Citations
- 201 F. Supp. 2d 1304
Full opinion text
OPINION
RIDGWAY, Judge.
Over the years, legal scholars and jurists have devoted much ink to the meaning in various legal contexts of certain common words — the eternal debate over “shall” vs. “may” being one prime example. See, e.g., Bryan A. Garner, A Dictionary of Modern Legal Usage 502 (“shall”), 516-17 (“Statute Drafting”) (1987). This is yet another such case.
As discussed more fully below, the disposition of the case at bar turns largely on the meaning of the word “including.” The stakes may not be high in the whimsical world of fairy tales, when the terms in question are “brillig” and “slithy”:
‘When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
Lewis Carroll, Through the Looking Glass and What Alice Found There 124 (William Morrow & Co.1993) (1872). But the present case does not arise in Humpty Dumpty land, where words mean whatever one wants them to mean; and the stakes here are very high indeed.
This action is one of a trilogy of cases involving antidumping duty and countervailing duty investigations of certain hot-rolled flat-rolled carbon-quality steel products (“hot-rolled steel”) from Brazil. In this case, the plaintiff Brazilian steel exporters — Usinas Siderúrgicas de Minas Gerais (“USIMINAS”), Companhia Sider-úrgica Paulista (“COSIPA”), and Compan-hia Siderúrgica Nacional (“CSN”) (collectively, “Brazilian Exporters”) — seek to challenge the continued final affirmative countervailing duty determination of the U.S. Department of Commerce (“Commerce”). See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, -64 Fed.Reg.- 38,742 (Dep’t Commerce 1999) (“Continued Final Determination”). Commerce made that'determination the same day that it executed a suspension agreement with the Government of Brazil (“Brazilian Government”)— an agreement which is itself contested in one of the two related actions brought by certain of the U.S. steel producers who are Defendant-Intervenors in this action. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 38,797 (Dep’t Commerce 1999) (suspension of countervailing duty investigation and entry of suspension agreement) (“Suspension Determination” or “Suspension Agreement”).
The ■ Brazilian Exporters’ Complaint in this matter asserts five specific challenges to Commerce’s Continued Final Determination. Complaint ¶-7. However, the Complaint does not seek review of any aspect of Commerce’s determination to suspend the countervailing duty investigation or to enter into the Suspension Agreement with the Brazilian Government. Nor does the Complaint allege that any changes made in Commerce’s Continued Final Determination, rendered the Suspension Determination defective in any way.
Pending before the Court is the Motion To, Dismiss for Lack of Subject Matter Jurisdiction filed by Defendant, the United States (“the Government”). According to the Government, the sovereign has waived its immunity from suit to permit a party to challenge a continued final countervailing duty determination that changes the size of the net countervailable subsidy (or the underlying, reasoning) at the time a suspension agreement is concluded only if that challenge is raised as part of a challenge to Commerce’s decision to suspend the countervailing duty investigation in question. Defendant’s Memorandum in Support of Its Motion To Dismiss For Lack of Subject Matter Jurisdiction (“Defendant’s Memo”), passim. In other words, according to the Government, the Court lacks jurisdiction because the Brazilian Exporters’ Summons and Complaint do not attack both Commerce’s Continued Final Determination and the Suspension Determination and Agreement.
For the reasons discussed below, the Government’s motion is granted and this action is dismissed for want of subject matter jurisdiction.
I. Background
A. Administrative Proceedings
On September 30, 1998, certain U.S. steel producers — including Defendant-In-tervenors here — petitioned Commerce and the International Trade Commission (“ITC”), seeking the imposition of countervailing duties on hot-rolled steel from Brazil. The petition was accepted, and the requested investigation was initiated. Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 63 Fed. Reg. 56,624 (Dep’t Commerce 1998).
One month later, the ITC notified Commerce of its preliminary affirmative determination on material injury. See Certain Hot-Rolled Steel Products From Brazil, Japan, and Russia, 63 Fed.Reg. 65,221 (ITC 1998). Commerce’s own preliminary affirmative determination issued on February 12, 1999, tentatively finding net subsidy rates of 9.45% for USIMINAS and COSIPA, 6.62% for CSN, and 7.85% for all others. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 8313, 8321 (Dep’t Commerce 1999).
In June 1999, Commerce and the Brazilian Government initialed a proposed agreement to suspend the then-ongoing countervailing duty investigation. See Suspension Determination, 64 Fed.Reg. 38,797 (noting June 1999 initialing of proposed suspension agreement). The petitioners filed comments opposing the proposed suspension agreement, but also requested that Commerce continue the investigation in the event that a suspension agreement was executed over their objections. See Continued Final Determination, 64 Fed.Reg. 38,742 (Dep’t Commerce 1999) (noting petitioners’ request for continuation of investigation even if suspension agreement executed).
Commerce and the Brazilian Government signed the Suspension Agreement on July 6, 1999. See Suspension Determination, 64 Fed.Reg. 38,797. That same day, Commerce issued its final determination in the underlying countervailing duty investigation, increasing the net subsidy rates slightly to 9.67% for USIMINAS and CO-SIPA, and decreasing them to 6.35% for CSN and 7.81% for all others. See Continued Final Determination, 64 Fed.Reg. at 38,755. The ITC’s final determination, issued August 24, 1999, confirmed its preliminary affirmative finding as well. See Certain Hot-Rolled Steel Products From Brazil and Russia, 64 Fed.Reg. 46,951 (ITC 1999).
As a result of the Suspension Agreement — which was the subject of Bethlehem Steel, 25 CIT -, 159 F.Supp.2d 730, and which remains in effect today — no countervailing duty order has been issued covering hot-rolled steel from Brazil.
B. Proceedings Before the Court
The Brazilian Exporters timely filed a Summons with the Court, seeking to invoke the Court’s jurisdiction under 28 U.S.C. § 1581(c) to contest “certain aspects of the final determination of the International Trade Administration, Department of Commerce,, issued in the countervailing duty investigation of Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, Inv. No. C-351-829.” Summons ¶2.
The Complaint, filed one month later, again identified the administrative determination to be reviewed as the “Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled, Flat-Rolled Carbon-Quality Steel Products From Brazil, 64 Fed.Reg. 38,742 (July 19, 1999).” Complaint ¶2. The Brazilian Exporters once more invoked the Court’s jurisdiction under 28 U.S.C. § 1581(c), and asserted that the action was “commenced under 19 U.S.C. § ... 1516a(a)(2)(B)(iv).” Id. ¶ 3. The Complaint further alleged that Commerce’s Continued Final Determination is not supported by substantial evidence on the record and is otherwise not in accordance with law with respect to five specific issues: (1) the methodology for handling pre-privatization subsidies; (2) the treatment of certain equity infusions; (3) the methodology for converting Brazilian reals into U.S. dollars; (4) the methodology for calculating repayment in a privatization transaction; and (5) certain aspects of the net countervailable subsidy calculations. Id. ¶ 7.
Neither the Summons nor the Complaint challenges any aspect of either Commerce’s Suspension Determination or the Suspension Agreement. Nor does either the Summons or the Complaint allege that any changes made in Commerce’s Continued Final Determination rendered its Suspension Determination defective in any way. Moreover, the Brazilian Exporters have not challenged the ITC’s final determination. Only Commerce’s Continued Final Determination is at issue in this case.
II. Standard of Review
It is axiomatic that “ ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and that the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’ ” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)); see also Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“[sovereign immunity is jurisdictional in nature”). A waiver of sovereign immunity “ ‘cannot be implied but must be unequivocally expressed.’ ” Mitchell, 445 U.S. at 538, 100 S.Ct. 1349 (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)); see also Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (waiver of sovereign immunity “must be unequivocally expressed in statutory text” and “will be strictly construed, in terms of its scope, in favor of the sovereign”) (citations omitted).
Thus, to the extent that statutory language contains ambiguities concerning the waiver of sovereign immunity, those ambiguities must be construed in favor of immunity. United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)); see also Novacor Chems., Inc. v. United States, 171 F.3d 1376, 1382 (Fed.Cir.1999) (“[w]e must strictly construe the statute, for we may not imply a waiver”); RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed.Cir.1998) (“[a]ny statute which creates a waiver of sovereign immunity must be strictly construed in favor of the Government”) (citing Sherwood, 312 U.S. at 590, 61 S.Ct. 767); NEC Corp. v. United States, 806 F.2d 247, 249 (Fed.Cir.1986) (“[t]he terms of the government’s consent to be sued in any particular court define that court’s jurisdiction to entertain the suit” (citations omitted)).
III. Discussion
“[Sovereign immunity goes to the issue of the court’s power to hear the case, and therefore is antecedent to the merits of the case.” Humane Soc’y of the U.S. v. Clinton, 236 F.3d 1320, 1326 (Fed.Cir.2001). To establish jurisdiction here, the Brazilian Exporters must prove that Congress waived the Government’s immunity from actions such as this. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 188-89, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Elkem Metals Co. v. United States, 23 CIT 170, 175, 44 F.Supp.2d 288, 292 (1999) (plaintiff bears burden of pleading and proving facts required for jurisdiction). This they cannot do.
A. The Language of The Statute
For purposes of this action, the terms of the United States’ consent to suit are reflected in subsection (iv) of 19 U.S.C. § 1516a(a)(2)(B), invoked by the Brazilian Exporters’ Summons and Complaint and set forth in context below:
(B) Reviewable determinations
The determinations which may be contested under subparagraph (A) are as follows:
(i) Final affirmative [antidumping or countervailing duty] determinations ... including any negative part of such a determination ....
(ii) A final negative [antidumping or countervailing duty] determination ... including ... any part of a final affirmative determination which specifically excludes any company or product.
(hi) • • •
(iv) A determination by the administering authority, under section 1671 c or 1673c of this title, to suspend an antidumping duty or a countervailing duty investigation, including any final determination resulting from a continued investigation which changes the size of the dumping margin or net countervailable subsidy calculated, or the reasoning underlying such calculations, at the time the suspension agreement was concluded.
19 U.S.C. § 1516a(a)(2)(B) (1994) (emphases supplied.)
The “subparagraph (A)” referenced in 19 U.S.C. § 1516a(a)(2)(B) sets forth the procedure for challenging an administrative determination reviewable under sub-paragraph (B). Specifically, subparagraph (A) requires the filing of a summons within thirty days of publication of the determination, followed by a complaint thirty days thereafter. As the U.S. Court of Appeals for the Federal Circuit has explained, that procedure delimits the subject matter jurisdiction of the Court of International Trade. See Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed.Cir.1986) (citing Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981)).
In Georgetown Steel, the Court of Appeals held that, since subparagraph (A) “specifies the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade, those limitations must be strictly observed and are not subject to implied exceptions. If a litigant fails to comply with the terms upon which the United States has consented to be sued, the court has no ‘jurisdiction to entertain the suit.’ ” Georgetown Steel, 801 F.2d at 1312 (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). In that case, Georgetown Steel’s initial mailing of its complaint was returned for insufficient postage. The Court of Appeals held that the plaintiffs failure to comply with the statutory thirty day deadline for the filing of its complaint deprived the Court of International Trade of subject matter jurisdiction.
The instant case turns on the interpretation of the jurisdictional provision immediately following that at issue in Georgetown Steel, which similarly “specifies the terms and conditions upon which the United States has waived its sovereign immunity.” As with subparagraph (A) in Georgetown Steel, subparagraph (B) here can be interpreted to waive sovereign immunity only if such a waiver has been unequivocally expressed in the statute.
B. Dictionary Definitions of “Including”
The Brazilian Exporters’ claim to jurisdiction turns largely on the word “including” as it is used in 19 U.S.C. § 1516a(a) (2) (B) (iv). However, the statute at issue does not define the term. Accordingly, it is to be construed using its established meaning. See, e.g., NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) (“[wjhere Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms”); see also NSK Ltd. v. United States, 115 F.3d 965, 974 (Fed.Cir.1997) (to the same effect). To establish the plain meaning of “including,” both the Government and the Brazilian Exporters point to dictionary definitions — but with very different results. While the Government maintains that the term as used in the statute is “illustrative,” the Brazilian Exporters read the term as “conjunctive” or “expansive.”
Specifically, the Government relies on Merriam-Webster’s Collegiate Dictionary to argue that Congress’ use of “including” reflects its intent that a challenge to a continued final determination occur only “as a constituent, component, or subordinate part of a larger whole” — in other words, as part of a challenge to a suspension determination. Defendant’s Memo at 15 (quoting Merriam-Webster’s Collegiate Dictionary 588 (10th ed.1999) (definition of “include”), and citing Webster’s Third New International Dictionary 1143 (1963) (“include” means “to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate