                         Slip Op. 12 -58

          UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge
______________________________
                               :
JINAN FARMLADY TRADING CO.,    :
et. al.,                       :
                               :           Court No. 11-00195
     Plaintiffs,               :
                               :
     v.                        :
                               :
UNITED STATES,                 :
                               :
     Defendant,                :
                               :
                and            :
                               :
FRESH GARLIC PRODUCERS         :
ASSOCIATION, et al.,           :
                               :
     Defendant-Intervenors     :
______________________________:

                              OPINION

Held: Defendant’s Motion to Dismiss is granted.   Plaintiffs’
Complaint is dismissed.
                                     Dated:   April 26, 2012

     Hume & De Luca, PC (Robert T. Hume) for Jinan Farmlady Trading
Co., et al., Plaintiffs.

     Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Reginald T. Blades, Jr., Assistant
Director; (Melissa M. Devine), Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of
Justice, George Kivork, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, of Counsel,
for the United States, Defendant.

Kelley Drye & Warren, LLP (Michael J. Coursey and John M.
Herrmann)for Fresh Garlic Producers Association, et al., Defendant-
Intervenors.

     TSOUCALAS, Senior Judge: This matter comes before the Court on

the motion to dismiss filed by Defendant, United States and joined
Court No.    11-00195                                                      Page 2


by Defendant-Intervenors, Christopher Ranch, LLC, Fresh Garlic

Producers Association, The Garlic Company, Valley Garlic, and

Vessey and Company, Inc. (Collectively “Defendants”).               Plaintiffs,

Jinan Farmlady Trading Co., Ltd., Weifang Hongqiao International

Logistics Co. Ltd., Qingdao Xingdao Xintianfeng Foods Co., Ltd.,

and Gingar Import Corporation (“Plaintiffs”) oppose dismissal.

Defendants move pursuant to USCIT Rules 12(b)(1) and 12(b)(5), and

seek   dismissal    alleging   the   Court     lack   jurisdiction     to   hear

Plaintiffs    claims,   that     Plaintiffs     lack     standing    and    that

Plaintiffs have failed to state a claim.               Alternatively, if the

Court should deny the Defendants’ motion, they request a more

definite statement.      For the reasons set forth below, the Court

concludes that it lacks subject matter jurisdiction to hear this

suit and grants Defendants’ motion to dismiss the Complaint.

                                     BACKGROUND

       On June 17, 2011, Plaintiffs filed the instant action under 28

U.S.C. 1581(i).      In the jurisdiction clause in their Complaint,

Plaintiffs    are   contesting    the   U.S.    Department    of    Commerce’s

(“Commerce”) “. . . method used to conduct administrative reviews

of the antidumping duty order on fresh garlic from the People's

Republic of China, including the selection of respondents and the

assignment of antidumping duty rates."            Comp. at 1.        Plaintiffs

allege they have standing because they “participated in previous

administrative reviews of the antidumping duty order on fresh
Court No.    11-00195                                                         Page 3

garlic from the People’s Republic of China . . . .”                  Id.

      Plaintiffs’ allegations in the Complaint were raised at the

administrative level.          See Pl.’s Reply Mem. to Def. Intervenor

Reply Brief at 3 (“. . . [P]laintiffs agree they participated in

the 15th [Administrative Review] and made arguments similar to

those made in the complaint . . . .”).                   After the preliminary

results of the administrative review were published,1 Plaintiffs

submitted a case brief with comments to Commerce before a final

determination was made.           See Case Br. Filed On Behalf Of Jinan

Farmlady Trading Co., LTD to United States Department of Commerce

(May 20, 2011), Def. Intervenor’s Reply Brief in Support of Def.’s

Mot. to Dismiss, App. 7. In this case brief, Plaintiffs contended

that “[Commerce’s] approach allowing the Fresh Garlic Producers

Association and its individual members (‘Petitioners’) to designate

certain Chinese exporters/producers as respondents and subsequently

to rescind the review with respect to specified respondents is

arbitrary, capricious and contrary to law.”                Id. at 1.       Commerce

disagreed    and    noted      that   its    “regulations    make     clear    that

Petitioners’ request for a review of specified individual companies

is   precisely     how   the    review      request   process   is    designed.

Therefore,    [Commerce]       does   not     consider    Petitioners’       review



      1
       Fresh Garlic from the People’s Republic of China:
Preliminary Results of, Partial Rescission of, and intent to
Rescind, in Part, the 15th Antidumping Duty Administrative
Review, 75 Fed. Reg 80,458 (Dec. 22, 2010).
Court No.    11-00195                                                         Page 4

requests to be arbitrary, capricious, or contrary to law.”                         See

Issues and Decision Memorandum for the Final Results of the 15th

Administrative Review of Fresh Garlic from the People’s Republic of

China at 29 (June 20, 2011), Pl.’s Resp. to Def.’s Mot. to Dismiss

Pl.’s   Compl.,    App.    1.        Thereafter,    the    final     results       were

published.    See Fresh Garlic From the People’s Republic of China:

Final Results and Final Rescission, in Part, of the 2008-2009

Antidumping Duty Administrative Review, 76 Fed. Reg. 37,321 (June

27, 2011)(“15th Administrative Review Final Results”).

     Rather than challenging the final determination of the 15th

Administrative Review Final Results under 28 U.S.C. § 1581(c),

Plaintiffs chose to file this Complaint under 28 U.S.C. § 1581(i)

alleging    that   the    “methodology     used    by     Commerce    to   delegate

effective selection of respondents in antidumping proceedings is

arbitrary and capricious . . . . ”           Compl. at 2.

                             STANDARD OF REVIEW

     When    jurisdiction       is    questioned,       “the   burden      rests    on

plaintiff to prove that jurisdiction exists.” Lowa, Ltd. v. United

States, 5 C.I.T. 81, 83, 561 F. Supp. 441, 443 (1983) (quoting

United States v. Biehl & Co., 3 CIT 158, 160, 539 F. Supp. 1218,

1220 (1982)).      In determining a motion to dismiss for failure to

state a claim, the Court “must assume all well-pled factual

allegations are true and indulge in all reasonable inferences in

favor of the nonmovant.”         Gould, Inc. v. United States, 935 F.2d
Court No.     11-00195                                                       Page 5

1271, 1274 (Fed. Cir. 1991).

                                      ANALYSIS

        Plaintiffs assert that the Court has jurisdiction under 28

U.S.C. § 1581(i).        Since Defendants have challenged jurisdiction,

Plaintiffs have the burden of proving that jurisdiction under 28

U.S.C. § 1581(i) is proper.             Plaintiffs appeared and actively

participated in the 15th Administrative Review of the antidumping

duty order regarding fresh garlic from the People’s Republic of

China.       The    issues    Plaintiffs    raised    were       similar   to   the

allegations in the Complaint herein.             Yet the Plaintiffs did not

challenge the final determination by filing this action utilizing

28 U.S.C. § 1581(c).         28 U.S.C. § 1581(i) specifically states that

“[it]    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 . . . .”          28 U.S.C. § 1581(i).         Plaintiffs’ cause of

action should have been brought under 28 U.S.C. § 1581(c) because

“[s]ection       1581(i)     jurisdiction    may     not     be    invoked      when

jurisdiction under another subsection of § 1581 is or could have

been available . . . .”           Miller & Co. v. United States, 824 F.2d

961, 963 (Fed. Cir 1987), cert. denied, 484 U.S. 1041 (1988).

Therefore,    the    proper    jurisdictional      predicate      to   review   the

Plaintiffs’ claims is 28 U.S.C. § 1581(c).

        Plaintiffs contend that relief is not possible under 28 U.S.C.
Court No.    11-00195                                                     Page 6

§ 1581(c).     “Because the practice of manipulation occurs in a

number of cases, particularly those involving China, relief cannot

be obtained through a challenge to one final determination.” Pl.’s

Resp. to Def.’s Mot. to Dismiss at 18.            The Court does not agree.

Had Plaintiffs challenged the 15th Administrative Review Final

Results, their allegations could have been addressed and corrected

if not in accord with the law.                  Whether the conduct occurs

repeatedly    is    immaterial      to   correcting      the   problem   through

challenging the 15th Administrative Review Final Results under 28

U.S.C. § 1581(c).

      Plaintiffs’ contention is inconsistent with their position

that “the discrete actions plaintiffs are challenging are the

repeated failures by Commerce to require meaningful answers to why

review requests are being sought and, in turn, why they are being

withdrawn.”        Pl.’s Resp. to Def.’s Mot. to Dismiss at 19.

(internal    quotation    omitted)       Plaintiffs      raised   this   in   the

administrative      review    but    Commerce     disagreed.         Plaintiffs’

challenges and Commerce’s responses all occurred during the 15th

Administrative      Review.      Thus,    any    final    decision    which   was

repugnant to Plaintiffs’ position was reviewable under 28 U.S.C. §

1581(c).     Since Plaintiffs’ claims are a direct challenge to the

15th Administrative Review Final Results, they cannot maintain this

action under 28 U.S.C. § 1581(i).                “[S]ubsection (i), and in

particular paragraph (4), makes it clear that the court is not
Court No.    11-00195                                              Page 7

prohibited   from   entertaining   a   civil   action   relating   to   an

antidumping . . . proceeding so long as the action does not involve

a challenge to a determination specified in section 516A of the

Tariff Act of 1930.”    Royal Bus. Machs, Inc. v. United States, 669

F.2d 692, 701-02 (C.C.P.A. 1982).        This is because 28 U.S.C. §

1581(c) grants this Court “exclusive jurisdiction of any civil

action commenced under 516A of the Tariff Act of 1930".       28 U.S.C.

§ 1581(c). A party cannot short circuit the statutory framework by

filing an action under 28 U.S.C. § 1581(i) when it could have been

filed under 28 U.S.C. § 1581(c).2      As such, the Court does not have

jurisdiction under 28 U.S.C. § 1581(i).

     Since the Court finds that Plaintiffs could have brought this

action under 28 U.S.C. § 1581(c) but failed to do so, the Court

does not have jurisdiction under 28 U.S.C. § 1581(i) unless

Plaintiffs could show that the remedy available under 28 U.S.C. §


     2
       Emphasizing this concern, the House Committee on the
Judiciary had explained that its intent was “that the Court of
International Trade not permit subsection (i), and in particular
paragraph (4), to be utilized to circumvent the exclusive method
of judicial review of those antidumping . . . determinations
listed in section 516A of the Tariff Act of 1930 . . . .” H.R.
Rep. No. 96-1235, pt. 2, at 48 (1980).   More specifically the
Committee wrote: “[A]ny determinations specified in section 516A
of the Tariff Act of 1930, or any preliminary administration
action which, in the course of proceeding, will be, directly or
by implication, incorporated in or superceded by any such
determination, is reviewable exclusively as provided in section
516A. For example, a preliminary affirmative antidumping . . .
determination or a decision to exclude a particular exporter from
an antidumping investigation would be reviewable, if at all, only
in connection with the review of the final determinations by the
administering authority . . . .” Id. (Emphasis added).
Court No.      11-00195                                                           Page 8

1581(c) was “manifestly inadequate.” See Miller & Co., 824 F.2d at

963 (“Where another remedy is or could have been available, the

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

that remedy would be manifestly inadequate.”).                  Plaintiffs allege

the   remedy    under     28   U.S.C.   §    1581(c)        would    be    “manifestly

inadequate” because “Plaintiffs are challenging the ‘administration

and   enforcement’      of     Commerce’s    regulations        in    light    of    the

contradictory policy that distorts the final results in [non market

economy    administrative       reviews].”          Pl.’s    Reply    Mem.    to    Def.

Intervenor’s Reply Brief at 8.               In support of their argument,

Plaintiffs cite Cons. Bearings, Co. v. United States, 348 F.3d 997

(Fed. Cir 2003), where the plaintiff “. . . challenge[d] the manner

in which Commerce administered the final results.”                         348 F.3d at

1002.   However,     Plaintiffs here are complaining about Commerce’s

actions during the administrative review process before a final

determination and not the administration of the final results after

a final determination was made. For example, Plaintiffs allege the

administration and enforcement of the regulations “distorts the

final results in . . . [administrative reviews]”. Pl.’s Reply Mem.

to Def. Intervenors’ Reply Brief at 8.                       Even if Plaintiffs’

allegations are true, the complained of conduct occurred during the

review process and not after the final results.                      Another example

where     Plaintiffs      illustrate        their     concern        for    the     15th

Administrative Review process itself and not the administration of
Court No.      11-00195                                                 Page 9

those    results    is    when   they   allege   that    “[b]y   delegating   to

defendant-intervenors the privilege of identifying those companies

that could be excluded from the 15th [Administrative Review] threw

[sic] the process of first requesting a review for a named company

and then withdrawing the review requests for that named company,

Commerce bestowed on the defendant-intervenors . . . the privilege

of manipulating the rates assigned by Commerce to other companies.”

Id.      All   of   these   assertions,    if    true,   occurred   within    the

administrative review process and not after a final determination.

Since Plaintiffs’ chief concerns involve Commerce’s activities

leading up to the 15th Administrative Review Final Results and not

the administration and enforcement of those final results, reliance

on Consolidated Bearings is misguided.

        Additionally, the Court of Appeals recently found jurisdiction

improper under 28 U.S.C. § 1581(i) for an importer seeking duty

free treatment of plasma flat panel televisions imported from

Mexico.     Although that case involved jurisdiction under 28 U.S.C.

§ 1581(a) instead of 28 U.S.C. § 1581(c), the logic remains the

same.     “Because Hitachi’s claim had not already been allowed or

denied, Hitachi could have . . . established jurisdiction under §

1581(a). Therefore jurisdiction under § 1581(a) is not ‘manifestly

inadequate’ and jurisdiction under § 1581(i) is improper.” Hitachi

Home Elect. (Ame.), Inc. v. United States, 661 F.3d 1343, 1350

(Fed. Cir. 2011).
Court No.   11-00195                                       Page 10

     Given the allegations in Plaintiffs’ Complaint, Plaintiffs

should have sought review of the 15th Administrative Review Final

Results under 28 U.S.C. § 1581(c).   Plaintiffs have not shown that

a remedy under 28 U.S.C. § 1581(c) would be manifestly inadequate.

As such, the Court lacks jurisdiction to hear this   case under 28

U.S.C. § 1581(i).   Because the Court does not have jurisdiction to

hear this case under 28 U.S.C. § 1581(i), the other arguments

herein are moot.

                             CONCLUSION

     Based on the foregoing the Court dismisses the Complaint in

its entirety for lack of jurisdiction.




                                  /s/ Nicholas Tsoucalas
                                    NICHOLAS TSOUCALAS
                                    Senior Judge




Dated:      April 26, 2012
            New York, New York
