Slip Op. 05 - 74

            UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - -x
THE COALITION FOR THE PRESERVATION
OF AMERICAN BRAKE DRUM AND ROTOR      :
AFTERMARKET MANUFACTURERS,
                                      :
                           Plaintiff,
                                      :
                   v.                     Court No. 01-00825
                                      :
THE UNITED STATES,
                                      :
                           Defendant.
- - - - - - - - - - - - - - - - - - -x

                          Memorandum


[Defendant's motion to dismiss this action
 in lieu of compliance with an outstanding
 order of remand to the International Trade
 Administration granted.]

                                          Decided:   June 21, 2005


     Porter Wright Morris & Arthur LLP (Leslie Alan Glick) for
the plaintiff.

     Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Jeanne E. Davidson, Deputy Director, Commercial Liti-
gation Branch, Civil Division, U.S. Department of Justice (Stephen
C. Tosini); and Office of Chief Counsel for Import Administration,
U.S. Department of Commerce (Augusto Guerra), of counsel, for the
defendant.


          AQUILINO, Senior Judge:    The court's slip opinion 04-31,

28 CIT    , 

(2004), familiarity with which is

presumed, granted plaintiff's motion herein for judgment upon the

record compiled by the International Trade Administration, U.S.

Department of Commerce ("ITA")      sub nom. Brake Rotors From the

People's Republic of China: Final Results and Partial Rescission of
Court No. 01-00825                                                              Page 2


Fifth New Shipper Review, 66 Fed.Reg. 44,331 (Aug. 23, 2001), to

the   extent    of   remand   to    the    ITA    for   reconsideration     of    its

determination to grant Shandong Laizhou Huanri Group General Co. a

separate antidumping-duty rate in the absence of that company's

presentment to, and analysis by, the agency of communist China's

Organic Law of the Village Committee.               The defendant was afforded

90 days to reopen the record in that regard and to report to the

court the results of such reconsideration.


                                           I

           It has not done so.            Exactly ninety days after entry of

the court's order, counsel came forth with a motion to dismiss this

lawsuit for lack of jurisdiction, stated to be made pursuant to

USCIT Rule 12(b)(1).1           But of course that rule of traditional

federal practice has been available upon the attempted commencement

of an action, not after substantive issue has been joined by the

parties and decided by the court, which is this case.


           Be    this    very      belated       misapplication   as   it       is, a

court of

      limited jurisdiction must [continuously] determine that
      the matter brought before it remains within the metes and
      bounds of such delimitation.

Agro Dutch Industries Limited v. United States, 29 CIT                      ,      ,

, 1294 (2005), appeal docketed, No. 05-1288

       1
        The motion does request an extension of time to "allow
Commerce to file the remand results in this case within 30 days
after the Court's decision concerning [the] motion to dismiss, if
necessary."
Court No. 01-00825                                             Page 3


(Fed.Cir. March 22, 2005), citing Steel Co. v. Citizens for a

Better Environment, 

(1998).   That limited jurisdiction

has been posited herein under 19 U.S.C. §1516a(a)(2)(A) and 28

U.S.C. §§    1581(c), 2631(c), 2632(c), 2636(c).


     . . .[T]his waiver of sovereign immunity is slim.
     Parties to the ITA proceedings, like the plaintiff at bar
     and experienced counsel, understand this. They are also
     aware that the courts have confirmed that the statutes
     cited have "no provision permitting reliquidation in this
     [type of] case . . . after liquidation". Zenith Radio
     Corp. v. United States, 

, 810 (Fed.Cir.
     1983).
               In this case, we conclude that liquida-
          tion would indeed eliminate the only remedy
          available . . . for an incorrect review deter-
          mination by depriving the trial court of the
          ability to assess dumping duties . . . in
          accordance with a correct margin on entries in
          the . . . review period. The result of liqui-
          dating the . . . entries would not be economic
          only. In this case, [the] statutory right to
          obtain judicial review of the determination
          would be without meaning for the only entries
          permanently affected by that determination.
          In the context of Congressional intent in
          passing the Trade Agreements Act of 1979 and
          the existing finding of injury to the industry
          . . ., we conclude that the consequences of
          liquidation do constitute irreparable injury.

     

USA Inc. v. United States, 28 CIT
        ,      , 

, 1327 (2004).


Ibid., 29 CIT at      , 358 F.Supp.2d at 1294.


            This enduring interpretation of judicial review pursuant

to the Trade Agreements Act of 1979, as amended, has resulted in

regular applications for, and grants of, preliminary injunctions,

suspending liquidations of entries of goods specifically implicated
Court No. 01-00825                                             Page 4


by administrative and then court reviews thereunder.    Plaintiff's

complaint and required other papers filed upon commencement of this

case do not list or otherwise indicate those entries herein,

although the ITA, in publishing its Preliminary Results at 66 Fed.

Reg. 29,080 et seq. (May 29, 2001), advised all parties in regular

course of the potential consequences for them upon rendering the

Final Results.   See 66 Fed.Reg. at 29,085-86.      Apparently, the

plaintiff did not heed that warning, nor did it take the all-but-

automatic step for judicial suspension of liquidation pending entry

of final judgment upon its CIT complaint, if not subsequent appeal

therefrom to the Federal Circuit.


          The defendant has now notified this court that, on

January 16, 2003, the Department of Commerce issued liquidation

instructions to Customs, which complied on February 28, 2003.    See

Defendant's Motion to Dismiss, p. 3 and Attachments 1 and 2.   Those

actions thus took place more than a year before the court was able

to hand down slip opinion 04-31, the publication of which itself

apparently did not induce counsel to make the aforesaid notifica-

tion any sooner than the end of the additional, 90-day period

granted to carry out the court's order of remand.


          Suffice it to state that the record developed in this

matter is not a favorable reflection of USCIT Rule 1.   On its part,

the plaintiff still argues that (i) there is a live case and con-

troversy to be decided, (ii) the case is not moot, (iii) defend-
Court No. 01-00825                                          Page 5


ant's tactics violate its obligations to the court, and (iv) the

court is empowered to make a declaratory judgment in this case.

Plaintiff's Response to Defendant's Motion to Dismiss, p. i

(capitalization deleted). Whatever defendant's obligations may be,

however, there is no seeming recognition that

     a party plaintiff has a primary and independent obliga-
     tion to prosecute any action brought by it - from the
     moment of commencement to the moment of final resolution.
     That primary responsibility never shifts to anyone else
     and entails the timely taking of all steps necessary for
     its fulfillment.


Avanti Products, Inc. v. United States, 

, 453-54 (1992);

Agro Dutch Industries Limited v. United States, 29 CIT at        , 358

F.Supp.2d at 1296.   With regard to this kind of case's jurisdic-

tional predicate, counsel state:


          Liquidation of entries in this case is of minimal
     impact to Plaintiff in view of the low value of the
     shipment ($18,195.00). . . . The duties at the "country
     wide" rate would amount to a little more than $6,000.00.
     New shippers usually file requests for reviews of
     antidumping orders based on a single entry to the United
     States, like Huanri General did in the challenged action.
     [] This is a unique characteristic of requests for new
     shipper reviews, which is highly relevant to the mootness
     issue.   . . . The value of the duties themselves are
     often so small that it would not justify the cost of
     litigation, if that was the only basis for filing suit.
     If the duties themselves were not the motivating reason
     for filing an appeal, it follows that the liquidation of
     these duties does not remove the rationale for the
     appeal. As indicated by Defendant's motion, the value of
     the shipment is so low that any duties imposed on them
     would be of negligible benefit to the Plaintiff in
     monetary terms. . . . If the duties were the only issue,
     it might never be economical to file an appeal of a new
     shipper review determination in a non-market economy
     antidumping case; thus, these cases would be forever
     "evading review".
Court No. 01-00825                                           Page 6


          What is the real value to Plaintiff, and which
     constitutes the real controversy in this case is the
     decision of this Court as to whether a separate rate, as
     applied to Huanri General, is based on substantial
     evidence and in accordance with law given the lack of
     real investigation by the Department into the village
     committee ownership issue. . . .


Plaintiff's Response to Defendant's Motion to Dismiss, pp. 4-5

(citations omitted; emphasis in original).   This may very well all

be true, but it also has always been true that

     [w]ithout jurisdiction the court cannot proceed at all in
     any cause. Jurisdiction is power to declare the law, and
     when it ceases to exist, the only function remaining to
     the court is that of announcing the fact and dismissing
     the cause.


Ex parte McCardle , 74 U.S. (7 Wall.) 264, 265 (1869);   Agro Dutch

Industries Limited v. United States, 29 CIT at     , 358 F.Supp.2d

at 1296.


                                II

           In view of the foregoing, this matter must now be dis-

missed for lack of subject-matter jurisdiction.      Judgment will

enter accordingly.

Decided:   New York, New York
           June 21, 2005

                                       Thomas J. Aquilino,       Jr.
                                           Senior Judge