700 F.Supp.2d 1352 (CIT 2010), 09-00109, Ames True Temper v. United States

Docket Nº:Court 09-00109.
Citation:700 F.Supp.2d 1352
Opinion Judge:WALLACH, Judge.
Party Name:AMES TRUE TEMPER, Plaintiff, v. UNITED STATES, Defendant. Slip Op. 10-33.
Attorney:Wiley Rein LLP, Washington, DC (Timothy C. Brightbill) for Plaintiff Ames True Temper. Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Antonia R. Soares and Courtney E. Sheehan); and Edward N. Maurer, D...
Case Date:March 30, 2010
Court:Court of International Trade

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700 F.Supp.2d 1352 (CIT 2010)




Slip Op. 10-33.

Court No. 09-00109.

United States Court of International Trade.

March 30, 2010

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[Copyrighted Material Omitted]

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Wiley Rein LLP, Washington, DC (Timothy C. Brightbill) for Plaintiff Ames True Temper.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Antonia R. Soares and Courtney E. Sheehan); and Edward N. Maurer, Deputy Assistant Chief Counsel, Office of the Assistant Chief Counsel, U.S. Customs and Border Protection, Of Counsel, for Defendant United States.





This action involves the liquidation of entries of heavy forged hand tools from the People's Republic of China (" PRC" ) that were subject to an administrative review of an antidumping duty order conducted by the U.S. Department of Commerce (" Commerce" ). Because this court lacks jurisdiction over the claim asserted by Plaintiff Ames True Temper (" Ames" ), the Motion to Dismiss filed by Defendant United States (" Defendant" ) is GRANTED and this action is dismissed in its entirety.



In September 2006, Commerce concluded the fourteenth administrative review of heavy forged hand tools from PRC that covered merchandise entering the United States between February 1, 2004, and January 31, 2005. Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China: Final Results of Antidump in Duty Administrative Reviews and Final Rescission and Partial Rescission of Antidumping Administrative Reviews, 71 Fed.Reg. 54,269, 54,269 (September 14, 2006) ( " Final Results " ). 1 The Final Results assigned dumping margins to foreign producers/exporters including Shandong Huarong Machinery Co., Ltd., Tianjin Machinery Import & Export Corp., and Shandong

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Machinery Imports & Export Co. (collectively, the " Shandong plaintiffs" ).2 Id. at 54,269, 54,271.

The Shandong plaintiffs challenged the Final Results in Shandong Huarong Machinery Co., Ltd. v. United States, No. 06-00345 (CIT filed October 26, 2006) (the " Shandong case" ). Ames participated in the Shandong case as Defendant-Intervenor. Shandong Huarong Mach. Co., Ltd. v. United States, Slip Op. 08-135, 2008 WL 5159774, *1 (CIT December 10, 2008). On November 13, 2006, the Shandong plaintiffs filed a consent motion for preliminary injunction to enjoin the liquidation of certain entries while the action was pending. Id. at *3. On November 17, 2006, the court granted a preliminary injunction which enjoined the liquidation of entries of merchandise that " remain unliquidated as of 5:00 p.m. on the fifth business day after which copies of this Order are personally served on" specified government officials or their delegates. Id. at * 1-*2 (citing Shandong Huarong, Court No. 06-00345 (Order dated November 17, 2006) (" PI order" )). This language was prepared by the Shandong plaintiffs in their consent motion for preliminary injunction, id. at *1, and obligated them to file a certificate of service " immediately after service." USCIT R. 5(d)(1).

The Shandong plaintiffs did not serve the officials specified in the PI order until May 2007. Defendant's Motion to Dismiss (" Defendant's Motion" ) Att. B: Declaration of Ann M. Sebastian ¶ ¶ 2, 5. On October 31, 2007, Defendant moved to dismiss the Shandong case, alleging that the entries at issue were " deemed liquidated" under 19 U.S.C. § 1504(d) as of March 14, 2007-six months after publication of the Final Results. See Shandong Huarong, 2008 WL 5159774 at *2 (citation omitted). Pursuant to this statute, entries not liquidated by U.S. Customs and Border Protection (" Customs" ) within six months of notice from Commerce " shall be treated as having been liquidated at the rate" initially asserted by the importer. 19 U.S.C. § 1504(d). The rate asserted by the Shandong plaintiffs upon entry was based on prior administrative reviews of the antidumping order. Shandong Huarong, 2008 WL 5159774 at *5.

The Shandong plaintiffs consented to dismissal of the Shandong case. Id. at *2. Ames did not consent to the dismissal and instead sought reliquidation pursuant to the Final Results, id., claiming that the rate asserted by the Shandong plaintiffs upon entry was inappropriately low. Id. at *5. The court in December 2008 held that the subject entries were deemed liquidated six months from publication of the Final Results. Id. at *2-*4 (citing Int'l Trading Co. v. United States, 281 F.3d 1268, 1272 (Fed.Cir.2002)). The court explained that the PI " order was ineffective because it was not properly served" and therefore did not suspend liquidation. Id. at *4. Applying the rule that liquidation " renders moot an action ... challenging the amount of dumping duties assessed on subject merchandise following a final determination," the court dismissed the Shandong case and along with it Ames' challenge. Id. at *5, *6.

The court found that " the only remedy Ames seeks-reliquidation-is one the court cannot order as a consequence of the mootness doctrine." Id. at *5. With respect to the deemed liquidation, the court

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explained that " the validity of the entered rate is not a subject of this action." Id. at *6. The Shandong case concluded by observing Defendant's suggestion that Ames could " bring an action in its own right to protect whatever its own interest may be.... What defendant-intervenor may not do, however, is append a new cause of action, based on a record not before the court, to [the Shandong] plaintiffs' existing suit." Id. (quotation omitted).

Ames filed this case in March 2009 asserting jurisdiction under 28 U.S.C. § 1581(i). Complaint ¶ ¶ 2, 3. Ames alleges that Customs unlawfully " permitted the entries to liquidate at rates far below the rates calculated by Commerce" in the Final Results. Id. ¶ 6. Although Ames' Complaint references the Shandong case proceedings and outcome, id. ¶ ¶ 7-8, the only relief that Ames seeks is that previously denied-reliquidation in accordance with the Final Results. Id. at 4 (" Plaintiff respectfully requests that this Court issue an order directing [Customs] to reliquidate the improperly liquidated entries, in accordance with the rates finally determined by [Commerce] in the Final Results. " ) (emphasis added). Defendant moves to dismiss pursuant to U.S. Court of International Trade Rule 12(b)(1), contending that the court lacks jurisdiction. Defendant's Motion at 1, 4-10.



In deciding a motion to dismiss, " the Court assumes that ‘ all well-pled factual allegations are true,’ construing ‘ all reasonable inferences in favor of the nonmovant.’ " United States v. Islip, 22 CIT 852, 854, 18 F.Supp.2d 1047 (1998) (quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)). " Dismissal for failure to state a claim upon which relief can be granted is proper if the plaintiff's factual allegations are not ‘ enough to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’ " Int'l Custom Prods., Inc. v. United States, 549 F.Supp.2d 1384, 1389 (CIT 2008) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When jurisdiction is challenged, " [t]he party seeking to invoke the Court's jurisdiction bears the burden of proving the requisite jurisdictional facts." Former Employees of Sonoco Prods. Co. v. United States, 27 CIT 812, 814, 273 F.Supp.2d 1336 (2003) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)).



Ames' challenge to compel reliquidation pursuant to the Final Results is moot because the subject entries were deemed liquidated, as previously recognized by the court. Infra, Part IV.A. To the extent that Ames seeks to challenge the rate applied to the subject entries resulting from the deemed liquidation,3 Ames lacks statutory standing as a domestic producer and therefore jurisdiction under 28 U.S.C. § 1581(i) does not exist. Infra, Part IV.B.

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Ames' Challenge Is Moot Because The Subject Entries Were Deemed Liquidated

Courts lack jurisdiction over moot claims; the United States Supreme Court explains that " [m]ootness is a jurisdictional question because the Court ‘ is not empowered to decide moot questions or abstract propositions.’ " North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (quoting United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920)). The Federal Circuit first held that liquidation will moot a challenge to duties assessed on those entries in Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983) (" Once liquidation occurs, a subsequent decision by the trial court on the merits ... can have no effect on the dumping duties assessed on entries" ). This decision gave rise to " [t]he Zenith rule" that " renders a court action moot once liquidation occurs." SKF USA, Inc. v. United States, 512 F.3d 1326, 1329 (Fed.Cir.2008). This applies to entries deemed liquidated by operation of 19 U.S.C. § 1504(d). Agro Dutch Indus. Ltd. v. United States, 589 F.3d 1187, 1191 (Fed.Cir.2009) (citing SKF USA, 512 F.3d at 1329)( SKF USA " held that under the Zenith rule the deemed liquidation rendered the importer's claims moot in the absence of an injunction." ).

In dismissing the Shandong case, the court determined that " the merchandise has been liquidated pursuant to the deemed liquidation statute." 4 Shandong Huarong, 2008 WL 5159774 at *4. Because the subject entries were not liquidated within six months of the Final Results, they were deemed liquidated at the rate asserted upon entry by operation of 19 U.S.C. §...

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