                               Slip Op. 13 - 26

             UNITED STATES COURT OF INTERNATIONAL TRADE


 ALUMINUM EXTRUSIONS FAIR TRADE
 COMMITTEE

             Plaintiff,

                   v.

 UNITED STATES                              Before: Donald C. Pogue,
                                                    Chief Judge
             Defendant,
                                            Consol.1 Court No. 11-00216
                   and

 AAVID THERMALLOY, LLC, EVERGREEN
 SOLAR, INC., ZHONGYA SHAPED
 ALUMINUM (HK) HOLDING LTD., and
 ZHAOQING NEW ZHONGYA ALUMINUM
 CO., LTD.,

             Defendant-Intervenors.



                          MEMORANDUM and ORDER


           Upon consideration of Defendant-Intervenor’s, Aavid

Thermalloy, LLC (“Aavid”), and Defendant’s motions to dismiss,

any responses thereto, and the record as a whole, it is hereby

ORDERED that the Defendant’s motion is GRANTED and the

Defendant-Intervenor’s motion is GRANTED in part and DENIED in

part.




																																																								
              1
                  This action is consolidated with Court No. 11-00218.
Consol. Court No. 11-00216                                     Page 2


          Defendant properly contends that the court lacks

subject matter jurisdiction over Plaintiff’s claims under 28

U.S.C. § 1581(i) because jurisdiction is currently available

under § 1581(c).   Therefore, Defendant concludes, the portions

of Plaintiff’s Complaint which assert jurisdiction under 1581(i)

should be dismissed.   The court agrees.


     It is settled that this court may take jurisdiction under

1581(i) only when jurisdiction is unavailable under other

subsections of 28 U.S.C. § 1581.   See Hartford Fire Ins. Co. v.

United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008) (citing

Int’l Custom Prods. v. United States, 467 F.3d 1324, 1327 (Fed.

Cir. 2006)).   Here, jurisdiction is available under 1581(c)

because Commerce’s exclusionary language in the Antidumping Duty

and Countervailing Duty Orders (collectively “the Orders”)

explicitly stated that it was revising the scope of the Orders

and therefore the exclusion of all finished heat sinks may be

challenged under 1581(c) as a negative part of Commerce’s final

determination.   E.g., Aluminum Extrusions from the People’s

Republic of China, 76 Fed. Reg. 30,650 (Dep’t Commerce May 26,

2011) (antidumping duty order) (“ . . . the Department is

revising the scope of the subject merchandise stated in the

Final Determination to exclude finished heat sinks from the

scope of the order.” ); 19 U.S.C. § 1516a(a)(2)(B)(i) (granting
Consol. Court No. 11-00216                                      Page 3


jurisdiction over “final affirmative determinations . . .

including any negative part of such a determination”).


     Defendant-Intervenors assert that this case is not ripe for

judicial review under 1581(c) because Plaintiffs failed to

exhaust their administrative remedies and must first file a

request for a scope determination pursuant to 19 C.F.R.

§ 351.225(c).   This argument misses the point.   A scope

determination would only suffice to address whether specific

imports fall under the scope of Commerce’s final determinations

and their accompanying orders.   Plaintiff’s complaint is that

Commerce’s Orders (revising the scope of the Final

Determinations) unlawfully and erroneously excluded all finished

heat sinks and deprived Plaintiff of relief to which it was

otherwise entitled because the International Trade Commission’s

negative injury determination was limited to the subset of

finished heat sinks sold to electronic manufacturers.    Pl’s

Compl., ECF No. 7 at ¶¶ 7, 13, 14, and 23.   A scope

determination request, therefore, could not address the

sufficiency of the Orders as a whole.


     Defendant and Defendant-Intervenor’s motions to dismiss for

lack of subject matter jurisdiction under 28 U.S.C. § 1581(i)

are therefore GRANTED and Defendant-Intervenor’s motion to
Consol. Court No. 11-00216                                  Page 4


dismiss for failure to exhaust administrative remedies is

DENIED.


     It is so ORDERED.



                                     ___/s/ Donald C. Pogue______
                                     Donald C. Pogue, Chief Judge


Dated: February 27, 2013
       New York, NY
