Qingdao Maycarrier Import & Export Corp., Ltd. v. United States ( 2013 )

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
Court No. 13-00142 Page 2
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
Court No. 13-00142 Page 3
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.
Court No. 13-00142 Page 4
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. §
Court No. 13-00142 Page 5
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
1
Commerce also argues that Maycarrier cannot invoke this
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.
Court No. 13-00142 Page 6
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 19302 requires a
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)
2
All further references to the Tariff Act of 1930 will be to
the relevant provisions of Title 19 of the United States Code, 2006
edition, and all applicable supplements thereto.
Court No. 13-00142 Page 7
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
Court No. 13-00142 Page 8
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