                                        Slip Op. 09-77

               UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
                                    :
ACCIAIERIE VALBRUNA S.p.A and       :
VALBRUNA STAINLESS, INC.,           :
                                    :
            Plaintiffs,             :
                                    :              Before: Judith M. Barzilay, Judge
      v.                            :              Court No. 08-00381
                                    :
UNITED STATES,                      :
                                    :
            Defendant.              :
____________________________________:


                                          OPINION


[Defendant’s Motion to Dismiss is granted.]


                                                                  Dated: July 23, 2009


White & Case LLP, (Gregory J. Spak, Yohai Baisburd, and Sarah O. O'Neal), for Plaintiffs
Acciaierie Valbruna S.p.A. and Valbruna Stainless, Inc.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice (Claudia Burke); Rachael Wenthold, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, Of Counsel, for Defendant United
States.


       BARZILAY, JUDGE: The case presents an issue that has been before this Court and

the Federal Circuit many times – whether the relief provided under Section 129 of the Uruguay
Court. No. 08-00381                                                                         Page 2


Round Agreements Act (“URAA”) is retrospective, prospective, or both.1 See, e.g., Corus Staal

BV v. United States, 502 F.3d 1370, 1374 (Fed. Cir. 2007); Corus Staal BV v. United States, 32

CIT ___, ___, 593 F. Supp. 2d 1373, 1382-83 (2008). This particular action concerns the effect

of a determination made by Commerce under Section 129 on certain stainless steel bar

manufactured in Italy and imported into the U.S. by Plaintiffs Acciaierie Valbruna S.p.A. and

Valbruna Stainless, Inc. (collectively, “Plaintiffs”) from March 1, 2006 through February 28,

2007. Plaintiffs contest the U.S. Customs & Border Protection (“Customs”) decision to liquidate

and assess antidumping duties on entries made during the period of review. Compl. ¶¶ 40-47.

Plaintiffs also challenge the instructions from Commerce to Customs which subjected those

entries of stainless steel bar from Italy to antidumping duties. Compl. ¶¶ 48-54. Pursuant to

USCIT R. 12(b)(1) and (b)(5), Defendant United States moves to dismiss Plaintiffs’ claims for

(1) the Court’s lack of subject matter jurisdiction under both 28 U.S.C. § 1581(a) and § 1581(i),

and (2) Plaintiffs’ failure to state a claim upon which relief may be granted. The court grants

Defendant’s Motion to Dismiss for the reasons explained herein.

                                         I. Background

       In 2002, Commerce issued an antidumping duty order on the subject merchandise. Notice

of Antidumping Duty Order: Stainless Steel Bar from Italy, 67 Fed. Reg. 10,384, 10,384 (Dep’t

Commerce Mar. 7, 2002). In its final determination, Commerce employed the zeroing




       1
         The plain language of Section 129 of the URAA provides that a determination made
under that provision has prospective effect, thereby applying only to entries made on or after the
date the United States Trade Representative directs the U.S. Department of Commerce
(“Commerce”) to implement the decision. 19 U.S.C. § 3538(c)(1)(B).
Court. No. 08-00381                                                                         Page 3


methodology to calculate the weighted-average dumping margin for the subject merchandise.2

Issues and Decision Memo for the Antidumping Duty Investigation of Stainless Steel Bar from

Italy; Final Determination, A-475-829 (Jan. 23, 2002), available at 2002 WL 171499, at *4-6

(discussing Commerce’s use of the zeroing methodology in Comment 1).3 Commerce calculated

a final weighted-average dumping margin of 2.50% for Plaintiffs’ entries of the subject

merchandise. Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel

Bar From Italy, 67 Fed. Reg. 3,155, 3,158 (Dep’t Commerce Jan. 23, 2002).

       The European Communities thereafter challenged Commerce’s use of zeroing in several

antidumping investigations and administrative reviews before the World Trade Organization

(“WTO”), including the investigation that resulted in the imposition of an antidumping duty

order on the subject merchandise from Italy. See Request for Consultations by the European



       2
          A dumping margin (“DM”) is expressed functionally as DM = NV - (EP or CEP). The
normal value, or “NV,” is the price charged for the subject merchandise in the home market, an
appropriate third country market price, or the cost of production of the goods subject to
statutorily permitted adjustments. 19 U.S.C. § 1677b(a)(1)(B)(i)-(ii), (a)(4). The export price, or
“EP,” is the price at which the subject merchandise is sold by the producer or exporter to an
unaffiliated purchaser in the U.S. or for exportation to the U.S. 19 U.S.C. § 1677a(a). However,
if the foreign producer or exporter is affiliated with the importer of the subject merchandise, then
a constructed export price, or “CEP,” may be used. § 1677a(b). The CEP is the price, as
adjusted pursuant to section 1677a, at which the subject merchandise is sold in the U.S. to a
buyer unaffiliated with the producer or exporter. § 1677a(b). The weighted-average dumping
margin expresses the DM as a percentage, and is determined by dividing the aggregate DMs of a
specific exporter or producer by the aggregate EPs or CEPs of that same exporter or producer.
19 U.S.C. § 1677(35)(B).
       3
        Zeroing is a practice whereby Commerce gives the sales margins of merchandise sold at
or above fair value prices an assumed value of zero. See Corus Staal BV v. Dep’t of Commerce,
395 F.3d 1343, 1345-46 (Fed. Cir. 2005). With zeroing, Commerce uses only the sales margins
of merchandise sold at less than fair value prices to calculate the final weighted-average dumping
margin. See id.
Court. No. 08-00381                                                                        Page 4


Communities, United States – Laws, Regulations and Methodology for Calculating Dumping

Margins (Zeroing), at 4-5, WT/DS294/1 (June 19, 2003). On October 31, 2005, a WTO Panel

found Commerce’s use of zeroing in investigations involving comparisons of weighted-average

normal values to weighted-average U.S. prices to be inconsistent with U.S. obligations under the

WTO Antidumping Agreement (“AD Agreement”). See Panel Report, United States – Laws,

Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), ¶¶ 8.2-8.4,

WT/DS294/R (Oct. 31, 2005) (“Panel Report”). More specifically, the WTO Panel found that

zeroing violates the AD Agreement as such and as applied in the specific investigations at issue.4

Id. The Appellate Body upheld the WTO Panel’s determination on appeal and went further,

stating that Commerce’s use of zeroing in certain administrative reviews was also inconsistent

with the AD Agreement. See Appellate Body Report, United States – Laws, Regulations and

Methodology for Calculating Dumping Margins (“Zeroing”), ¶¶ 132-35, 263(a)(i),

WT/DS294/AB/R (Apr. 18, 2006).

       In response to the Panel Report, Commerce announced that it would no longer give

negative value dumping margins an assumed value of zero in antidumping investigations




       4
          A law, regulation, or measure of a WTO Member that violates a WTO agreement “as
such” means that the “Member’s conduct – not only in a particular instance that has occurred, but
in future situations as well – will necessarily be inconsistent with that Member’s WTO
obligations.” Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures
on Oil Country Tubular Goods from Argentina, ¶ 172, WT/DS268/AB/R (Nov. 29, 2004). In
contrast, a law, regulation or measure that violates a WTO agreement “as applied” means that the
WTO Member’s “application of a general rule to a specific set of facts” is inconsistent with that
Member’s WTO obligations. Id. at ¶ 6 n.22.
Court. No. 08-00381                                                                         Page 5


involving comparisons of “average-to-average” prices.5 Antidumping Proceedings: Calculation

of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final

Modification, 71 Fed. Reg. 77,722, 77,722 (Dep’t Commerce Dec. 27, 2006) (“Section 123

Determination”). Throughout its pronouncement, Commerce explicitly stated that the central

purpose of the Section 123 Determination was to conform the agency’s practices with the

international trade obligations of the United States, as they are outlined in the Panel Report. See

id. at 77,722. Commerce explained that the department’s new policy would apply in (1) the

recalculation of the dumping margins in the “specific antidumping investigations challenged by

the [European Communities] in [the Panel Report]” and (2) all then current and future

investigations involving comparisons of average-to-average prices. Id. at 77,725. Notably, the

Section 123 Determination did not embrace all of the findings of the WTO Appellate Body,

stating instead that the change in policy applied only to investigations where Commerce uses

average-to-average comparisons and did not extend to any other kind of investigation or

administrative review. Id. at 77,724.

       Commerce subsequently applied its policy change to the particular investigations that

were at issue in the Panel Report. Implementation of the Findings of the WTO Panel in US –



       5
         In Sections 123 and 129 of the URAA, Congress established two procedures by which
an adverse decision from the WTO Dispute Settlement Panel or Appellate Body may be
implemented into domestic law. A Section 123 determination amends, rescinds, or modifies an
agency regulation or practice that is found to be inconsistent with any of the Uruguay Round
Agreements. 19 U.S.C. § 3533(g)(1). A Section 129 determination amends, rescinds, or
modifies the application of an agency regulation or practice in a specific antidumping,
countervailing duty, or safeguards proceeding that is found to be inconsistent with U.S.
obligations under the WTO AD Agreement, the Agreement on Subsidies and Countervailing
Measures, or the Safeguards Agreement. 19 U.S.C. § 3538(a)(1), (b)(2).
Court. No. 08-00381                                                                          Page 6


Zeroing (EC): Notice of Determinations Under Section 129 of the Uruguay Round Agreements

Act and Revocations and Partial Revocations of Certain Antidumping Duty Orders, 72 Fed. Reg.

25,261, 25,262 (Dep’t Commerce May 4, 2007) (“Section 129 Determination”). In applying the

Section 123 Determination, Commerce recalculated the weighted-average dumping margin for

the subject merchandise without the use of zeroing, finding that it decreased from 2.50% to zero.

Id. at 25,262-263. The agency noted that it would revoke the antidumping order on stainless

steel bar from Italy, effective for entries of the subject merchandise made on or after April 23,

2007. Id. at 25,263. During this proceeding, Plaintiffs argued that Commerce should not impose

antidumping duties on unliquidated entries of the subject merchandise, irrespective of the date

that the goods entered the United States. See Issues and Decision Memorandum for the Final

Results of the Section 129 Determinations, A-122-838, A-421-807, A-427-820, A-428-830, A-

475-829, A-412-822, A-401-806, A-469-807, A-475-820, A-423-808, A-475-824, A-475-818

(Apr. 9, 2007), Def. Br. App. B at 15 (“Section 129 Determination Issues and Decision

Memorandum”). However, Defendant rejected that notion, stating that “these [S]ection 129

proceedings will not apply to entries made before [April 23,2007].” Id. at 17. Importantly, while

Plaintiffs commented on Commerce’s preliminary determination in the Section 129 proceeding,

they did not challenge the final results contained in the Section 129 Determination.

       On April 2, 2007, Plaintiffs filed a request with Commerce to review the antidumping

duty order for entries of the subject merchandise made during the period of review, the time

frame corresponding to the sixth administrative review of the antidumping duty order. See

Initiation of Antidumping and Countervailing Duty Administrative Reviews, 72 Fed. Reg. 20,986,
Court. No. 08-00381                                                                            Page 7


20,986 (Dep’t Commerce Apr. 27, 2007). However, Plaintiffs withdrew that request on June 25,

2007. Stainless Steel Bar from Italy: Notice of Rescission of Antidumping Duty Administrative

Review, 72 Fed. Reg. 45,223, 45,223 (Dep’t Commerce Aug. 13, 2007). Commerce ultimately

rescinded the sixth administrative review, noting that it would instruct Customs to assess

antidumping duties on all entries of the subject merchandise “at rates equal to the cash deposit of

estimated antidumping duties required at the time of entry . . . .” Id. Accordingly, Customs

liquidated Plaintiffs’ entries of the subject merchandise at the cash deposit rate, as instructed.6

           On March 19, 2008, Plaintiffs filed sixteen protests challenging Custom’s liquidation of

entries they made during the period of review. See Def. Br. App. A. Plaintiffs argued that

Customs lacked the authority to assess antidumping duties on the subject merchandise because,

at the time of liquidation, there was no valid antidumping duty order in place. Customs denied

eight of the original sixteen protests between May and October 2008, explaining that a challenge

to the calculation of antidumping duties was not a protestable decision and that the agency had

correctly liquidated those entries pursuant to Commerce’s instructions. Id.

                                      II. Standard of Review

       When deciding a motion to dismiss based upon either lack of subject matter jurisdiction

or failure to state a claim for which relief may be granted, the Court assumes that all undisputed

facts alleged in the complaint are true and it must draw all reasonable inferences in the plaintiff’s




       6
        See Def. Br. App. A (containing Protest Nos. 1704-08-100050, 0901-08-100100, 1601-
08-100175, 5301-08-100199, 2704-08-101095, 4601-08-100679, 4601-08-100658, 1401-08-
100127).
Court. No. 08-00381                                                                               Page 8


favor. See Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995); Gould, Inc. v. United

States, 935 F.2d 1271, 1274 (Fed. Cir. 1991).

        A fundamental question in any action before the Court is whether subject matter

jurisdiction exists over the claims presented. See Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 94-95 (1998). Subject matter jurisdiction involves the Court’s power to hear a case

and declare the law, and when it ceases to exist, “the [C]ourt must dismiss the complaint in its

entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The party invoking the Court’s

jurisdiction bears the burden of establishing it. See Norsk Hydro Can., Inc. v. United States, 472

F.3d 1347, 1355 (Fed. Cir. 2006).

        Finally, assuming that all of the factual allegations are true, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct

alleged,” thereby raising the plaintiff’s right to relief above the speculative level. See Iqbal, 129

S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). Though detailed factual allegations are not

required, the plaintiff’s complaint must contain more than labels and conclusions or a formulaic

recitation of the elements of a cause of action to provide the defendant with fair notice of its

claims and survive a motion to dismiss for failure to state a claim upon which relief may be

granted. See id. at 1949; Twombly, 550 U.S. at 555.
Court. No. 08-00381                                                                            Page 9


                                           III. Discussion

A. Subject Matter Jurisdiction

        Defendant argues that the court lacks subject matter jurisdiction over Plaintiffs’ claims

under both § 1581(a) and § 1581(i). Defendant notes that it was Commerce, and not Customs,

who conducted the Section 129 proceeding, calculated the weighted-average dumping margin,

and revoked the antidumping duty order for particular entries. Accordingly, Defendant claims

that Customs’s role in liquidating Plaintiffs’ entries was merely ministerial in nature, and that

those acts do not constitute a protestable decision under § 1514. Def. Br. 7-9. Defendant also

argues that § 1581(i) is not a proper basis for the court to establish jurisdiction over Plaintiffs’

claim against Commerce because § 1581(c) would have provided Plaintiffs with an adequate

remedy had the Plaintiffs (1) challenged Commerce’s Section 129 Determination or

(2) maintained the sixth administrative review and challenged the final results thereof. Def. Br.

9-12.

        In contrast, Plaintiffs aver that Customs’s act of liquidating and assessing antidumping

duties on its entries of the subject merchandise made during the period of review, despite the

revocation of the antidumping duty order on those goods, is a protestable action that is

reviewable under § 1581(a). Pl. Br. 7-10. Specifically, Plaintiffs claim that they are challenging

Customs’s assessment of antidumping duties on the subject merchandise because Commerce

determined that no dumping occurred and, thus, there was no valid antidumping order in place at

the time of liquidation. Pl. Br. 8. Plaintiffs also argue that the court may review Commerce’s

application of “an invalid dumping order” to entries of the subject merchandise made during the
Court. No. 08-00381                                                                          Page 10


period of review under § 1581(i). Pl. Br. 10. Plaintiffs allege that Commerce’s application of

antidumping duties to those entries “exceeded the scope of [the agency’s] authority and

contravened 19 U.S.C. § 1673.” Pl. Br. 11. Finally, Plaintiffs note that § 1581(c) did not provide

them with an adequate remedy because they had “no reason” to either challenge the Section 129

Determination or complete the sixth administrative review given that the Section 129

Determination allegedly invalidated the antidumping duty order for all unliquidated entries of the

subject merchandise, irrespective of the date of entry. Pl. Br. 12-14.

       Chapter 95 of Title 28 of the United States Code contains Congress’s jurisdictional grant

to the Court. The first section of Chapter 95, § 1581, is titled “Civil actions against the United

States and agencies and officers thereof,” and consists of subsections (a) through (j). Each

subsection of § 1581 “delineates particular laws over which the Court . . . may assert

jurisdiction.” Nat’l Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1555 (Fed. Cir. 1988).

       1. Plaintiffs’ Claim Against Customs & 28 U.S.C. § 1581(a)

       Section 1581(a) provides the Court with “exclusive jurisdiction of any civil action

commenced to contest the denial of a protest, in whole or in part,” arising under 19 U.S.C.

§ 1515. § 1581(a). Congress outlines the rules for Customs’s review of a protest in § 1515, with

the filing of a protest by an aggrieved party under 19 U.S.C. § 1514 being a condition precedent

for Customs to exercise that authority. § 1515(a). Customs must either grant or deny the protest

before a party may sue under § 1581(a). Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d

973, 976 (Fed. Cir. 1994).
Court. No. 08-00381                                                                           Page 11


       Section 1514(a) sets forth the categories of Customs decisions that an aggrieved party

may protest. § 1514(a). Specifically, Customs may review protests challenging

       (1) the appraised value of merchandise;
       (2) the classification and rate and amount of duties chargeable;
       (3) all charges or exactions of whatever character within the jurisdiction of the
       Secretary of the Treasury;
       (4) the exclusion of merchandise from entry or delivery or a demand for redelivery
       to customs custody under any provision of the customs laws, except a
       determination appealable under [19 U.S.C. § 1337];
       (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues
       contained therein, or any modification thereof, including the liquidation of an
       entry, pursuant to either [19 U.S.C. § 1500] or [§ 1504];
       (6) the refusal to pay a claim for drawback; or
       (7) the refusal to reliquidate an entry under [19 U.S.C. § 1520(d)];

§ 1514(a). Importantly, these categories are exclusive, “and if Customs’ underlying decision

does not relate to any of these seven categories, [then] the court may not exercise § 1581(a)

jurisdiction over an action contesting Customs’ denial of a protest filed against that decision.”

Am. Nat’l Fire Ins. Co. v. United States, 30 CIT 931, 939-40, 441 F. Supp. 2d 1275, 1285 (2006)

(citing Playhouse Imp. & Exp., Inc. v. United States, 18 CIT 41, 44, 843 F. Supp. 716, 719

(1994)); see also Mitsubishi Elecs. Am., Inc., 44 F.3d at 976.

       Although Plaintiffs construct their claim against Customs as one that falls within the

purview of § 1581(a), it is in essence tantamount to a challenge to an antidumping decision.

Plaintiffs describe the central focus of their claim against Customs as a challenge to the agency’s

“assessment upon liquidation of antidumping duties at any rate in a case in which Commerce has

determined [that] no dumping occurred.” Pl. Br. 8. Plaintiffs note that their claim against

Customs definitively centers on the agency’s “authority to take steps to enforce an antidumping

order [that was subsequently ] determined [to be] invalid within the meaning of 19 U.S.C.
Court. No. 08-00381                                                                         Page 12


§ 1673.” Pl. Br. 11. According to Plaintiffs, § 1514(a)(5) therefore provides the court with

jurisdiction over their claim.7 Pl. Br. 8.

       However, it is well settled that Commerce, and not Customs, conducts antidumping

proceedings to (1) calculate and determine antidumping rates and (2) issue antidumping orders,

where appropriate. See Mitsubishi Elecs. Am., Inc., 44 F.3d at 976. “Customs cannot ‘modify

. . . Commerce’s [antidumping] determinations, their underlying facts, or their enforcement.’”

Id. at 977 (brackets & citation omitted). Indeed, Customs has no discretion in the matter, and

merely liquidates entries of the subject merchandise according to Commerce’s instructions. See

id. Customs’ role in the liquidation of subject merchandise is ministerial in nature, “and those

actions do not amount to antidumping ‘decisions’ under 19 U.S.C. § 1514.” Am. Nat’l Fire Ins.

Co., 30 CIT at 940, 441 F. Supp. 2d at 1285-86. Thus, because Customs does not make an

antidumping decision under § 1514(a), the court may not hear Plaintiffs’ claim here under

§ 1581(a). See Mitsubishi Elecs. Am., Inc., 44 F.3d at 977.

       2. Plaintiffs’ Claim Against Commerce & 28 U.S.C. § 1581(i)

       Section 1581(i) provides the Court with broad residual jurisdiction over civil actions that

arise out of import transactions. See Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18

F.3d 1581, 1588 (Fed. Cir. 1994). However, Congress’s grant is subject to an important caveat,

namely that the Court may not exercise jurisdiction pursuant to § 1581(i) where jurisdiction “is

or could have been available” under another subsection of § 1581. Consol. Bearings Co. v.



       7
         Customs may review a protest challenging “the liquidation or reliquidation of an entry,
or reconciliation as to the issues contained therein, or any modification thereof, including the
liquidation of an entry, pursuant to either [19 U.S.C. § 1500] or [§ 1504].” § 1514(a)(5).
Court. No. 08-00381                                                                          Page 13


United States, 348 F.3d 997, 1002 (Fed. Cir. 2003) (quotations & citation omitted). This

principle holds true for an antidumping proceeding that is otherwise reviewable under 19 U.S.C.

§ 1516a(a).8 § 1581(i). In other words, the subsections of § 1581 must be read in concert and a

litigant may invoke the Court’s jurisdiction under § 1581(i) only if (1) jurisdiction is unavailable

under all other subsections of § 1581, or (2) jurisdiction is available under another subsection of

§ 1581, but the relief provided by that subsection is manifestly inadequate. § 1581(i); Consol.

Bearings Co., 348 F.3d at 1002.

       Plaintiffs argue that Commerce exceeded its authority when it issued liquidation

instructions to Customs to assess antidumping duties on entries of the subject merchandise made

during the period of review, a claim that the court may hear under both § 1581(i)(2) and (i)(4).9

Pl. Br. 10-14. More specifically, Plaintiffs note that they do not challenge Commerce’s

liquidation instructions to Customs,10 but instead contest Commerce’s authority to enforce the

antidumping duty order on entries made during the period of review in light of the order’s



       8
          Section 1516a provides for the judicial review of, among other determinations, the final
results of an administrative review and of a Section 129 proceeding. § 1516a(a)(2)(B)(iii), (vii).
       9
         Under those provisions, the Court has exclusive jurisdiction over “any civil action
commenced against the United States, its agencies, or its officers, that arises out of any law of the
United States providing for,” among other measures, “tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other than the raising of revenue” or the administration
and enforcement of matters referred to in § 1581(a)-(h) and § 1581(i)(1)-(3). § 1581(i)(2), (4).
       10
          The Court has subject matter jurisdiction over a challenge to Commerce’s liquidation
instructions pursuant to the “administration and enforcement” language of § 1581(i)(4) as that
subsection relates to § 1581(i)(2). Consol. Bearings Co., 348 F.3d at 1002. That kind of claim
“essentially contends that the instructions do not accurately (i.e., lawfully) reflect the results of
the underlying administrative proceeding.” DentalEZ, Inc. v. United States, Slip Op. 07-98, 2007
WL 1847615, at *2 (June 28, 2007) (citation omitted).
Court. No. 08-00381                                                                           Page 14


subsequent revocation in the Section 129 Determination. Pl. Br. 11. Plaintiffs also aver that they

had “no reason” to either appeal the Section 129 Determination or complete the sixth

administrative review because they instead took issue with Commere’s “enforcement of the

order” that was revoked by the Section 129 Determination. Pl. Br. 13. Citing § 1581(i),

Plaintiffs therefore ask the court to find jurisdiction over their claim here because the

antidumping duties assessed on the subject merchandise not only provided for duties on the

importation of merchandise for reasons other than the raising of revenue, but also concerned the

administration and enforcement of a matter referred to in § 1581(c). Pl. Br. 10.

       Despite Plaintiffs’ quixotic assertions to the contrary, § 1581(c) could have provided

them with the ability to seek adequate relief, and their failure to choose a remedy thereunder does

not permit the court to find jurisdiction here under § 1581(i). The core of Plaintiffs’ claim

against Commerce takes issue with the scope of the Section 129 Determination, namely

Commerce’s decision not to make the revocation of the antidumping duty order apply

retroactively to all then unliquidated entries of stainless steel bar from Italy. However, Plaintiffs

had a meaningful opportunity to challenge that decision by making a case against the final results

of two proceedings that are judicially reviewable under § 1581(c). In particular, Plaintiffs could

have contested the scope of the Section 129 Determination under § 1516a(a)(2)(B)(vii).

Alternatively, Plaintiffs could have waited for Commerce to complete the sixth administrative

review, and dispute the final results of that proceeding under § 1516a(a)(2)(B)(iii). However,

Plaintiffs declined to avail themselves of either option, and Commerce rightly instructed

Customs to assess antidumping duties at “rates equal to the cash deposit of, or bond for,
Court. No. 08-00381                                                                           Page 15


estimated antidumping duties . . . required on that merchandise at the time of entry” after

Plaintiffs withdrew their request for the sixth administrative review. 19 C.F.R.

§ 351.212(c)(1)(i). Moreover, that Plaintiffs participated in both administrative proceedings, but

had “no reason” to challenge the final results of the Section 129 Determination, or to complete

the sixth administrative review, does not satisfactorily demonstrate to the court that the remedy

provided by § 1581(c) is manifestly inadequate. See Am. Air Parcel Forwarding Co., Ltd. v.

United States, 718 F.2d 1546, 1550-51 (Fed. Cir. 1983). Thus, jurisdiction is unavailable here

under § 1581(i) precisely because Plaintiffs could have sought relief under § 1581(c) and because

Congress did not intend for subsection (i) – and in particular paragraph (4) – “to circumvent the

exclusive method of judicial review of those antidumping . . . determinations listed in [19 U.S.C.

§ 1516a] . . . .” H.R. Rep. No. 96-1235, at 48 (1980), reprinted in 1980 U.S.C.C.A.N. 3729,

3759.

        Plaintiffs also contend that changed circumstances – i.e., (1) a recent clarification by the

WTO Dispute Settlement Body and (2) the inconsistent positions held by the United States at

that forum – warrant reconsideration of the Court’s interpretation of the prospective effect of a

Section 129 proceeding in § 3538(c). Pl. Br. 17-22. It is well known that decisions from the

WTO are “not binding on the United States, much less this court.” Timken Co. v. United States,

354 F.3d 1334, 1344 (Fed. Cir. 2004). That the United States interprets a domestic statute

differently in separate cases at the WTO, with each action concerning distinct facts and unique

legal issues, is more indicative of the Government’s astute lawyering than suggesting to the court
Court. No. 08-00381                                                                           Page 16


that the text of § 3538(c) is ambiguous. Therefore, Defendant’s advocacy at the WTO does not

convince the court that it should reconsider the plain meaning of the text of § 3538(c).

        Finally, because the court finds that it does not have jurisdiction over the claims

presented, it need not decide whether Plaintiffs have stated a claim upon which relief may be

granted. See Arbaugh, 546 U.S. at 514.

                                           IV. Conclusion

        For the reasons discussed herein, Defendant’s Motion to Dismiss is granted. Section

1581(a) does not provide the court with jurisdiction here because Plaintiffs’ claims do not fit

within one of the seven specifically enumerated categories of protestable decisions in § 1514(a).

Moreover, because § 1581(c) could have provided Plaintiffs with adequate relief, § 1581(i) is not

the proper basis for the court to exercise its jurisdiction.



Date:    July 23, 2009                                          /s/ Judith M. Barzilay
        New York, New York                                     Judith M. Barzilay, Judge
