                                        Slip Op. 14-__
                                                    73


                UNITED STATES COURT OF INTERNATIONAL TRADE


                                            :
ZHANJIANG GUOLIAN AQUATIC                   :
PRODUCTS CO., LTD.,                         :
                                            :
              Plaintiff,                    :
                                            :
                      v.                    :
                                            :
UNITED STATES,                              :      Before: Gregory W. Carman, Judge
                                            :
              Defendant,                    :      Court No. 13-00388
                                            :
              and                           :
                                            :
COALITION OF GULF SHRIMP                    :
INDUSTRIES,                                 :
                                            :
              Defendant-Intervenor.         :
                                            :


                                      OPINION & ORDER

[Defendant-Intervenor’s motion to dismiss is granted.]

        Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington, DC,
for Plaintiff.

       Robin Lynn Turner, Attorney, Office of the General Counsel, United States International
Trade Commission, of Washington, DC, for Defendant. With her on the brief were Dominic L.
Bianchi, General Counsel, and Neal J. Reynolds, Assistant General Counsel.

      Terence P. Stewart, Elizabeth J. Drake, and Jennifer M. Smith, Stewart and Stewart, of
Washington, DC, and Edward T. Hayes, Leake & Andersson, LLP, of New Orleans, LA, for
Defendant-Intervenor.
Court No. 13-00388                                                                            Page 2




                                                                                    June 26 2014
                                                                                         __,


CARMAN, JUDGE: Before the Court is Defendant-Intervenor Coalition of Gulf Shrimp

Industries’ (“Defendant-Intervenor” or “COGSI”) Motion to Dismiss (“MTD”) (ECF No. 16) for

lack of case or controversy under Article III of the Constitution and accordingly lack of subject

matter jurisdiction in this court. Defendant the United States supports COGSI’s motion to

dismiss. ECF No. 20. For the reasons set forth below, the Court grants Defendant-Intervenor’s

motion to dismiss.



                                          BACKGROUND

       This action is one of many challenging the final negative countervailing duty (“CVD”)

determination of certain frozen warmwater shrimp from various countries. See Frozen

Warmwater Shrimp From China, Ecuador, India, Malaysia, and Vietnam, 78 Fed. Reg. 64,009

(Int’l Trade Comm’n Oct. 25, 2013) (final determination). The International Trade Commission

(“ITC”)’s final determination was that the domestic industry “was not injured by reason of

imports.” Pl.’s Opp’n to Def.-Int.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 3. In its preliminary

determination, the ITC “concluded that negligibility was not an issue in the investigations

because the subject imports from all countries investigated were not negligible.” Compl. ¶ 7

(internal quotations omitted). Plaintiff argued to the agency that the ITC’s negligibility

conclusion was not accurate for imports from China because the ITC used data that “included

imports of nonsubject merchandise.” Compl. ¶ 9. The ITC continued to find Plaintiff’s imports

non-negligible in its final determination. Compl. ¶ 10. Plaintiff prays for a declaration that the
Court No. 13-00388                                                                             Page 3




ITC’s conclusion “on negligibility with respect to China” is erroneous and requests a remand to

the ITC regarding negligibility. Compl. ¶ 15.

       Defendant-Intervenor COGSI moves to dismiss Plaintiff’s Complaint because “[t]he ITC

determined the U.S. industry was not injured, and thus no countervailing duty order issued as a

result of the ITC’s determination.” MTD at 2. Defendant-Intervenor argues that Plaintiff

“suffered no harm and has no standing, and the Court has no jurisdiction since there exists no

true case or controversy.” MTD at 3. Defendant-Intervenor points out that “[s]tanding is one of

the essential elements of the case-or-controversy requirement” and “[u]nder the United States

Constitution, the jurisdiction of federal courts is limited to actual cases or controversies.” Id. at 2

(internal quotations and citations omitted). Accordingly, Defendant-Intervenor asserts that the

Court lacks subject matter jurisdiction to hear Plaintiff’s case. Id. at 4.

       In a parallel case challenging ITC’s final injury determination, Plaintiff is the defendant-

intervenor and Defendant-Intervenor is the plaintiff. See COGSI v. United States, Ct. No. 13-

00386 (CIT filed Nov. 22, 2013).1



                                           JURISDICTION

       Plaintiff carries the burden of establishing that jurisdiction lies. See McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 189 (1936). In this action, Plaintiff claims jurisdiction

is proper pursuant to section 516A(a)(2)(A)(i)(I) of the Tariff Act of 1930, as amended (“the

Act”), codified at 19 U.S.C. § 1516a(a)(2)(A)(i)(I). Compl. ¶ 1. Plaintiff brings its claim under


1
  COGSI v. United States, Court No. 13-00386, is the lead case in a batch of challenges to this
investigation. The court has stayed the balance of the related cases pending the outcome of this
lead case.
Court No. 13-00388                                                                              Page 4




the propositions that it already suffered injury “during the provisional measure period” and may

“suffer future harm if defendant-intervenor COGSI is successful in its separate appeal” of the

ITC’s final negative injury CVD determination. Pl.’s Opp’n at 6.



                                            DISCUSSION

       Jurisdiction is at the heart of this action. The jurisdiction of federal courts is

constitutionally limited to actions that involve actual cases or controversies. Royal Thai Gov’t v.

United States, 38 CIT ___, ___, 978 F. Supp. 2d 1330, 1332-33 (2014) (“Royal Thai”)2 (citing

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)). A key component of a case or

controversy is standing. See U.S. Const. art. III, § 2, cl. 1; see also Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of standing is an essential and

unchanging part of the case-or-controversy requirement of Article III.”). To establish standing, a

plaintiff must demonstrate an “injury in fact” that is “concrete and particularized” as well as

“actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. A further

requirement to establish standing is that the injury is “fairly traceable to the challenged action.”

Id.

       It is well-settled in this court that “when a respondent challenges an administrative

proceeding in which it has prevailed there is no case or controversy, and thus no jurisdiction

lies.” Royal Thai, 978 F. Supp. 2d at 1333 (citing Freeport Minerals Co. v. United States, 758



2
 The Royal Thai case was recently decided at the Court of International Trade. While Royal
Thai challenged the Department of Commerce’s duty determination rather than the ITC’s injury
determination, the arguments of both plaintiffs are strikingly similar. See generally Royal Thai,
978 F. Supp. 2d at 1330.
Court No. 13-00388                                                                            Page 5




F.2d 629, 634 (Fed. Cir. 1985)). Similar to the prevailing plaintiff in Royal Thai, Plaintiff in this

action prevailed at the administrative level but alleges that a live case or controversy exists

because it wishes to challenge subsidiary issues from the ITC’s determination on which it did not

prevail. See Pl.’s Opp’n at 7. However, the fact that no CVD order has been issued means that

Plaintiff is not suffering any injury due to the errors it alleges the ITC committed. See Royal

Thai, 978 F. Supp. 2d at 1333 (citing Lujan, 504 U.S. at 560). The fact that Plaintiff paid cash

deposits while the administrative review was pending does not create an injury sufficient to

confer standing under the Constitution or the Court’s jurisdictional statute. See MacMillan

Bloedel Ltd. v. United States, 16 CIT 331, 332-33 (1992) (stating that paying deposits [during a

countervailing duty investigation] pending court review is an ordinary consequence of the

statutory scheme and cannot be addressed while the investigation is pending). The statute

requires that the cash deposits be returned. See 19 U.S.C. § 1671d(c)(2)(B); see also Royal Thai,

978 F. Supp. 2d at 1333 (finding no case or controversy where cash deposits are returned to a

prevailing party). Because no cash deposits are due at this time, and all previously paid deposits

either have been or will be returned to the subject producers pursuant to statute, Plaintiff cannot

claim monetary injury. Without injury, there is no standing and thus no case or controversy.

       The mere fact that Defendant-Intervenor appealed the ITC’s final negative injury

determination in a parallel case, creating the possibility of a future reversal of the ITC’s negative

injury determination, does not create standing in this case. Speculation of an administrative

reversal is hypothetical, and hypothetical harm cannot provide jurisdiction. See Royal Thai, 978

F. Supp. 2d at 1333 (citing Asahi Seiko Co., Ltd. v. United States, 35 CIT ___, ___, 755 F. Supp.

2d 1316, 1322 (2011)).
Court No. 13-00388                                                                           Page 6




       Plaintiff alleges that dismissing this case while hearing “COGSI’s claims in Court No.

13-00386” would “defy notions of fairness.” Pl.’s Opp’n at 8 n.3. This same argument was

made by the plaintiff in Royal Thai and failed:

               Plaintiff’s concerns are misplaced. In the event that COGSI
               succeeds in its appeal of Commerce’s determination, Commerce
               will be required to publish a redetermination on remand. If this
               occurs, plaintiff will still have a right to challenge that
               redetermination, either during the course of any remand or in a new
               suit, even if this case is dismissed at this juncture.

Royal Thai, 978 F. Supp. 2d at 1334 (citation omitted). Plaintiff in the instant case would have

the same right to challenge the redetermination as the plaintiff in Royal Thai.

       Defendant-Intervenor argues that Plaintiff “asks this Court to issue an advisory opinion

on a subsidiary issue when it has suffered no real injury due to [the negligibility] issue and when

the relief requested would not redress any such injury.” Def.-Int.’s Reply at 5. The Court

agrees. The United States Supreme Court has made it clear that the United States Constitution

does not permit courts to issue advisory opinions. See Camreta v. Greene, 131 S.Ct. 2020, 2038

(2011) (“judicial Power is one to render dispositive judgments, not advisory opinions”)

(quotations and citations omitted).

       Because it has suffered no injury, Plaintiff has no standing and no case or controversy

exists. Therefore this Court lacks jurisdiction. Accordingly, the Court grants Defendant-

Intervenor’s motion to dismiss.
Court No. 13-00388                                                                    Page 7




                                            CONCLUSION

         For the foregoing reasons, it is hereby

         ORDERED that Defendant-Intervenor’s motion to dismiss is granted without prejudice.

         Judgment to enter accordingly.



                                                                   /s/Gregory W. Carman
                                                                _________________________
                                                                  Gregory W. Carman, Judge

Dated:    June __, 2014
               26
          New York, NY
