Jinan Farmlady Trading Co., Ltd. et al v. United States

Slip Op. 12
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
______________________________:
JINAN FARMLADY TRADING CO., 	:
et. al., 	:
: 	Court No. 11-00195
Plaintiffs, 	:
:
v. 	:
:
UNITED STATES, 	:
:
Defendant, 	:
:
and 	:
:
FRESH GARLIC PRODUCERS 	:
ASSOCIATION, et al., 	:
:
Defendant-Intervenors 	:
______________________________:
OPINION
Held: 	Defendant’s 	Motion 	to 	Dismiss 	is 	granted. 	Plaintiffs’
Complaint is dismissed.
Dated: 	April 26, 2012
Hume & De Luca, PC (Robert T. Hume) for Jinan Farmlady Trading
Co., et al., Plaintiffs.
Tony 	West, 	Assistant 	Attorney 	General; 	Jeanne 	E. 	Davidson,
Director, 	Commercial 	Litigation 	Branch, 	Civil 	Division, 	United
States 	Department 	of 	Justice, 	Reginald 	T. 	Blades, 	Jr., 	Assistant
Director; 	(Melissa 	M. 	Devine), 	Trial 	Attorney, 	Commercial
Litigation 	Branch, 	Civil 	Division, 	United 	States 	Department 	of
Justice, 	George 	Kivork, 	Office 	of 	the 	Chief 	Counsel 	for 	Import
Administration, United States Department of Commerce, of Counsel,
for the United States, Defendant.
Kelley 	Drye 	& 	Warren, 	LLP 	(Michael 	J. 	Coursey 	and 	John 	M.
Herrmann)for Fresh Garlic Producers Association, et al., Defendant-
Intervenors.
TSOUCALAS, Senior Judge: This matter comes before the Court on
the motion to dismiss filed by Defendant, United States and joined
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Court No. 	11-00195 	Page 2
by 	Defendant-Intervenors, 	Christopher 	Ranch, 	LLC, 	Fresh 	Garlic
Producers 	Association, 	The 	Garlic 	Company, 	Valley 	Garlic, 	and
Vessey and Company, Inc. (Collectively “Defendants”). 	Plaintiffs,
Jinan 	Farmlady 	Trading 	Co., 	Ltd., 	Weifang 	Hongqiao 	International
Logistics 	Co. 	Ltd., 	Qingdao 	Xingdao 	Xintianfeng 	Foods 	Co., 	Ltd.,
and 	Gingar 	Import 	Corporation 	(“Plaintiffs”) 	oppose 	dismissal.
Defendants move pursuant to USCIT Rules 12(b)(1) and 12(b)(5), and
seek 	dismissal 	alleging 	the 	Court 	lack 	jurisdiction 	to 	hear
Plaintiffs 	claims, 	that 	Plaintiffs 	lack 	standing 	and 	that
Plaintiffs 	have 	failed 	to 	state 	a 	claim. 	Alternatively, 	if 	the
Court 	should 	deny 	the 	Defendants’ 	motion, 	they 	request 	a 	more
definite 	statement. 	For 	the 	reasons 	set 	forth 	below, 	the 	Court
concludes 	that 	it 	lacks 	subject 	matter 	jurisdiction 	to 	hear 	this
suit and grants Defendants’ motion to dismiss the Complaint.
BACKGROUND
On June 17, 2011, Plaintiffs filed the instant action under 28
U.S.C. 	1581(i). 	In 	the 	jurisdiction 	clause 	in 	their 	Complaint,
Plaintiffs 	are 	contesting 	the 	U.S. 	Department 	of 	Commerce’s
(“Commerce”) “. . . method used to conduct administrative reviews
of 	the 	antidumping 	duty 	order 	on 	fresh 	garlic 	from 	the 	People's
Republic of China, including the selection of respondents and the
assignment 	of 	antidumping 	duty 	rates." 	Comp. 	at 	1. 	Plaintiffs
allege 	they 	have 	standing 	because 	they 	“participated 	in 	previous
administrative 	reviews 	of 	the 	antidumping 	duty 	order 	on 	fresh
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Court No. 	11-00195 	Page 3
garlic from the People’s Republic of China . . . .” 	Id.
Plaintiffs’ 	allegations 	in 	the 	Complaint 	were 	raised 	at 	the
administrative 	level. 	See 	Pl.’s 	Reply 	Mem. 	to 	Def. 	Intervenor
Reply 	Brief 	at 	3 	(“. 	. 	. 	[P]laintiffs 	agree 	they 	participated 	in
the 	15th 	[Administrative 	Review] 	and 	made 	arguments 	similar 	to
those 	made 	in 	the 	complaint 	. 	. 	. 	.”). 	After 	the 	preliminary
results 	of 	the 	administrative 	review 	were 	published, 1 	Plaintiffs
submitted 	a 	case 	brief 	with 	comments 	to 	Commerce 	before 	a 	final
determination 	was 	made. 	See 	Case 	Br. 	Filed 	On 	Behalf 	Of 	Jinan
Farmlady Trading Co., LTD to United States Department of Commerce
(May 20, 2011), Def. Intervenor’s Reply Brief in Support of Def.’s
Mot. to Dismiss, App. 7. In this case brief, Plaintiffs contended
that 	“[Commerce’s] 	approach 	allowing 	the 	Fresh 	Garlic 	Producers
Association and its individual members (‘Petitioners’) to designate
certain Chinese exporters/producers as respondents and subsequently
to 	rescind 	the 	review 	with 	respect 	to 	specified 	respondents 	is
arbitrary, 	capricious 	and 	contrary 	to 	law.” 	Id. 	at 	1. 	Commerce
disagreed 	and 	noted 	that 	its 	“regulations 	make 	clear 	that
Petitioners’ request for a review of specified individual companies
is 	precisely 	how 	the 	review 	request 	process 	is 	designed.
Therefore, 	[Commerce] 	does 	not 	consider 	Petitioners’ 	review
1 Fresh Garlic from the People’s Republic of China:
Preliminary Results of, Partial Rescission of, and intent to
Rescind, in Part, the 15th Antidumping Duty Administrative
Review, 75 Fed. Reg 80,458 (Dec. 22, 2010).
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Court No. 	11-00195 	Page 4
requests 	to 	be 	arbitrary, 	capricious, 	or 	contrary 	to 	law.” 	See
Issues 	and 	Decision 	Memorandum 	for 	the 	Final 	Results 	of 	the 	15th
Administrative Review of Fresh Garlic from the People’s Republic of
China at 29 (June 20, 2011), Pl.’s Resp. to Def.’s Mot. to Dismiss
Pl.’s 	Compl., 	App. 	1. 	Thereafter, 	the 	final 	results 	were
published. 	See Fresh Garlic From the People’s Republic of China:
Final 	Results 	and 	Final 	Rescission, 	in 	Part, 	of 	the 	2008-2009
Antidumping Duty Administrative Review, 76 Fed. Reg. 37,321 (June
27, 2011)(“15th Administrative Review Final Results”).
Rather 	than 	challenging 	the 	final 	determination 	of 	the 	15th
Administrative 	Review 	Final 	Results 	under 	28 	U.S.C. 	§ 	1581(c),
Plaintiffs chose to file this Complaint under 28 U.S.C. § 1581(i)
alleging 	that 	the 	“methodology 	used 	by 	Commerce 	to 	delegate
effective 	selection 	of 	respondents 	in 	antidumping 	proceedings 	is
arbitrary and capricious . . . . ” 	Compl. at 2.
STANDARD OF REVIEW
When 	jurisdiction 	is 	questioned, 	“the 	burden 	rests 	on
plaintiff to prove that jurisdiction exists.” 	Lowa, Ltd. v. United
States, 	5 	C.I.T. 	81, 	83, 	561 	F. 	Supp. 	441, 	443 	(1983) 	(quoting
United 	States 	v. 	Biehl 	& 	Co., 	3 	CIT 	158, 	160, 	539 	F. 	Supp. 	1218,
1220 	(1982)). 	In 	determining 	a 	motion 	to 	dismiss 	for 	failure 	to
state 	a 	claim, 	the 	Court 	“must 	assume 	all 	well-pled 	factual
allegations 	are 	true 	and 	indulge 	in 	all 	reasonable 	inferences 	in
favor 	of 	the 	nonmovant.” 	Gould, 	Inc. 	v. 	United 	States, 	935 	F.2d
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Court No. 	11-00195 	Page 5
1271, 1274 (Fed. Cir. 1991).
ANALYSIS
Plaintiffs assert that the Court has jurisdiction under 28
U.S.C. § 1581(i). 	Since Defendants have challenged jurisdiction,
Plaintiffs 	have 	the 	burden 	of 	proving 	that 	jurisdiction 	under 	28
U.S.C. 	§ 	1581(i) 	is 	proper. 	Plaintiffs 	appeared 	and 	actively
participated in the 15th Administrative Review of the antidumping
duty 	order 	regarding 	fresh 	garlic 	from 	the 	People’s 	Republic 	of
China. 	The 	issues 	Plaintiffs 	raised 	were 	similar 	to 	the
allegations 	in 	the 	Complaint 	herein. 	Yet 	the 	Plaintiffs 	did 	not
challenge the final determination by filing this action utilizing
28 U.S.C. § 1581(c). 	28 U.S.C. § 1581(i) specifically states that
“[it] 	shall 	not 	confer 	jurisdiction 	over 	an 	antidumping 	or
countervailing duty determination which is reviewable . . . by the
Court 	of 	International 	Trade 	under 	section 	516A(a) 	of 	the 	Tariff
Act 	of 	1930 	. 	. 	. 	.” 	28 	U.S.C. 	§ 	1581(i). 	Plaintiffs’ 	cause 	of
action should have been brought under 28 U.S.C. § 1581(c) because
“[s]ection 	1581(i) 	jurisdiction 	may 	not 	be 	invoked 	when
jurisdiction 	under 	another 	subsection 	of 	§ 	1581 	is 	or 	could 	have
been 	available 	. 	. 	. 	.” 	Miller 	& 	Co. 	v. 	United 	States, 	824 	F.2d
961, 	963 	(Fed. 	Cir 	1987), 	cert. 	denied, 	484 	U.S. 	1041 	(1988).
Therefore, 	the 	proper 	jurisdictional 	predicate 	to 	review 	the
Plaintiffs’ claims is 28 U.S.C. § 1581(c).
Plaintiffs contend that relief is not possible under 28 U.S.C.
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Court No. 	11-00195 	Page 6
§ 	1581(c). 	“Because 	the 	practice 	of 	manipulation 	occurs 	in 	a
number of cases, particularly those involving China, relief cannot
be obtained through a challenge to one final determination.” 	Pl.’s
Resp. to Def.’s Mot. to Dismiss at 18. 	The Court does not agree.
Had 	Plaintiffs 	challenged 	the 	15th 	Administrative 	Review 	Final
Results, their allegations could have been addressed and corrected
if 	not 	in 	accord 	with 	the 	law. 	Whether 	the 	conduct 	occurs
repeatedly 	is 	immaterial 	to 	correcting 	the 	problem 	through
challenging the 15th Administrative Review Final Results under 28
U.S.C. § 1581(c).
Plaintiffs’ 	contention 	is 	inconsistent 	with 	their 	position
that 	“the 	discrete 	actions 	plaintiffs 	are 	challenging 	are 	the
repeated failures by Commerce to require meaningful answers to why
review requests are being sought and, in turn, why they are being
withdrawn.” 	Pl.’s 	Resp. 	to 	Def.’s 	Mot. 	to 	Dismiss 	at 	19.
(internal 	quotation 	omitted) 	Plaintiffs 	raised 	this 	in 	the
administrative 	review 	but 	Commerce 	disagreed. 	Plaintiffs’
challenges 	and 	Commerce’s 	responses 	all 	occurred 	during 	the 	15th
Administrative 	Review. 	Thus, 	any 	final 	decision 	which 	was
repugnant to Plaintiffs’ position was reviewable under 28 U.S.C. §
1581(c). 	Since 	Plaintiffs’ 	claims 	are 	a 	direct 	challenge 	to 	the
15th Administrative Review Final Results, they cannot maintain this
action 	under 	28 	U.S.C. 	§ 	1581(i). 	“[S]ubsection 	(i), 	and 	in
particular 	paragraph 	(4), 	makes 	it 	clear 	that 	the 	court 	is 	not
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Court No. 	11-00195 	Page 7
prohibited 	from 	entertaining 	a 	civil 	action 	relating 	to 	an
antidumping . . . proceeding so long as the action does not involve
a 	challenge 	to 	a 	determination 	specified 	in 	section 	516A 	of 	the
Tariff Act of 1930.” 	Royal Bus. Machs, Inc. v. United States, 669
F.2d 	692, 	701-02 	(C.C.P.A. 	1982). 	This 	is 	because 	28 	U.S.C. 	§
1581(c) 	grants 	this 	Court 	“exclusive 	jurisdiction 	of 	any 	civil
action commenced under 516A of the Tariff Act of 1930". 	28 U.S.C.
§ 1581(c). 	A party cannot short circuit the statutory framework by
filing an action under 28 U.S.C. § 1581(i) when it could have been
filed under 28 U.S.C. § 1581(c). 2 	As such, the Court does not have
jurisdiction under 28 U.S.C. § 1581(i).
Since the Court finds that Plaintiffs could have brought this
action 	under 	28 	U.S.C. 	§ 	1581(c) 	but 	failed 	to 	do 	so, 	the 	Court
does not have jurisdiction under 28 U.S.C. § 1581(i) unless
Plaintiffs could show that the remedy available under 28 U.S.C. §
2 Emphasizing this concern, the House Committee on the
Judiciary had explained that its intent was “that the Court of
International Trade not permit subsection (i), and in particular
paragraph (4), to be utilized to circumvent the exclusive method
of judicial review of those antidumping . . . determinations
listed in section 516A of the Tariff Act of 1930 . . . .” 	H.R.
Rep. No. 96-1235, pt. 2, at 48 (1980). 	More specifically the
Committee wrote: “[A]ny determinations specified in section 516A
of the Tariff Act of 1930, or any preliminary administration
action which, in the course of proceeding, will be, directly or
by implication, incorporated in or superceded by any such
determination, is reviewable exclusively as provided in section
516A. 	For example, a preliminary affirmative antidumping . . .
determination or a decision to exclude a particular exporter from
an antidumping investigation would be reviewable, if at all, only
in connection with the review of the final determinations by the
administering authority . . . .” Id. (Emphasis added).
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Court No. 	11-00195 	Page 8
1581(c) was “manifestly inadequate.” 	See Miller & Co., 824 F.2d at
963 	(“Where 	another 	remedy 	is 	or 	could 	have 	been 	available, 	the
party asserting § 1581(i) jurisdiction has the burden to show how
that remedy would be manifestly inadequate.”). 	Plaintiffs allege
the 	remedy 	under 	28 	U.S.C. 	§ 	1581(c) 	would 	be 	“manifestly
inadequate” because “Plaintiffs are challenging the ‘administration
and 	enforcement’ 	of 	Commerce’s 	regulations 	in 	light 	of 	the
contradictory policy that distorts the final results in [non market
economy 	administrative 	reviews].” 	Pl.’s 	Reply 	Mem. 	to 	Def.
Intervenor’s 	Reply 	Brief 	at 	8. 	In 	support 	of 	their 	argument,
Plaintiffs cite Cons. Bearings, Co. v. United States, 348 F.3d 997
(Fed. Cir 2003), where the plaintiff “. . . challenge[d] the manner
in 	which 	Commerce 	administered 	the 	final 	results.” 	348 	F.3d 	at
1002. 	However, 	Plaintiffs here are complaining about Commerce’s
actions 	during 	the 	administrative 	review 	process 	before 	a 	final
determination and not the administration of the final results after
a final determination was made. 	For example, Plaintiffs allege the
administration 	and 	enforcement 	of 	the 	regulations 	“distorts 	the
final results in . . . [administrative reviews]”. 	Pl.’s Reply Mem.
to 	Def. 	Intervenors’ 	Reply 	Brief 	at 	8. 	Even 	if 	Plaintiffs’
allegations are true, the complained of conduct occurred during the
review 	process 	and 	not 	after 	the 	final 	results. 	Another 	example
where 	Plaintiffs 	illustrate 	their 	concern 	for 	the 	15th
Administrative Review process itself and not the administration of
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Court No. 	11-00195 	Page 9
those 	results 	is 	when 	they 	allege 	that 	“[b]y 	delegating 	to
defendant-intervenors the privilege of identifying those companies
that could be excluded from the 15th [Administrative Review] threw
[sic] the process of first requesting a review for a named company
and 	then 	withdrawing 	the 	review 	requests 	for 	that 	named 	company,
Commerce bestowed on the defendant-intervenors . . . the privilege
of manipulating the rates assigned by Commerce to other companies.”
Id. 	All 	of 	these 	assertions, 	if 	true, 	occurred 	within 	the
administrative review process and not after a final determination.
Since 	Plaintiffs’ 	chief 	concerns 	involve 	Commerce’s 	activities
leading up to the 15th Administrative Review Final Results and not
the administration and enforcement of those final results, reliance
on Consolidated Bearings is misguided.
Additionally, the Court of Appeals recently found jurisdiction
improper 	under 	28 	U.S.C. 	§ 	1581(i) 	for 	an 	importer 	seeking 	duty
free 	treatment 	of 	plasma 	flat 	panel 	televisions 	imported 	from
Mexico. 	Although that case involved jurisdiction under 28 U.S.C.
§ 	1581(a) 	instead 	of 	28 	U.S.C. 	§ 	1581(c), 	the 	logic 	remains 	the
same. 	“Because 	Hitachi’s 	claim 	had 	not 	already 	been 	allowed 	or
denied, Hitachi could have . . . established jurisdiction under §
1581(a). 	Therefore jurisdiction under § 1581(a) is not ‘manifestly
inadequate’ and jurisdiction under § 1581(i) is improper.” 	Hitachi
Home 	Elect. 	(Ame.), 	Inc. 	v. 	United 	States, 	661 	F.3d 	1343, 	1350
(Fed. Cir. 2011).
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Court No. 	11-00195 	Page 10
Given 	the 	allegations 	in 	Plaintiffs’ 	Complaint, 	Plaintiffs
should have sought review of the 15th Administrative Review Final
Results under 28 U.S.C. § 1581(c). 	Plaintiffs have not shown that
a remedy under 28 U.S.C. § 1581(c) would be manifestly inadequate.
As such, the Court lacks jurisdiction to hear this 	case under 28
U.S.C. § 1581(i). 	Because the Court does not have jurisdiction to
hear 	this 	case 	under 	28 	U.S.C. 	§ 	1581(i), 	the 	other 	arguments
herein are moot.
CONCLUSION
Based 	on 	the 	foregoing 	the 	Court 	dismisses 	the 	Complaint 	in
its entirety for lack of jurisdiction.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
Senior Judge
Dated: 	April 26, 2012
New York, New York
Case 1:11-cv-00195-NT Document 32 Filed 04/26/12 Page 10 of 11

UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
______________________________:
JINAN FARMLADY TRADING CO., 	:
et. al., 	:
: 	Court No. 11-00195
Plaintiffs, 	:
:
v. 	:
:
UNITED STATES, 	:
:
Defendant, 	:
:
and 	:
:
FRESH GARLIC PRODUCERS 	:
ASSOCIATION, et al., 	:
:
Defendant-Intervenors 	:
______________________________:
JUDGMENT
This case having been duly submitted for decision and the
Court, after due deliberation, having rendered a decision herein,
now in accordance with said decision, it is hereby
ORDERED that Defendant, United States’ Motion to Dismiss the
Complaint is granted; and it is further
ORDERED that this matter is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
Senior Judge
Dated: 	April 26, 2012
New York, New York
Case 1:11-cv-00195-NT Document 32 Filed 04/26/12 Page 11 of 11