
:
CANADIAN WHEAT BOARD,
:
Defendant-Intervenor.
:
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[Defendant’s Motion to Dismiss is granted.]
Decided: July 29, 2004
Robins, Kaplan, Miller & Ciresi, LLP (Charles A. Hunnicutt), for Plaintiff.
James M. Lyons, Acting General Counsel, Office of General Counsel, United States International
Trade Commission, (Michael Diehl), Attorney-Advisor, for Defendant.
Steptoe & Johnson LLP, Richard O. Cunningham, Edward J, Krauland, (Matthew S. Yeo), Tina
Potuto Kimble, for Defendant-Intervenor.
OPINION
BARZILAY, JUDGE: In this case, the court is called upon to decide whether plaintiffs, the
North Dakota Wheat Commission, U.S. Durum Growers Association, and Durum Growers Trade
Court No. 03-00838 Page 2
Action Committee (“plaintiffs”) have failed to establish jurisdiction in this court as defendant,
the United States International Trade Commission (“Commission”), argues in its motion to
dismiss. Specifically, the government argues that the North Dakota Wheat Commission
commenced the present action1 during a time expressly prohibited by section 516a(a)(5) of the
Tariff Act of 1930 (19 U.S.C. § 1516a(a)(5)).
I. Background
On September 13, 2002, the North Dakota Wheat Commission and the U.S. Durum
Growers Association filed a petition with the Department of Commerce (“Commerce”) and the
Commission alleging that a domestic industry was being materially injured and threatened with
material injury by reason of imports of durum wheat from Canada that were being subsidized and
sold at less than fair value. In October, 2002, Commerce initiated both countervailing duty and
antidumping investigations of certain hard red spring and durum wheat from Canada. Commerce
initiated four specific and separate investigations: one countervailing duty and antidumping
investigation for each type of wheat. In November 2002, the Commission made a preliminary
determination that there was a reasonable indication that an industry in the United States was
materially injured by reason of subject imports of durum wheat from Canada. Durum and Hard
Red Spring Wheat from Canada, Inv. Nos. 701-TA-430A and 430B and 731-TA-1019A and
1019B (Preliminary), USITC Pub. 3563 (Dec. 2002). Commerce subsequently made a final
affirmative determination in all four investigations. 68 Fed. Reg. 52,747 (Sept. 5, 2003) (final
1
The petition was originally filed by the North Dakota Wheat Commission and the U.S.
Durum Growers Association. The Durum Growers Trade Action Committee was added as a
petitioner by amendment.
Court No. 03-00838 Page 3
CVD determination), 68 Fed. Reg. 52741 (Sept. 5, 2003) (final less than fair value
determination). On October 23, 2003, the Commission issued its final determination, finding
that the domestic industry was being materially injured by subsidized imports from Canada of
hard red spring wheat, but was not being materially injured or threatened with material injury by
subsidized imports of durum wheat from Canada. Durum and Hard Red Spring Wheat from
Canada, 68 Fed. Reg. 6,070 (Oct. 23, 2003); Durum and Hard Red Spring Wheat from Canada,
Inv. Nos. 701-TA-430A and 430B and 731-TA-1019A and 1019B (Final), USITC Pub. 3639
(Oct. 2003). Twenty-nine days later, on November 21, 2003, plaintiffs filed a summons with the
court, challenging the Commission’s determination and commencing the instant litigation.
Pursuant to USCIT R. 12(b)(1), defendant moves to dismiss for lack of subject matter
jurisdiction, arguing that plaintiffs commenced the present action during a time expressly
prohibited by 19 U.S.C. § 1516a(a)(5)2. Specifically, defendant argues that section 1516a(a)(5)
creates a 30 day “time window” within which a party must file a summons seeking judicial
review of a Commission determination involving imports from a free trade area country.
2
Section 1516a(a)(5) states
(a) Review of determination . . .
(5) Time limits in cases involving merchandise from free trade area countries.
Notwithstanding any other provision of this subsection, in the case of a determination to
which the provisions of subsection (g) apply, an action under this subsection shall not
begin to run, until the day specified in whichever of the following subparagraphs applies:
(A) For a determination described in paragraph (1)(B) or clause (i), (ii) [negative
final determinations by the Commission], or (iii) of paragraph (2)(B), the 31st day
after the date on which notice of the determination is published in the Federal
Register.
Court No. 03-00838 Page 4
Defendant further contends that this “window” opens on the 31st day after publication of the
Commission’s order in the Federal Register and closes on the 60th day after publication. Thus,
commencement of judicial review is prohibited up to the 31st day. Because the plaintiffs
commenced this action on November 21, 2003, defendant argues, it was commenced before the
time window for doing so began and therefore within the prohibited period.
Plaintiffs respond by arguing that the court should be guided in its interpretation of
section 1516a(a)(5) by this Court’s recent decision in Bhullar v. United States, 27 CIT __, 259 F.
Supp. 2d 1332 (2003), aff’d 2004 U.S. App. LEXIS 3995 (March 2, 2004) (UNPUBLISHED)3.
Plaintiffs argue that according to this Court’s decision in Bhullar, a summons must be filed
within 31 days after notice is published in the Federal Register. Plaintiffs further argue that the
Commission, in Bhullar, argued that a plaintiff was required to commence an action no later than
31 days after notice of the antidumping or countervailing duty determination is published in the
Federal Register.4 Plaintiffs contend that this Court granted the Commission “deference” when it
ruled that plaintiffs are required to timely commence an action under section 1516a(a)(5) within
31 days after publication of the notice in the Federal Register, and that they followed the
Commission’s “clearly stated interpretation of the statute” by filing within that period.
3
Plaintiffs, throughout their briefs in this matter, repeatedly fail to indicate that the
Federal Circuit’s opinion affirming Bhullar was issued as unpublished, and thus may not be cited
as precedent. To the contrary, plaintiffs consistently cite to this opinion as controlling precedent
in this case.
4
Plaintiffs submit to the court, attached to their brief in opposition to defendant’s motion
to dismiss, a copy of the briefs in the Bhullar case. What the Commission argued in Bhullar is
irrelevant to this case, and, in any event, the government is free to change its opinion regarding
the interpretation of laws and to mend in subsequent proceedings any mistakes previously made.
Court No. 03-00838 Page 5
Plaintiffs argue in the alternative that according to the language of the statute, because
neither the United States nor Canada had standing to request binational panel review of the
Commission’s negative determination, 19 U.S.C. § 1516a(g)5 does not apply and therefore,
section 1516a(a)(5)(A) is inapplicable. Instead, plaintiffs argue, section 1516a(a)(2)6, which
requires commencement of an action within 30 days after publication in the Federal Register, is
controlling.
Finally, plaintiffs argue that should the court find that section 1516a(a)(5)(A) applies and
prohibits commencement of an action during the first 30 days after publication in the Federal
Register, the court should apply the principle of equitable tolling in this instance.
II. Analysis
A. Statute
Section 1516a(a) of Title 19 provides for judicial review of Commission determinations
in countervailing duty and antidumping duty proceedings. 19 U.S.C. § 1516a(a). For cases
5
19 U.S.C. § 1516a(g) states
(g) Review of countervailing duty and antidumping duty determinations involving free trade area
country merchandise.
(1) Definition of determination. For purposes of this subsection, the term "determination"
means a determination described in--
(A) paragraph (1)(B) of subsection (a), or
(B) clause (i), (ii), (iii), or (vi) of paragraph (2)(B) of subsection (a),
if made in connection with a proceeding regarding a class or kind of free trade
area country merchandise, as determined by the administering authority.
6
19 U.S.C. § 1516a(a)(2) states
(2) Review of determinations on record.
(A) In general. Within thirty days after--
(i) the date of publication in the Federal Register of– . . .
(II) an antidumping or countervailing duty order based upon any determination
described in clause (i) of subparagraph (B). . .
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involving merchandise from free trade area countries, as in this case, subsection (5) prescribes a
time limit for commencing an action in the Court of International Trade.
(5) Time limits in cases involving merchandise from free trade area countries.
Notwithstanding any other provision of this subsection, in the case of a
determination to which the provisions of subsection (g) apply, an action under
this subsection may not be commenced, and the time limits for commencing an
action under this subsection shall not begin to run, until the day specified in
whichever of the following subparagraphs applies: . . .
(A) For a determination described in paragraph (1)(B) or clause (i), (ii)
[negative final determinations by the Commission] or (iii) of paragraph
(2)(B), the 31st day after the date on which notice of the determination is
published in the Federal Register.
19 U.S.C. § 1516a(a)(5)(A). As plaintiffs point out, section 1516a(a) is predicated on the
applicability of subsection (g). Subsection (g) applies to the review of countervailing duty and
antidumping duty determinations involving free trade area merchandise, and provides for
exclusive review of determinations by binational panels – if binational panel review is requested
pursuant to article 1904 of the North American Free Trade Agreement (“NAFTA”), with certain
exceptions not relevant here. 19 U.S.C. § 1516a(g). Subsection (g) provides for binational panel
review where it has been requested, but does not, as plaintiffs assert, require that it be requested
in order for subsection (a)(5) to apply. Moreover, discussing this same provision in the U.S.-
Canada Free Trade Agreement – NAFTA’s predecessor – the Senate report on the implementing
legislation noted that
the Agreement provides that . . . judicial review may not be commenced until
the time for requesting a panel under the Agreement has expired. To
preclude this possibility, section 401(a) amends section 516a(a) by adding a
new paragraph (5) that prohibits the commencing of an action under section
1516a(a) until the 31st day after publication of the appropriate notice in the
Federal Register . . . Thus, the normal 30-day period for filing a summons
(and 30 days thereafter, a complaint) would begin to run on such 31st day.
Court No. 03-00838 Page 7
S. REP. NO . 100-509, at 33-34 (1988), reprinted in 1988 U.S.C.C.A.N. 2395, 2428 (emphasis
added). Thus, the statute lays out a series of steps that may be taken with respect to review of a
Commission determination. Under this scheme, commencement of an action in the Court of
International Trade is precluded until the time to request a binational panel has expired.
Specifically, NAFTA parties agreed to replace judicial review of certain determinations with
binational panel review where binational panel review has been requested. A request for
binational panel review must be made within 30 days following the date of publication of the
final determination which, in the United States, refers to publication of the Commission’s
determination in the Federal Register. See NAFTA Art. 1904:4; 19 U.S.C. § 1516a(g)(2). Thus,
the United States agreed to “amend its statutes or regulations to ensure that . . . domestic
procedures for judicial review of a final determination may not be commenced until the time for
requesting a panel . . . has expired.” See NAFTA Art. 1904:15(c). Therefore, as section
1516a(a)(5) indicates, time limits for commencing an action in the Court of International Trade
shall not begin to run until the 31st day after the date of publication in the Federal Register of
notice of the final determination. NAFTA Annex 1904.15, U.S. Schedule at ¶ 9. The statutory
scheme contains no requirement that the parties actually invoke binational panel review and none
has been cited to the court from other sources.
Thus, because the instant action concerns review of countervailing duty and antidumping
duty determinations involving free trade area merchandise, namely Canadian wheat products,
subsection (g) applies.7 Therefore, section 1516a(a)(5) applies as well. According to the facts at
7
Because the court finds that subsection (g) is applicable to the facts at hand, plaintiff’s
alternative argument that section 1516a(a)(2) controls does not apply.
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hand, notice of the Commission’s determination was published in the Federal Register on
October 23, 2003. 68 Fed. Reg. 60,707 (Oct. 23, 2003). Under the statute, commencement of an
action in the Court of International Trade was prohibited and the time limits for commencing an
action did not begin to run until the 31st day after the date on which notice of the determination
was published in the Federal Register. In this case, that date would have been November 23,
2003, which fell on a Sunday. Thus, the earliest day plaintiffs could have filed was November
24, 2003. See USCIT R. 6(a). The North Dakota Wheat Commission filed its summons
commencing the present action on November 21, 2003, on the 29th day after publication in the
Federal Register. 28 U.S.C. § 2632(c); 19 U.S.C. § 1516a(a)(2); USCIT R. 3. Therefore, the
action was commenced during the prohibited period.
B. Case law
Plaintiffs point to this Court’s recent decision in Bhullar in support of the proposition
that they had until the 31st day after publication in the Federal Register to commence this action
– rather than being precluded from commencing until the 31st day after publication. 259 F.
Supp. 2d at 1332. In Bhullar, a pro se plaintiff filed a complaint in the Court of International
Trade over four months after publication of the Commission’s final antidumping and
countervailing duty determinations in the Federal Register. The government moved to dismiss
for lack of jurisdiction on several grounds, including standing, untimeliness, and the fact that a
binational panel review was pending. This Court held that in addition to lacking standing to
bring the action, the plaintiff failed to meet the statutory timeliness requirements, and also that a
NAFTA binational panel had exclusive review of the determinations in that case. On the
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timeliness issue, this Court held that filing a summons and complaint four months after
publication in the Federal Register is prohibited by section 1516a. This holding is consistent
with the court’s present interpretation of section 1516a(a)(5). That the Commission took a
different position in its briefs before this court in Bhullar – an entirely unrelated action
predicated on facts entirely distinct from those presently at bar, is of no consequence. The
government, like all other parties that come before this Court, is free to change its position on its
interpretation of the law, and is also able to correct its past mistakes.8 In affirming this Court’s
dismissal of the Plaintiff’s case in Bhullar, the Court of Appeals for the Federal Circuit, in an
unpublished and nonprecedential opinion, held that this Court correctly dismissed because the
complaint could not lie after invocation of the binational NAFTA review process. 2004 U.S.
App. LEXIS 3995 at 4. It specifically did not address the other grounds raised by the
government, including timeliness. Id. (“Because the complaint cannot lie after invocation of the
binational NAFTA review process, we need not recite other grounds, namely timeliness. . .”).
Plaintiffs further argue that this Court in Bhullar granted the Commission deference in
interpreting a statute that it administers and therefore, they (plaintiffs) should be able to rely on
the Commission’s erroneous prior interpretation of section 1516a(a)(5) that an action must be
8
The government, in its Reply Brief, states that in making its argument that the summons
was untimely in the Bhullar case, the Commission’s counsel inadvertently truncated the language
of 19 U.S.C. § 1516a(a)(5), and the mistake was carried through papers in that case subsequently
filed with this Court and the Federal Circuit. Deft.’s Reply to Pl.’s Resp. in Opp. to Deft.’s Mot.
to Dismiss, 10. Pointing out that although there was no advantage gained by that mistake
because even under the correct statutory language the Plaintiff’s summons was still very
untimely, the Commission’s attorney in that case and the International Trade Commission
General Counsel’s Office indicate that they take responsibility for and sincerely regret the
oversight. Id.
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commenced within 31 days after publication in the Federal Register. To dismiss this action in
light of Bhullar, plaintiffs argue, would be “extraordinarily prejudicial,” as it would apply a new
and different interpretation of the statute in question. To the contrary, where a statute is clear on
its face, the Court does not give deference to the agency’s interpretation. See Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). This Court, in
Bhullar, held that commencement of an action over four months after publication in the Federal
Register is untimely. 259 F. Supp. 2d at 1342. In doing so, however, this Court, apparently
relying on government counsel’s erroneous guidance, miscited the statute and stated that
“[p]ursuant to § 1516a(a)(5)(A), Plaintiff is required to file its summons and complaint within 31
days after the publication in the Federal Register of the final determinations of which Plaintiff
seeks review.” 259 F. Supp. 2d at 1342. Plaintiffs claim to have relied on this erroneous
statement to their detriment in timing their filing of the instant case. This is truly unfortunate.
However, the government’s previous contrary arguments before this Court notwithstanding, the
statute is clear on its face, and the court must be guided by its plain meaning.
C. Equity
Plaintiffs argue that if the court does not deny the government’s motion to dismiss based
on the statute or case law, it should apply the doctrine of equitable tolling and allow the case to
go forward. When looking to apply equitable principles in suits against the government, the
court must begin with the fundamental maxim that as a sovereign the United States is immune
from legal action in the courts except to the extent that it waives such immunity. United States v.
Mitchell, 445 U.S. 535, 538 (1980). Furthermore, a waiver of sovereign immunity “‘cannot be
Court No. 03-00838 Page 11
implied but must be unequivocally expressed’” Id. (quoting United States v. King, 395 U.S. 1, 4
(1969)). The Supreme Court has held that the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also apply to suits against the United States.
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Thus, per Irwin, the court must
inquire into the language of the statute to ascertain whether Congress intended the equitable
tolling doctrine to apply. See Irwin, 498 U.S. at 95-96; see also, e.g. United States v. Brockamp,
519 U.S. 347, 353 (1997) (analyzing the language of statutory time limitations, comparing
“ordinary limitations statutes,” which use fairly simple language that can plausibly read as
containing an implied equitable tolling exception, with “highly detailed technical ones,” that
cannot easily be read as containing implicit exceptions).
As discussed above, section 1516a explicitly prohibits the commencement of an action in
the Court of International Trade during the 30 days following publication of the Commission’s
final determinations in the Federal Register. It states that
an action under this subsection may not be commenced, and the time limits for
commencing an action under this subsection shall not begin to run, until . . . the
31st day after the date on which notice of the determination is published in the
Federal Register.
19 U.S.C. § 1516a(a)(5)(A). Moreover, Congress purposefully amended relevant statutes and
regulations to ensure that domestic procedures for judicial review of a final determination may
not be commenced until the time for requesting a panel has expired. See NAFTA Art.
1904(15)(c), (i). As also discussed above, the 30 day period corresponds directly to time limits
under NAFTA for binational panel review that this court has no ability to alter. Thus, to read an
equitable tolling provision into the statute would potentially imply an exception for tolling in
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virtually all time limitations throughout the statute, as well as in the NAFTA regulations – a kind
of tolling for which the court has found no precedent. Cf. Brockamp, 519 U.S. at 353 (holding
that a statute’s technical language, the iteration of the limitations in both procedural and
substantive forms, and the explicit listing of exceptions, taken together, indicate that Congress
did not intend courts to read other unmentioned, open-ended, “equitable” exceptions into the
statute).
Furthermore, Irwin makes clear that equitable tolling is extended “only sparingly,” and
where “the complainant has been induced or tricked by his adversary’s misconduct. . .” 498 U.S.
at 96; see also Frazer v. United States, 288 F.3d 1347, 1353-54 (2002) (“equitable tolling is
available only when the lateness is attributable, at least in part, to misleading governmental
action”). Plaintiffs characterize the Commission’s arguments in Bhullar, that a summons and
complaint must be filed within 31 days after publication in the Federal Register, as the agency’s
interpretation of section 1516a. Although they argue that the Commission failed to timely notify
the Court of its mistake in interpreting the statute, plaintiffs do not indicate that they had been
induced to file their summons on the 29th day after publication by any trickery or government
misconduct. Furthermore, there is no support for the proposition that the government’s
misreading of the statute and argument in one case constitute trickery or misconduct to plaintiffs
– parties in a case entirely unrelated to the lawsuit in question.
Finally, plaintiffs fail to establish that they acted diligently. Cf. Former Employees of
Sonoco Products Co. v. Elaine Chao, 27 CIT __, 273 F. Supp. 2d 1336, 1341 (2003) (requiring a
party seeking to apply the doctrine of equitable tolling to show that it exercised due diligence in
Court No. 03-00838 Page 13
preserving its legal rights), aff’d, 2004 U.S. App. LEXIS 12071. Courts have found due
diligence where a party made reasonable and sustained attempts to resolve questions or
ambiguities and reasonably attempted to comply with the statutory time limits. See Former
Employees of Quality Fabricating, Inc. v. United States Sec. of Labor, 27 CIT __, 259 F. Supp.
2d 1282, 1286 (2003). There is no indication that plaintiffs attempted to resolve any apparent
discrepancy between the clearly stated statutory time limits and the contradictory language in
Bhullar. Neither is there any indication of any communication between plaintiffs and the
Commission regarding the statutory language. Furthermore, plaintiffs, being represented by able
counsel, are aware that where a statute is unambiguous on its face, it is controlling. Thus, the
court is unable to apply the principle of equitable tolling in this instance and to establish a new
interpretation of section 1516a(a)(5)(A) for future actions, as plaintiffs request.
III. Conclusion
For the foregoing reasons, the International Trade Commission’s motion to dismiss is
hereby GRANTED.
Dated: __July 29, 2004________ ____/s/ Judith M. Barzilay________
New York, NY Judith M. Barzilay
Judge