                                         Slip Op. 17-58

                UNITED STATES COURT OF INTERNATIONAL TRADE


 JINXIANG HUAMENG IMP & EXP CO.,
 LTD.,

        Plaintiff,

 v.

 UNITED STATES,

        Defendant,
                                                  Before: Jennifer Choe-Groves, Judge
 and
                                                  Court No. 16-00243
 HARMONI INTERNATIONAL SPICE,
 INC., ZHENGZHOU HARMONI SPICE
 CO., LTD., FRESH GARLIC
 PRODUCERS ASSOCIATION,
 CHRISTOPHER RANCH, L.L.C., THE
 GARLIC COMPANY, VALLEY
 GARLIC, and VESSEY AND COMPANY,
 INC.,

        Defendant-Intervenors.


                                   OPINION AND ORDER

[The court denies Defendant’s motion to dismiss for lack of jurisdiction.]


                                                                    Dated: May 10, 2017

John J. Kenkel, Gregory S. Menegaz, J. Kevin Horgan, deKieffer & Horgan PLLC, of
Washington, DC, for Plaintiff Jinxiang Huameng Imp & Exp Co., Ltd.

Emma E. Bond, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, of Washington, DC, for Defendant United States. With her were Chad A. Readler,
Acting Assistant Attorney General, Reginald T. Blades, Jr., Assistant Director, and Jeanne E.
Davidson, Director. Of Counsel was Emily Ruger Beline, Attorney, Office of the Chief Counsel
for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington DC.
Court No. 16-00243                                                                           Page 2


       Choe-Groves, Judge: This action was brought pursuant to 28 U.S.C. § 1581(c) to

challenge the U.S. Department of Commerce’s (“Commerce”) final results in the new shipper

review of Jinxiang Huameng Imp & Exp Co., Ltd. (“Plaintiff”). See Summons, Nov. 8, 2016,

ECF No. 1. Before the court is the United States’ (“Defendant”) Motion to Dismiss for Lack of

Jurisdiction pursuant to USCIT Rule 12(b)(1). See Def. Mot. Dismiss Lack Jurisdiction, Jan. 26,

2017, ECF No. 25 (“motion to dismiss”). Plaintiff opposes Defendant’s motion to dismiss. See

Pl. Opp’n Def. Mot. Dismiss Lack Jurisdiction, Mar. 29, 2017, ECF No. 36 (“Pl. Opp’n”). For

the reasons set forth below, the court denies Defendant’s motion to dismiss.

                                        BACKGROUND

       The court presumes familiarity with the facts of this case as set out in the court’s previous

Memorandum and Order granting Plaintiff’s Motion to Amend Complaint, dated May 10, 2017.

See Jinxiang Huameng Imp & Exp Co. v. United States, 41 CIT __, Slip Op. 17-57, at *2–5

(May __, 2017) (“Mem. and Order”); see also Compl., Nov. 8, 2016, ECF No. 6; Pl.’s Mot. Am.

Compl., Mar. 29, 2017, ECF No. 35; First Am. Compl., Mar. 29, 2017, ECF No. 35-1.

Plaintiff’s First Amended Complaint now includes the following claims: (1) five counts brought

under 28 U.S.C. § 1581(c) that challenge Commerce’s findings, determinations, and conclusions

in the new shipper review; (2) one count brought under 28 U.S.C. § 1581(i) that challenges

Customs’ decision to liquidate Plaintiff’s merchandise; and (3) one count brought under 28

U.S.C. § 1581(i) that challenges Commerce’s liquidation instructions in the administrative

review that was conducted concurrently with the new shipper review. See Pl.’s Mot. Am.

Compl. 1–2, Mar. 29, 2017, ECF No. 35; First Am. Compl. ¶¶ 25–32, Mar. 29, 2017, ECF No.

35-1. See also Mem. and Order at *6–9.
Court No. 16-00243                                                                               Page 3


                                           DISCUSSION

       The U.S. Court of International Trade, like all federal courts, is one of limited jurisdiction

and is “presumed to be ‘without jurisdiction’ unless ‘the contrary appears affirmatively from the

record.’” DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006)

(quoting King Iron Bridge & Mfg. Co. v. Otoe Cty., 120 U.S. 225, 226 (1887)). The party

invoking jurisdiction must “allege sufficient facts to establish the court’s jurisdiction,” id. at

1318 (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and

therefore “bears the burden of establishing it.” Norsk Hydro Can., Inc. v. United States, 472

F.3d 1347, 1355 (Fed. Cir. 2006). The Court is empowered to hear civil cases brought against

the United States pursuant to the specific grants of jurisdiction enumerated under 28 U.S.C.

§ 1581, including actions challenging a final determination made by Commerce in a new shipper

review. See 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(a)(2)(B)(iii). As an Article III court, the

Court only has jurisdiction where there is a live case or controversy. See Liner v. Jafco, Inc.,

375 U.S. 301, 306 (1964). The Court lacks jurisdiction when a party has no “cognizable interest

in the outcome” because the claim is moot and there is no case or controversy present. See

Powell v. McCormack, 395 U.S. 486, 496 (1969); see also Rice Servs. Ltd. v. United States, 405

F.3d 1017 (Fed. Cir. 2005).

       Defendant argues that Plaintiff’s claims are moot because the single entry that was the

subject of the new shipper review was liquidated on March 11, 2016. See Def. Mot. Dismiss

Lack Jurisdiction 5–8. Defendant cites Zenith Radio Corp. v. United States, 710 F.2d 806, 810

(Fed. Cir. 1983) for the proposition that the liquidation of Plaintiff’s single entry moots the

action and the court cannot exercise jurisdiction under 28 U.S.C. § 1581(c). See id. Plaintiff

counters that liquidation of its single entry does not moot this case because if Plaintiff can
Court No. 16-00243                                                                              Page 4


successfully challenge the liquidation as unlawful, the court could set aside the liquidation and

reinstate the suspension of liquidation. See Pl. Opp’n 5–10.

        The court must draw all reasonable inferences in Plaintiff’s (the non-movant’s) favor

when deciding Defendant’s motion to dismiss. See Henke v. United States, 60 F.3d 795, 797

(Fed. Cir. 1995). Plaintiff claims that (1) Customs’ liquidation of the sole entry was in

contravention of Commerce’s instructions in the new shipper review, and (2) Commerce’s

liquidation instructions in the administrative review were unlawful. If Plaintiff prevails on either

of these claims, the court may void the liquidation of the entry, reinstate the suspension of

liquidation, and order liquidation in accordance with the ensuing final court decision. See

Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1311–12 (Fed. Cir. 2004) (determining

that the court may order any form of appropriate relief to correct liquidation due to wrongful

agency action). Given the potential relief available pursuant to 28 U.S.C. § 1581(i), the court

must deny Defendant’s motion to dismiss.

                                           CONCLUSION

        Therefore, upon consideration of the Parties’ pleadings, all other papers and proceedings

herein, and upon due deliberation, it is hereby

        ORDERED that Defendant’s Motion to Dismiss for Lack of Jurisdiction is denied; and it

is further

        ORDERED that, consistent with the schedule set in the court’s Order, ECF No. 34

issued on March 3, 2017, the action shall proceed as follows:

        (1) Plaintiff’s motion for judgment on the agency record and brief in support shall be

        filed on or before June 9, 2017;
Court No. 16-00243                                                                         Page 5


      (2) Defendant’s and Defendant-Intervenors’ response briefs shall be filed on or before

      August 8, 2017;

      (3) Plaintiff’s reply brief shall be filed on or before September 5, 2017;

      (4) Plaintiff shall file the joint appendix on or before September 19, 2017; and

      (5) Any requests for oral argument shall be filed on or before September 26, 2017.



                                                            /s/ Jennifer Choe-Groves
                                                             Jennifer Choe-Groves, Judge

Dated: May 10, 2017
       New York, New York
