                                      Slip Op. 18-50

               UNITED STATES COURT OF INTERNATIONAL TRADE


 COALITION FOR FAIR TRADE IN
 GARLIC,

                   Plaintiff,
                                                Before: Mark A. Barnett, Judge
         v.
                                                Court No. 18-00005
 UNITED STATES,

                   Defendant.


                                  OPINION AND ORDER

[Granting Defendant’s motion to dismiss for lack of subject matter jurisdiction and
denying Plaintiff’s motions for a preliminary injunction and for judgment on the agency
record as moot.]

                                                                Dated: May 4, 2018

Robert T. Hume, Hume & Associates, LLC, of Taos, NM, argued for Plaintiff Coalition
for Fair Trade in Garlic.

Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant United States. With
him on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the
brief was Emma T. Hunter, Attorney, Office of Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce.

       Barnett, Judge: Pending before the court is Defendant’s motion to dismiss this

case for lack of subject matter jurisdiction. See Def.’s Mot. to Dismiss, ECF No. 15.

Also pending are Plaintiff’s motions for judgment on the agency record and for a

preliminary injunction. See Mot. of Pl. Coalition for Fair Trade in Garlic for J. on the

Agency R. (“Pl.’s MJAR”), ECF No. 10; Mot. for Prelim. Inj. (“Pl.’s Mot. for PI”), ECF No.

19. Defendant’s motion to dismiss and Plaintiff’s motion for preliminary injunction are
Court No. 18-00005                                                                Page 2


fully briefed. The court held oral argument on April 26, 2016. See Docket Entry, ECF

No. 25. For the following reasons, the court grants Defendant’s motion to dismiss and

denies, as moot, Plaintiff’s motions for a preliminary injunction and for judgment on the

agency record.

                                      BACKGROUND

      On November 1, 2017, Commerce published a notice informing interested parties

that they could request an administrative review of the antidumping duty order covering

fresh garlic from China for the November 1, 2016, through October 31, 2017 period of

review. Antidumping of Countervailing Duty Order, Finding, or Suspended

Investigation; Opportunity to Request Administrative Review, 82 Fed. Reg. 50,620

(Dep’t Commerce Nov. 1, 2017). In the notice, Commerce set a deadline of November

30, 2017, for such requests. Id.

      On November 27, 2018, the Coalition for Fair Trade in Garlic (“CFTG”) filed a

review request, asserting status as a domestic interested party to make such a request,

and asking that Commerce review any “exporters of fresh garlic . . . during the period of

review.” Compl. ¶ 6, ECF No. 5; id., Ex. 3. In its review request, CFTG did not

individually name any Chinese exporter of garlic. While CFTG did not expressly state

why any particular exporter should be reviewed, it did state that it requested the review

“to ensure that [the] Department [of Commerce] determines the proper amount of

antidumping duties owed and estimated duties to be deposited for all subject garlic.”

Compl., Ex. 3. With the exception of Zhengzhou Harmoni Spice Co., Ltd. (“Harmoni”)

and Harmoni International Spice, Inc., CFTG did not serve any Chinese exporter with its
Court No. 18-00005                                                                    Page 3


review request. 1 Compl. ¶ 7; id., Ex. 4. On November 29, 2017, CFTG restated its

request that Commerce review “all Chinese exporters of the subject garlic,” but again

did not identify any individual exporters, explain why any particular exporter should be

reviewed, or, with the exception of Harmoni, serve any exporter of Chinese garlic.

Compl., Ex. 4.

       On December 12, 2017, Commerce responded to CFTG’s review request, stating

that the request did “not conform to the requirements of 19 C.F.R. 351.213(b)(1).”

Compl., Ex. 5. Commerce further stated that, pursuant to § 351.213(b)(1), “a domestic

interested party . . . may request in writing that the Secretary conduct an administrative

review . . . of specified individual exporters or producers covered by an order, . . . if the

requesting person states why the person desires the Secretary to review those

particular exporters or producers.” Id. (quoting 19 C.F.R. § 351.213(b)(1) (emphasis in

original)). Commerce stated that CFTG’s review request was “invalid” because it

“lack[ed] the requisite specificity.” Id.

       On December 18, 2017, CFTG requested a 10-day extension to supplement

again its review request to specify (and serve) individual Chinese garlic exporters and

producers for Commerce to review. Compl., Ex. 6. In the alternative, CFTG asked that

Commerce reinterpret CFTG’s review requests to cover Harmoni. Id. On January 2,



1 In its November 29, 2017 supplement to its review request, CFTG stated that it was
sending a copy of its November 27, 2018, review request to Harmoni and Harmoni
International Spice, Inc., having previously provided a copy to these companies’
counsel. Compl. ¶ 7; id., Ex. 4. Subsequently, on December 18, 2017, CFTG asserted
that it sent copies of both the November 27, and November 29, 2017 requests to
Harmoni and Harmoni International Spice, Inc. Compl. ¶ 7; id., Ex. 6.
Court No. 18-00005                                                                   Page 4


2018, Commerce responded to CFTG’s December letter, indicating that, even if the

December request was considered a timely request for administrative review, the letter

did not meet applicable regulatory requirements. Compl., Ex. 1. CFTG “did not specify

individual exporters or producers” and provided no explanation as to “why those

particular exporters or producers should be reviewed.” Id. (emphasis in original).

Commerce again stated that CFTG’s review request was invalid. Id.

       On January 11, 2018, Commerce published the initiation notice for the 23rd

administrative review of the antidumping duty order covering fresh garlic from China,

based on the review requests filed by other interested parties. Initiation of Antidumping

and Countervailing Duty Administrative Review, 83 Fed. Reg. 1,329, 1,332-33 (Dep’t

Commerce Jan. 11, 2018). Commerce included Harmoni as a respondent in that

review. Id.; Compl. ¶ 12.

       On January 29, 2018, CFTG filed its complaint in this court, seeking to invoke the

court’s residual jurisdiction pursuant to 28 U.S.C. § 1581(i), and asking the court to hold

that CFTG’s review request was valid. Compl. ¶¶ 1 and 2. On February 26, 2018, the

court ordered the parties to confer and to file with the Clerk a proposed scheduling order

by April 12, 2018. Letter from the Court to All Counsel (Feb. 26, 2018), ECF No. 9. The

next day, on February 27, 2018, CFTG filed a motion for judgment on the administrative

record, pursuant to United States Court of International Trade (“USCIT”) Rule 56.1. 2



2 The court observes that CFTG’s motion was premature pursuant to USCIT Rule
56.1(a), providing that a motion for judgment on an agency record in an action other
than as described in 28 U.S.C. § 1581(c) may be filed “[a]fter issue is joined.”
Defendant had not filed an answer to Plaintiff’s complaint when CFTG filed its motion.
Court No. 18-00005                                                                Page 5


See Pl.’s MJAR. Pursuant to USCIT Rule 56.1(d), the Defendant’s response to CFTG’s

motion for judgment on the administrative record was due on April 3, 2018. See USCIT

Rule 56.1(d).

       On March 29, 2018, the Defendant filed a motion to dismiss CFTG’s complaint,

arguing that the court does not possess subject matter jurisdiction. See generally Def.’s

Mot. to Dismiss. That same day, the Defendant filed a motion to stay other deadlines

while the court considered the motion to dismiss, Def.’s Mot. for Stay, ECF No. 16,

which motion the court granted, Order (Apr. 4, 2018), ECF No. 18. On April 3, 2018,

CFTG filed its response to the motion to dismiss and, within that response, proposed

that Defendant’s motion to dismiss (referenced incorrectly as a Motion to Strike) be

treated as a responsive pleading such that the court should consider that issue was

joined and the court should grant Plaintiff judgment on the pleadings pursuant to USCIT

Rule 12(c). Resp. by Pl. Coalition for Fair Trade in Garlic in Opp’n to Def's Mots. to

Dismiss and to Stay Deadlines and in Supp. of Pl’s Mot. for J. on the Pleadings at 1,

ECF No. 17 at ECF pp. 1-2, and Mem. in Opp’n in Opp’n to Def's Mots. to Dismiss and

to Stay Deadlines and in Supp. of Pl’s Mot. for J. on the Pleadings (“Pl.’s Resp.”), ECF

No. 17 at ECF pp. 4-19.

       On April 6, 2018, each entity that had previously requested a review of Harmoni

withdrew its review request. See Pl.’s Mot. for PI, Exs. 1-3. As of April 26, 2018, when

the court held oral argument on the motions to dismiss and for a preliminary injunction,
Court No. 18-00005                                                                       Page 6


Commerce has taken no action on the review request withdrawals. Oral Arg. at 2:15-

2:15. 3

          On April 9, 2018, CFTG filed a motion for preliminary injunction, Pl.’s Mot. for PI,

and on April 19, 2018, the Defendant filed its response in opposition to the motion for

preliminary injunction, Def.’s Resp. in Opp’n to Pl.’s Mot. for Prelim. Inj., ECF No. 22.

                                      STANDARD OF REVIEW

          It is well established that “[f]ederal courts are courts of limited jurisdiction. They

possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A party seeking to invoke the Court’s

jurisdiction has the burden of establishing that jurisdiction exists. Norsk Hydro Can.,

Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). When a defendant

challenges the Court’s jurisdiction, the plaintiff cannot rely merely upon allegations in

the complaint, but must instead bring forth relevant evidence, competent to establish

jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936).

When deciding a motion to dismiss based upon a lack of subject-matter jurisdiction, the

court assumes that all undisputed facts alleged in the complaint are true and must draw

all reasonable inferences in the plaintiff’s favor. See Henke v. United States, 60 F.3d

795, 797 (Fed. Cir. 1995); Chemsol, LLC v. United States, 37 CIT ___, 901 F. Supp. 2d

1362, 1365–66 (2013), aff'd, 755 F.3d 1345 (Fed. Cir. 2014).




3   Citations to the oral argument reflect time stamps from the recording.
Court No. 18-00005                                                                     Page 7


                                          DISCUSSION

       Pursuant to 28 U.S.C. § 1581(i), the court has jurisdiction to hear “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-- . . . (2) tariffs, duties, fees, or other taxes on the

importation of merchandise for reasons other than the raising of revenue.” 28 U.S.C.

§ 1581(i)(2). However, § 1581(i) “shall not confer jurisdiction over an antidumping or

countervailing duty determination which is reviewable [] by the Court of International

Trade under section 516A(a) of the Tariff Act of 1930[, as amended, 19 U.S.C.

§ 1516a(a)] . . . .” 28 U.S.C. § 1581(i).

       The legislative history of § 1581(i) demonstrates that Congress intended “that

any determination specified in section 516A of the Tariff Act of 1930, [as amended,] or

any preliminary administrative action which, in the course of the proceeding, will be,

directly or by implication, incorporated in or superceded by any such determination, is

reviewable exclusively as provided in section 516A.” H.R. Rep. No. 96–1235, at 48

(1980), reprinted in 1980 U.S.C.C.A.N. 3729, 3759–60. Thus, jurisdiction pursuant to

§ 1581(i) is available only if the Plaintiff can demonstrate that jurisdiction pursuant to

§ 1581(a)–(h) is unavailable, or the remedies afforded by those provisions would be

manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir.

1987) (“Section 1581(i) jurisdiction may not be invoked when jurisdiction under another

subsection of § 1581 is or could have been available, unless the remedy provided under

that other subsection would be manifestly inadequate.”) (citations omitted); Hutchison

Quality Furniture, Inc. v. United States, 827 F.3d 1355, 1362 (Fed. Cir. 2016).
Court No. 18-00005                                                                         Page 8


       In its motion to dismiss, Defendant raises three main arguments in support of its

position. Defendant argues that relief under § 1581(c) is available to Plaintiff, that such

relief would not be manifestly inadequate, and that there is no final agency action for

Plaintiff to challenge. Def’s Mot. to Dismiss at 7-16. 4 For the reasons discussed below,

the court finds that it lacks jurisdiction to entertain Plaintiff’s claims at this time.

       A. The Availability of Jurisdiction Pursuant to § 1581(c)

       Final determinations by Commerce are reviewable by the court pursuant to 28

U.S.C. § 1581(c) jurisdiction as provided for in 19 U.S.C. § 1516a(a)(2). See 28 U.S.C.

§ 1581(c). Having initiated a review of Harmoni’s imports, whether Commerce

completes that review as a result of CFTG’s request, another party’s request, or

pursuant to any other authority the agency may possess, or Commerce determines to

rescind the review, it would have to publish a final determination to that effect. See 19

C.F.R. § 351.213(d)(4). Defendant acknowledges that “[o]nce Commerce issues a final

action on the matter,” CFTG may seek judicial review of that decision. Def.’s Reply in

Supp. of its Mot. to Dismiss and Resp. in Opp’n to Pl.’s Mot. for J. on the Pleadings at 5,

ECF No. 23; Oral Arg. at 3:16-4:12. 5 Whether such final determination is in the form of




4 Defendant also argues that Plaintiff has failed to exhaust its administrative remedies,
Def.’s Mot. to Dismiss at 16-18, which argument Plaintiff disputes, Pl.’s Resp. at 9-10.
Because the court dismisses this case for lack of subject matter jurisdiction, it need not
address the parties’ arguments on this issue.
5 At oral argument, counsel for the Defendant acknowledged that if Commerce issues a

final notice of rescission of review with respect to Harmoni, that determination would
constitute a reviewable determination but acknowledged that there could be some
question as to whether 19 U.S.C. § 1516a(a)(2)(B)(iii) is the proper statutory basis. Oral
Arg. at 3:16-4:12. Plaintiff’s counsel indicated that he did not interpret 19 U.S.C.
Court No. 18-00005                                                                 Page 9


a stand-alone final rescission notice or accompanies the final results of review, such

notice would constitute a reviewable determination pursuant to 19 U.S.C.

§ 1516a(a)(2)(B)(iii) over which the court would have jurisdiction pursuant to 28 U.S.C.

§ 1581(c). Moreover, Plaintiff does not dispute that §1581(c) would be available,

instead focusing its challenge to whether the relief available pursuant to §1581(c) would

be manifestly inadequate. See Pl.’s Resp. at 3-5.

       B. Jurisdiction Pursuant to §1581(c) Would Not be Manifestly Inadequate

       Plaintiffs have not met their burden of establishing that the remedy available

pursuant to 28 U.S.C. § 1581(c) would be manifestly inadequate. Miller & Co., 824 F.2d

at 963 (when jurisdiction under another provision of 28 U.S.C. § 1581 “is or could have

been available, the party asserting § 1581(i) jurisdiction has the burden to show how

that remedy would be manifestly inadequate.”). The mere fact that judicial review may

be delayed because a party would be required to wait for Commerce’s final

determination is insufficient to render judicial review pursuant to § 1581(c) manifestly

inadequate. Gov’t of People’s Republic of China v. United States, 31 CIT 451, 461, 483

F. Supp. 2d 1274, 1282 (2007); see also Oral Arg. at 7:11-7:24 (Plaintiff’s counsel

agreeing with the court that mere time delay does not constitute manifest inadequacy of

a remedy).

       Here, CFTG argues that §1581(c) relief is inadequate because “waiting for a

Commerce final decision will allow Commerce to rescind the review for Harmoni and



§ 1516a(a)(2)(B)(iii) to cover a final notice of rescission of review by Commerce. Id. at
6:12-6:26, 9:55-10:10.
Court No. 18-00005                                                                   Page 10


provide Harmoni with years of additional imports at a zero rate pending a Court decision

in a case the CFTG may file pursuant to 28 U.S.C. 1581(c).” Pl.’s Resp. at 3. 6 As

discussed above, CFTG could challenge a final decision to rescind the review of

Harmoni, should such a decision occur, and whether it occurs prior to or in conjunction

with the publication of the final results of review with respect to other respondents.

Regardless of the timing of the final decision, all forms of relief, including injunctive

relief, would be available to CFTG, if warranted. Consequently, while CFTG might have

to wait to obtain judicial relief, CFTG has not established that relief pursuant to §1581(c)

would be manifestly inadequate.

       In its motion to dismiss, Defendant cited numerous cases in support of its

argument that relief pursuant to §1581(c) would not be manifestly inadequate. See

Def.’s Mot. to Dismiss at 9-13 (citing and discussing almost one dozen cases in support

of its argument that adequate relief would be available pursuant to §1581(c)). CFTG

does not rebut this showing by Defendant and, instead, acknowledges that “Defendant

cites a number of cases that Defendant claims are analogous.” Pl.’s Resp. at 3.

Instead of addressing any of those cases, CFTG singles out one case that Defendant

cited for the proposition that relief would be available to CFTG pursuant to §1581(c). Id.




6 In its motion for a preliminary injunction, CFTG’s claim of irreparable injury addressed
its competition with Harmoni in the local Talin Market in Sante Fe, New Mexico. Pl.’s
Mot. for PI at 5. Setting aside whether CFTG adequately alleged irreparable harm for
purposes of seeking a preliminary injunction, nothing about this statement of
competition suggests that any delay in obtaining relief pursuant to §1581(c) would
render that relief manifestly inadequate.
Court No. 18-00005                                                                Page 11


at 3-4 (citing CP Kelco (Shandong) Biological Co. Ltd. v. United States, 40 CIT ___, 145

F. Supp. 3d 1366, 1372 (2016)).

       In discussing CP Kelco, Defendant properly considered the case to be analogous

to the extent that the court rejected an attempt to challenge a decision not to individually

review a company as a voluntary respondent while the review was on-going, finding that

the decision could be reviewed at the completion of the review. Def.’s Mot. to Dismiss

at 8-9 (citing CP Kelco, 145 F. Supp. 3d at 1373-74). CFTG rejects the analogy

claiming that “participation by a voluntary respondent … was not time sensitive [and] if

Commerce rescinds the review of Harmoni, Plaintiff effectively loses its chance to

challenge Commerce’s rescission decision.” Pl.’s Resp. at 3-4. The delay in obtaining

relief is insufficient to make relief pursuant to §1581(c) manifestly inadequate, Borusan

Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 38 CIT ___, 986 F. Supp.

2d 1381, 1384 (2014), and CFTG’s suggestion that it would otherwise lose it chance to

challenge the rescission is legally incorrect. As discussed above, any final decision to

rescind the review of Harmoni is a reviewable determination within the meaning of 19

U.S.C. § 1516a(a)(2)(B)(iii) and CFTG would not lose its chance to challenge that

determination.

       C. Final Agency Action Has Not Occurred

       While Commerce indicated that it was not initiating a review of Harmoni on the

basis of CFTG’s request, Commerce has, in fact, initiated a review of Harmoni on the

basis of review requests from other parties. Compl. ¶ 12; id., Ex 1. Consequently, the
Court No. 18-00005                                                                  Page 12


imports of subject garlic from Harmoni remain suspended and subject to the on-going

administrative review.

       It its motion for a preliminary injunction, CFTG explained that the other parties

that requested a review of Harmoni have since withdrawn their requests and that such

withdrawals were made within 90 days of the date of publication of the notice of

initiation of the review. Pl.’s Mot. for PI at 4; id., Exs 1-3. Consequently, pursuant to 19

C.F.R. § 351.123(d)(1), Commerce may rescind the review of Harmoni; however, it has

not yet done so. Thus, even if relief pursuant to § 1581(c) were unavailable or

manifestly inadequate, CFTG’s action, challenging the decision not to rely on its request

as a basis for initiating the administrative review of Harmoni, 7 would be premature

because there has been no final agency action; Harmoni remains subject to review




7While CFTG does not articulate its concern clearly, it also appears to suggest that
Commerce erred in not relying on its review request to initiate a review of the so-called
non-market economy (NME) entity (the companies within China that fail to rebut the
presumption of government control), citing Transcom, Inc. v. United States, 294 F.3d
1371 (Fed. Cir. 2002). Pl.’s Resp. at 6. While Transcom affirmed Commerce’s
application of the results of its review to the NME entity, finding that sufficient notice had
been provided by Commerce, it did not require Commerce to review the NME entity in
each review. In fact, while Commerce initially refined its practice following Transcom to
state expressly in each initiation notice that it was conditionally initiating a review of the
NME entity, Commerce announced in 2013 that it would no longer consider the NME
entity as an exporter conditionally subject to administrative reviews. See Antidumping
Proceedings, 78 Fed. Reg. 65,963 (Dep’t Commerce Nov. 4, 2013) (announcement of
change in department practice for respondent selection in antidumping duty
proceedings and conditional review of the nonmarket economy entity in NME
antidumping duty proceedings). Therein, the public was advised that “[i]f interested
parties wish to request a review of the entity, such a request must be made in
accordance with the Department’s regulations.” Id. at 65,964. Here, CFTG relies on an
outdated practice to seek to justify a review request that Commerce found inadequate.
Court No. 18-00005                                                                 Page 13


pending any final agency action with respect to the review requests made and

withdrawn or otherwise declared invalid.

       CFTG contends that Commerce issued a final decision on the validity of its

review request and has not requested any further information from CFTG. While CFTG

cites Changzhou Wujin Fine Chem. Factory Co., Ltd. v. United States, 701 F.3d 1367,

1377 (Fed. Cir. 2012) for the proposition that “[t]he grounds upon which an

administrative order must be judged are those upon which the record discloses that its

action was based,” Pl.’s Resp. at 6 (citation omitted), CFTG fails to appreciate that the

“administrative order” in question in that case was, in fact, a final agency action – a

remand determination following court review of the final determination in an antidumping

duty investigation. Changzhou Wujin, 701 F.3d at 1370-74. In the absence of final

agency action here, there is no reviewable determination.

                                        CONCLUSION

       For the foregoing reasons, the court grants Defendant’s motion to dismiss for

lack of jurisdiction. Because the court is dismissing the case for lack of jurisdiction,

Plaintiff’s motions for a preliminary injunction and for judgment on the agency record
Court No. 18-00005                                                           Page 14


(which plaintiff subsequently proposed could be considered a motion for judgment on

the pleadings) are denied as moot. Judgment will enter accordingly.



                                              /s/   Mark A. Barnett
                                              Mark A. Barnett, Judge

Dated: May 4, 2018
      New York, New York
