Celik Halat ve Tel Sanayi A.S. v. United States

Slip Op. 21-31
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Claire R. Kelly, Judge
Court No. 20-03843
OPINION
[Dismissing Plaintiff’s complaint challenging Commerce’s preliminary determination
in the antidumping duty investigation into prestressed concrete steel wire strand
from the Republic of Turkey.]
Dated: March 24, 2021
Irene H. Chen, Chen Law Group LLC of Rockville, MD for plaintiff.
Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice of Washington, DC, for defendant. Also on the briefs were
Jeanne E. Davidson, Director, and Jeffrey Bossert Clark and Bryan M. Boynton,
Acting Assistant Attorneys General. 	Of counsels on the briefs were Reza Karamloo
and Jesus Saenz, Office of the Chief Counsel for Trade Enforcement & Compliance,
U.S. Department of Commerce of Washington, DC.
Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda, Brooke M. Ringel, and
Joshua R. Morey, Kelley Drye & Warren LLP of Washington, DC, for defendant-
intervenors Insteel Wire Products Company, Sumiden Wire Products Corporation,
and Wire Mesh Corp.
CELIK HALAT VE TEL SANAYI A.S.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
INSTEEL WIRE PRODUCTS COMPANY
ET AL.,
Defendant-Intervenors.
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Kelly, Judge: Before the court is Defendant’s motion to dismiss Plaintiff Celik
Halat ve Tel Sanayi A.S.’s (“Celik”) complaint requesting relief from the U.S.
Department 	of 	Commerce’s 	(“Commerce”) 	preliminary 	determination 	in 	its
antidumping duty (“ADD”) investigation into prestressed concrete steel wire strand
(“PC Strand”) from the Republic of Turkey (“Turkey”). 	See Mot. to Dismiss Compl.
for Lack of Juris., Dec. 10, 2020, ECF No. 19 (“Mot. to Dismiss”); see also Compl.,
Nov. 19, 2020, ECF No. 2 (“Compl.”). 	Defendant argues that the Court lacks
jurisdiction over Celik’s complaint, filed under 28 U.S.C. § 1581(i) (2018), 1 because
the remedy available under § 1581(c) is not manifestly inadequate. 	See Mot. to
Dismiss at 7–10. 	Defendant further argues that the preliminary results have been
subsumed into the final determination; and, that Celik has challenged that final
determination in a new complaint. Se Reply Sup. Def.’s Mot. to Dismiss Compl.’s for
Lack of Juris. at 2–4, Feb. 4, 2021, ECF No. 22 (“Def.’s Reply Br.”). 2 	Celik argues
that jurisdiction under 28 U.S.C. § 1581(i) is proper because the remedy under §
1581(c) is manifestly inadequate. 	See Pl. [Celik’s] Opp. to Def.’s Mot. to Dismiss
Compl.’s at 15–21, Jan. 14, 2021, ECF No. 21 (“Pl.’s Br.”). For the following reasons,
Defendant’s motion is granted, and the case is dismissed.
1 Further citations to Title 28 of the U.S. Code are to the 2018 edition.
2 In Defendant’s motion to dismiss the complaint, it initially argued that Celik’s claim
was not ripe. See Mot. to Dismiss at 10–11. Defendant initially relied on the ripeness
doctrine, because, although Commerce had issued a final determination in the matter
by 	the 	time 	Defendant 	filed 	its 	motion 	to 	dismiss, 	the 	International 	Trade
Commission (“ITC”) had yet to make a finding of threat to the domestic injury and
thereby issue an ADD order. See id. at 11.
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BACKGROUND
On May 6, 2020, Commerce initiated its ADD investigation of PC Strand from
Turkey. 	See Compl. at ¶ 3; see also [PC Strand] from Argentina, Colombia, Egypt,
Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain,
Taiwan, Tunisia, [Turkey], Ukraine, and the United Arab Emirates, 85 Fed. Reg.
28,605, 28,610 (Dep’t Commerce May 13, 2020) (initiation of less-than-fair value
investigations). 	On 	June 	18, 	2020, 	Commerce 	selected 	Celik 	for 	individual
examination. 	See Compl. at ¶ 4. 	The next day, Commerce issued to Celik an
antidumping questionnaire and set forth a deadline of July 17, 2020 for Celik’s
Section A response; August 10, 2020 for its Sections B and Section C responses; and
August 13, 2020 for its Section D response. 	See id. at ¶ 5. 	Celik’s questionnaire
responses were to be uploaded electronically to Commerce’s ACCESS website by 5:00
pm on the specified deadline for each section. See id.
Plaintiff states that although it timely filed its Section A and Section D
questionnaire responses, it untimely filed portions of its Section B and Section C
responses because some of its exhibits contained “no searchable text”, the ACCESS
platform did not accept those documents, and ACCESS sent Celik an error message
notifying it of the error. 	See id. at ¶¶ 7–17. 	Namely, with respect to its Section B
response, Plaintiff untimely submitted a supplementary “Domestic Sales Table” at
5:21 pm, and with respect to its Section C response, Plaintiff untimely submitted
Exhibits C8–11—which comprised a part of Celik’s response—at 5:06 pm. See id. at
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¶ 8. 3 Since Plaintiff did not meet the 5:00 pm deadline on August 10, 2020, Commerce
refused to accept Plaintiff’s Sections B and C questionnaire responses. See id. at ¶¶
18–22. 	On September 30, 2020, Commerce issued a preliminary determination in
which it found that Plaintiff did not cooperate with the investigation to the best of its
ability, and thus Commerce used facts otherwise available with an adverse inference
(“adverse facts available” or “AFA”) 4 to preliminarily assign Plaintiff a dumping
margin of 53.65 percent. 	See [PC Strand] from Argentina, Colombia, Egypt,
Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain,
Taiwan, Tunisia, [Turkey], Ukraine, and the United Arab Emirates, 85 Fed. Reg.
61,722 (Dep’t Commerce Sept. 30, 2020) (prelim. affirmative determinations of sales
at less than fair value & prelim. affirmative critical circumstances determinations,
in part) (“Prelim. Results”) and accompanying Decisions Memo. for the [Prelim.
3 Celik states that it commenced efforts to upload the Sections B and C questionnaire
responses at 4:10 pm. See Compl. at ¶ 9. At 4:12 pm, Celik received an email from
ACCESS rejecting one (1) exhibit in the confidential version of the Section B
questionnaire response because it contained “no searchable text.” 	See id. at ¶ 10.
Celik received the same error message—“no searchable text”—when it attempted to
upload the confidential version of the exhibits to the Section C questionnaire. See id.
at ¶ 12. Celik states it fixed the problem with the documents, resubmitted all of the
rejected documents, and eventually successfully uploaded them, with the last upload
occurring at 5:21 pm. See id. at ¶¶ 12–15.
4 Parties and Commerce sometimes use the shorthand “AFA” or “adverse facts
available” to refer to Commerce's reliance on facts otherwise available with an
adverse inference to reach a final determination. AFA, however, encompasses a two-
part inquiry established by statute. 	See 19 U.S.C. § 1677e(a)–(b). 	It first requires
Commerce to identify information missing from the record, and second, to explain
how a party failed to cooperate to the best of its ability as to warrant the use of an
adverse inference when “selecting among the facts otherwise available.” Id.
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Results] 	at 	7–9, 	A-489-842, 	(Sept. 	23, 	2020), 	available 	at
https://enforcement.trade.gov/frn/summary/turkey/2020-21546-2.pdf 	(last 	visited
Mar. 18, 2021); see also Section 776 of the Tariff Act of 1930, as amended, 19 U.S.C.
§ 1677e (2018). 5
On November 19, 2020, Celik filed a complaint alleging that Commerce
improperly rejected its late questionnaire responses. 	See Compl. at ¶¶ 43–44. 	On
the same day, Celik filed a motion for a temporary restraining order (“TRO”) and
preliminary injunction, see Pl.’s Mot. for [TRO] & Prelim. Injunction, Nov. 19, 2020,
ECF No. 5, which the court subsequently denied. See Celik Halat ve Tel Sanayi A.S.,
v. United States, 44 CIT __, __, Slip Op. No. 20-175 at 17 (2020). 6 On December 10,
2020, Defendant filed a motion to dismiss Celik’s complaint, arguing that the Court
lacked subject matter jurisdiction over Celik’s complaint filed under 28 U.S.C.
§ 1581(i). See Mot. to Dismiss at 7–11. Celik filed a response in which it argued that
it carried its burden of establishing that jurisdiction was proper under 28 U.S.C.
§ 1581(i), because jurisdiction under § 1581(c) is manifestly inadequate. See Pl.’s Br.
at 15–21. Commerce subsequently published its final determination on January 29,
2021, see [PC Strand] From Argentina, Colombia, Egypt, Netherlands, Saudi Arabia,
5 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.
6 This court denied Celik’s motion for a preliminary injunction and TRO because it
found that Celik was unlikely to succeed on the merits and had failed to show that it
would be imminently and irreparably harmed if the court did not grant the motion.
See Celik Halat ve Tel Sanayi A.S., v. United States, 44 CIT __, __, Slip Op. No. 20-
175 at 7–17 (2020).
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Taiwan, Turkey, and the United Arab Emirates, 86 Fed. Reg. 7,564, 7,564–65 (Dep’t
Commerce Jan. 29, 2021) (final determ.), and issued an ADD order on February 1,
2021. See [PC Strand] From Argentina, Colombia, Egypt, Netherlands, Saudi Arabia,
Taiwan, Turkey, and the United Arab Emirates, 86 Fed. Reg. 7,703 (Dep’t Commerce
Feb. 1, 2021) ([ADD] orders). On the same day the ADD order was issued, Celik filed
a complaint challenging the determination. 	See Compl., Feb. 1, 2021, ECF No. 2
(from Dkt. Ct. No. 21-00045). 	In its reply, Defendant argues that Celik’s complaint
regarding the preliminary determination has now been subsumed into the final
determination. See Def.’s Reply Br. at 2–4.
DISCUSSION
Defendant moves to dismiss Celik’s complaint for lack of subject matter
jurisdiction under 28 U.S.C. § 1581(i), because jurisdiction under § 1581(c) is
available. 	See Mot. to Dismiss at 7–11. 	Moreover, Defendant argues that the final
determination, now the subject of a complaint that Celik has filed, subsumes the
preliminary determination. See Def.’s Reply Br. at 2–4. Celik contends that review
under § 1581(c) is manifestly inadequate because, if required to file its complaint
under this subsection, Celik will have suffered “irreversible and irreparable harm” by
the conclusion of the regular judicial appeal proceedings. See Pl.’s Br. at 9, 15–17.
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
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on the importation of merchandise for reasons other than the raising of revenue.” 28
U.S.C. § 1581(i)(2). 	However, § 1581(i) “shall not confer jurisdiction over an
antidumping or countervailing duty determination which is reviewable[] by the Court
of International Trade under [19 U.S.C. § 1516a(a)]. . . .” 	28 U.S.C. § 1581(i). 	The
legislative 	history 	of 	§ 	1581(i) 	demonstrates 	Congress 	intended 	“that 	any
determination specified in [19 U.S.C. § 1516a] 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 [19 U.S.C. § 1516a].” 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, or the remedies afforded by those provisions would be manifestly
inadequate. 	See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987)
(“Miller & Co.”) (“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)).
Manifest inadequacy exists when, although there is jurisdiction under 28
U.S.C. § 1581(a)–(h), filing suit under one of those subsections would be an “exercise
of futility,” meaning that it is “incapable of producing any result.” See Hartford Fire
Ins. Co. v. United States, 544 F.3d at 1289 (Fed. Cir. 2008) (finding no futility where
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the plaintiff failed to make a required challenge directly to Customs after a Customs
demand for payment, based on unsubstantiated claims that it would be futile to do so
because Customs had a financial interest in the challenge and thus was allegedly
biased). 	That judicial review may be delayed by requiring a party to wait for
Commerce’s final determination is not enough to render judicial review under
§ 1581(c) manifestly inadequate. 	See Gov't of People's Republic of China v. United
States, 31 CIT 451, 461, 483 F. Supp. 2d 1274, 1282 (2007) (“Gov’t of China v. United
States”). 	Neither the burden of participating in the administrative proceeding nor
the business uncertainty caused by such a proceeding is sufficient to constitute
manifest inadequacy. See, e.g., id., 31 CIT at 461–62, 483 F. Supp. 2d at 1283 (citing
FTC v. Standard Oil Co. of California, 449 U.S. 232, 244 (1980) (“FTC”)); Abitibi–
Consolidated Inc. v. United States, 30 CIT 714, 717–18, 437 F. Supp. 2d 1352, 1356–
57 (2006) (“Abitibi–Consolidated Inc.”). 	Financial hardship resulting from review
under § 1581(a)–(h) does not constitute manifest inadequacy. 	See International
Custom Products, Inc. 	v. United States, 467 F.3d 1324, 1327–28 (Fed. Cir. 2006)
(“International Custom Products”) (finding no manifest inadequacy where plaintiff
was under threat of imminent bankruptcy as a result of review under § 1581(a)); see
also Miller & Co., 824 F.2d at 964; American Air Parcel Forwarding Co., Ltd. v.
United States, 718 F.2d 1546, 1550-51 (Fed. Cir. 1983).
Here, recourse under 28 U.S.C. § 1581(c) is not manifestly inadequate because
judicial review pursuant to subsection (c) provides the remedy Celik seeks—namely,
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a remand order directing Commerce to reconsider, further explain its refusal, or
accept Celik’s submissions. 	Celik concedes that “the law provides for section (c)
review[.]” See Compl. at 2; Pl.’s Br. at 9. Nonetheless, Celik argues that jurisdiction
under 28 U.S.C. § 1581(c) is manifestly inadequate because Celik would purportedly
lose its entire U.S. sales market by the end of the appeal, which it argues could take
one to two years. See Compl. ¶ 31; Pl.’s Br. at 8–9, 15–18, 21–22. 7 Celik’s allegation
that it would lose its entire U.S. sales market as a result of participation in
administrative and judicial proceedings does not render the remedy available under
28 U.S.C. § 1581(c) manifestly inadequate. See International Custom Products, 467
F.3d at 1327–28. In International Custom Products, the Court of Appeals found that
even though the company was at risk of losing its entire business as a result of
participation in judicial proceedings under 28 U.S.C. § 1581(c), that financial harm
alone was insufficient to meet the standard for manifest inadequacy. See id. at 1327–
28. 	Participating in administrative reviews, and subsequent judicial proceedings is
a cost of importing products into the United States. 	See Gov’t of China v. United
States, 31 CIT at 461, 483 F. Supp. 2d at 1282 (“the cost associated with defending
7 Celik further argues that the combined rate assigned in the ADD and CVD
proceedings is so high that it cannot afford to pay it, nor can it afford to post a bond
to satisfy its obligations. See Pl.’s Br. at 18–19. Although Celik is the producer and
exporter of PC Strand, it states that its U.S. importer told Celik that it could not pay
the ADD or CVD cash deposits for imports of Celik’s PC Strand. 	See Compl. at Ex.
H, ¶ 12, Nov. 19, 2020, ECF No. 2-1 (“Compl. Exs.”). Thus, Celik states that it looked
into the possibility of Celik itself acting as the U.S. importer in order to try to save
its U.S. business. 	See id. at Ex. H, ¶ 13. 	Celik, however, states that it “cannot
possibly fund deposits at that level.” See id.
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oneself in a trade remedy proceeding is not the type of burden with which this Court
concerns itself”) .
Celik invokes a number of cases in which the court found that it had
jurisdiction under 28 U.S.C. § 1581(i), and claims that these cases support its
argument for jurisdiction under the same provision. 	Each one of these cases is
distinct from the present case. 	Two cases Celik cites concern a situation where the
plaintiff alleges that Commerce unlawfully initiated an administrative review. See,
e.g., JIA Farn Mfg. Co. v. Secretary of United States DOC, 17 CIT 187, 188–89, 817
F. Supp. 969, 971–72 (1993); Asociacion Colombiano de Exportadores de Flores v.
United States, 13 CIT 584, 585–88, 717 F. Supp. 847, 849–51 (1989). 	Here, Celik
does not allege that the administrative review itself is illegal, but rather that
Commerce’s rejection of the late portions of the questionnaire responses was an abuse
of discretion.
Celik further argues that the question of jurisdiction cannot be separated from
the merits of the case, invoking Sahaviriya Steel Indus. Pub. Co. v. United States,
601 	F. 	Supp. 	2d 	1355, 	1366 	(“Sahaviriya 	Steel”), 	because 	Celik 	claims 	that
Commerce’s rejection of its questionnaire responses and subsequent application of an
AFA rate “is a pretextual method for excluding it from the U.S. market for at least 2
years, while regular judicial appeal is concluded.” 	See Pl.’s Br. at 20. 8 	Celik thus
8 Celik filed a complaint under 28 U.S.C. § 1581(c) less than three months after it
(footnote continued)
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argues that this court should deny the pending motion to dismiss and allow Celik the
opportunity for an evidentiary submission and hearing. 	See id. at 16, 19. 9 	Celik
asserts, but offers no support for its position, that Commerce is acting in bad faith
and 	that 	the 	rejection 	of 	its 	questionnaire 	responses 	was 	pretextual. 	More
importantly, Celik is incorrect that the merits of the case cannot be separated from
the jurisdictional question. 	Even if Commerce may have abused its discretion, a
matter on which the court offers no view at this time, such an issue is the exact type
of issue that the court considers in an action under 28 U.S.C. § 1581(c). See, e.g., CP
filed its complaint under 28 U.S.C. § 1581(i). 	See Def.’s Reply Br. at 4. 	Although
Celik claims that waiting for a decision under 28 U.S.C. § 1581(c) may take up to one
to two years, see Pl.’s Br. at 8–9, it is unclear how long a proceeding under either
§ 1581(c) or § 1581(i) would take, and whether there would be a material difference
in the time it took to resolve one versus the other, given that the complaints were
filed so close together.
9 Celik does not allege that it will be forced into bankruptcy or otherwise lose its
business completely as a result of the review. 	Rather, Celik alleges that it will be
harmed by having to pay cash deposits pending resolution of its appeal. See Pl.’s Br.
at 11, 17–19. Specifically, Celik complains that payment of cash deposits will cause
it to lose its U.S. market, which accounts for nearly half of its export business. 	See
Pl.’s Mot. for [TRO] & Prelim. Injunction at 13, Nov. 19, 2020, ECF No. 5; Compl. Exs.
at Ex. H, ¶ 4. Moreover, Celik acknowledges the court’s opinion that Celik did not
present any evidence to support its contention that it would suffer immediate and
irreparable harm. 	See Celik Halat ve Tel Sanayi A.S., v. United States, 44 CIT __,
__, Slip Op. No. 20-175 at 14 (2020). 	Notwithstanding its argument that it should
not be dismissed without a hearing, Celik did not move for a hearing and it declines
to offer any new or additional support at this juncture. See Pl.’s Br. at 19. Moreover,
even if Celik’s representations were correct and it could demonstrate that it would
lose its U.S. market, such a showing would be insufficient to demonstrate manifest
inadequacy. See International Custom Products, 467 F.3d at 1327–28.
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Kelco (Shandong) Biological Co. v. United States, 40 CIT __, __, 145 F. Supp. 3d 1366,
1373 (2016). 10
Finally, Commerce’s preliminary determination has now merged into the final
determination, and thus is unreviewable by this Court. In FTC, the Supreme Court
ruled that where a preliminary determination of an agency constitutes a mere step
towards a final decision, and will later merge into the final decision, it is unreviewable
at the preliminary juncture. See FTC, 449 U.S. at 246 (1980). At the time that the
United States filed its motion to dismiss, Commerce had already completed and
issued final results, and was preparing to publish those results in the Federal
Register. See Mot. to Dismiss. at 2–3, 6. Since then, Commerce has indeed published
the final results, an ADD order has been issued, and Celik has already filed a
complaint challenging the results of the ADD proceedings. See Def.’s Reply Br. at 2–
4. Thus, the preliminary determination has now merged into the final determination,
and only the final determination is reviewable by this Court under FTC. 11
10 Thus, Celik’s reliance on Sahaviriya Steel is inapposite. 	In Sahaviriya Steel, the
plaintiff premised its complaint on its argument that Commerce acted ultra vires
when it initiated a changed-circumstances review of plaintiff’s sales of a hot-rolled
carbon steel from Thailand. 	See id. at 1357, 1361. 	Plaintiff sought to enjoin
Commerce from continuing the review. See id. at 1357. Plaintiff in that case argued
that where Commerce acted “patently ultra vires” the merits of the case becomes
intertwined with the dispute. 	See id. at 1563. 	Here, Celik claims that Commerce
abused its discretion, not that Commerce acted ultra vires.
11 As discussed, Commerce initially argued that Celik’s claim is not ripe. See Mot. To
Dismiss at 10–11; see supra n.2. 	“Ripeness is a justiciability doctrine designed ‘to
(footnote continued)
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CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s motion to dismiss for lack of jurisdiction is
granted; and it is further
ORDERED that the case is dismissed. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	March 24, 2021
New York, New York
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.’” 	Nat’l
Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807–08 (2003). By the
time Defendant filed its reply to plaintiff’s response to its motion to dismiss,
Commerce had issued an ADD order based on determinations of Commerce and the
ITC, and thus Defendant argued that the proceedings were complete, and any
preliminary determinations had been subsumed into the final results and order. See
Def.’s Reply Br. at 2–4. Commerce has issued final results and Celik is now entitled
to challenge those results under 28 U.S.C. § 1581(c).
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