Coalition for the Preservation of American Brake Drum & Rotor Aftermarket Manufacturers v. United States

Slip Op. 05 - 74
UNITED STATES COURT OF INTERNATIONAL TRADE
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THE COALITION FOR THE PRESERVATION
OF AMERICAN BRAKE DRUM AND ROTOR :
AFTERMARKET MANUFACTURERS,
:
Plaintiff,
:
v. Court No. 01-00825
:
THE UNITED STATES,
:
Defendant.
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Memorandum
[Defendant's motion to dismiss this action
in lieu of compliance with an outstanding
order of remand to the International Trade
Administration granted.]
Decided: June 21, 2005
Porter Wright Morris & Arthur LLP (Leslie Alan Glick) for
the plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Jeanne E. Davidson, Deputy Director, Commercial Liti-
gation Branch, Civil Division, U.S. Department of Justice (Stephen
C. Tosini); and Office of Chief Counsel for Import Administration,
U.S. Department of Commerce (Augusto Guerra), of counsel, for the
defendant.
AQUILINO, Senior Judge: The court's slip opinion 04-31,
28 CIT , 318 F.Supp.2d 1305 (2004), familiarity with which is
presumed, granted plaintiff's motion herein for judgment upon the
record compiled by the International Trade Administration, U.S.
Department of Commerce ("ITA") sub nom. Brake Rotors From the
People's Republic of China: Final Results and Partial Rescission of
Court No. 01-00825 Page 2
Fifth New Shipper Review, 66 Fed.Reg. 44,331 (Aug. 23, 2001), to
the extent of remand to the ITA for reconsideration of its
determination to grant Shandong Laizhou Huanri Group General Co. a
separate antidumping-duty rate in the absence of that company's
presentment to, and analysis by, the agency of communist China's
Organic Law of the Village Committee. The defendant was afforded
90 days to reopen the record in that regard and to report to the
court the results of such reconsideration.
I
It has not done so. Exactly ninety days after entry of
the court's order, counsel came forth with a motion to dismiss this
lawsuit for lack of jurisdiction, stated to be made pursuant to
USCIT Rule 12(b)(1).1 But of course that rule of traditional
federal practice has been available upon the attempted commencement
of an action, not after substantive issue has been joined by the
parties and decided by the court, which is this case.
Be this very belated misapplication as it is, a
court of
limited jurisdiction must [continuously] determine that
the matter brought before it remains within the metes and
bounds of such delimitation.
Agro Dutch Industries Limited v. United States, 29 CIT , ,
358 F.Supp.2d 1293, 1294 (2005), appeal docketed, No. 05-1288
1
The motion does request an extension of time to "allow
Commerce to file the remand results in this case within 30 days
after the Court's decision concerning [the] motion to dismiss, if
necessary."
Court No. 01-00825 Page 3
(Fed.Cir. March 22, 2005), citing Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83 (1998). That limited jurisdiction
has been posited herein under 19 U.S.C. §1516a(a)(2)(A) and 28
U.S.C. §§ 1581(c), 2631(c), 2632(c), 2636(c).
. . .[T]his waiver of sovereign immunity is slim.
Parties to the ITA proceedings, like the plaintiff at bar
and experienced counsel, understand this. They are also
aware that the courts have confirmed that the statutes
cited have "no provision permitting reliquidation in this
[type of] case . . . after liquidation". Zenith Radio
Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.
1983).
In this case, we conclude that liquida-
tion would indeed eliminate the only remedy
available . . . for an incorrect review deter-
mination by depriving the trial court of the
ability to assess dumping duties . . . in
accordance with a correct margin on entries in
the . . . review period. The result of liqui-
dating the . . . entries would not be economic
only. In this case, [the] statutory right to
obtain judicial review of the determination
would be without meaning for the only entries
permanently affected by that determination.
In the context of Congressional intent in
passing the Trade Agreements Act of 1979 and
the existing finding of injury to the industry
. . ., we conclude that the consequences of
liquidation do constitute irreparable injury.
Id. See, e.g., SKF USA Inc. v. United States, 28 CIT
, , 316 F.Supp.2d 1322, 1327 (2004).
Ibid., 29 CIT at , 358 F.Supp.2d at 1294.
This enduring interpretation of judicial review pursuant
to the Trade Agreements Act of 1979, as amended, has resulted in
regular applications for, and grants of, preliminary injunctions,
suspending liquidations of entries of goods specifically implicated
Court No. 01-00825 Page 4
by administrative and then court reviews thereunder. Plaintiff's
complaint and required other papers filed upon commencement of this
case do not list or otherwise indicate those entries herein,
although the ITA, in publishing its Preliminary Results at 66 Fed.
Reg. 29,080 et seq. (May 29, 2001), advised all parties in regular
course of the potential consequences for them upon rendering the
Final Results. See 66 Fed.Reg. at 29,085-86. Apparently, the
plaintiff did not heed that warning, nor did it take the all-but-
automatic step for judicial suspension of liquidation pending entry
of final judgment upon its CIT complaint, if not subsequent appeal
therefrom to the Federal Circuit.
The defendant has now notified this court that, on
January 16, 2003, the Department of Commerce issued liquidation
instructions to Customs, which complied on February 28, 2003. See
Defendant's Motion to Dismiss, p. 3 and Attachments 1 and 2. Those
actions thus took place more than a year before the court was able
to hand down slip opinion 04-31, the publication of which itself
apparently did not induce counsel to make the aforesaid notifica-
tion any sooner than the end of the additional, 90-day period
granted to carry out the court's order of remand.
Suffice it to state that the record developed in this
matter is not a favorable reflection of USCIT Rule 1. On its part,
the plaintiff still argues that (i) there is a live case and con-
troversy to be decided, (ii) the case is not moot, (iii) defend-
Court No. 01-00825 Page 5
ant's tactics violate its obligations to the court, and (iv) the
court is empowered to make a declaratory judgment in this case.
Plaintiff's Response to Defendant's Motion to Dismiss, p. i
(capitalization deleted). Whatever defendant's obligations may be,
however, there is no seeming recognition that
a party plaintiff has a primary and independent obliga-
tion to prosecute any action brought by it - from the
moment of commencement to the moment of final resolution.
That primary responsibility never shifts to anyone else
and entails the timely taking of all steps necessary for
its fulfillment.
Avanti Products, Inc. v. United States, 16 CIT 453, 453-54 (1992);
Agro Dutch Industries Limited v. United States, 29 CIT at , 358
F.Supp.2d at 1296. With regard to this kind of case's jurisdic-
tional predicate, counsel state:
Liquidation of entries in this case is of minimal
impact to Plaintiff in view of the low value of the
shipment ($18,195.00). . . . The duties at the "country
wide" rate would amount to a little more than $6,000.00.
New shippers usually file requests for reviews of
antidumping orders based on a single entry to the United
States, like Huanri General did in the challenged action.
[] This is a unique characteristic of requests for new
shipper reviews, which is highly relevant to the mootness
issue. . . . The value of the duties themselves are
often so small that it would not justify the cost of
litigation, if that was the only basis for filing suit.
If the duties themselves were not the motivating reason
for filing an appeal, it follows that the liquidation of
these duties does not remove the rationale for the
appeal. As indicated by Defendant's motion, the value of
the shipment is so low that any duties imposed on them
would be of negligible benefit to the Plaintiff in
monetary terms. . . . If the duties were the only issue,
it might never be economical to file an appeal of a new
shipper review determination in a non-market economy
antidumping case; thus, these cases would be forever
"evading review".
Court No. 01-00825 Page 6
What is the real value to Plaintiff, and which
constitutes the real controversy in this case is the
decision of this Court as to whether a separate rate, as
applied to Huanri General, is based on substantial
evidence and in accordance with law given the lack of
real investigation by the Department into the village
committee ownership issue. . . .
Plaintiff's Response to Defendant's Motion to Dismiss, pp. 4-5
(citations omitted; emphasis in original). This may very well all
be true, but it also has always been true that
[w]ithout jurisdiction the court cannot proceed at all in
any cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing
the cause.
Ex parte McCardle , 74 U.S. (7 Wall.) 264, 265 (1869); Agro Dutch
Industries Limited v. United States, 29 CIT at , 358 F.Supp.2d
at 1296.
II
In view of the foregoing, this matter must now be dis-
missed for lack of subject-matter jurisdiction. Judgment will
enter accordingly.
Decided: New York, New York
June 21, 2005
Thomas J. Aquilino, Jr.
Senior Judge