Intercontinental Chems., LLC v. United States ( 2020 )

Slip Op. 20-162
UNITED STATES COURT OF INTERNATIONAL TRADE
INTERCONTINENTAL CHEMICALS,
LLC,
Plaintiff, Before: Timothy M. Reif, Judge
v.
Court No. 20-00068
UNITED STATES,
Defendant.
OPINION
[Granting defendant’s motion to dismiss for lack of subject matter jurisdiction.]
Dated: November 12, 2020
Matthew K. Nakachi, Junker & Nakachi, of San Francisco, CA for plaintiff.
Kelly Ann Krystyniak, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, D.C. for defendant. With him on the brief were Ethan P. Davis,
Acting Assistant Attorney General, and L. Misha Preheim, Assistant Director. Of
counsel on the brief was Brandon Jerrold Custard, Trial Attorney.
Reif, Judge: Plaintiff Intercontinental Chemicals, LLC (“ICC” or “plaintiff”) brings
this action against the United States of America (“Government” or “defendant”) to
challenge the liquidation instructions issued by the Department of Commerce
(“Commerce”) with respect to imports of xanthan gum from the People’s Republic of
China (“China”). Complaint, ECF No. 2 (“Compl.”). Defendant moves to dismiss under
USCIT Rule 12(b)(1) for lack of subject matter jurisdiction and under USCIT Rule
Court No. 20-00068 Page 2
12(b)(6) for failure to state a claim on which relief can be granted. Def.’s Mot. to
Dismiss, ECF No. 12 (“Def. Br.”).
Upon review of the filings and applicable law, this Court grants the United States’
motion to dismiss for lack of subject matter jurisdiction because 28 § 1581(i), not §
1581(c), provides the requisite jurisdictional basis to review plaintiff’s claim. The court
does not reach the Rule 12(b)(6) motion to dismiss for failure to state a claim because
dismissal under Rule 12(b)(1) renders the 12(b)(6) claim moot. 1 “[A] court without such
jurisdiction lacks power to dismiss a complaint for failure to state a claim.” IMark
Marketing Servs., LLC v. Geoplast S.p.A, 753 F. Supp. 2d 141, 149 (D.D.C. 2010)
(citation omitted).
Subject Matter Jurisdiction
BACKGROUND
On July 19, 2013, Commerce published an antidumping duty order on xanthan
gum from China at a rate of 154.07%. See Xanthan Gum from the People’s Republic of
China, 78 Fed. Reg. 43,143 (Dep’t of Commerce July 19, 2013). On July 5, 2016,
Commerce issued a notice of opportunity to request an administrative review of that
order for the period covering July 1, 2015 through June 30, 2016. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To
1
“A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and
12(b)(6) must decide the jurisdictional question first because a disposition of a Rule
12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.”
Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 915 F. Supp. 2d
574, 588 (S.D.N.Y. 2013) (quoting Homefront Organization, Inc. v. Motz, 570 F. Supp.
2d 398, 404 (E.D.N.Y. 2008) (internal quotation marks omitted)).
Court No. 20-00068 Page 3
Request Administrative Review, 81 Fed. Reg. 43,584 (Dep’t of Commerce Jul. 5, 2016).
After receiving multiple requests for review, Commerce initiated its third administrative
review of the xanthan gum from China antidumping duty order. See Initiation of
Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 62,720
(Dep’t of Commerce Sept. 12, 2016). This administrative review is the subject of the
present action.
Due to the large number of companies subject to the administrative review, in
accordance with 19 U.S.C. § 1677f-1(c)(2)(B), Commerce selected Deosen Biochemical
Ltd. and Deosen Biochemical (Ordos) Ltd. (collectively, Deosen) and Neimenggu
Fufeng Biotechnologies Co., Ltd./Shandong Fufeng Fermentation Co., Ltd./Xinjiang
Fufeng Biotechnologies Co., Ltd. (collectively, Fufeng) as mandatory respondents. See
Xanthan Gum From the People's Republic of China: Preliminary Results of the
Antidumping Duty Administrative Review and Preliminary Determination of No
Shipments; 2015-2016, 82 Fed. Reg. 36,746 (Dep’t of Commerce Aug. 7, 2017).
Based on this review, Commerce calculated weighted-average dumping margins
of 9.30 percent for Deosen, and zero percent for Fufeng. Id., 82 Fed. Reg. at 36,747.
These margins were unchanged in the Final Results. See Xanthan Gum From the
People’s Republic of China: Final Results of the Antidumping Duty Administrative
Review and Final Determination of No Shipments; 2015-2016, 83 Fed. Reg. 6,513
(Dep’t of Commerce Feb. 14, 2018) (“Final Results”). Commerce instructed Customs
and Border Protection (“Customs”) to liquidate entries not reported in the U.S. sales
databases submitted by Doesen and Fufeng at the China-wide rate of 154.07%. Final
Court No. 20-00068 Page 4
Results, 83 Fed. Reg. 6,513.
In accordance with the Final Results of the administrative review, Commerce
issued non-public importer/customer-specific liquidation instructions to Customs,
including instructions for Fufeng on March 2, 2018. Administrative Message No.
8061303 (Pl. Ex. 13). ICC had been inadvertently omitted from Fufeng’s importer list,
and thus was billed at the substantially higher, China-wide rate, rather than at the
Fufeng-specific rate. After arbitration with Fufeng, through which ICC received partial
compensation, ICC initiated this suit at the United States Court of International Trade
(“USCIT”), invoking jurisdiction based on 28 U.S.C. § 1581(i)(4).
STANDARD OF REVIEW
The Court’s determination of subject matter jurisdiction is a threshold inquiry.
Steel Co. v. Citizens For A Better Envm’t, 523 U.S. 83, 94–95 (1998). When the
requirements for subject matter jurisdiction are not satisfied, the court must dismiss the
case for lack of jurisdiction. Mittal Can., Inc. v. United States, 30 CIT 154, 158, 414 F.
Supp. 2d 1347, 1351 (2006). Whether to grant a motion to dismiss for lack of
jurisdiction is a question of law. JCM Ltd. v. United States, 210 F.3d 1357, 1359 (Fed.
Cir. 2000).
When jurisdiction is challenged pursuant to Rule 12(b)(1), “‘the burden rests on
the plaintiff to prove that jurisdiction exists.’” Pentax Corp. v. Robinson, 125 F.3d 1457,
1462 (Fed. Cir. 1997), modified, in part, 135 F.3d 760 (Fed. Cir. 1998) (citation omitted).
It is also the court’s responsibility to review independently the jurisdiction claims that
come before it. J.S. Stone, Inc. v. United States, 27 CIT 1688, 1691, 297 F.Supp.2d
Court No. 20-00068 Page 5
1333, 1337 (2003), aff'd, 111 F. App'x 611 (Fed. Cir. 2004) (citing Ad Hoc Comm. v.
United States, 22 CIT 901, 906, 25 F. Supp. 2d 352, 357 (1998)). This principle is
particularly true when a party invokes jurisdiction under § 1581(i). Consol. Bearings Co.
v. United States, 25 CIT 546, 549, 166 F. Supp. 2d 580, 583 (2001).
LEGAL FRAMEWORK
When this Court asserts jurisdiction over an action, the Court must identify the
claim on which plaintiff seeks relief. Mittal Can., Inc., 414 F. Supp. 2d at 1351. “It is
incumbent upon the Court to independently assess the jurisdictional basis for a case.”
Consol. Bearings Co. v. United States, 166 F. Supp. 2d at 583.
Jurisdiction under § 1581(i) provides for the USCIT’s “residual” jurisdiction,
Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1371 (Fed. Cir. 2002), which
allows this Court to “take jurisdiction over designated causes of action founded on other
provisions of law.” Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359
(Fed. Cir. 1992) (citation omitted). It “may not be invoked when jurisdiction under
another [sub]section of § 1581 is or could have been available, unless the relief
provided under that other subsection would be manifestly inadequate.” Consol.
Bearings Co., 166 F. Supp. 2d at 583 (citing Norcal/Crosetti Foods, Inc., 963 F.2d at
359). If relief was available under any other subsection of 28 U.S.C. § 1581, then it is
incumbent on the Court to dismiss the case for lack of subject matter jurisdiction. Mittal
Can., Inc., 414 F. Supp. 2d at 1351.
Court No. 20-00068 Page 6
DISCUSSION
I. Positions of the Parties
Plaintiff characterizes its suit as a case principally about Commerce’s liquidation
instructions, rather than Commerce’s “Final Results” or Customs’ implementation of the
instructions. Compl. at ¶¶ 5–6. Plaintiff argues that the CIT lacks jurisdiction under §
1581(a) because the issue is not with Customs’ implementation of Commerce’s
instructions, but with Commerce’s instructions themselves. Id. at ¶ 5. Similarly, plaintiff
maintains that the USCIT lacks jurisdiction under § 1581(c) because the challenge is
not to the Final Results of an anti-dumping determination, but to the liquidation
instructions — the “administration and enforcement” of an antidumping duty order.
Therefore, plaintiff invokes the USCIT’s residual jurisdiction under § 1581(i)(4) because,
in plaintiff’s view, no other grounds for jurisdiction exist. Id. at ¶¶ 4–5.
In support of its argument, plaintiff cites J.S. Stone v. United States, 27 CIT 1688,
297 F. Supp. 2d 1333 (2003), to show that jurisdiction under § 1581(i) is proper when
an action challenging liquidation instructions is an action challenging the “administration
and enforcement” rather than the Final Results themselves. Pl. Rep. at 2 (citing J.S.
Stone, 297 F. Supp. 2d 1333). Plaintiff also argues that the CIT has found that
jurisdiction under § 1581(i) is proper for cases in which Commerce’s instructions
contravene Commerce’s administrative review determinations. Pl. Rep. at 3 (citing
Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1305 (Fed. Cir. 2003) and
Consol. Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir. 2003)). Based on this
Court No. 20-00068 Page 7
framing of the issue, plaintiff concludes that the USCIT has residual jurisdiction under §
1581(i).
Defendant moves to dismiss for lack of subject matter jurisdiction, arguing that
plaintiff, as an “interested party,” could have participated in the administrative review or
disputed the Final Results under § 1581(c), rendering relief under § 1581(i) unavailable.
Def.’s Rep. in Supp. of Its Mot. to Dis., ECF No. 21 (“Def. Rep.”) at 8 (citing Consol.
Bearings Co., 348 F.3d at 1000 (“Before final liquidation, any interested party may
request an administrative review of the antidumping order.”); 19 U.S.C. § 1677(9)(A)
(“The term ‘interested party’ means a . . . United States importer of subject
merchandise.”)). Defendant argues that the “true nature” of ICC’s challenge is a
challenge to the Final Results, as the subject of plaintiff’s dispute is the assessment
rates determined by Commerce, not the liquidation instructions or their enforcement.
Def. Rep. at 5. As ICC could have participated in the administrative review as an
“interested party” and challenged the Final Results under § 1581(c), the CIT has no
residual ability to hear a challenge under § 1581(i) because ICC “slept on its rights.”
Def. Rep. at 10.
II. Analysis
A. The Proper Jurisdictional Basis of Plaintiff’s Claim
Whether this court has subject matter jurisdiction over a claim depends on a
determination of the proper basis for jurisdiction. To determine that basis, the Court
must identify the claim on which plaintiff seeks relief. Mittal Can., Inc., 414 F. Supp. 2d
at 1351. In this case, there are two potential sources of jurisdiction at issue: 28 U.S.C.
Court No. 20-00068 Page 8
§ 1581(c) and (i). As noted above, the possibility of jurisdiction arising under § 1581(c)
precludes the application of § 1581(i), unless a remedy under § 1581(c) would have
been manifestly inadequate.
1. Jurisdiction under 28 U.S.C. § 1581(c) as compared with 28
U.S.C. § 1581(i)
28 U.S.C. § 1581(c) provides the CIT with exclusive jurisdiction over actions
brought under § 516A of the Tariff Act. 28 U.S.C. § 1581(c) (2000). Section 516A
provides for judicial review in countervailing duty and antidumping duty proceedings,
and it specifically enumerates what the term “reviewable determinations” includes. 19
U.S.C. § 1516a(a)(2)(B) (2000); Shinyei Corp. of Am., 355 F.3d at 1304. Reviewable
determinations include "Final Results” by Commerce. See id.
On the other hand, 28 U.S.C. § 1581(i) serves as the “residual” jurisdiction
provision of the statute and arises only in cases in which no other subsection of section
1581 is or would have been available. Section 1581(i) may be invoked for challenges to
the “administration and enforcement” of Commerce’s Final Results including, for
example, a challenge to inaccurate liquidation instructions. See Consol. Bearings Co.,
348 F.3d at 1002 (“Consequently, an action challenging Commerce's liquidation
instructions is not a challenge to the Final Results, but a challenge to the ‘administration
and enforcement’ of those Final Results. Thus, Consolidated challenges the manner in
which Commerce administered the Final Results. Section 1581(i)(4) grants jurisdiction
to such an action.”).
Court No. 20-00068 Page 9
Jurisdiction arising under § 1581(c) or (i) in this case therefore depends on
whether the dispute is about a final determination by Commerce or its liquidation
instructions to Customs. Consolidated Bearings, 166 F. Supp. 2d 580, provides a
helpful example of a challenge to liquidation instructions rather than to Final Results. In
Consolidated Bearings, Commerce’s liquidation instructions “‘arbitrarily departed from
its well-established liquidation practices’ of determining the rate of dumping to be
applied to imports at the liquidation instruction stage of an administrative review.”
Wanxiang Am. Corp. v. United States, 43 CIT __,__, 399 F. Supp. 3d 1323, 1332
(2019) (citing Consolidated Bearings, 166 F. Supp. 2d 580). The court in Consolidated
Bearings found that because the liquidation instructions were not part of the Final
Results or the Amended Final Results, the plaintiff could not invoke § 1581(c)
jurisdiction. 166 F. Supp. at 583.
Capella Sales & Servs. Ltd. v. United States, 40 CIT __,__,180 F. Supp. 3d 1293
(2016), also provides an informative example in which a challenge to liquidation
instructions presented this Court with multiple, possible bases for jurisdiction. In this
case, “Capella thus does not challenge the calculation of the all-others CVD rate itself,
but the way Commerce administers and enforces that CVD rate — specifically, Capella
seeks a change in who [sic] is retroactively entitled to the benefit of the ‘lawful rate’
following redetermination.” Id. at 1301. While plaintiff in Capella did not participate in
the administrative review or challenge the Final Results — which ultimately impacted its
ability to oppose a motion to dismiss for failure to state a claim — this failure to
participate did not mandate dismissal under Rule 12(b)(1) because the action was a
Court No. 20-00068 Page 10
challenge to the administration of Commerce’s findings rather than to the findings
themselves. Id.
A case in which the substance of the action is a challenge to the Final Results is
Wanxiang Am. Corp. v. United States, 43 CIT __, __, 399 F. Supp. 3d 1323, 1332
(2019). In this case, Commerce issued a memorandum based on old questionnaires,
which failed to list one exporter, and did not make new determinations. Id. at 1331. In
other words, “Commerce's guidance to CBP was part of the same proceeding, and it
reiterated —and rather than deviating [sic] from — the results of the administrative
reviews from 1994 to 2001.” Id. at n. 11. The court found that the plaintiff should have
challenged the previous findings under § 1581(c); because plaintiff “forewent an
available administrative procedure” and did not challenge the previous Final Results,
jurisdiction could not arise under § 1581(i). Id. at 1332. The court in Wanxiang Am.
Corp. looked to the original source of the error — the underlying administrative review
— even though the error continued into the memorandum at issue. See id. (“Here, in
challenging the [memo at issue’s] conveyance of information from long-completed
reviews, WAC is seeking a reconsideration of WQ's AD rate based on the records of
those reviews. If WG wanted to challenge Commerce's finding with respect to WQ's
antidumping rate, it should have done so by timely challenging the results of those
administrative reviews under 28 U.S.C. § 1581(c).”).2
2
WAC and WQ were both subsidiaries of WG.
Court No. 20-00068 Page 11
Another informative case discusses situations that require “a more searching
examination because the parties disagree as to the characterization of Plaintiff’s claim.”
Mittal Canada, Inc. v. United States, 30 CIT 154, 158, 414 F. Supp. 2d 1347, 1351
(2006). In Mittal Canada, Inc., “Plaintiff contends it is challenging Commerce's
liquidation instructions as arbitrary and capricious or otherwise not in accordance with
law. Customs paints Plaintiff's request in a different light, arguing that Plaintiff is really
seeking a substantive review of the changed circumstances review.” Id. By “fashioning
its dispute” in this way, the plaintiff “defined its claim such that the Court has
jurisdiction.” Id. at 1353. The court allows this refashioning of the dispute as a
challenge to the liquidation instructions because the plaintiff’s claim is about the
meaning of the liquidation instructions. Indeed, the court states that the plaintiff is
merely arguing that the “results mean something different from what they say.” Id. The
claim, though ultimately lacking in merit, truly is one about the liquidation instructions.
2. CIT lacks jurisdiction under § 1581(i)
Plaintiff’s claim here is a challenge not to the administration and enforcement of
Commerce’s liquidation instructions, but to Commerce’s Final Results, so the proper
basis for jurisdiction is 28 U.S.C. § 1581(c), not 28 U.S.C. § 1581(i). Plaintiff attempts
to characterize its claim as a challenge to the liquidation instructions, claiming that the
instructions do not accurately reflect the results of the underlying administrative
proceeding. Pl. Rep. at 7. Plaintiff argues that this characterization is proper because it
does not want the Final Results changed — indeed, plaintiff claims, plaintiff would
benefit from inclusion in the original analysis of the Final Results. Id. at 8. Plaintiff says
Court No. 20-00068 Page 12
that because it is challenging the liquidation instructions and not the Final Results, it
could not have raised its challenge under § 1581(c); indeed, the liquidation instructions
were issued after the Final Results and therefore could not have been challenged under
§ 1581(c). Id. at 7.
Defendant, however, argues that because plaintiff was an “interested party” as
defined by 19 U.S.C. § 1677(9)(A), plaintiff could have participated in Commerce’s
underlying administrative review and sought to correct the alleged error through
participation in that proceeding instead. Def. Br. at 2. Defendant argues that plaintiff is
asking the court to correct an error — the failure to include ICC in Fufeng’s entry list —
that could have been corrected through the administrative process. Id. at 6. Moreover,
according to defendant, there is no inconsistency between Commerce’s findings and
Customs’ administration and enforcement; Customs followed Commerce’s instructions,
which were based directly on the Final Results. Id. at 5. Therefore, § 1581(c) serves as
the only valid basis for jurisdiction, leaving jurisdiction under § 1581(i)(4) foreclosed to
plaintiff.
It is defendant’s characterization of the dispute, not plaintiff’s, that accurately
reflects the substance of the claim in this action. The underlying issue in this case is an
error in the record that influenced the Final Results of the administrative review:
Fufeng’s failure to include ICC in its list of importers. The underlying issue is not, as
plaintiff argues, a discrepancy in the administration and enforcement, because
Commerce’s failure to include ICC in the list of importers could be traced back to
Fufeng’s original failure to include ICC on its entries list.
Court No. 20-00068 Page 13
Here, as in Wanxiang Am. Corp., supra, Commerce did not commit a new error.
Rather, Commerce issued liquidation instructions based on the Final Results of an
administrative review that failed to include what ICC would consider to be crucial
information: its name on a list of importers. The Final Results instructed that “for entries
that were not reported in the U.S. sales databases submitted by Deosen or Fufeng,
Commerce will instruct CBP to liquidate such entries at the China-wide rate.” Final
Results, 83 Fed. Reg. at 6,514. ICC was “not reported in the U.S. sales databases
submitted by . . . Fufeng.” Id. As in Wanxiang Am. Corp., ICC could have challenged
Commerce’s Final Results under § 1581(c); ICC could also have participated in the
administrative proceeding. Because ICC failed to pursue either of these options, it is
barred, as in Wanxiang Am. Corp., from invoking jurisdiction under § 1581(i).
Moreover, as in Mittal Canada, Inc., plaintiff here attempts to recharacterize the
nature of its argument such that plaintiff can invoke § 1581(i) jurisdiction. However, this
recharacterization does not accurately describe the situation in which plaintiff finds itself.
Plaintiff argues that the issue is with the liquidation instructions, but these instructions
are based — and not inconsistently — on the Final Results; the underlying issue is
therefore not with the liquidation instructions but with the Final Results. Unlike in Mittal
Canada, Inc., plaintiff here fails to show that the substance of the claim is actually an
error of administration and enforcement. Rather, the action is most accurately viewed
as an error rooted in Fufeng’s list of importers, a list that was incorporated into the Final
Results and subsequently into the liquidation instructions.
Court No. 20-00068 Page 14
This is a dispute about the Final Results, and as such, the only valid basis for
jurisdiction lies under § 1581(c). Therefore, a claim arising under § 1581(i) should be
dismissed for lack of subject matter jurisdiction. Moreover, this Court has previously
held that a plaintiff should not be permitted to “expand a court's jurisdiction by creative
pleading,” as the plaintiff attempts here. See Norsk Hydro, 472 F.3d at 1355.
Accordingly, this principle weighs in favor of dismissal here as well.
B. The Proper Basis for Jurisdiction: 28 U.S.C. § 1581(c)
If plaintiff could have invoked 28 U.S.C. § 1581(c) but the remedy under this
provision would have been manifestly inadequate, then jurisdiction under § 1581(i)
would still be available. Consol. Bearings Co., 166 F. Supp. at 583. That is not the
case here, so § 1581(i) jurisdiction is not available.
Plaintiff bears the burden of demonstrating manifest inadequacy. Miller & Co. v.
United States, 824 F.2d 961, 964 (Fed. Cir. 1987). Having not raised the issue of
manifest inadequacy in its complaint, plaintiff argues in its reply that remedy under §
1581(c) would have been manifestly inadequate. In raising manifest inadequacy,
plaintiff asserts that: (1) it cannot change Fufeng’s reported sales databases; (2) ICC
did not have notice of the liquidation instructions because they were confidential and not
published; (3) “{i}t would have been a ‘fool’s errand’ to challenge a preordained
conclusion, thus leaving the proper result as a challenge to the liquidation instructions,
which must be targeted at those companies who did not purchase products from
Fufeng”; and, (4) “ICC seeks to adjudicate an issue that is unresolvable in
administrative proceedings because of its lack of control over what documentation may
Court No. 20-00068 Page 15
be submitted to the reviewers by an exporter and Commerce’s lack of diligence.” Def.
Rep. at 6-7 (citing Pl.’s Resp. to Mot. to Dis., ECF No. 20 (“Pl. Rep.”) at 9-11).
Defendant argues here that plaintiff could have participated in the review as an
importer of subject merchandise under 19 U.S.C. § 1677(9)(A), and that plaintiff could
have commented on the information placed into the record by Fufeng, which forms the
basis for this complaint. See J.S. Stone, 29 F. Supp. 2d at 1699 (“If an importer decides
not to participate in an administrative review, it bears the risk that Commerce may err in
calculating the dumping margin.”). Plaintiff could also have filed suit under § 1581(c) to
contest Commerce’s Final Results. Either of these options would have addressed the
underlying issue and provided plaintiff with the remedy that it seeks: inclusion on
Fufeng’s list of importers to receive a favorable liquidation rate.
“Neither the burden of participating in the administrative proceeding nor the
business uncertainty caused by such a proceeding is sufficient to constitute manifest
inadequacy.” See Valeo North America v. United States, 41 CIT __,__, 277 F. Supp. 3d
1361, 1365 (2017). Further, “mere allegations of financial harm, or assertions that an
agency failed to follow a statute, do not make the remedy established by Congress
manifestly inadequate.” Miller & Co., 824 F.2d at 964. Here, plaintiff’s claim of manifest
inadequacy is not based on any of these theories, but rather on arguments derived from
NEC Corp. V. U.S. Dept. of Commerce, 151 F.3d 1361 (Fed. Cir. 1998).
In NEC Corp., the court found that the remedy under § 1581(c) would have been
manifestly inadequate: “NEC [was] attempting to adjudicate an issue that [went] to the
very heart of the administrative system — neutrality.” Id. at 1369. In that case, the
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plaintiff “could not invoke the trial court's § 1581(c) jurisdiction because the antidumping
investigation had not yet been completed.” Id. at 1368. The government argued that
“NEC should have waited until Commerce completed its review, and then raised its due
process concerns.” Id. Describing the government’s suggested approach as a “fool’s
errand,” the court notes that "[r]equiring NEC to appeal from the conclusion of an
investigation that, allegedly, was preordained because of impermissible prejudgment is
a classic example of a remedy that was ‘manifestly inadequate.’” Id.
In the instant case, plaintiff’s use of the phrase “fool’s errand” is a clear reference
to NEC Corp., but plaintiff’s arguments of manifest inadequacy are not convincing.
Plaintiff states that it did not protest the Final Results under § 1581(c) because it would
have been a “fool’s errand” to challenge a “preordained conclusion” by Commerce, and
that Commerce lacked due diligence in reaching its conclusion. Pl. Rep. at 10.
However, plaintiff does not present any evidence of this alleged unfairness, and thus
fails to satisfy its burden of demonstrating manifest inadequacy. Moreover, the harms
that plaintiff suffered due to lack of inclusion on Fufeng’s entries list are precisely the
kind of harms that could have been remedied through participation in the underlying
review or protest of the Final Results under § 1581(c).
CONCLUSION
"I prithee — and I'll pay thee bounteously —
Conceal me what I am, and be my aid
For such disguise as haply shall become
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The form of my intent."3
***
Because this dispute is properly categorized as a challenge to the Final Results
— which directly informed the liquidation instructions — and not a challenge to the
accuracy of the liquidation instructions or their enforcement, plaintiff could have raised
its issues as a challenge to the Final Results under § 1581(c). Plaintiff’s claim is a
challenge to Commerce’s Final Results, and not to the liquidation instructions. A
challenge to the Final Results would have formed a valid basis for jurisdiction and any
remedy under § 1581(c) would not have been manifestly inadequate. Therefore,
jurisdiction based on § 1581(i) is foreclosed.
/s/ Timothy M. Reif
Timothy M. Reif, Judge
Dated: November 12, 2020
New York, New York
3
William Shakespeare, TWELFTH NIGHT, act 1, sc. 2.