                                      Slip Op. 17-155

               UNITED STATES COURT OF INTERNATIONAL TRADE


 VALEO NORTH AMERICA, INC. ET AL.,

        Plaintiffs,

 v.

 UNITED STATES,
                                                        Before: Claire R. Kelly, Judge
        Defendant,
                                                        Court No. 17-00264
 and

 ALUMINUM ASSOCIATION TRADE
 ENFORCEMENT WORKING GROUP ET AL.,

         Defendant-Intervenors.


                                 OPINION AND ORDER

[The Court dismisses the action for lack of subject matter jurisdiction.]

                                                                Dated: November 20, 2017

Daniel J. Cannistra and Alexander Hume Schaefer, Crowell & Moring, LLP, of
Washington, DC, and Frances Pierson Hadfield, Crowell & Moring, LLP, of New York,
NY, for Valeo North America, Inc.

Kristen S. Smith, Sandler, Travis & Rosenberg, P.A., of Washington, DC; Arthur K.
Purcell, Sandler, Travis & Rosenberg, P.A., of New York, NY; David John Craven,
Sandler, Travis & Rosenberg, P.A., of Chicago, IL; and Emi Ito Ortiz, Sandler, Travis &
Rosenberg, P.A., of Miami, FL, for Mahle Behr Dayton, L.L.C., Mahle Behr Charleston,
Inc., Mahle Behr Troy Inc., and Mahle Industries, Inc.

Hardeep K. Josan, International Trade Field Office, U.S. Department of Justice, of New
York, NY, and Joshua Ethan Kurland, Commercial Litigation Branch – Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant. With them 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 Khalil N.
Gharbieh, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Court No. 17-00264                                                                         Page 2

John M. Herrmann, II, Grace Whang Kim, Kathleen Weaver Cannon, Paul Charles
Rosenthal, Kelley Drye & Warren, LLP, of Washington, DC, for Aluminum Association
Trade Enforcement Working Group and its individual members.

       Kelly, Judge:      This matter is before the court on Plaintiffs’ application for a

temporary restraining order (“TRO”). Mot. [TRO] and Mem. Supp. Pl.’s Mot. App. [TRO],

Nov. 6, 2017, ECF No. 6 (“Pl. TRO”). Plaintiffs Valeo North America, Inc., Mahle Behr

Dayton, L.L.C., Mahle Behr Charleston, Inc., Mahle Behr Troy Inc., and Mahle Industries,

Inc. (collectively “Plaintiffs”)1 are importers of subject merchandise in the antidumping

investigation of certain aluminum foil from the People’s Republic of China (“PRC” or

“China”), in which the Department of Commerce issued an affirmative preliminary

determination on November 2, 2017.               Antidumping Duty Investigation of Certain

Aluminum Foil from the [PRC], 82 Fed. Reg. 50,858 (Dep’t Commerce Nov. 2, 2017)

(“Prelim. Results”). Plaintiffs request the court to: 1) restrain Commerce from issuing

instructions to the United States Customs and Border Protection (“CBP”) to collect cash

deposits for antidumping duties on Plaintiff’s imports of certain aluminum foil from the

PRC, pursuant to the preliminary determination, and 2) enjoin CBP from collecting cash

deposits on Plaintiffs’ aluminum foil imports. 2 See Pl. TRO 1; see also Prelim. Results.

For the reasons that follow, the case is dismissed for lack of subject matter jurisdiction.




1
 The complaint establishes that Plaintiffs are “automotive suppliers and partners to automakers
worldwide,” who are “based in Michigan and do business in all 50 states.” Compl. 2, Nov. 6, 2017,
ECF No. 5.
2
  While Plaintiffs do not request relief from suspension of liquidation, Defendant points out that
the effect of granting the TRO would be to lift the suspension of liquidation on Plaintiffs’ entries.
See Teleconference 00:24:41–00:26:38, Nov. 7, 2017, ECF No. 20.
Court No. 17-00264                                                                        Page 3

                                            BACKGROUND

          Plaintiffs’ underlying action challenges as untimely Commerce’s preliminary

determination in this investigation. 3 See Compl., Nov. 6, 2017, ECF No. 5. Plaintiffs

allege that, because Commerce did not issue the preliminary determination within the

statutorily prescribed timeframe, the preliminary determination “is invalid, unlawful, and

due to be set aside.” Id. at 1; see Section 733 of the Tariff Act of 1930, as amended, 19

U.S.C. § 1673b(c)(1) (2012). 4 Plaintiffs request that the court therefore declare the

affirmative preliminary determination invalid and declare that, in failing to issue a

determination within the statutory timeframe, Commerce effectively issued a negative

preliminary determination.          Id. at 8.   Plaintiffs allege jurisdiction under 28 U.S.C. §

1581(i)(2) (2012), 5 see Compl. ¶ 6, which establishes the Court’s jurisdiction over civil

actions “commenced against the United States, its agencies, or its officers, that arises out

of any law of the United States providing for . . . 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).

          During a telephone conference held with counsel to the parties on November 7,

2017, Defendant indicated that it opposed Plaintiffs’ application for a TRO on both

jurisdictional and substantive grounds. Teleconference, Nov. 7, 2017, ECF No. 20. The



3
 For the purposes of this opinion, the court will assume the factual allegations as alleged by
Plaintiffs in their complaint and briefs are true. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573,
1583 (Fed. Cir. 1993) (citations omitted).
4Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of the U.S.
Code, 2012 edition.
5
    Further citation to Title 28 of the U.S. code is to the 2012 edition.
Court No. 17-00264                                                                       Page 4

court requested that the parties brief the issue of jurisdiction. Order, Nov. 8, 2017, ECF

No. 22. The parties submitted briefs in support of their respective positions regarding the

Court’s jurisdiction over this action. Pls.’ Br. Supp. Jurisdiction, Nov. 13, 2017, ECF No.

30 (“Pls.’ Br.”); Def.’s Mem. Re. Jurisdiction, Nov. 13, 2017, ECF No. 31 (“Def.’s Br.”).

Plaintiffs argue that the preliminary determination is ultra vires because, in publishing the

preliminary determination after the statutory deadline, Commerce created “a seriously

and irredeemably flawed investigative process,” Pls.’ Br. 4, in which Plaintiffs contend

they should not be required to continue participating. Id. at 9, 13–14. Plaintiffs contend

that any relief available under 28 U.S.C. § 1581(c) “would be manifestly inadequate,”

because 19 U.S.C. § 1516a does not explicitly permit interested parties to challenge

preliminary dumping determinations and alleging that there are significant “practical

consequences” to challenging the preliminary determination in a challenge to the final

determination under 28 U.S.C. § 1581(c). Id. at 12. Defendant responds that jurisdiction

under 28 U.S.C. § 1581(i) is improper because, upon completion of the investigation,

Plaintiffs could seek relief pursuant to 28 U.S.C. § 1581(c). Def.’s Br. 4–5. Defendant

emphasizes that relief under 1581(c) is not manifestly inadequate because “[P]laintiffs will

not lose the opportunity for full relief by awaiting the final determination,” id. at 1, and the

harm alleged—the paying of cash deposits—is speculative and impermanent. Id. at 5–8.

                                        DISCUSSION

       It is well established that “federal courts . . . are courts of limited jurisdiction marked

out by Congress.” Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 358 (Fed.

Cir. 1992) (quoting Aldinger v. Howard, 427 U.S. 1, 15 (1976), superseded by statute on
Court No. 17-00264                                                                    Page 5

other grounds); see Judicial Improvements Act, Pub. L. No. 101-650, 104 Stat. 5089, as

recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 557 (2005). The

court must enforce the limits of its jurisdiction, including by dismissing a case for lack of

subject matter jurisdiction on its own motion when necessary. See, e.g., Cabral v. United

States, 317 Fed. Appx. 979, 980 n.1 (Fed. Cir. 2008) (citing Arctic Corner, Inc. v. United

States, 845 F.2d 999, 1000 (Fed. Cir. 1988)).

       Under 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

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, the Court’s §

1581(i) jurisdiction is available only if the party asserting jurisdiction can show the Court’s

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

would be manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963
Court No. 17-00264                                                                  Page 6

(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)).

       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.” Miller & Co., 824 F.2d at 963 (citations omitted).

That judicial review may be delayed by requiring a party to wait for Commerce’s final

determination is not enough to render judicial review under § 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). Neither the burden of participating in the administrative

proceeding nor the business uncertainty caused by such a proceeding is sufficient to

constitute manifest inadequacy. See, e.g., id., 31 CIT at 461–62, 483 F. Supp. 2d at 1283

(citing FTC v. Standard Oil, 449 U.S. 232, 244 (1980)); Abitibi–Consolidated Inc. v. United

States, 30 CIT 714, 717–18, 437 F. Supp.2d 1352, 1356–57 (2006). Essentially, the type

of review sought by a plaintiff asserting the Court’s § 1581(i) jurisdiction must not already

be provided for by 19 U.S.C. § 1516a. Abitibi–Consolidated Inc., 30 CIT at 717–18, 437

F. Supp. 2d at 1356–57.

       The Court’s 28 U.S.C. § 1581(c) jurisdiction makes final determinations by

Commerce reviewable pursuant to 19 U.S.C. § 1516a(a)(2). See 28 U.S.C. § 1581(c).

The Court of Appeals for the Federal Circuit has held that § 1516a(a)(2) allows for judicial

review of both matters of procedural correctness, as well as the substantive merits of the

determination. See Miller & Co., 824 F.2d at 964 (“Under 28 U.S.C. § 1581(c) and 19
Court No. 17-00264                                                                        Page 7

U.S.C. § 1516a, the procedural correctness of a countervailing duty determination, as

well as the merits, are subject to judicial review.” (citations omitted)). That Commerce

has conducted the administrative proceeding in a manner that is contrary to law is an

allegation made expressly reviewable by 19 U.S.C. § 1516a(b)(1), which directs the court

to “hold unlawful any determination, finding, or conclusion found-- . . . (B)(i) in an action

brought under paragraph (2) of subsection (a) of this section, to be unsupported by

substantial evidence on the record, or otherwise not in accordance with law . . . .” 19

U.S.C. § 1516a(b)(1).

         Review under 19 U.S.C. § 1516a, brought pursuant to 28 U.S.C. § 1581(c), does

not foreclose the remedy Plaintiffs seek. Plaintiffs allege that Commerce exceeded its

statutory authority and acted contrary to law by publishing the preliminary determination

more than 190 days after the initiation of the investigation. See Compl. ¶¶ 2, 16, 31

(“Federal law does not empower Commerce to make an affirmative preliminary dumping

determination outside of that timeframe.”), 33–34; see Pl. TRO 8. Plaintiffs ask the court

to declare the preliminary determination invalid, such that the preliminary determination

is deemed negative. Compl. at 8. Plaintiffs can make the identical claim in a case under

19 U.S.C. § 1516a once the determination is final. The court could at that time find the

determination to be contrary to law and/or not supported by substantial evidence, and

remand to the agency. Importantly, Plaintiffs, if ultimately successful, would get all the

relief then that they could get now. 6


6
    Plaintiffs allege that they will face “immediate harmful consequences” if subjected to the cash

                                                                              (footnote continued)
Court No. 17-00264                                                                       Page 8

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

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

at 963 (explaining that, 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 court understands that

Plaintiffs would prefer that the preliminary determination be deemed invalid and,

therefore, negative, so that Plaintiffs’ imports are not subject to the collection of cash

deposits in the interim period between the publication of the preliminary determination

and the final determination. See Pl. TRO 9. However “paying deposits pending court

review is an ordinary consequence of the statutory scheme.” MacMillan Bloedel Ltd. v.

United States, 16 CIT 331, 333 (1992). The statutory scheme provides a remedy for

Plaintiffs’ alleged harm. Plaintiffs’ remedy is to continue participating in the administrative

proceedings below until they are concluded with the final determination at which point

Plaintiffs may, if they choose, appeal Commerce’s final determination by filing suit in this

Court under § 1581(c), challenging the final determination as not supported by substantial

evidence and/or contrary to law. Plaintiffs have not demonstrated that the available

remedy pursuant to § 1581(c) would be manifestly inadequate. See Miller & Co., 824

F.2d at 963 (explaining that, when jurisdiction under another provision of § 1581 “is or



deposit rate established in the preliminary determination, which has the effect of extinguishing
what Plaintiffs refer to as the “rightful statutory cap on provisional duties” of zero percent that
would result if the preliminary determination were deemed negative. Pl. TRO 9. However,
exposure to cash deposits is not a recognized harm that would render the available relief under
§ 1581(c) manifestly inadequate; paying cash deposits is a recognized consequence of the
system. See MacMillan Bloedel Ltd. v. United States, 16 CIT 331, 333 (1992). Plaintiffs can be
made whole in a § 1581(c) case if their claims are ultimately successful.
Court No. 17-00264                                                                  Page 9

could have been available, the party asserting § 1581(i) jurisdiction has the burden to

show how that remedy would be manifestly inadequate.”).

       Plaintiffs contend that their case is indistinguishable from cases in which this Court

has determined that jurisdiction exists under 28 U.S.C. § 1581(i), where previous plaintiffs

sought “to be ‘excused from further participation in an ongoing ultra vires proceeding.’”

Pls.’ Br. 14 (quoting Diamond Sawblades Mfrs. Coal. v. U.S. Dep’t of Commerce, 38 CIT

__, __, 11 F. Supp. 3d 1303, 1309 (2014)). Plaintiffs contend that, similarly, here “[t]he

sole issue is whether Commerce has exceeded the scope of its statutory authority in a

way that renders the investigation as a whole ultra vires.” Id. The cases cited by Plaintiffs

involve claims that errors within the proceedings rendered the proceedings as a whole

ultra vires, and the plaintiffs in those cases sought to stop the proceedings altogether.

See Diamond Sawblades, 38 CIT, 11 F. Supp. 3d at 1309–10 (determining that § 1581(i)

jurisdiction was proper in a challenge to a sunset review where Plaintiffs sought to halt

the review on the grounds that the underlying order had been commenced too early);

Carnation Enterprises Pvt., Ltd. v. U.S. Dept. Commerce, 13 CIT 604, 610, 719 F. Supp.

1084, 1089 (1989) (determining that § 1581(i) jurisdiction was proper in a challenge to an

administrative review that Plaintiffs alleged had “become illegal because of errors found

in the original order.”).   Similarly, in other cases relied on by Plaintiffs, the court

emphasized that the opportunity for full relief would be lost by awaiting the final

determination because Plaintiffs sought to stop the administrative reviews at issue due to

alleged errors which Plaintiffs claimed rendered the proceedings flawed. See, e.g.,

Dofasco Inc. v. United States, 28 CIT 263, 268, 326 F. Supp.2d 1340, 1346–47 (2004)
Court No. 17-00264                                                                          Page 10

(determining that jurisdiction under § 1581(i) is appropriate where the relief under 1581(c)

would be manifestly inadequate because the relief sought was “freedom from participation

in the administrative review,” and requiring Plaintiff to await the publication of the final

determination to “challenge the lawfulness of the administrative review[]would mean that

[Plaintiff’s] opportunity for full relief–i.e., freedom from participation in the administrative

review–would be lost.”), aff’d, 390 F. 3d 1370 (Fed. Cir. 2004); Asociacion Colombiana

de Exportadores de Flores v. United States, 13 CIT 584, 586, 717 F. Supp. 847, 850

(1989) (“[Plaintiffs'] desired objective [to stop the administrative review] cannot be

obtained through a judicial challenge instituted after the administrative review has been

completed. By that time, this aspect of plaintiffs' action would be moot.”); Jia Farn Mfg.

Co. v. United States, 17 CIT 187, 189, 817 F. Supp. 969, 972 (1993) (“Since the

opportunity for plaintiff to challenge Commerce's authority to conduct an administrative

review may be lost by awaiting the final determination, the court holds that the remedy

provided under § 1581(c) would be ‘manifestly inadequate,’ and the court has jurisdiction

under § 1581(i).”).

          Although Plaintiffs may state that the procedural defect on which they rely here

renders the proceeding itself ultra vires, see Pls.’ Br. 4, 9, 14, they are not claiming, nor

could they claim, that the proceeding should terminate as a result of the alleged defect.

Plaintiffs simply contend that the preliminary determination should be negative because

it was published outside the statutorily-prescribed time frame. 7 See Compl. 8. The court


7
    Plaintiffs contend that “Commerce’s failure to issue its preliminary determination by the statutory

                                                                                  (footnote continued)
Court No. 17-00264                                                                      Page 11

does not reach the merits of Plaintiffs’ claim but notes that, even if Plaintiffs were correct,

a negative preliminary determination by Commerce does not stop the proceedings. The

situations presented in these cases are distinguishable from the present case, and

Plaintiffs’ arguments to the contrary are unsuccessful.

                                        CONCLUSION

       For the foregoing reasons, the action is dismissed for lack of subject matter

jurisdiction. Judgment will enter accordingly.



                                                      /s/ Claire R. Kelly
                                                     Claire R. Kelly, Judge

Dated:November 20, 2017
      New York, New York




deadline, and Commerce’s decision to backdate the preliminary determination once it was issued,
have compromised the investigative process in a way that renders any result from the process
unreliable.” Pls.’ Br. 4. However, a claim that the proceedings are rendered unreliable is not akin
to a claim that the proceedings are ultra vires, as a claim of unreliability can be reviewed in an
action brought pursuant to § 1581(c). If the court determined that a proceeding was unreliable,
the court would determine that the proceeding was not supported by substantial evidence.
