Aluminum Extrusions Fair Trade Committee v. United States

ALUMINUM EXTRUSIONS FAIR TRADE
COMMITTEE
Plaintiff,
v.
UNITED STATES
Defendant,
and
AAVID THERMALLOY, LLC, EVERGREEN
SOLAR, INC., ZHONGYA SHAPED
ALUMINUM (HK) HOLDING LTD., and
ZHAOQING NEW ZHONGYA ALUMINUM
CO., LTD.,
Defendant-Intervenors.
Slip Op. 13 -
UNITED STATES COURT OF INTERNATIONAL TRADE
MEMORANDUM and ORDER
Upon consideration of Defendant-Intervenor’s, Aavid
Thermalloy, LLC (“Aavid”), and Defendant’s motions to dismiss,
any responses thereto, and the record as a whole, it is hereby
ORDERED that the Defendant’s motion is GRANTED and the
Defendant-Intervenor’s motion is GRANTED in part and DENIED in
part.
1 This action is consolidated with Court No. 11-00218.
Before: Donald C. Pogue,
Chief Judge
Consol. 1 Court No. 11-00216
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Consol. Court No. 11-00216 	Page 2
Defendant properly contends that the court lacks
subject matter jurisdiction over Plaintiff’s claims under 28
U.S.C. § 1581(i) because jurisdiction is currently available
under § 1581(c). 	Therefore, Defendant concludes, the portions
of Plaintiff’s Complaint which assert jurisdiction under 1581(i)
should be dismissed. 	The court agrees.
It is settled that this court may take jurisdiction under
1581(i) only when jurisdiction is unavailable under other
subsections of 28 U.S.C. § 1581. 	See Hartford Fire Ins. Co. v.
United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008) (citing
Int’l Custom Prods. v. United States, 467 F.3d 1324, 1327 (Fed.
Cir. 2006)). 	Here, jurisdiction is available under 1581(c)
because Commerce’s exclusionary language in the Antidumping Duty
and Countervailing Duty Orders (collectively “the Orders”)
explicitly stated that it was revising the scope of the Orders
and therefore the exclusion of all finished heat sinks may be
challenged under 1581(c) as a negative part of Commerce’s final
determination. 	E.g., Aluminum Extrusions from the People’s
Republic of China, 76 Fed. Reg. 30,650 (Dep’t Commerce May 26,
2011) (antidumping duty order) (“ . . . the Department is
revising the scope of the subject merchandise stated in the
Final Determination to exclude finished heat sinks from the
scope of the order.” ); 19 U.S.C. § 1516a(a)(2)(B)(i) (granting
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Consol. Court No. 11-00216 	Page 3
jurisdiction over “final affirmative determinations . . .
including any negative part of such a determination”).
Defendant-Intervenors assert that this case is not ripe for
judicial review under 1581(c) because Plaintiffs failed to
exhaust their administrative remedies and must first file a
request for a scope determination pursuant to 19 C.F.R.
§ 351.225(c). 	This argument misses the point. 	A scope
determination would only suffice to address whether specific
imports fall under the scope of Commerce’s final determinations
and their accompanying orders. 	Plaintiff’s complaint is that
Commerce’s Orders (revising the scope of the Final
Determinations) unlawfully and erroneously excluded all finished
heat sinks and deprived Plaintiff of relief to which it was
otherwise entitled because the International Trade Commission’s
negative injury determination was limited to the subset of
finished heat sinks sold to electronic manufacturers. 	Pl’s
Compl., ECF No. 7 at ¶¶ 7, 13, 14, and 23. 	A scope
determination request, therefore, could not address the
sufficiency of the Orders as a whole.
Defendant and Defendant-Intervenor’s motions to dismiss for
lack of subject matter jurisdiction under 28 U.S.C. § 1581(i)
are therefore GRANTED and Defendant-Intervenor’s motion to
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dismiss for failure to exhaust administrative remedies is
DENIED.
It is so ORDERED.
___/s/ Donald C. Pogue______
Donald C. Pogue, Chief Judge
Dated: February 27, 2013
New York, NY
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