The opinion
Slip Op. 99 - 19
UNITED STATES COURT OF INTERNATIONAL TRADE
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BRECOFLEX CO., L.L.C., :
Plaintiff, :
v. :
THE UNITED STATES, : Court No. 94-06-00318
Defendant, :
-and- :
MECTROL CORPORATION, :
Intervenor-Defendant. :
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Opinion
[Plaintiff's motion for judgment on the pleadings
denied; action dismissed.]
Decided: February 19, 1999
Fitch, King and Caffentzis (Richard C. King) for the plain-
tiff.
David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (Shalom Brilliant); and Office of
Chief Counsel for Import Administration, U.S. Department of
Commerce (Stacy J. Ettinger), of counsel, for the defendant.
Grunfeld, Desiderio, Lebowitz & Silverman LLP (David L.
Simon, Andrew B. Schroth and Jeffrey S. Grimson) for the inter-
venor-defendant.
AQUILINO, Judge: This is yet another action for
judicial review of a determination of the International Trade
Administration, U.S. Department of Commerce ("ITA") that tests
the availability thereof under the Trade Agreements Act of 1979
and Customs Courts Act of 1980, as amended.
Court No. 94-06-00318 Page 2
I
The determination for which review is sought herein
is reported sub nom. Industrial Belts and Components and Parts
Thereof, Whether Cured or Uncured, From Japan; Termination of
Circumvention Inquiry of Antidumping Duty Order, 59 Fed. Reg.
23,693 (May 6, 1994), and was engendered by a petition to the ITA
from the above-named plaintiff, alleging that Mectrol Corporation
was circumventing an antidumping-duty order1 by first delivering
Japanese goods into Mexico for assembly into finished merchandise
before importation into the United States. See 58 Fed.Reg. 53,706
(Oct. 18, 1993). After having initiated an inquiry on the merits,
the agency came to conclude that
Brecoflex is not a domestic producer of industrial
belts and, therefore, is not an interested party
within the meaning of 19 CFR 353.2(k)(3) entitled
to file a request for a circumvention inquiry. As
such, the Department determines that Brecoflex does
not have standing to file a request for a circumven-
tion inquiry against Mectrol.
59 Fed.Reg. at 23,694.
Whereupon, as indicated, the process was terminated,
and this action was commenced by the plaintiff by timely filing
a summons. A complaint was filed within 30 days thereof, alleg-
ing that the ITA erred as a matter of law
1
See 54 Fed.Reg. 25,314 (June 14, 1989), amended, 54 Fed.
Reg. 32,104 (Aug. 4, 1989).
Court No. 94-06-00318 Page 3
a. . . . in reversing, without substantial evi-
dence, its prior determination that BRECOflex
had standing as a producer to request a cir-
cumvention inquiry, which determination was
incorporated in ITA's initiation of the in-
quiry . . ., that initiation being subsequent
to Mectrol's specific representation in its
August 13, 1992 filing that BRECOflex does
not have standing to request an inquiry; . . ..
b. . . . in combining and confusing BRECOflex's
activities as an importer of like merchan-
dise, and importer/producer of merchandise
which is not like merchandise, with its ac-
tivities as a producer of like merchandise.
c. . . . in basing its determination to termi-
nate the circumvention inquiry on the ITC's
analysis of the main production stages in
the manufacturing of rubber industrial power
transmission belts, and not on the plastic
industrial power transmission belts produced
in the United States by BRECOflex and import-
ed from Japan via Mexico by Mectrol.
d. . . . in not finding, based on the informa-
tion before it, that BRECOflex is a domestic
producer of industrial power transmission
belts.
Complaint, para. 4. Whereas the summons cites 28 U.S.C. §1581(c)
as the only predicate of this court's jurisdiction, the complaint
also alleges, "alternatively, 28 U.S.C. §1581(i)." Id., para. 1,
p. 2.
The plaintiff has now interposed a motion for judgment
on this pleading pursuant to CIT Rule 12(c). In bringing this
motion, counsel report that they
discussed the issue of jurisdiction with defendant's
counsel . . ., advising . . . that, while the first
filing had claimed jurisdiction under [§1581]"(c)",
after further research and reflection plaintiff's
Court No. 94-06-00318 Page 4
counsel had concluded that "(c)" did not cover such
an action, where there had been no determination,
and requesting that they pursue with their client
the possibility of filing an answer under [§1581]
"(i)" . . ..
As jurisdiction over the present action proper-
ly lies under "(i)", defendant . . . United States
was required to file an answer . . . within 60 days.
Not having done so, the averments of the pleadings
are admitted.
Plaintiff's Memorandum, pp. 3-4. In other words, the plaintiff
is claiming judgment on its complaint by default.
The defendant responds that the "source of jurisdiction
in this case is section 1581(c), not 1581(i)"2, and thereby re-
lies on CIT Rule 12(a)(1)(A)(i), which provides that no answer
be served or filed in an action described in 28 U.S.C. §1581(c).
It takes this position because
Commerce determined that BRECOflex was a finisher,
rather than a producer, of industrial belts, and
that, therefore, it lacked standing to petition
for the circumvention inquiry. Accordingly, Com-
merce terminated the inquiry. The termination was,
in effect, a determination by Commerce that indus-
trial belts from Mexico would remain outside the
scope of the antidumping order. Scope determina-
tions are reviewable pursuant to 19 U.S.C. §1516a-
(a)(2)(B)(vi) and 28 U.S.C. §1581(c). . . . The
same is true where the effect of such a determina-
tion results from a decision to terminate a proceed-
ing.
Defendant's Memorandum, p. 3 (citations omitted). The defendant
also relies upon CIT Rule 55(e) to the effect that no default
judgment can be entered against the United States unless the
2
Defendant's Memorandum, p. 2.
Court No. 94-06-00318 Page 5
claimant establishes a right to relief by evidence, which it
alleges is not presented by the plaintiff herein. See id. at 6.
The intervenor-defendant also argues for dismissal of
this action, albeit from a different perspective, to wit: (1)
Since the plaintiff now waives jurisdiction pursuant to 28 U.S.C.
§1581(c), this is not an appropriate case for deciding whether
review of termination of an anticircumvention inquiry lies
thereunder; and (2) the court lacks jurisdiction under 28 U.S.C.
§1581(i) because the plaintiff did not commence this action in
accordance with 28 U.S.C. §2632(a). See Mectrol's Response, pp.
2-5. Secondarily, it argues that no answer by the government is
required in view of this claimed lack of lawful impleading, and
hence there is no default; and also that the ITA's termination
of the requested inquiry was not arbitrary and capricious within
the meaning of 5 U.S.C. §706(2)(A) and 28 U.S.C. §2640(e). See
id. at 5-7.
II
It is axiomatic, of course, that a party plaintiff
demonstrate that a court has jurisdiction over its action.
E.g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936); Techsnabexport, Ltd. v. United States, 16 CIT 420,
422, 795 F.Supp. 428, 432 (1992). It is also always necessary
that the court determine its jurisdiction irrespective of what
parties aver, or even agree among themselves. Here, as shown
Court No. 94-06-00318 Page 6
above, the defendant is of the view that the plaintiff properly
invoked jurisdiction pursuant to 28 U.S.C. §1581(c) in that scope
determinations are subject to judicial review under 19 U.S.C. §
1516a(a)(2)(B)(vi) and the ITA's termination of plaintiff's re-
quested inquiry was the equivalent of such a determination.
This court cannot and therefore does not concur. The
section cited, 1516a(a)(2)(B)(vi), which is clearly within the
purview of section 1581(c), provides for judicial review of a
determination by the ITA as to whether or not a particular type
of merchandise is within the class or kind described in an ex-
isting antidumping-duty order. The agency made no such deter-
mination here. In fact, it concluded that it was not obligated
to proceed to even consider that issue, given its analysis of
plaintiff's domestic business. On the other hand, had the ITA
proceeded as requested by the plaintiff, it would have done so
pursuant to another section of the Trade Agreements Act of 1979,
as amended, namely, 19 U.S.C. §1677j(b), not 1516a(a)(2)(B)(vi).
See 58 Fed.Reg. at 53,706. And that section is not covered by
28 U.S.C. §§ 1581(c) and 2632(c).
Hence, the court concludes, as has the plaintiff3, that
jurisdiction over this kind of action can only be predicated upon
28 U.S.C. §1581(i) since all of the preceding subsections (a to
3
See Plaintiff's Reply passim.
Court No. 94-06-00318 Page 7
h) of 1581 are "manifestly inadequate"4. This being the case
does not mean, however, that the court can also accept plain-
tiff's corollary, namely:
it would exalt form over substance to require that a
summons be refiled with a complaint, when such a sum-
mons had already been filed, properly bringing the
parties before the court and advising all of the sub-
ject matter of the litigation, particularly where both
were filed within a short period which was well within
the two year period prescribed by the statute of limi-
tations.
Plaintiff's Reply, pp. 4-5. No case law is cited for this prop-
osition, but there is legionary precedent that waiver of sover-
eign immunity is always to be strictly construed. E.g., Lehman
v. Nakshian, 453 U.S. 156, 160-61 (1981), and cases therein.
And the waiver implicated by this action required that it "be
commenced by filing concurrently with the clerk of the court a
summons and complaint". 28 U.S.C. §2632(a). See CIT Rule 3(a)-
(3). Clearly, the plaintiff could have done that5 but chose not
to, which means that this court as a matter of law did not become
4
Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.
1987), cert. denied, 484 U.S. 1041 (1988). In Hylsa, S.A. de
C.V. v. United States, 21 CIT , 960 F.Supp. 320 (1997), aff'd,
135 F.3d 778 (Fed.Cir. 1998), the court in a thorough opinion on
the interplay between subsections 1581(c) and (i) in an action
like this concluded that the former was not manifestly inade-
quate, but the plaintiff therein was praying for a preliminary
injunction to enjoin any ITA circumvention inquiry after the
agency had already determined pursuant to 19 U.S.C. §1516a(a)-
(2)(B)(vi) that the merchandise in question was not within the
scope of the underlying antidumping-duty order.
5
The governing statute, 28 U.S.C. §2632(c), expressly
contemplates commencement of an action within the purview of
28 U.S.C. §1581(c) via simultaneous filing of a summons and
complaint.
properly possessed of subject-matter jurisdiction. See, e.g.,
NEC Corporation v. United States, 806 F.2d 247 (Fed.Cir. 1986)
(Court of Int'l Trade jurisdiction not subject to equitable
exceptions); Georgetown Steel Corp. v. United States, 801 F.2d
1308 (Fed.Cir. 1986)(Court of Int'l Trade had no jurisdiction
over complaint filed 43 days after timely filing of summons);
Nature's Farm Products, Inc. v. United States, 10 CIT 676, 648
F.Supp. 6 (1986), aff'd, 819 F.2d 1127 (Fed.Cir. 1987)(receipt
by Customs of duties owed after filing of summons undermined
court's jurisdiction); Washington Red Raspberry Comm'n v. United
States, 11 CIT 173, 657 F.Supp. 537 (1987) (court lacked juris-
diction over cross-claim sought to be asserted beyond time to
commence direct action against ITA); MBL (USA) Corp. v. United
States, 14 CIT 161, 733 F.Supp. 379 (1990)(court lacked jurisdic-
tion over claims sought to be asserted against Int'l Trade Comm'n
via amended complaints filed in underlying action against ITA).
III
In view of the foregoing, plaintiff's motion for
judgment on the pleadings must be denied and this action dis-
missed. Judgment will enter accordingly.
Decided: New York, New York
February 19, 1999
Judge