                                         Slip Op. 20-12
                UNITED STATES COURT OF INTERNATIONAL TRADE



M S INTERNATIONAL, INC.,

                            Plaintiff,

                  v.                                  Before: Leo M. Gordon, Judge
UNITED STATES of AMERICA,
                                                      Consol. Court No. 19-00132
UNITED STATES DEPARTMENT of
COMMERCE,     and    SECRETARY
WILBUR L. ROSS, JR.,

                            Defendants,

                  and

CAMBRIA COMPANY LLC,

                  Defendant-Intervenor.



                                  OPINION and ORDER

[Motions to dismiss for lack of subject matter jurisdiction granted.]

                                                                   Dated: January 30, 2020

Jonathan T. Stoel, Jared R. Wessel, and Nicholas R. Sparks, Hogan Lovells US LLP,
of Washington, D.C., for Plaintiff M S International Inc.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for Defendants United States,
U.S. Department of Commerce, and Wilbur L. Ross, Jr., Secretary of Commerce.
With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Jeanne E.
Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel was Mykhaylo
Gryzlov, Senior Counsel, U.S. Department of Commerce, Office of the Chief Counsel for
Trade Enforcement and Compliance, of Washington, D.C.

Roger B. Schagrin, Luke A. Meisner, Elizabeth J. Drake, and Kelsey M. Rule, Schagrin
Associates, of Washington, D.C., for Defendant-Intervenor Cambria Company LLC.
Consol. Court No. 19-00132                                                           Page 2


       Gordon, Judge: In this action, M S International, Inc. (“Plaintiff” or “MSI”)

challenges the U.S. Department of Commerce’s (“Commerce”) industry support

determinations made as part of the initiation of the antidumping (“AD”) and countervailing

duty (“CVD”) investigations (“Investigations”) regarding quartz surface products (“QSPs”)

from India and the Republic of Turkey. See Certain Quartz Surface Products from India

and the Republic of Turkey, 84 Fed. Reg. 25,529 (Dep’t of Commerce June 3, 2019)

(notice of India and Turkey AD investigation initiation) (“AD Notice”); Certain Quartz

Products from India and the Republic of Turkey, 84 Fed. Reg. 25,524 (Dep’t of Commerce

June 3, 2019) (notice of India and Turkey CVD investigation initiation) (“CVD Notice”).

MSI asserts that the court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(i).

       Defendants move pursuant to USCIT Rule 12(b)(1) to dismiss this action for lack

of subject matter jurisdiction. Defendant-Intervenor, Cambria Company LLC (“Cambria”),

also moves to dismiss this action pursuant to USCIT Rule 12(b)(1) for lack of subject

matter jurisdiction, and alternatively pursuant to USCIT Rule 12(b)(6) for failure to state a

claim. See Defs.’ Mot. to Dismiss, ECF No. 22 (“Defs.’ Mot.”); Def.-Intervenor’s Mot. to

Dismiss Pl.’s Compl., ECF No. 23 (“Cambria’s Mot.”); see also Pl.’s Resp. to Defs.’ and

Def.-Intervenor’s Motions to Dismiss, ECF No. 33 (“Pl.’s Resp.”); Def.-Intervenor’s Reply

in Supp. of its Mot. to Dismiss, ECF No. 37 (“Cambria’s Reply”); Defs.’ Reply in Supp. of

Mot. to Dismiss, ECF No. 38 (“Defs.’ Reply”). Lastly, Cambria moves to dismiss because

MSI’s claim is not ripe for judicial review. See Cambria’s Mot. For the following reasons,

the motions to dismiss for lack of subject matter jurisdiction are granted.
Consol. Court No. 19-00132                                                             Page 3


                                      I. Background

       In May 2019, Cambria filed AD and CVD petitions with Commerce regarding QSPs

from India and Turkey. QSPs are a stone composite building material used for countertop

surfaces in residential, commercial, and industrial properties. Pl.’s Resp. at 5. The QSP

production process generally entails (1) the creation of a raw QSP slab, followed

by (2) a fabrication process that transforms slabs into products suitable for installation. Id.

at 5–6. For a petitioner, like Cambria, to initiate an AD or CVD investigation, it must first

file a petition with Commerce that meets the requirements of Sections 702(b)(1) and

732(b)(1) of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 1671a(b)(1) and

1673a(b)(1). 1 These provisions require that the petitions must be filed “on behalf of

an industry.” As the initial step in an investigation, the petition must show that: (1) the

domestic producers who support the petition account for at least 25 percent of the total

production of the domestic like product, and (2) the domestic producers who support the

petition account for more than 50 percent of the production of the domestic like product

produced by that portion of the industry expressing support for or opposition to the

petition. 19 U.S.C. §§ 1671a(c)(4)(A), 1673a(c)(4)(A).

       MSI, an importer of QSPs from India and Turkey, argued before Commerce that

the petitions failed to satisfy the industry support requirement because they did not

include QSP fabricators within the domestic industry. Commerce rejected MSI’s



1
 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
Consol. Court No. 19-00132                                                            Page 4


contentions, determined that the petitions had sufficient industry support, and initiated the

Investigations. See AD Notice; CVD Notice.

       Plaintiff seeks immediate judicial review of Commerce’s industry support

determinations. See Complaint, ECF No. 4. Plaintiff argues that by excluding QSP

fabricators from Commerce’s industry support determinations, Commerce violated

19 U.S.C. §§ 1671a and 1673a. MSI further contends that the Investigations have created

a huge burden of time and resources as a result of MSI’s participation in the allegedly

unlawful Investigations. MSI argues that the court has jurisdiction under 28 U.S.C.

§ 1581(i) to review its claims and seeks (1) a declaration that the Investigations are

unlawful and (2) a remand for Commerce to reconsider its industry support

determinations.

                                   II. Standard of Review

       The    claimant   carries    “the   burden    of   demonstrating    that   jurisdiction

exists.” Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F. Supp. 428, 432,

(1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court assumes

“all factual allegations to be true and draws all reasonable inferences in plaintiff's favor.”

Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
Consol. Court No. 19-00132                                                               Page 5


                                       III. Discussion

       Plaintiff does not assert jurisdiction under 28 U.S.C. § 1581(c) where challenges

to Commerce decision-making in antidumping and countervailing duty proceedings

ordinarily lie. That avenue requires a “final determination,” 19 U.S.C. § 1516a(a)(2)(B)(iii),

and is available when Commerce publishes its final determination of the investigations

in the Federal Register. 19 U.S.C. § 1516a(a)(2). Although Commerce did not agree with

Plaintiff’s industry support arguments, Plaintiff may submit a case brief commenting on

Commerce’s industry support determination. 19 C.F.R. § 351.309. If Plaintiff in good faith

believes Commerce violated the statute, and that violation has invalidated the whole

investigation, Plaintiff can focus its case brief on that one point. Assuming arguendo

Plaintiff is correct, and Commerce then fails to correct the error, Plaintiff may challenge

Commerce’s industry support determinations in this Court under 28 U.S.C. § 1581(c) as a

reviewable final determination under 19 U.S.C. § 1516a(a)(2)(B)(iii). This Court has the

power to declare Commerce’s proceeding unlawful and order Commerce to redo the

investigation, if necessary. 28 U.S.C. §§ 1585, 2643(c). The court can also enjoin

liquidation of any entries subject to unlawful affirmative antidumping and countervailing

determinations that result, and order that any cash deposits paid on those entries be

refunded in full. Plaintiff therefore has a full and complete remedy under 28 U.S.C.

§ 1581(c). Plaintiff, though, is not waiting for Section 1581(c) jurisdiction to attach. It seeks

immediate relief under 28 U.S.C. § 1581(i), this Court's oft-litigated residual jurisdiction

provision:
Consol. Court No. 19-00132                                                        Page 6


                    Under 28 U.S.C. § 1581(i), the Court has jurisdiction to
            hear “any civil action commenced against the United States,
            its agencies, or its officers, that arises out of any law of the
            United States providing for—... (2) tariffs, duties, fees, or other
            taxes on the importation of merchandise for reasons other
            than the raising of revenue,” and “(4) administration and
            enforcement with respect to the matters referred to
            in paragraphs (1)-(3) of this subsection and subsections
            (a)-(h) of this section.” However, § 1581(i) “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). The legislative history of
            § 1581(i) demonstrates Congress intended “that any
            determination specified in section 516A of the Tariff Act of
            1930, [as amended,] or any preliminary administrative action
            which, in the course of the proceeding, will be, directly or by
            implication, incorporated in or superceded by any such
            determination, is reviewable exclusively as provided in section
            516A.” H.R. Rep. No. 96–1235, at 48 (1980), reprinted
            in 1980 U.S.C.C.A.N. 3729, 3759–60. Thus, the Court's
            § 1581(i) jurisdiction is available only if the party asserting
            jurisdiction can show the Court's § 1581(a)-(h) jurisdiction is
            unavailable, unless the remedies afforded by those provisions
            would be manifestly inadequate. See Miller & Co. v. United
            States, 824 F.2d 961, 963 (Fed. Cir. 1987) (“Section 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.” (citations omitted)).

                    When jurisdiction under another provision of § 1581
            “is or could have been available, the party asserting § 1581(i)
            jurisdiction has the burden to show how that remedy would be
            manifestly inadequate.” Id. at 963 (citations omitted). That
            judicial review may be delayed by requiring a party to wait for
            Commerce's final determination in a countervailing duty
            investigation is not enough to make judicial review under
            § 1581(c) manifestly inadequate. Gov't of People's Republic
            of China v. United States, 31 CIT 451, 461, 483 F. Supp. 2d
            1274, 1282 (2007). Neither the burden of participating in the
Consol. Court No. 19-00132                                                          Page 7


               administrative proceeding nor the business uncertainty
               caused by such a proceeding is sufficient to constitute
               manifest inadequacy. See, e.g., id. at 461, 483 F. Supp. 2d
               at 1282, 1385 (citing FTC v. Standard Oil, 449 U.S. 232, 244,
               (1980)); Abitibi-Consolidated Inc. v. United States, 30 CIT 71
               4, 717–18,      437 F.     Supp.     2d 1352, 1356–57 (2006).
               Essentially, the type of review sought by a plaintiff asserting
               the court's § 1581(i) jurisdiction must not already be provided
               for by 19 U.S.C. § 1516a (2006). Abitibi-Consolidated Inc.,
               30 CIT at 717-18, 437 F. Supp. 2d at 1356–57.

                      The Court's § 1581(c) jurisdiction makes final
               determinations by Commerce reviewable via 19 U.S.C.
               § 1516a(a)(2). The Court of Appeals for the Federal Circuit
               has held that § 1516a(a)(2) allows for judicial review of both
               matters of procedural correctness, as well as the substantive
               merits of the determination. See Miller & Co., 824 F.2d at 964
               (“Under 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a, the
               procedural correctness of a countervailing duty determination,
               as well as the merits, are subject to judicial review.” (citations
               omitted)). That Commerce has conducted the administrative
               proceeding in a manner that is contrary to law is an allegation
               made expressly reviewable by 19 U.S.C. § 1516a(b)(1), which
               directs the court to “hold unlawful any determination, finding,
               or conclusion found—... (B)(i) in an action brought under
               paragraph (2) of subsection (a) of this section, to be
               unsupported by substantial evidence on the record, or
               otherwise not in accordance with law...”

Borusan Mannesmann Boru Sanayi v. Ticaret A.S., 38 CIT ___, ___, 986 F. Supp. 2d

1381, 1384–85 (2014). To this, the court would add the helpful reminder that Plaintiff’s

1581(i) claim is nothing more than an Administrative Procedure Act 2 claim, subject to its

requirements, including 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



2
    5 U.S.C. §§ 701–706.
Consol. Court No. 19-00132                                                          Page 8


review.” 5 U.S.C. § 704 (emphasis added). This APA provision is necessarily mirrored

in the court's residual jurisdiction case law, which as noted above prescribes that Section

1581(i) supplies jurisdiction only if a remedy under another section of 1581 is unavailable

or manifestly inadequate. Section 704 of 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.” 5 U.S.C. § 704 (emphasis added).

       The legislative history to 1581(i), the case law, and the Administrative Procedure

Act all discourage piecemeal review of Commerce Department international trade

proceedings. They are problematic for any plaintiff who is challenging preliminary

administrative actions regarding industry support that will be incorporated in or

superseded by the final determination. Since challenges to industry support

determinations are routinely reviewed under 19 U.S.C. § 1516a as part of a final AD or

CVD determination, the court has jurisdiction to review Plaintiff’s claims under § 1581(c)

after Commerce issues its final determinations for the Investigations, as Plaintiff well

knows. See, e.g., M S Int’l Inc. v. United States, Court Nos. 19-00140 & -00141 (Plaintiff’s

actions brought under § 1581(c) challenging Commerce’s industry support findings in the

AD and CVD Investigations of Certain QSPs from the People’s Republic of China);

see also H.R. Rep. No. 98-725, at 47 (1984), reprinted in 1984 U.S.C.C.A.N. 5127

(In amending 19 U.S.C. § 1516a, Congress eliminated interlocutory judicial review,

in most instances, so as to avoid costly and time consuming legal action where the issue

can be resolved just as equitably at the conclusion of the administrative proceedings.).
Consol. Court No. 19-00132                                                           Page 9


       Plaintiff’s arguments that it is suffering a substantial financial burden and business

harm by having to participate and await final determinations in these Investigations,

see Pl.’s Resp. at 7–8, are to no avail. Participating in an administrative proceeding,

incurring the attendant litigation expense, and enduring the collateral consequences of

such participation, business or otherwise, does not, and cannot, constitute irreparable

harm. See FTC v. Standard Oil, 449 U.S. 232, 244 (1980). Otherwise, every issue in

every trade case would be eligible for piecemeal review and Section 1581(i) would

completely swallow Section 1581(c).

       There is no merit in Plaintiff’s jurisdictional arguments or Section 1581(i) claim.

If Commerce reaches affirmative final determinations in the Investigations, Plaintiff may

then seek relief by bringing its claims under Section 1581(c) as it has done in other

matters. See, e.g., M S Int’l. Inc. v. United States, Court Nos. 19-00140 & -00141.

                                         IV. Conclusion

       For the foregoing reasons, the court grants Defendants’ and Cambria’s USCIT

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction.



                                                               /s/ Leo M. Gordon
                                                            Judge Leo M. Gordon


Dated: January 30, 2020
       New York, New York
