Slip Op 06-125
UNITED STATES COURT OF INTERNATIONAL TRADE
GERDAU AMERISTEEL CORP.,
Plaintiff,
v.
Before: Gregory W. Carman, Judge
UNITED STATES,
Court No. 04-00608
Defendant,
and
ICDAS CELIK ENERJI TERSANE
ve ULASIM SANAYI, A.S.,
Defendant-Intervenor.
[Defendant’s motion to dismiss for lack of jurisdiction granted.]
Brickfield, Burchette, Ritts & Stone, PC (Damon E. Xenopoulos), Washington, D.C., for
Plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E.
Davidson, Deputy Director; David S. Silverbrand, Trial Attorney, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice; Robert E. Nielsen, Of Counsel, Senior Attorney,
Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for
Defendant.
Arnold & Porter LLP (Lawrence A. Schneider), Washington, D.C., for Defendant-
Intervenor.
Dated: August 10 , 2006
OPINION
Carman, Judge: In this action, Plaintiff Gerdau Ameristeel Corporation (“Plaintiff” or
“Gerdau”) challenges Defendant United States Department of Commerce’s (“Defendant” or
Court No. 04-00608 Page 2
“Commerce”) final results in Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg.
64,731 (Dep’t Commerce Nov. 8, 2004) (“Final Results”). Defendant moves to dismiss this
action for lack of jurisdiction. Because all of the subject entries at issue have been liquidated,
this Court lacks jurisdiction to hear this matter. Accordingly, Defendant’s motion is granted, and
this matter is dismissed.
PROCEDURAL HISTORY
On May 21, 2003, Commerce initiated an administrative review on steel concrete
reinforcing bars (“rebar”) from Turkey. Certain Steel Concrete Reinforcing Bars from Turkey,
68 Fed. Reg. 27,781 (Dep’t Commerce May 21, 2003) (initiation of antidumping review). The
period of review is April 1, 2002, through March 31, 2003. On May 5, 2004, Commerce issued
its preliminary results. Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg.
25,063 (Dep’t Commerce May 5, 2004) (preliminary results). On November 8, 2004, Commerce
issued its final determination. Final Results, 69 Fed. Reg. at 64,731. On December 17, 2004,
and February 11, 2005, the United States Bureau of Customs and Border Protection (“Customs”)
liquidated subject entries.
On December 29, 2004, Plaintiff filed a timely action, challenging the company-specific
dumping margin of 0.00 percent ad valorem assigned to ICDAS Celik Enerji Tersane ve Ulasim
Sanayi, A.S. (“ICDAS”), which is Defendant-Intervenor in this case. On September 7, 2005,
Defendant moved to dismiss pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction, asserting
that the relevant entries were properly liquidated pursuant to 19 U.S.C. § 1514(a) (2000).1
1
19 U.S.C. § 1514(a)(5) provides, in pertinent part:
[D]ecisions of the Customs Service, including the legality of all orders and
Court No. 04-00608 Page 3
STANDARD OF REVIEW
When considering a motion to dismiss, a 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 1271, 1274 (Fed. Cir. 1991). The threshold question for any
court, however, begins with jurisdiction.
JURISDICTION
Statutory authority dictates this Court’s jurisdiction. Plaintiff brings its claim under
section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000).2
Compl. ¶ 1. This Court has exclusive jurisdiction to review cases properly brought under
findings entering into the same, as to –
...
(5) the liquidation or reliquidation of an entry, or reconciliation as to
the issues contained therein, or any modification thereof;
...
shall be final and conclusive upon all persons (including the United States
and any officer thereof) unless a protest is filed in accordance with this
section, or unless a civil action contesting the denial of a protest, in whole
or in part, is commenced in the United States Court of International Trade
. . . within the time prescribed . . . .
2
19 U.S.C. § 1516a(a)(2)(B)(iii) states, in relevant part:
(a) Review of determination
...
(2) Review of determinations on record
...
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
...
(iii) A final determination . . . by the
administering authority or the Commission
under section 1675 of this title.
Court No. 04-00608 Page 4
19 U.S.C. § 1516a pursuant to 28 U.S.C. § 1581(c) (2000).3 Defendant, however, challenges this
Court’s subject matter jurisdiction and asserts Plaintiff’s claim is rendered moot by proper
liquidation. Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 1-2.
It is well established that “liquidation [of subject merchandise] eliminates the only
remedy available . . . for an incorrect review determination by depriving the trial court of the
ability to assess dumping duties . . . .” Zenith Radio Corp. v. United States, 710 F.2d 806, 810
(Fed. Cir. 1983). Furthermore, without an injunction, liquidation means an interested party will
“forever lose its statutory right” to challenge an administrative review. The Timken Co. v. United
States, 6 CIT 75, 80, 569 F. Supp. 65 (1983).
To balance this potential injustice, an interested party, on proper foundation, may request
a preliminary injunction barring liquidation. SKF USA Inc. v. United States, 28 CIT __, 316 F.
Supp. 2d 1322, 1326-27 (2004); cf. Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1310
(Fed. Cir. 2004) (not requiring an injunction where suit was not brought under section 516A of
the Tariff Act). Because liquidation permanently deprives a party of the opportunity to contest
the results of an administrative review by rendering moot the cause of action, courts routinely
issue preliminary injunctions in antidumping cases. SKF, 316 F. Supp. 2d at 1327, 1332; see
also Nucor Corp. v. United States, 29 CIT __, 412 F. Supp. 2d 1341, 1348 (2005) (“preliminary
injunctions restraining the liquidation of [period of review] entries are sought and granted almost
reflexively in cases . . . challenging the outcome of administrative reviews”). The interested
3
28 U.S.C. § 1581(c) grants:
The Court of International Trade shall have exclusive jurisdiction of any
civil action commenced under section 516A of the Tariff Act of 1930.
Court No. 04-00608 Page 5
party, however, must request an injunction. It is undisputed that such a request was never made
in this case. Def.’s Mot. at 3; Pl.’s Resp. to Def.’s Mot. to Dismiss (“Pl.’s Resp.”) at 9.
All parties to this action concede that the subject entries have been liquidated. Pl.’s Resp.
at 5; Def.’s Mot. at 2; Def.-Intervenor ICDAS’ Reply in Supp. of Mot. to Dismiss at 1.
Moreover, this Court notes that Plaintiff had sufficient notice that the suspension of liquidation
of subject entries was lifted upon publication of the Final Results in the Federal Register. Def.’s
Mot. at 3; Int’l Trading Co. v. United States, 412 F.3d 1303, 1309 (Fed. Cir. 2005). Because
Plaintiff’s cause of action is rendered moot by liquidation of the subject entries, this Court lacks
subject matter jurisdiction over this case.
CONCLUSION
For the reasons stated herein, this Court holds that it lacks subject matter jurisdiction in
this action and grants Defendant’s motion to dismiss. Accordingly, this Court need not reach the
merits of the case, and therefore, the motion for judgment on the agency record before this Court
is hereby rendered moot. Judgment shall be entered accordingly.
/s/ Gregory W. Carman
Gregory W. Carman
Dated: August 10, 2006
New York, New York