Full Member Subgroup of the American Institute of Steel Construction, LLC v. United States

Slip Op. 20-157
UNITED STATES COURT OF INTERNATIONAL TRADE
FULL 	MEMBER 	SUBGROUP 	OF 	THE
AMERICAN 	INSTITUTE 	OF 	STEEL
CONSTRUCTION, LLC,
Plaintiff,
v.
UNITED STATES,
Defendant
and
BUILDING SYSTEMS DE MEXICO, S.A.
DE C.V. and COREY S.A. DE C.V.,
Defendant-Intervenors.
Before: Claire R. Kelly, Judge
Court No. 20-00089
OPINION AND ORDER
[ Denying Defendant’s motion to dismiss. ]
Dated: November 3, 2020
Alan H. Price, Wiley Rein LLP, of Washington, DC, for plaintiff Full Member
Subgroup of the American Institute of Steel Construction, LLC. Also on the brief was
Christopher B. Weld, Stephanie M. Bell, and Adam M. Teslik.
In K. Cho, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant United States. Also on the
briefs were Michael D. Granston, Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director. 	Of counsel was
Brandon J. Custard, Senior Attorney, Office of Chief Counsel for Trade Enforcement
& Compliance, U.S. Department of Commerce, of Washington, DC.
Diana D. Quaia, Arent Fox LLP, of Washington, DC, for defendant-intervenor Corey
S.A. de C.V. Also on the brief was John M. Gurley and Jessica R. DiPietro.
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Matthew R. Nicely, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC, for
defendant-intervenor Building Systems de Mexico, S.A. de C.V. Also on the brief was
Daniel M. Witkowski.
Kelly, Judge: 	Defendant moves to dismiss Plaintiff’s complaint for lack of
subject-matter jurisdiction. 	See Def.’s Memo. Supp. Mot. to Dismiss for Lack of
Subject-Matter Jurisdiction & Opp’n to Mot. to Stay, July 9, 2020, ECF No. 28 (“Def.’s
Br.”). Defendant and Defendant-Intervenor Corey S.A. de C.V. (“Corey”) submit that
section 516A(g) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(g) (2018) 1
precludes the Court from exercising jurisdiction over Full Member Subgroup of the
American Institute of Steel Construction’s (“AISC”) challenge to the U.S. Department
of Commerce’s (“Commerce”) final affirmative determination in its less than fair
value (“LTFV”) investigation of fabricated structural steel (“FSS”) from Mexico
because Corey timely filed a request for binational panel review of the final
determination pursuant to Article 1904 of the North American Free Trade Agreement
(“NAFTA”). 	See Def.’s Br. at 5–13; Def.-Intervenor [Corey’s Revised] Resp. Supp.
Def.’s Mot. to Dismiss, Aug. 13, 2020, ECF No. 37 (“Corey’s Resp. Br.”). Defendant-
Intervenor Building Systems de Mexico, S.A. de C.V. (“BSM”) agrees that the case
1 On July 1, 2020, the United States-Mexico-Canada Agreement (“USMCA”) entered
into force, replacing the NAFTA. 	See United States-Mexico-Canada Agreement,
Office of the U.S. Trade Representative, https://ustr.gov/trade-agreements/free-trade-
agreements/united-states-mexico-canada-agreement (last visited Nov. 1, 2020); see
also United States-Mexico-Canada Agreement Implementation Act, Pub. L. No. 116-
113, 134 Stat. 11 (2020) (“Implementation Act”). 	Pursuant to section 432 of the
Implementation Act, the USMCA’s entry into force does not affect the disposition of
this action, which involves a final determination that was published before the
relevant amendments to the Tariff Act of 1930 became effective. 	As such, further
citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title
19 of the U.S. Code, 2018 edition.
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should be dismissed, but for different reasons. See Def.-Intervenor [BSM]’s Resp. to
Mot. to Dismiss, Aug. 13, 2020, ECF No. 36 (“BSM’s Resp. Br.”). AISC requests the
court to issue its decision in accordance with the pending motion to dismiss in
Building Systems de Mexico, S.A. de C.V. v. United States, Ct. No. 20-00069
(“Building Systems”). See Pl.’s Resp. to Mot. to Dismiss, Aug. 13, 2020, ECF No. 34
(“Pl.’s Resp.”). For the reasons that follow, Defendant’s motion to dismiss is denied.
BACKGROUND
On February 25, 2019, in response to a petition filed by AISC, a trade
association 	representing 	domestic 	producers 	of 	FSS, 	Commerce 	initiated 	an
antidumping investigation into FSS from Canada, Mexico, and the People’s Republic
of China. 	See Certain [FSS] From Canada, Mexico, and the People’s Republic of
China, 84 Fed. Reg. 7,330 (Dep’t Commerce Mar. 4, 2019) (initiation of [LTFV]
investigations). 	Commerce selected Defendant-Intervenors BSM and Corey as
mandatory respondents. 	See Compl. ¶¶ 3–4, May 13, 2020, ECF No. 9. 	Commerce
affirmatively determined that imports of certain FSS from Mexico into the United
States were being, or were likely to be, sold at LTFV, and its investigation yielded
weighted-average dumping margins of 8.47 and 0.00 percent for BSM and Corey,
respectively. 	See Certain [FSS] from Mexico, 85 Fed. Reg. 5,390, 5,392 (Dep’t
Commerce Jan. 30, 2020) (final determination of sales at [LTFV]) (“Final Results”)
and accompanying Issues and Decision Memo. for [Final Results], A-201-850, (Jan.
23, 2020), ECF No. 25-6 (“Final Decision Memo”).
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On February 19, 2020, BSM filed a notice of intent to seek judicial review of
Commerce’s final determination. 	See Compl. ¶ 4, March 30, 2020, ECF No. 6 (from
Dkt. Ct. No. 20-00069) (“Building Systems Compl.”). 	On February 28, 2020, the
United States Section of the NAFTA Secretariat received a request for binational
review of Commerce’s final determination filed on behalf of Defendant-Intervenor
Corey. 	See [NAFTA], Article 1904 Binational Panel Review, 85 Fed. Reg. 14,462
(Dep’t Commerce Mar. 12, 2020) (notice of request for panel review; USA-MEX-2020-
1904-01) (“NAFTA Req.”). 2
Plaintiff AISC commenced this action pursuant to 28 U.S.C. § 1581(c) (2018)
and 19 U.S.C. § 1516a(a)(2)(A)(i)(I), (B)(i), contesting portions of Commerce’s final
affirmative determination. See Summons, Apr. 17, 2020, ECF No. 1; Compl. ¶ 5. 	In
its complaint, AISC asserts that the court lacks jurisdiction over this action because
of the request for review before a NAFTA binational panel. 	See Compl. at ¶¶ 2–5.
Nonetheless, Plaintiff explains that it commences this action in light of arguments
raised in a related case, Building Systems, Ct. No. 20-00069. 	Id. at ¶¶ 4-5.
Specifically, the plaintiff in Building Systems, Ct. No. 20-00069 asserts that this
Court has jurisdiction over an action involving the same Commerce determination
despite the fact that an interested party requested review of that determination
before a NAFTA binational panel. See Pl’s Resp. Opp’n to Mot. to Dismiss, Aug. 13,
2 On March 20, 2020, the U.S. International Trade Commission published its final
negative determination in its contemporaneous investigation into whether imports of
FSS cause (or represent a threat of) material injury to the domestic industry. 	See
[FSS] from Canada, China & Mexico, 85 Fed. Reg. 16,129 (Int’l Trade Comm’n Mar.
20, 2020).
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2020, ECF No. 42 (from Dkt. Ct. No. 20-00069). Plaintiff AISC therefore commences
this action, reasoning that if the Court concludes that it has jurisdiction in Building
Systems despite the request for binational panel review, it may do the same in this
case. 	See Pl.’s Resp. at 1–3. 	Defendant’s motion argues that the court lacks
jurisdiction, and as explained above, Plaintiff does not disagree. 	BSM, for its part,
argues that the case should be dismissed, not because a binational panel has been
requested, 3 but because Plaintiff failed to timely invoke the jurisdiction of this court.
See BSM’s Resp. Br. at 2–3. In its reply brief, Defendant adds that not only does this
Court lack jurisdiction over the Commerce determination at issue, but that it lacks
the power to decide whether it has jurisdiction. 	See Def.’s Reply Supp. Mot. to
Dismiss for Lack of Subject-Matter Jurisdiction at 3–10, Sept. 17, 2020, ECF No. 42
(“Def.’s Reply Br.”).
DISCUSSION
As a threshold matter the Defendant argues that the Court cannot decide the
jurisdictional question at issue. 	See Def.’s Reply Br. at 5–6. 	Instead Defendant
argues that this Court must await the NAFTA panel’s decision as to whether a party
3 	BSM maintains its position in Building Systems, Ct. No. 20-00069, that the 19
U.S.C. § 1516a(g)(3)(A)(i) exception to preclusion from exercising jurisdiction, which
applies where the request is not filed by a NAFTA party, would allow this Court to
review the final determination. See BSM’s Resp. Br. at 2–3. Because Corey received
a margin of zero, BSM explains that Corey would not have standing to appeal
Commerce’s final determination under U.S. law, and thus its request could not be
deemed a request for panel review by the United States. See id.
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had standing under U.S. law to request a binational panel. 	See id. 4 	Defendant
alternatively argues that even if this Court may decide whether it has jurisdiction,
that 19 U.S.C § 1516a(g) precludes the Court from exercising jurisdiction. See Def.’s
Reply Br. at 9–10. For the following reasons, both of Defendant’s arguments fail.
Defendant’s argument that this Court lacks the power to decide its own
jurisdiction fails as: (i) the statute envisions that the Court will decide jurisdictional
disputes; and (ii) separation of powers prevents the Court from abdicating its role to
decide this jurisdictional issue. 	See Bldg. Sys. de Mexico, S.A. de C.V. v. United
States, 44 CIT __, __, Slip Op. 20-155 at 6–11 (Nov. 3, 2020) (“Building Systems”).
As discussed more fully in Building Systems, one exception to the Court’s jurisdiction
explicitly references a scenario where a NAFTA binational panel might decide
whether it lacked jurisdiction. 	See id. at 7–9. 	The existence of other exceptions
4 	In Building Systems, Ct. No. 20-00069, the defendant filed a motion to dismiss
arguing that the statute precluded this Court from exercising jurisdiction and asking
this Court to dismiss in light of the statutory provisions. See generally Def.’s Memo.
Supp. Mot. to Dismiss for Lack of Subject-Matter Jurisdiction & Opp’n to Mot. to
Stay, July 9, 2020, ECF No. 31 (from Dkt. Ct. No. 20-00069). 	Subsequently amicus
curiae, the Government of Canada, argued that not only did this Court lack
jurisdiction, it also lacked the power to address the jurisdictional question. See Gov’t
of Canada’s Amicus Curiae Br. Supp. Def.’s Mot. to Dismiss at 1–17, July 10, 2020,
ECF No. 36-1 (from Dkt. Ct. No. 20-00069). 	Plaintiff in that case argued that the
Court, not a NAFTA binational panel, was the proper body to determine whether the
party that requested the binational panel had standing to do so. See Pl.’s Resp. Opp’n
Mot. to Dismiss at 1–15, Aug. 13, 2020, ECF No. 42 (from Dkt. Ct. No. 20-00069).
The defendant in its reply then echoed the amicus’ argument that the Court could not
consider its own jurisdiction. 	See Def.’s Reply Supp. Mot. to Dismiss for Lack of
Subject-Matter Jurisdiction at 2–7, Sept. 17, 2020, ECF No. 48 (from Dkt. Ct. No. 20-
00069). 	Here, the Defendant also moved to dismiss the case for lack of jurisdiction
and subsequently added in its reply that the Court lacked the power to determine its
own jurisdiction. See Def.’s Reply Br. at 3–10.
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implies that the Court would also be called upon to assess its own jurisdiction. 	See
id. 	Moreover, the Court must be mindful of its constitutional role in our system of
government. 	See id. at 9–10. 	The Court cannot abdicate its role to interpret the
contours of Congressional action even where that action involves diverting the
Court’s jurisdiction. 5 See id.
The statutory scheme indicates that this Court has jurisdiction to hear this
dispute. 	Although Congress gives the U.S. Court of International Trade exclusive
jurisdiction over antidumping determinations, it has excluded certain antidumping
determinations involving merchandise from NAFTA countries. 	In relevant part, 28
U.S.C. § 1581(c) (2018) vests the court with exclusive jurisdiction over any civil action
commenced under section 516A of the Tariff Act of 1930, as amended 19 U.S.C.
§ 1516a. Under 19 U.S.C. § 1516a(a)(2)(B)(i) the court may review “[f]inal affirmative
determinations by the administering authority and by the Commission under [19
U.S.C. §§ 1671d or 1673d], including any negative part of such a determination (other
5 	As discussed in Building Systems, this case does not involve a challenge to the
constitutionality of a NAFTA binational panel. See Building Systems, 44 CIT at __,
Slip Op. 20-155 at 9 n. 9. Section 1516a(g)(4) provides that an action challenging the
constitutionality of binational panels “may be brought only in the United States Court
of Appeals for the District of Columbia Circuit[.]” 	19 U.S.C. § 1516a(g)(4)(A). Nor
does this case involve a challenge that would be decided by a three-judge panel of this
Court. Pursuant to 19 U.S.C. § 1516a(g)(4)(B) all constitutional issues that may arise
under any law—apart from challenges to the constitutionality of binational panels
themselves as covered by 19 U.S.C. § 1516a(g)(4)(A)—must be heard by a three-judge
panel of the U.S. Court of International Trade.
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than a part referred to in clause (ii)).” 6 	However, 19 U.S.C. § 1516a(g) provides that
if a party seeks binational review of “a determination . . . described in [19 U.S.C.
§ 1516a(a)(2)(B)(i)–(iii), (vi)–(vii)] . . . the determination is not reviewable under [19
U.S.C. § 1516a(a).]” 19 U.S.C. § 1516a(g)(1)(B), (2)(A). 	Nonetheless, 19 U.S.C.
§ 1516a(g)(3) enumerates certain exceptions, 7 and permits judicial review of “a
6 19 U.S.C. § 1516a(a)(2)(B)(ii) provides for review of
[a] 	final 	negative 	determination 	by 	the 	administering 	authority 	or 	the
Commission under section [19 U.S.C. §§ 1671d or 1673d], including, at the
option of the appellant, any part of a final affirmative determination which
specifically excludes any company or product.
7 19 U.S.C. § 1516a(g)(3) Exception to exclusive binational panel review.
(A) In general. A determination is reviewable under subsection (a) if the
determination sought to be reviewed is--
(i) a determination as to which neither the United States nor the
relevant FTA country requested review by a binational panel pursuant
to article 1904 of the NAFTA or of the Agreement,
(ii) a revised determination issued as a direct result of judicial review,
commenced pursuant to subsection (a), if neither the United States nor
the 	relevant 	FTA 	country 	requested 	review 	of 	the 	original
determination,
(iii) a determination issued as a direct result of judicial review that was
commenced pursuant to subsection (a) prior to the entry into force of the
NAFTA or of the Agreement,
(iv) a determination which a binational panel has determined is not
reviewable by the binational panel,
(v) a determination as to which binational panel review has terminated
pursuant to paragraph 12 of article 1905 of the NAFTA, or
(vi) a determination as to which extraordinary challenge committee
review has terminated pursuant to paragraph 12 of article 1905 of the
NAFTA.
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determination as to which neither the United States nor the relevant [free trade area
(“FTA”)] country requested review[.]” Id. at § 1516a(g)(3)(A)(i).
The statute also establishes a mechanism for private parties to seek binational
review of Commerce’s final determination in NAFTA cases. 	Namely, 19 U.S.C.
§ 3434(c) provides, in pertinent part, that
a person, within the meaning of paragraph 5 of article 1904, may request
a binational panel review of such determination by filing such a request
with the United States Secretary . . . [and] [t]he receipt of such request
by the United States Secretary shall be deemed to be a request for
binational panel review within the meaning of article 1904.
19 U.S.C. § 3434(c). Under article 1904(5) of the NAFTA
[a]n involved Party on its own initiative may request review of a final
determination by a panel and shall, on request of a person who would
otherwise be entitled under the law of the importing Party to commence
domestic procedures for judicial review of that final determination,
request such review.
[NAFTA] art. 1904(5), U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289, 683 (1993).
In the United States, a private person who would “otherwise be entitled under
the law of the importing Party to commence domestic procedures for judicial review”
is a person who has standing. 	Standing is a threshold matter in which the court
ensures that the plaintiff’s complaint meets the requirements of Article III of the
Constitution. 	McKinney v. U.S. Dept. of Treasury, 799 F.2d 1544, 1549 (Fed. Cir.
1986); see also Warth v. Seldin, 422 U.S. 490, 517–18 (1975) (“[t]he rules of standing
. . . are threshold determinants of the propriety of judicial intervention.”). 	The
Constitution constrains the federal courts’ jurisdiction to cases which involve “actual
cases or controversies,” and standing constitutes part of this limitation. Simon v. E.
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Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976) (“No principle is more fundamental
to 	the 	judiciary's 	proper 	role 	in 	our 	system 	of 	government 	than
the constitutional limitation 	of 	federal-court 	jurisdiction 	to 	actual 	cases 	or
controversies.”); see U.S. 	Const. 	art. 	III, 	§ 	2, 	cl. 	1. 	“[T]he 	core 	component
of standing is 	an 	essential 	and 	unchanging 	part 	of 	the 	case-or-
controversy requirement of Article III.” See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). To establish standing, a plaintiff must satisfy three elements. First,
it must have suffered an “injury in fact,” that is, “an invasion of a legally protected
interest” 	that 	is 	“concrete 	and 	particularized” 	and 	“actual 	or 	imminent, 	not
‘conjectural’ or ‘hypothetical[.]’” 	Id. at 560 (citations omitted). 	Second, a causal
connection must exist between the injury and the conduct complained of. Id. Third,
the plaintiff must show a likelihood that the injury can be redressed by a favorable
court decision. Id. at 561.
Here, Corey’s request for NAFTA binational review of the Final Results cannot
be deemed filed by the United States because, under U.S. law, Corey would not have
standing to challenge the Final Results. Corey received a weighted-average dumping
margin of 0.00 percent. 	See Final Results, 85 Fed. Reg. at 5,392. 	Under U.S. law,
Corey’s 0.00 percent margin, without more, is insufficient to demonstrate an injury
in fact—the first of three requirements for standing. 	See, e.g., PAO Severstal v.
United States, 41 CIT __, __, 219 F. Supp. 3d 1411, 1414 (2017) (“PAO”) (holding a
prevailing party lacks standing to sue); Zhanjiang Guolian Aquatic Prods. Co. v.
United States, 38 CIT __, __, 991 F. Supp. 2d 1339, 1342 (2014) (citing Royal Thai
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Gov't v. United States, 38 CIT __, __, 978 F. Supp. 2d 1330, 1333 (2014)); Jubail
Energy Servs. Co. v. United States, 39 CIT __, __, 125 F. Supp. 3d 1352, 1356 (2015)
(respondent 	receiving 	favorable 	outcome 	in 	antidumping 	determination 	lacks
standing); Rose Bearings Ltd. v. United States, 14 CIT 801, 802–03, 751 F. Supp.
1545, 1546–47 (1990) (where, inter alia, the complaining party did not have to pay an
antidumping duty, there is no case or controversy); but see Oman Fasteners, LLC. v.
United States, 43 CIT __, Slip Op. 19-108 at 14–21 (Aug. 8, 2019) (“Oman”) (finding
a plaintiff had standing to challenge a final determination, despite being assigned a
zero rate, where the plaintiff alleges that the outcome of a separate, pending appeal
of that same determination, in which it was a defendant-intervenor thus unable to
raise its own claim, could result in it being assigned a rate on remand). 8 As all three
criteria must be satisfied for a party to have standing, 	the court does not need to
consider the other two requirements. Moreover, since Corey is the only party to this
dispute that requested a binational panel, see generally NAFTA Req., and since it did
not have standing to do so, no party who would “otherwise be entitled under the law
of 	the 	importing 	Party 	to 	commence 	domestic 	procedures 	for 	judicial 	review”
requested a binational panel. 9 As explained in Building Systems, Congress provided
for the NAFTA binational panels to serve as an alternate forum and did not expand
8 In this case, as in Oman, the petitioners in the investigation have challenged
Commerce’s 	determination 	and 	Corey 	(the 	prevailing 	party) 	is 	a 	defendant-
intervenor. See Corey’s Resp. Br. BSM argues that petitioners’ filing is beyond the
time allowed by statute to commence an action. See BSM’s Resp. Br. at 2-3.
9 No party to this dispute alleges that anyone other than Corey has filed a request for
a NAFTA binational panel.
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the rights of the litigants. See Building Systems, 44 CIT at __, Slip Op. 20-155 at 3 n.
2, 16 (noting a prevailing party could not invoke the Court’s jurisdiction but could act
as a defendant-intervenor if another party challenged the Commerce determination).
As such, 19 U.S.C. § 1516a(g) does not preclude the court from exercising jurisdiction
over AISC’s complaint. 	See Building Systems, 44 CIT at __, Slip Op. 20-155 at 15–
16.
Nonetheless, BSM argues that, pursuant to the timing requirements set forth
in 19 U.S.C. § 1516a(a)(5) for cases involving free trade area merchandise, Plaintiff’s
challenge is untimely. 10 	See BSM’s Resp. Br. at 3. 	However, “procedural rules,
including time bars, cabin a court’s power only if Congress has ‘clearly stated’ as
much.” United States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015) (citations omitted)
(“Kwai Fun Wong”). 	Under Kwai Fun Wong, the time requirements of 19 U.S.C. §
1516a(a) are not jurisdictional. 	See Icdas Celik Enerji Tersane ve Ulasim Sanayi,
A.S. v. United States, 39 CIT __, __, 106 F. Supp. 3d 1328, 1335–37 (2015) (citing,
inter alia, Kwai Fun Wong, 575 U.S. at 406–20). 	As the time requirements of
10 19 U.S.C. § 1516a(a)(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)
or (iii) of paragraph (2)(B), the 31st day after the date on which notice of
the determination is published in the Federal Register.
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§ 1516a(a) are not jurisdictional and because no party in this action moves to dismiss
it as untimely, see Def.’s Reply Br. at 2 n.1, the court declines to consider timeliness
as a basis for granting or denying Defendant’s motion to dismiss.
CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s motion to dismiss for lack of subject matter
jurisdiction is denied.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	November 3, 2020
New York, New York
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