210 F.3d 1357 (Fed. Cir. 2000), 99-1380, JCM v United States

Docket Nº:99-1380
Citation:210 F.3d 1357
Party Name:JCM, LTD., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Case Date:April 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1357

210 F.3d 1357 (Fed. Cir. 2000)

JCM, LTD., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

99-1380

United States Court of Appeals, Federal Circuit

April 20, 2000

Appealed from: United States Court of International Trade Judge Judith M. Barzilay

Arnon D. Siegel, of Washington, DC, argued for plaintiff-appellant. On the brief was David J. Craven, Riggle and Craven, of Chicago, Illinois. Of counsel was David A. Riggle.

Glenn I. Chernigoff, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Erin E. Powell, Trial Attorney. Of counsel on the brief was Patrick V. Gallagher, Jr., Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Before MAYER, Chief Judge, LOURIE and SCHALL, Circuit Judges

Page 1358

MAYER, Chief Judge.

JCM, LTD. appeals the judgment of the United States Court of International Trade, 98-05-02248 (March 1, 1999), granting the motion of the United States to dismiss for lack of subject matter jurisdiction. We affirm.

Background

On May 12, 1995, Borden Inc., Hershey Foods Corporation and Gooch Foods, Inc., filed a petition with Commerce and the International Trade Commission alleging that pasta from Italy was being sold in the United States at less-than-fair value. See Initiation of Antidumping Duty Investigations: Certain Pasta from Italy and Turkey, 60 Fed. Reg. 30268 (1995). Pursuant to written requests by interested parties, on August 25, 1995, Commerce postponed its preliminary determination in the antidumping investigation until December 8, 1995. Upon the International Trade Commission making a preliminary determination that imports of pasta were materially injuring domestic industry, Commerce imposed provisional antidumping measures under 19 U.S.C. section 1673b(d) (1994), suspending liquidation of subsequent entries of the subject merchandise and requiring cash deposits or the posting of a bond at stated rates. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Pasta from Italy, 61 Fed. Reg. 1344, 1351 (1996). On June 3, 1996, Commerce issued its final determination. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Pasta from Italy, 61 Fed. Reg. 30326 (1996).

Because of requests for a delay in making its final determination, Commerce decided that the extension of provisional measures beyond the statutory time limit was necessary. See § 1673b(d) (Absent a request for an extension by exporters representing a significant portion of exports of the subject merchandise, provisional measures "may not remain in effect for more than 4 months."). Certain Italian producers and exporters of pasta and importers of the subject merchandise, challenged its authority to impose such an extension. In one such challenge, the Court of International Trade held that the extension of the provisional measures was unlawful and ordered a refund of cash deposits, including interest, for the period from May 18, 1996 through July 24, 1996. See F.lli De. Cecco De Filippo Fara San Martino S.p.A. v. United States, No. 96-08-01930, 1997 WL 615693 (Ct. Int'l Trade Oct. 2, 1997). The judgment was limited to participating parties listed in an appendix attached to the order. See id. JCM, an importer of the subject merchandise, was not a listed party and did not participate in this or any similar challenge at Commerce.

On May 27, 1998, JCM filed suit seeking refund of the antidumping duties that it had paid. After the government failed to answer, JCM filed a motion for default judgment or, in the alternative, summary judgment. The government moved for an extension to answer out-of-time, and to dismiss the case for lack of subject matter jurisdiction. In its response to the government's motion to dismiss, JCM asserted that the Court of International Trade had jurisdiction pursuant to 28 U.S.C. section 1581(i) (1994).1 The government

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replied that because JCM had the opportunity and failed to participate in the administrative proceeding and to secure jurisdiction under 28 U.S.C. section 1581(c) (1994),2 the court did not have jurisdiction pursuant to section 1581(i). The trial court declined to enter default judgment against the government and granted the government's motion to dismiss.3 This appeal followed.

Discussion

The grant or denial of a motion to dismiss for lack of jurisdiction is a question of law which we review de novo. See Friedman v. Daley, 156 F.3d 1358, 1360 (Fed. Cir. 1998); Juice Farms, Inc. v. United States, 68 F.3d 1344, 1345 (Fed. Cir. 1995). "The doctrine of exhaustion of administrative remedies . . . provides 'that no one is entitled to judicial relief...

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