Slip Op. 05 - 2
UNITED STATES COURT OF INTERNATIONAL TRADE
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AGRO DUTCH INDUSTRIES LIMITED, :
Plaintiff, :
v. :
UNITED STATES, : Court No. 02-00499
Defendant, :
-and-
:
COALITION FOR FAIR PRESERVED MUSHROOM
TRADE, :
Intervenor-Defendant. :
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Opinion
[Plaintiff's motion for judgment upon
agency record denied; action dismissed.]
Decided: January 7, 2005
Garvey Schubert Barer (Lizbeth R. Levinson, John C. Kalitka
and Ronald M. Wisla) for the plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Jeanne E. Davidson, Deputy Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice (A.
David Lafer); and Office of Chief Counsel for Import Administra-
tion, U.S. Department of Commerce (William G. Isasi), of counsel,
for the defendant.
Collier Shannon Scott, PLLC (Michael J. Coursey and Adam H.
Gordon) for the intervenor-defendant.
AQUILINO, Senior Judge: By letter dated November 23,
2004, counsel for the plaintiff seek to supplement their motion for
judgment upon the administrative record compiled by the Interna-
tional Trade Administration, U.S. Department of Commerce ("ITA")
sub nom. Certain Preserved Mushrooms From India: Final Results of
Court No. 02-00499 Page 2
Antidumping Duty Administrative Review, 67 Fed.Reg. 46,172 (July
12, 2002). In addition to contesting various elements of that
agency determination, plaintiff's motion represents that "many"1 or
"almost all"2 entries within the determination's purview have
already been liquidated by Customs pursuant to ITA instructions.
Whereupon the plaintiff prays that
the Court order the liquidations [] be rescinded and the
entries reliquidated in accordance with the corrected
final results of the Department, as ordered by the Court.
Plaintiff's Reply Brief, p. 13.
I
Before relief of any kind can be granted, of course, a
court of limited jurisdiction must determine that the matter
brought before it remains within the metes and bounds of such
delimitation.3 They are for an action such as this that a summons
be filed within 30 days after publication of the ITA's determina-
tion, followed no later than 30 days thereafter by the docketing of
a complaint. See 19 U.S.C. §1516a(a)(2)(A). See also 28 U.S.C. §§
1581(c), 2631(c), 2632(c), 2636(c). On its face, this 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
1
Plaintiff's Brief, p. 24.
2
Id.
3
See, e.g., Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (1998), and cases cited therein.
Court No. 02-00499 Page 3
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 liquidation would
indeed eliminate the only remedy available . . . for an
incorrect review determination 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 liquidating the . . . en-
tries would not be economic only. In this case, [the]
statutory right to obtain judicial review of the determi-
nation would be without meaning for the only entries
permanently affected by that determination. In the con-
text 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).
Here, the record reflects timely compliance with the
brief periods of limitation for commencement of this action. It
also reflects substitution of counsel for the plaintiff thereafter
and submission by the second law firm (some 73 days after commence-
ment) of an application for a preliminary injunction that
ENJOINED during the pendency of this action . . .
liquidation of any and all unliquidated entries of cer-
tain preserved mushrooms exported by Agro Dutch Indust-
ries Limited that are covered by Certain Preserved
Mushrooms from India: Final Results of Administrative
Review, 67 Fed.Reg. 46172 . . . [,] and were entered or
withdrawn from warehouse, f[or] consumption between
February 1, 2000, through January 31, 2001, and remain
unliquidated as of 5:00 p.m. on the fifth business day
upon which copies of this ORDER are personally served by
plaintiff[,]
to quote from the court's injunction signed the same day the
application was filed.
Court No. 02-00499 Page 4
As indicated, plaintiff's motion for judgment would
extend relief to all entries, liquidated and unliquidated. Its
papers point to a notice detected on the Department of Commerce's
website, to wit:
The Department . . . announces that, effective im-
mediately, it intends to issue liquidation instructions
pursuant to administrative reviews conducted under sec-
tion 751 of the Tariff Act of 1930, as amended, to the
U.S. Customs Service within 15 days of publication of the
final results of review in the Federal Register or any
amendments thereto. This announcement applies to reviews
conducted under sections 751(a)(1) and (2) of the Tariff
Act. If you have any questions, please contact the staff
member identified in the notice of final results of
review published in the Federal Register.
Plaintiff's Brief, pp. 26-27 n. 6, citing U.S. Dep't of Commerce,
Import Admin., Announcement Concerning Issuance of Liquidation
Instructions Reflecting Results of Administrative Reviews (Aug. 9,
2002), available at http://ia.ita.doc.gov/download/liquidation-
announcement.html. The plaintiff also points to Tianjin Machin-
ery Import & Export Corp. v. United States, 28 CIT , Slip Op.
04-125 (Oct. 4, 2004), appeal docketed, No. 05-1077 (Fed.Cir. Nov.
15, 2004), wherein the plaintiff also took issue with the foregoing
change in ITA approach to liquidation on the ground that it was in
conflict with the 60-day period contemplated by the statutes and
related Court of International Trade rules of practice. The court
concluded that this "new policy is not in accordance with law." 28
CIT at , Slip Op. 04-125, p. 31 (footnote omitted). The
declaratory judgment entered thereon does not appear, however, to
Court No. 02-00499 Page 5
have any impact on the jurisdiction or merits of that action. The
same can be said of the subsequent opinion in Corus Staal BV v.
United States, 28 CIT , Slip Op. 04-132 (Oct. 19, 2004), which,
in extending a partial-consent motion for a preliminary injunction,
suspending liquidation "until a final and conclusive court decision
is reached"4, merely noted the existence of the Tianjin decision5.
In other words, neither opinion serves to extricate the plaintiff
from its current predicament, which fundamentally is one of its own
making herein.
That is, it was free to change counsel, it was at liberty
to delay in seeking suspension of liquidation, it may not have been
able to anticipate the severe change in course by the ITA in regard
thereto, but public announcement of that new administrative tack
occurred almost two months before it sailed into court for in-
junctive relief. Furthermore, this court cannot and does not find
any equitable weak link in the chain of cases that has developed in
the light of Zenith Radio Corp. v. United States, supra.
This being the case, on December 1, 2004, the court
requested in writing that plaintiff's counsel "advise . . . which,
if any, implicated, specific entries of subject merchandise remain
unliquidated at this time." In the absence of any response to this
query, the court is now constrained to conclude that there are none
4
28 CIT at , Slip Op. 04-132, p. 3.
5
See 28 CIT at and Slip Op. 04-132, p. 2 n.*.
Court No. 02-00499 Page 6
and that it thus has no jurisdiction to decide the other issues
raised in plaintiff's motion.
. . . Without 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 re-
maining to the court is that of announcing the fact and
dismissing the cause.
Ex parte McCardle, 74 U.S. (7 Wall.) 264, 265 (1869). Cf. Avanti
Products, Inc. v. United States, 16 CIT 453, 453-54 (1992):
. . . The absence of any alleged supportive facts is all
the more critical in view of the precise nature of the
relief the plaintiff seeks. Indeed, a party plaintiff
has a primary and independent obligation to prosecute any
action brought by it - from the moment of commencement to
the moment of final resolution. That primary responsi-
bility never shifts to anyone else and entails the timely
taking of all steps necessary for its fulfillment.
II
In view of the foregoing, judgment must be entered,
denying plaintiff's motion for judgment upon the agency record and
dismissing this action.
Decided: New York, New York
January 7, 2005
Thomas J. Aquilino, Jr.
Senior Judge