Qingdao Maycarrier Import & Export Co., Ltd. v. United States

Slip Op. 13-
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
QINGDAO MAYCARRIER IMPORT & 	:
EXPORT CO., LTD., 	:
:
Plaintiff, 	:
:
v. 	:
:
UNITED STATES, 	:
: 	Court No.: 13-00142
Defendant, 	:
:
and 	:
:
CHRISTOPHER RANCH, L.L.C., THE 	:
GARLIC COMPANY, VALLEY GARLIC, 	:
AND VESSEY AND COMPANY, INC., 	:
:
Defendant-Intervenors. 	:
:
OPINION and ORDER
Held: 	Defendant’s 	motion 	to 	dismiss 	paragraph 	thirty-one 	of
plaintiff’s complaint is granted.
Dated: September 16, 2013
Hume & Associates LLC (Robert T. Hume) for Qingdao Maycarrier
Import & Export Co., Ltd., Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director, Commercial
Litigation 	Branch, 	Civil 	Division, 	United 	States 	Department 	of
Justice (Melissa M. Devine); Office of the Chief Counsel for Import
Administration, 	United 	States 	Department 	of 	Commerce, 	George 	H.
Kivork, Of Counsel, for the United States, Defendant.
Tsoucalas, Senior Judge: 	Defendant United States Department
of Commerce (“Commerce”) moves to dismiss paragraph thirty-one of
count 	two 	of 	plaintiff 	Qingdao 	Maycarrier 	Import 	& 	Export 	Co.,
Ltd.’s (“Maycarrier”) complaint. 	See Def.’s Mot. Dismiss (“Def.’s
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Mot.”). 	Maycarrier’s 	complaint 	contests 	Commerce’s 	decision 	to
rescind 	its 	new 	shipper 	review 	(“NSR”) 	in 	Fresh 	Garlic 	From 	the
People's 	Republic 	of 	China: 	Final 	Rescission 	of 	Antidumping 	Duty
NSRs; 	2010-2011, 	78 	Fed. 	Reg. 	18,316 	(Mar. 	26, 	2013) 	(“Final
Rescission”). 	See 	Compl., 	Court 	No. 	13-00142, 	ECF 	No. 	7 	at 	1–2
(Apr. 	17, 	2013). 	Paragraph 	thirty-one 	concerns 	Maycarrier’s
request 	to 	participate 	in 	the 	2010-2011 	antidumping 	duty
administrative review of fresh garlic from the People’s Republic of
China 	(“2010-2011 	ADAR”) 	and 	Commerce’s 	denial 	of 	that 	request.
Id. 	at 	7. 	Commerce 	argues 	that 	the 	Court 	lacks 	subject 	matter
jurisdiction 	over 	paragraph 	thirty-one 	because 	it 	concerns 	an
administrative review other than the Final Rescission. 	See Def.’s
Mot. at 1. 	Maycarrier opposes this motion. 	See Pl.’s Opp’n Def.’s
Mot. 	Dismiss 	at 	1 	(“Pl.’s 	Opp’n”). 	For 	the 	following 	reasons,
Commerce’s motion is granted.
BACKGROUND
Pursuant to a request by Maycarrier, Commerce initiated a NSR
of Maycarrier’s sales of fresh garlic from the People’s Republic of
China 	(“PRC”) 	covering 	the 	period 	between 	November 	1, 	2010 	and
October 	31, 	2011. 	See 	Fresh 	Garlic 	From 	the 	PRC: 	Initiation 	of
NSRs, 	77 	Fed. 	Reg. 	266, 	266–67 	(Jan. 	4, 	2012). 	Maycarrier 	also
requested 	an 	administrative 	review 	of 	its 	sales 	as 	part 	of 	the
2010-2011 ADAR, see Pl.’s Opp’n at 2, but Commerce did not select
Maycarrier as a respondent. 	See id.; Initiation of Antidumping and
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Countervailing 	Duty 	Administrative 	Reviews 	and 	Request 	for
Revocation in Part, 76 Fed. Reg. 82,268, 82,271–73 (Dec. 30, 2011).
On 	March 	26, 	2013, 	Commerce 	rescinded 	the 	NSR 	because
Maycarrier did not qualify as a new shipper. 	See Final Rescission,
78 Fed. Reg. at 18,317. 	Commerce noted that Maycarrier’s entries
would be “assessed at the PRC-wide rate,” which would be determined
in the final results of the 2010-2011 ADAR. 	Id.
On April 8, 2013, Maycarrier filed the instant case to contest
the Final Rescission. 	See Summons, Court No. 13-00142, ECF No. 1
at 	2 	(Apr. 	8, 	2013). 	In 	its 	complaint, 	Maycarrier 	alleges 	three
counts: 	(1) 	Commerce 	erred 	in 	rescinding 	the 	NSR; 	(2) 	Commerce
erred in assigning Maycarrier the PRC-wide rate; and (3) the PRC-
wide rate of $4.71/kg is erroneous. 	See Compl. at 6–8.
On June 17, 2013, Commerce published the final results of the
2010-2011 ADAR, assigning the PRC-wide entity a rate of $4.71/kg.
See 	Fresh 	Garlic 	From 	the 	PRC: 	Final 	Results 	of 	Antidumping 	Duty
Administrative Review; 2010-2011, 78 Fed. Reg. 36,168, 36,169 (June
17, 2013).
Commerce 	now 	moves 	to 	dismiss 	paragraph 	thirty-one 	of
Maycarrier’s 	complaint 	for 	lack 	of 	subject 	matter 	jurisdiction.
Def.’s Mot. at 1. 	Paragraph thirty-one states: “Assuming arguendo,
that Maycarrier was not qualified for a [NSR], Maycarrier requested
to be included in the [2010-2011 ADAR] and Commerce was required to
include Maycarrier in the [2010-2011 ADAR].” 	Compl. at 7.
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STANDARD OF REVIEW
“Subject matter jurisdiction constitutes a ‘threshold matter’
in 	all 	cases, 	such 	that 	without 	it, 	a 	case 	must 	be 	dismissed
without proceeding to the merits.” 	Demos v. United States, 31 CIT
789, 	789 	(2007) 	(not 	reported 	in 	the 	Federal 	Supplement) 	(citing
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)).
“The 	burden 	of 	establishing 	jurisdiction 	lies 	with 	the 	party
seeking to invoke th[e] Court's jurisdiction.” 	Bhullar v. United
States, 27 CIT 532, 535, 259 F. Supp. 2d 1332, 1334 (2003) (citing
Old 	Republic 	Ins. 	Co. 	v. 	United 	States, 	14 	CIT 	377, 	379, 	741 	F.
Supp. 1570, 1573 (1990)).
“To 	survive 	a 	motion 	to 	dismiss, 	a 	complaint 	must 	contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief 	that 	is 	plausible 	on 	its 	face.’” 	Ashcroft 	v. 	Iqbal, 	556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 	570 	(2007)). 	“For 	the 	purposes 	of 	a 	motion 	to 	dismiss, 	the
material allegations of a complaint are taken as admitted and are
to 	be 	liberally 	construed 	in 	favor 	of 	the 	plaintiff(s).” 	Humane
Soc’y 	of 	the 	U.S. 	v. 	Brown, 	19 	CIT 	1104, 	1104, 	901 	F. 	Supp. 	338,
340 	(1995) 	(citing 	Jenkins 	v. 	McKeithen, 	395 	U.S. 	411, 	421–22
(1969)).
DISCUSSION
Commerce 	contends 	that 	the 	Court 	lacks 	subject 	matter
jurisdiction 	over 	paragraph 	thirty-one 	pursuant 	to 	28 	U.S.C. 	§
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1581(c) 	because 	Maycarrier 	“failed 	to 	follow 	the 	statutory
procedures 	insofar 	as 	it 	seeks 	. 	. 	. 	to 	challenge 	Commerce’s
selection 	of 	respondents 	in 	the 	separate 	[2010-2011 	ADAR].” 1
Def.’s Mot. at 5. 	According to Commerce, paragraph thirty-one does
not concern the Final Rescission, but instead addresses Commerce’s
rejection of Maycarrier’s request to participate in the 2010-2011
ADAR. 	See 	id. 	at 	4. 	Because 	Maycarrier 	filed 	its 	summons 	and
complaint 	prior 	to 	publication 	of 	the 	final 	results 	of 	the 	2010-
2011 ADAR in the Federal Register, Commerce insists that the Court
must dismiss paragraph thirty-one. 	Id. at 4–7.
Maycarrier 	responds 	that 	it 	does 	not 	have 	standing 	to
challenge 	the 	final 	results 	of 	the 	2010-2011 	ADAR, 	and 	instead
included 	paragraph 	thirty-one 	because 	“Commerce 	had 	not 	only 	the
authority, but also the responsibility, to transfer Maycarrier to
the 	[2010-2011 	ADAR] 	if 	the 	[NSR] 	request 	was 	untimely.” 	Pl.’s
Opp’n at 8. 	Essentially, Maycarrier argues that Commerce wrongly
applied the PRC-wide rate to Maycarrier upon rescinding the NSR and
should have transferred Maycarrier’s case, specifically its Section
A 	questionnaire, 	to 	the 	2010-2011 	ADAR 	to 	assess 	Maycarrier’s
eligibility 	for 	a 	separate 	rate. 	See 	id. 	at 	11–13. 	Maycarrier
insists 	that 	the 	Court 	has 	jurisdiction 	because 	its 	Section 	A
Commerce 	also 	argues 	that 	Maycarrier 	cannot 	invoke 	this	1
Court’s jurisdiction pursuant to 28 U.S.C. § 1581(i). 	See Def.’s
Mot. 	at 	7–10. 	However, 	Maycarrier 	does 	not 	attempt 	to 	invoke
section 1581(i) jurisdiction. 	See Pl.’s Resp. at 11.
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questionnaire 	is 	on 	the 	record 	of 	the 	Final 	Rescission, 	and
therefore 	the 	Court 	can 	determine 	its 	eligibility 	for 	a 	separate
rate based on that record alone. 	Id. at 9.
Maycarrier 	also 	compares 	its 	case 	to 	Fresh 	Garlic 	From 	the
PRC: 	Final 	Rescission 	of 	NSRs 	of 	Jining 	Yifa 	Garlic 	Produce 	Co.,
Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan Trading Inc.,
76 	Fed. 	Reg. 	52,315 	(Aug. 	22, 	2011) 	(“Jinyan 	NSR”). 	See 	Pl.’s
Opp’n 	at 	11–12. 	In 	that 	case, 	Commerce 	rescinded 	Yantai 	Jinyan
Trading Inc.’s NSR, but placed its separate rate application onto
the record of a contemporaneous administrative review to which it
was already a party. 	Jinyan NSR, 76 Fed. Reg. at 52,316.
Section 	516A(a)(2)(A) 	of 	the 	Tariff 	Act 	of 	1930 	requires 	a	2
party 	contesting 	a 	determination 	in 	an 	administrative 	review 	to
file 	a 	summons 	within 	thirty 	days 	after 	publication 	of 	the 	final
results 	of 	that 	review 	in 	the 	Federal 	Register, 	and 	to 	file 	a
complaint 	within 	thirty 	days 	after 	the 	summons. 	See 	19 	U.S.C. 	§
1516a(a)(2)(A). 	If 	a 	party 	does 	not 	satisfy 	the 	timing
requirements 	of 	19 	U.S.C. 	§ 	1516a(a)(2)(A), 	the 	Court 	lacks
jurisdiction 	over 	that 	party’s 	claim. 	See 	NEC 	Corp. 	v. 	United
States, 806 F.2d 247, 248 (Fed. Cir. 1986) (“The proper filing of
a summons to initiate an action in the Court of International Trade
is a jurisdictional requirement.”). 	“Since section 1516a(a)(2)(A)
All further references to the Tariff Act of 1930 will be to	2
the relevant provisions of Title 19 of the United States Code, 2006
edition, and all applicable supplements thereto.
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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.” 	Georgetown Steel Corp.
v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986).
The 	Court 	lacks 	subject 	matter 	jurisdiction 	over 	paragraph
thirty-one 	insofar 	as 	it 	concerns 	Commerce’s 	rejection 	of
Maycarrier’s request to participate in the 2010–2011 ADAR. 	See 19
U.S.C. 	§ 	1516a(a)(2)(A); 	NEC 	Corp. 	v. 	United 	States, 	806 	F.2d 	at
248. 	Maycarrier’s argument that paragraph thirty-one relates to a
determination on the record of the Final Rescission is unavailing.
Although 	the 	court 	is 	directed 	to 	construe 	the 	terms 	of
Maycarrier’s complaint “liberally,” Humane Soc’y, 19 CIT at 1104,
901 	F. 	Supp. 	at 	340 	(citing 	Jenkins, 	395 	U.S. 	at 	421–22),
Maycarrier’s 	argument 	contradicts 	the 	plain 	language 	of 	its
complaint. 	Paragraph thirty-one states that “Maycarrier requested
to be included in the [2010-2011 ADAR,] and Commerce was required
to include Maycarrier.” 	Compl. at 7. 	Neither Maycarrier’s request
to participate in the 2010-2011 ADAR nor the notice Commerce issued
initiating the 2010-2011 are on the record of the Final Rescission.
See 19 U.S.C. § 1516a(b)(2)(A) (defining the record under review in
an administrative proceeding). 	In contrast, Maycarrier’s argument
concerns Commerce’s application of the PRC-wide rate instead of a
separate rate, see Pl.’s Opp’n at 9, 11–13, and thus relates more
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closely to paragraph thirty-two of the complaint. 	See Compl. at 7
(discussing Maycarrier’s eligibility for a separate rate). 	Because
Maycarrier failed to comply with the statutory timing requirements,
the 	court 	must 	dismiss 	paragraph 	thirty-one. 	See 	19 	U.S.C. 	§
1516a(a)(2)(A); Medline Indus., Inc. v. United States, 37 CIT __,
__, 911 F. Supp. 2d 1358, 1361 (2013) (Tsoucalas, J.) (dismissing
for lack of subject matter jurisdiction where plaintiff failed to
comply with timing requirements of 19 U.S.C. § 1516a(a)(2)(A)).
CONCLUSION
For 	the 	foregoing 	reasons, 	Commerce’s 	motion 	to 	dismiss 	is
granted. 	Paragraph 	thirty-one 	of 	Maycarrier’s 	complaint 	is
dismissed without prejudice.
ORDER
In accordance with the above, it is hereby
ORDERED that defendant’s motion to dismiss is GRANTED; and it
is further
ORDERED that paragraph thirty-one of plaintiff’s complaint is
dismissed without prejudice.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: September 16, 2013
New York, New York
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