                                          Slip Op. 07-173

                UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
                                    :
DENTAL EZ, INC.,                    :
                                    :
                  Plaintiff,        :
                                    :                  Before: Jane A. Restani, Chief Judge
            v.                      :
                                    :                  Court No. 07-00234
UNITED STATES,                      :
                                    :
                  Defendant.        :
____________________________________:

                                               OPINION

[Plaintiff’s motion to stay action granted.]

                                                                       Dated: November 21, 2007

               Barnes, Richardson & Colburn (David G. Forgue and Nicole A. Kehoskie) for the
plaintiff.

              Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director;
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Michael J. Dierberg); Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce (Jonathan Zielinski), of counsel, for the
defendant.


               Restani, Chief Judge: This antidumping duty matter is before the court on

plaintiff Dental EZ, Inc.’s (“DentalEZ”) motion to stay and defendant United States Department

of Commerce’s (“Commerce”) motion to dismiss. Plaintiff wishes this matter stayed pending a

determination on the merits in Dental EZ, Inc. v. United States, Court No. 07-00029, which

involves a different periodic administrative review from the matter before the court. Defendant

opposes the stay and alleges that jurisdiction is lacking.
Court No. 07-00234                                                                                 Page 2


                                                FACTS

                Plaintiff claims that the liquidation instructions to assess duties on its entries

as entries of a reseller at the “all others” rate are erroneous. Defendant alleges that the

liquidation instructions reflect a factual determination made in the administrative review,

specifically, that Barden Corporation (U.K.) Limited (“Barden”), the producer, did not know that

the merchandise of its reseller, DentalEZ’s British affiliate, was destined for the United States.

Hence, defendant argues, the “all others” rate, not the producer’s rate, was applicable. As the

reseller did not participate in the review so as to obtain its own rate, Commerce applied the “all

others” rate. See Parkdale Int’l, Ltd. v. United States, __ CIT __, __, 508 F. Supp. 2d 1338, __

(2007) (explaining procedures for calculation of reseller’s rate); 19 C.F.R. § 351.212(c);

Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 Fed.

Reg. 23,954 (May 6, 2003) (notice of policy concerning assessment of antidumping duties)

(“Reseller Policy”).

                                            DISCUSSION

                Plaintiff’s complaint alleges that Commerce did not ask Barden the correct

questions during the administrative review and thus made an incorrect decision as to Barden’s

knowledge of the destination of the sales at issue. Plaintiff claims that it was not required to

participate in the review, as it could rely on the Reseller Policy itself, which plaintiff avers

entitled it to Barden’s rate. Plaintiff, or its affiliate reseller, however, could have alerted

Commerce to its error or provided information to prevent the error, without fully participating in

the review, and still preserved its claim to Barden’s rate. This would appear to be sufficient
Court No. 07-00234                                                                            Page 3


participation to qualify as a “participant” under 28 U.S.C. § 2631(c) and to be entitled to seek

review of the final results of the administrative proceeding in this court under 28 U.S.C.

§ 1581(c), assuming the other requirements for § 1581(c) jurisdiction were present. See

Specialty Merch. Corp. v. United States, __ CIT __, __, 477 F. Supp. 2d 1359, 1361 (2007)

(holding that participation requirement was met by submitting belated notice indicating support

for other parties’ position); see also Nucor Corp v. United States, Slip Op. 07-144, 2007 WL

2789273, * 5–6 (CIT Sept. 26, 2007) (discussing precedents regarding participation

requirement). The issue is whether DentalEZ was required to do so because this was both an

adequate and the exclusive path to relief. See Miller & Co. v. United States, 824 F.2d 961, 963

(Fed. Cir. 1987).

               It is not always easy to determine if jurisdiction is appropriate under the various

provisions of 28 U.S.C. § 1581. The court must look to the “true nature” of the action to

determine if jurisdiction would be proper. See Norsk Hydro Can., Inc. v. United States, 472 F.3d

1347, 1355 (Fed. Cir. 2006).

               Defendant relies heavily on the distinction drawn in Parkdale between facial

regulatory challenges that are reviewable under 28 U.S.C. § 1581(i) and factual determinations

made in administrative reviews that are reviewable under 28 U.S.C. § 1581(c). See Parkdale,

__ CIT at __, 508 F. Supp. 2d. at __. The distinction holds, but the issue of whether the context

of the type of factual determination here lends itself to jurisdiction under 28 U.S.C. § 1581(c)

was not before the court in Parkdale. Contrast Dental EZ, Inc. v. United States, Slip Op. 07-98,

2007 WL 1847615, at * 2 (CIT June 28, 2007) (“Dental EZ I”). In Dental EZ I, the court
Court No. 07-00234                                                                           Page 4


addressed a dispute very similar to the one at hand, and that action precipitated the motion for

stay now before the court. There, the court determined that jurisdiction under 28 U.S.C.

§ 1581(i) was appropriate, because the claim was a challenge to liquidation instructions, not a

challenge to the results of an administrative review. Id. (citing Consol. Bearings Co. v. United

States, 348 F.3d 997 (Fed. Cir. 2003)). The court here, however, is not sure as to the true nature

of the claim, and even the Dental EZ I court hints that what happened (or should happen) is not

entirely clear. See id. at * 3.

                Thus, the court has examined the administrative determination at issue, Ball

Bearings and Parts Thereof from France, Germany, Italy, Japan and the United Kingdom: Final

Results of Antidumping Duty Administrative Reviews, 71 Fed. Reg. 40,064 (July 14, 2006), and

searched for the factual determination that defendant alleges was made, but the factual

determination does not leap out from the pages of the Federal Register.1 Whether resellers and

their importers have notice that they must participate in administrative reviews at least in some

manner to preserve their rights under the Reseller Policy has not yet been fully explained.2 If

they must do so, jurisdiction would lie only under 28 U.S.C. § 1581(c) for review of a specific

unfair trade determination listed in 19 U.S.C. § 1516a, and jurisdiction over this case, brought

under 28 U.S.C. § 1581(i) regarding administration and enforcement of tariff laws, likely would


        1
         The fact that defendant provided no pin cite is telling. Perhaps defendant is arguing that
because Commerce did not make a positive determination as to the producer’s knowledge, it
must have made a negative determination. The court does not resolve the issue of whether this is
sufficient.
        2
        For example, does something in the preliminary determination, the policy notice itself, or
elsewhere alert one to what may happen before the agency and that one must participate in the
review.
Court No. 07-00234                                                                             Page 5


be lacking. See Miller, 824 F.2d at 963 (holding that jurisdiction under 28 U.S.C. § 1581(i) is

available only where other provisions of § 1581 are manifestly inadequate). As this issue will no

doubt be thrashed out as the first Dental EZ case proceeds, and as that court will no doubt have

the occasion to consider its jurisdictional decision again3 when it considers the merits and the

applicable procedure is clarified by the parties, the court here will not grapple with this issue on

this sparse record.

                 In the interests of judicial economy and the parties’ pocketbooks, these issues

should be litigated before one judge at a time. Accordingly, plaintiff’s motion to stay is granted.

Upon entry of the final appealable judgment in Dental EZ, Inc.v. United States, Court No.

07-00029, the parties shall have eleven days to advise the court as to how they wish this matter to

proceed.



                                                         /s/ Jane A. Restani
                                                        Jane A. Restani
                                                        Chief Judge

Dated this 21st day of November, 2007.
New York, New York.




       3
           Jurisdictional issues may be raised at any time.
