                           Slip Op. 13-

           UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge

QINGDAO MAYCARRIER IMPORT &         :
EXPORT CO., LTD.,                   :
                                    :
          Plaintiff,                :
                                    :
     v.                             :
                                    :
UNITED STATES,                      :
                                    :       Court No.: 13-00142
          Defendant,                :
                                    :
          and                       :
                                    :
CHRISTOPHER RANCH, L.L.C., THE      :
GARLIC COMPANY, VALLEY GARLIC,      :
AND VESSEY AND COMPANY, INC.,       :
                                    :
          Defendant-Intervenors.    :
                                    :

                        OPINION and ORDER

Held: Defendant’s motion to dismiss        paragraph   thirty-one   of
plaintiff’s complaint is granted.

                                           Dated: September 16, 2013

     Hume & Associates LLC (Robert T. Hume) for Qingdao Maycarrier
Import & Export Co., Ltd., Plaintiff.

     Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Melissa M. Devine); Office of the Chief Counsel for Import
Administration, United States Department of Commerce, George H.
Kivork, Of Counsel, for the United States, Defendant.

     Tsoucalas, Senior Judge:    Defendant United States Department

of Commerce (“Commerce”) moves to dismiss paragraph thirty-one of

count two of plaintiff Qingdao Maycarrier Import & Export Co.,

Ltd.’s (“Maycarrier”) complaint.   See Def.’s Mot. Dismiss (“Def.’s
Court No. 13-00142                                                   Page 2

Mot.”).     Maycarrier’s complaint contests Commerce’s decision to

rescind its new shipper review (“NSR”) in Fresh Garlic From the

People's Republic of China: Final Rescission of Antidumping Duty

NSRs; 2010-2011, 78 Fed. Reg. 18,316 (Mar. 26, 2013) (“Final

Rescission”).      See Compl., Court No. 13-00142, ECF No. 7 at 1–2

(Apr.   17,    2013).    Paragraph   thirty-one   concerns   Maycarrier’s

request   to     participate   in    the   2010-2011   antidumping    duty

administrative review of fresh garlic from the People’s Republic of

China (“2010-2011 ADAR”) and Commerce’s denial of that request.

Id. at 7.      Commerce argues that the Court lacks subject matter

jurisdiction over paragraph thirty-one because it concerns an

administrative review other than the Final Rescission.         See Def.’s

Mot. at 1.     Maycarrier opposes this motion.    See Pl.’s Opp’n Def.’s

Mot. Dismiss at 1 (“Pl.’s Opp’n”).          For the following reasons,

Commerce’s motion is granted.

                               BACKGROUND

     Pursuant to a request by Maycarrier, Commerce initiated a NSR

of Maycarrier’s sales of fresh garlic from the People’s Republic of

China (“PRC”) covering the period between November 1, 2010 and

October 31, 2011.       See Fresh Garlic From the PRC: Initiation of

NSRs, 77 Fed. Reg. 266, 266–67 (Jan. 4, 2012).          Maycarrier also

requested an administrative review of its sales as part of the

2010-2011 ADAR, see Pl.’s Opp’n at 2, but Commerce did not select

Maycarrier as a respondent. See id.; Initiation of Antidumping and
Court No. 13-00142                                                         Page 3

Countervailing     Duty    Administrative        Reviews    and    Request     for

Revocation in Part, 76 Fed. Reg. 82,268, 82,271–73 (Dec. 30, 2011).

     On   March   26,     2013,   Commerce   rescinded       the    NSR   because

Maycarrier did not qualify as a new shipper. See Final Rescission,

78 Fed. Reg. at 18,317.       Commerce noted that Maycarrier’s entries

would be “assessed at the PRC-wide rate,” which would be determined

in the final results of the 2010-2011 ADAR.            Id.

     On April 8, 2013, Maycarrier filed the instant case to contest

the Final Rescission.       See Summons, Court No. 13-00142, ECF No. 1

at 2 (Apr. 8, 2013).       In its complaint, Maycarrier alleges three

counts: (1) Commerce erred in rescinding the NSR; (2) Commerce

erred in assigning Maycarrier the PRC-wide rate; and (3) the PRC-

wide rate of $4.71/kg is erroneous.          See Compl. at 6–8.

     On June 17, 2013, Commerce published the final results of the

2010-2011 ADAR, assigning the PRC-wide entity a rate of $4.71/kg.

See Fresh Garlic From the PRC: Final Results of Antidumping Duty

Administrative Review; 2010-2011, 78 Fed. Reg. 36,168, 36,169 (June

17, 2013).

     Commerce     now   moves     to   dismiss    paragraph       thirty-one   of

Maycarrier’s complaint for lack of subject matter jurisdiction.

Def.’s Mot. at 1. Paragraph thirty-one states: “Assuming arguendo,

that Maycarrier was not qualified for a [NSR], Maycarrier requested

to be included in the [2010-2011 ADAR] and Commerce was required to

include Maycarrier in the [2010-2011 ADAR].”               Compl. at 7.
Court No. 13-00142                                                  Page 4

                           STANDARD OF REVIEW

     “Subject matter jurisdiction constitutes a ‘threshold matter’

in all cases, such that without it, a case must be dismissed

without proceeding to the merits.”       Demos v. United States, 31 CIT

789, 789 (2007) (not reported in the Federal Supplement) (citing

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)).

“The burden of establishing jurisdiction lies with the party

seeking to invoke th[e] Court's jurisdiction.”           Bhullar v. United

States, 27 CIT 532, 535, 259 F. Supp. 2d 1332, 1334 (2003) (citing

Old Republic Ins. Co. v. United States, 14 CIT 377, 379, 741 F.

Supp. 1570, 1573 (1990)).

     “To survive a motion to dismiss, 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, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).    “For the purposes of a motion to dismiss, the

material allegations of a complaint are taken as admitted and are

to be liberally construed in favor of the plaintiff(s).”            Humane

Soc’y of the U.S. v. Brown, 19 CIT 1104, 1104, 901 F. Supp. 338,

340 (1995) (citing Jenkins v. McKeithen, 395 U.S. 411, 421–22

(1969)).

                               DISCUSSION

     Commerce   contends    that   the   Court   lacks    subject   matter

jurisdiction over paragraph thirty-one pursuant to 28 U.S.C. §
Court No. 13-00142                                                     Page 5

1581(c)    because    Maycarrier   “failed     to   follow   the   statutory

procedures insofar as it seeks . . . to challenge Commerce’s

selection of respondents in the separate [2010-2011 ADAR].”1

Def.’s Mot. at 5. According to Commerce, paragraph thirty-one does

not concern the Final Rescission, but instead addresses Commerce’s

rejection of Maycarrier’s request to participate in the 2010-2011

ADAR.     See id. at 4.    Because Maycarrier filed its summons and

complaint prior to publication of the final results of the 2010-

2011 ADAR in the Federal Register, Commerce insists that the Court

must dismiss paragraph thirty-one.          Id. at 4–7.

     Maycarrier      responds   that   it    does   not   have   standing   to

challenge the final results of the 2010-2011 ADAR, and instead

included paragraph thirty-one because “Commerce had not only the

authority, but also the responsibility, to transfer Maycarrier to

the [2010-2011 ADAR] if the [NSR] request was untimely.”               Pl.’s

Opp’n at 8.    Essentially, Maycarrier argues that Commerce wrongly

applied the PRC-wide rate to Maycarrier upon rescinding the NSR and

should have transferred Maycarrier’s case, specifically its Section

A questionnaire, to the 2010-2011 ADAR to assess Maycarrier’s

eligibility for a separate rate.            See id. at 11–13.      Maycarrier

insists that the Court has jurisdiction because its Section A



     1
       Commerce also argues that Maycarrier cannot invoke this
Court’s jurisdiction pursuant to 28 U.S.C. § 1581(i). See Def.’s
Mot. at 7–10.    However, Maycarrier does not attempt to invoke
section 1581(i) jurisdiction. See Pl.’s Resp. at 11.
Court No. 13-00142                                                      Page 6

questionnaire is on the record of the Final Rescission, and

therefore the Court can determine its eligibility for a separate

rate based on that record alone.          Id. at 9.

     Maycarrier also compares its case to Fresh Garlic From the

PRC: Final Rescission of NSRs of Jining Yifa Garlic Produce Co.,

Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan Trading Inc.,

76 Fed. Reg. 52,315 (Aug. 22, 2011) (“Jinyan NSR”).               See Pl.’s

Opp’n at 11–12.     In that case, Commerce rescinded Yantai Jinyan

Trading Inc.’s NSR, but placed its separate rate application onto

the record of a contemporaneous administrative review to which it

was already a party.      Jinyan NSR, 76 Fed. Reg. at 52,316.

     Section 516A(a)(2)(A) of the Tariff Act of 19302 requires a

party contesting a determination in an administrative review to

file a summons within thirty days after publication of the final

results of that review in the Federal Register, and to file a

complaint within thirty days after the summons.            See 19 U.S.C. §

1516a(a)(2)(A).      If     a   party    does   not   satisfy   the     timing

requirements   of   19    U.S.C.   §    1516a(a)(2)(A),   the   Court    lacks

jurisdiction over that party’s claim.            See NEC Corp. v. United

States, 806 F.2d 247, 248 (Fed. Cir. 1986) (“The proper filing of

a summons to initiate an action in the Court of International Trade

is a jurisdictional requirement.”).         “Since section 1516a(a)(2)(A)


     2
       All further references to the Tariff Act of 1930 will be to
the relevant provisions of Title 19 of the United States Code, 2006
edition, and all applicable supplements thereto.
Court No. 13-00142                                                              Page 7

specifies the terms and conditions upon which the United States has

waived its sovereign immunity in consenting to be sued in the Court

of International Trade, those limitations must be strictly observed

and are not subject to implied exceptions.” Georgetown Steel Corp.

v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986).

       The Court lacks subject matter jurisdiction over paragraph

thirty-one     insofar       as      it   concerns     Commerce’s      rejection      of

Maycarrier’s request to participate in the 2010–2011 ADAR.                      See 19

U.S.C. § 1516a(a)(2)(A); NEC Corp. v. United States, 806 F.2d at

248.   Maycarrier’s argument that paragraph thirty-one relates to a

determination on the record of the Final Rescission is unavailing.

Although     the     court      is    directed   to     construe    the      terms    of

Maycarrier’s complaint “liberally,” Humane Soc’y, 19 CIT at 1104,

901    F.   Supp.    at   340     (citing    Jenkins,    395    U.S.    at    421–22),

Maycarrier’s        argument      contradicts    the    plain   language       of    its

complaint.     Paragraph thirty-one states that “Maycarrier requested

to be included in the [2010-2011 ADAR,] and Commerce was required

to include Maycarrier.” Compl. at 7. Neither Maycarrier’s request

to participate in the 2010-2011 ADAR nor the notice Commerce issued

initiating the 2010-2011 are on the record of the Final Rescission.

See 19 U.S.C. § 1516a(b)(2)(A) (defining the record under review in

an administrative proceeding).              In contrast, Maycarrier’s argument

concerns Commerce’s application of the PRC-wide rate instead of a

separate rate, see Pl.’s Opp’n at 9, 11–13, and thus relates more
Court No. 13-00142                                                Page 8

closely to paragraph thirty-two of the complaint.         See Compl. at 7

(discussing Maycarrier’s eligibility for a separate rate). Because

Maycarrier failed to comply with the statutory timing requirements,

the court must dismiss paragraph thirty-one.         See 19 U.S.C. §

1516a(a)(2)(A); Medline Indus., Inc. v. United States, 37 CIT __,

__, 911 F. Supp. 2d 1358, 1361 (2013) (Tsoucalas, J.) (dismissing

for lack of subject matter jurisdiction where plaintiff failed to

comply with timing requirements of 19 U.S.C. § 1516a(a)(2)(A)).

                             CONCLUSION

     For the foregoing reasons, Commerce’s motion to dismiss is

granted.     Paragraph   thirty-one   of   Maycarrier’s    complaint   is

dismissed without prejudice.

                                ORDER

     In accordance with the above, it is hereby

     ORDERED that defendant’s motion to dismiss is GRANTED; and it

is further

     ORDERED that paragraph thirty-one of plaintiff’s complaint is

dismissed without prejudice.




                                           /s/ Nicholas Tsoucalas
                                             Nicholas Tsoucalas
                                                Senior Judge

Dated: September 16, 2013
       New York, New York
