Slip Op. 05-50

UNITED STATES COURT OF I NTERNATIONAL

TRADE



### S AN 

### V ICENTE 

### C AMALU 

### SPR DE 

### RI : and 

### E XPO 

### F RESH 

### , LLC, : Plaintiffs , : Court No. 03-00517 v. : 

### U NITED 

### S TATES 

### , Defenda nt. : [Motions to dismiss for lack of subject matter jurisdiction granted.] Decided: April 18, 2005

Cro wel l & M ori ng LLP ( Matthew P. Jaffe and Robert A. Lipste in ), for Pla intiffs. Peter D. Keisler , Assistan

t Attorne y G eneral ; David M. Cohen , Director, and Jeanne E. Davidson , Deputy Direc

tor, Commerci al Litigation Branc h, Civil Division, U.S. Department of Justice ( Paul D. Kovac and Kent G. Huntington ); Augusto Guerra , Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel; for Defendant U.S. D ep artment of Commerce. James M. Ly

ons , Gener

al Counse l, U .S. International Trade Commission ( Charles A . St. Charles and Michael Diehl ), for Defendant U.S. I nternational Trade Commission.

OPINION RIDGWAY, Judge: Plaintiffs in this act ion – hereina fter co llective ly r eferr ed to as “ SVC” – are

San Vice nte Camalu SPR de RI (“San Vicente”), a Me xican producer and exporter of fresh tomatoes, and Expo Fresh, LL C (“Expo Fresh”), a U.S. importer of the same. SVC here contests certain deter minations made in the course of an antidumping investigation by the U.S. Department of CommerceCourt No. 03- 00517 Pag e 2

1 All statutory citations herein ar e to the 2000 edition of the U.S. Code.

2 See Defendant’s Motion to Dismiss (“DOJ Brief”); Defendant U.S . Inte rnational Trade Commission’s Motion to Dismiss (“ITC Brief”) ; San Vicente Camalu and Expo Fresh’s Opposition to Defend

ants’ Moti ons to Dismiss f or La ck of Jurisd

iction (“ SVC Respons e Brief ”); Reply to Plaintiff s’ Opposit ion to Def

endants’ Motions to D ismiss for Lac k of Jurisdic

tion (“DO J Reply Brief”); Defendant United States I nternational Trade Commission’s Reply to Plaintiff’s Response to Defendants’ Motions to Dismiss (“ITC Reply Brief”).

3 See Fresh Tomatoes from Mexico , 61 Fed. Reg. 15,968 (ITC April 10, 1996) ( initiation of antidumping investig ation); Fresh Tomatoes from Mexico , 61 Fed. Reg. 18,377 (Dep’t Commerce April 25, 1996) (initiation of antidumping investigation). (“Commerce”) and the U.S. Intern ationa l Trade Commission (“ITC”). Specifica lly, invoking the court’s residual jurisdiction under 28 U.S.C. § 1581(i) (2000), 1 SVC challen ges the two age ncies’ determinations to terminate (or, alternatively , not to reopen) the five yea r “sunset” review

involving fresh tomatoes from Mexico. Now before the court are

parallel motions to dismiss for lack of subject matter jurisdiction fil ed on behal f of Comme rce and the I TC, and op

posed by SVC. 2 As discuss ed in gr eater d etail below, so-called “(i) jurisdiction” will not lie in this case, because jurisdiction was available under another provision of the sta tute – spe cifical ly, 28 U.S.C. § 1581(c). SVC failed to meet the statutory deadline for

filing its appeal under § 1581(c), however

. The pending motions are therefore g ranted, and this action is dismissed. I. Background The underlying

administrative proceedings began some nine years a go, when representatives of the U.S. to mato indus tr

y petition ed Commerce and the IT C, alleging that fresh tomatoes from Mexico were be ing dumpe d in this country (that is, sold at less than fair va lue), to the detriment

of the do me st ic in du st ry. 3 Both agencies launche d antidump ing inve stigatio ns, and in d ue cours e madeCourt No. 03- 00517 Pag e 3

4 See Fresh Tomatoes From Mexico , Inv. No. 731-TA-747, USI TC Pub. 2967 (May

16, 1996) (prelim. affirm. injury

determination, fin

ding “r easonab le indica

tion” th at i mports were injuring domestic industry ); Fresh Tomatoes from Mexico , 61 Fed. Reg. 56,608 (Dep’t Commerce Nov. 1, 1996) (prelim. affirm. dumping d etermina tion, find ing that imports we

re being , or wer

e likely to be, dumped).

5 San Vicente

was not a party to the 1996 Suspension Agreement. See Fresh Tomatoes From Mexico , 61 Fed. Reg. 56,618 (Dep’t Commerce Nov. 1, 1996) (suspension of an tidumpin g investigation); Fresh Tomatoes From Mexico , 61 Fed. Reg. 58, 21 7 (ITC Nov. 13, 1996) (suspension of antidumping investigation).

6 For a more detailed discussion of the legislative history , requirements, and actual use of

the susp ension agreement statute, see generally Bethlehem Steel Corp. v. United States , 25 CIT 519, 521-23, 146 F. Supp. 2d 927, 930-32 (2001).

7 See Notice of Initiation of Five-Y ear Review , 66 Fed. Reg. 49,926 (Dep’t Commerce

Oct. 1, 2001) (initiation of sunset review) ; Fresh Tomatoes from Mexico , 66 Fed. Reg. 49,975 (I TC Oct. 1, 2001) (initiation of sunset review); 19 U.S.C. § 1675(c). Articles 11.2 a nd 11 .3 of the WTO Antidumping Agreement require tha t antidumping measures – including suspension agreements, as well as antidumping orde rs – be revi ewed at

least every five years, to de

termine whether the measures should be terminated (“sunsetted” ). Where the affirmative prelimina

ry determinat ions. 4 The investigations were suspended in November 1996, however, when Commerce entered into a suspension a gree ment with c ertain Me xican tomat

o producers and export

ers, who agree d to revis e their p rices. 5 The sta tute auth orizes Comme rce to enter into such agreements where, inter alia , “exporters of the subject merchandise who account for substantia lly

all of the imports of that merchandise” agree to measures that

“elimina te comple tely the injurious effect” of the imports. 19 U.S.C. § 1673c(c) (emphasis added)

. 6 Fast forwar d approxima

tely five y ears, to October 2001. Comme

rce and the I TC bega

n their five-ye ar “sunset” review o f the susp ended a ntidumping

investig ations, to

determin e whether dumping (and material injury to domestic p roduc ers) would be likely to c ontinue or resume if the suspended

investi gation wer e terminated. 7 But, in late May 2002, w hile the agencies’ sunsetCourt No. 03- 00517 Pag e 4

measure at

issue is a s

uspension agree ment, Commerce

and the I TC use the se “sunse

t” revie ws to anal yz e whether

termination of the suspended investigation “would be likely to lead to continuation or recurr ence of dumping . . . and of

materia l injury.” 19 U.S.C. § 1675(c)(1). See gen erally Committee for Fairly Tr

aded Venezuelan Cement v. United States , 372 F.2d 1284, 1286-87 (Fed. Cir. 2004).

8 See Fresh

Tomatoes From Mexico , 67 Fed. Reg. 50,858 (Dep’t Commerce Aug. 6, 2002) (terminationof suspen sion agr eement, termination of sunset review, and resumption of antidumping investigation). If Commerce

determin es that a

suspension agree

ment has b een viola

ted or no l onger

meets the requirements of the statute, the agree ment must be terminated. See 19 U.S.C. § 167 3 c(i); 19 C.F.R. § 351.208-09 (2002).

9 See Fresh Tomatoes from Mexico , 67 Fed. Reg. 43,278 (Dep’t Commerce June 27, 2002) (notice of intent to terminate suspension agreement, intent to terminate sunset review, and intent to resume antidumpin

g invest igation ); Fresh Tomatoes From Mexico , 67 Fed. Reg. 50,858 (Dep’t Commerce Aug. 6, 2002) (termination of suspension agreement, termination of sunset review, and resumption of antidu

mping inv estiga

tion); Fresh

Tomatoes from Mexico , 67 Fed. Reg. 53,361 (I TC Aug. 15, 2002) (termination of sunset re view); Fresh Tomatoes from Mexico , 67 Fed. Reg. 56,854 (ITC Sept. 5, 2002) (resumption of antidumping investig ation).

10 See Fresh Tomatoes from Mexico , 67 Fed. Reg. 77,044 (Dep’t Commerce Dec. 16, 2002) (suspension of antidumping investigation); Fresh Tomatoes from Mexico , 67 Fed . Reg. 78,815 (ITC reviews were on going, Mexican tomato producers and expo rters accoun ting fo r a large percen tage of U.S. imports gave notice of their inte nt to withdr aw from t

he 1996 Sus

pension A greem ent. Becau se the suspension agreement no longer c overed “substantially all of the

imports,” Commerce was forced to terminate it, effective July 30, 2002. 8 The termination of the 1996 Suspension Agreement led perforc e to the agencies’ termination of their sunset

reviews (since, as Commerce noted, “there [was] no longer a suspended investigation for which to perform a sunset review”), and to the r esumption of the agencies’ antidumping investigations initiated

some six years e arlier. 9 However, those investigations were soon halted once again, by a

new suspe

nsion ag reemen t – the 2002 Suspension

Agree ment. 10Court No. 03- 00517 Pag e 5

Dec. 26, 2002) (suspension of antidumping investigation). As with the 19 96 Suspens ion Agr eement, San Vice

nte also is not a party to this more recent suspension agreement. See San Vice nte Camal

u SPR de RI

v. United

St ates , No . 02 -00 811 (CIT filed Dec. 17, 2002), Memorandum of Points and Authorities in Support of San Vice nte Camalu’s Motion for

Judgmenton the Agency

Record (May

19, 2003) at 7 n.22 (noting that San Vicente is not a member of the associations that signed the 1996 and

2002 Suspe

nsion Ag reemen ts); Sign atory

List - Suspension Agreement - Fresh Tomatoe s from Mexico (available on Commerce’s website). Indeed, San Vicente is chal lenging the validity of the 2002 Suspension Agr eement, in a companioncase pending before the c ourt. See San Vicente Camalu SPR

de RI v. United States , No. 02-00811 (CIT filed Dec. 17, 2002)

.

11 See Complaint ¶¶ 11-12. See also San Vicente Camalu SPR de RI v. United States , No. 02- 00811 (CIT filed Dec. 17, 2002), Memorandum of Points and Authoriti es in Suppo rt of San V icente C ama lu’s Motion for Judgment on the Agency Record (May

19, 2003) at App. 15 (Letter from Counsel to San Vicente, dated Jan. 3, 2003, requesting continuation of antidumping investiga tions under 19 U.S.C. § 1673c(g)), App. 16 (Memor andum from Commerce to All Intere sted Parties, dated Jan. 3, 2003, den

yin g San Vic ente’s r

equest be cause Sa

n Vicente did not “account for a significant proportion of exports” as required for that relief under the statute). The statute provides for the continuation of antidumping investigations notwithstanding the existence of a

suspension agreement, where the c ontinuation is requested by exporters accounting for “a significant proportion

of exports” to the United

States. See 19 U.S.C. § 1673c(g). In a ddition, some domestic p arties ma y r equest th e continu

atio n of an in

vestiga tion. Howe

ver, dome stic importers like Expo Fresh are not entitled to that relief. See 19 U.S.C. §§ 1673c(g), 1677(9).

12 See L ette r from Cou

nsel to SVC, dated F eb. 10, 20 03, requ esting t hat the I TC reope n its sunset review (Pub. Doc. No. 177,383); Letter from the I TC, dated Mar. 24, 2003, denying

SVC’s request , explaining that “[a]bsent initiation by [Co mmerce], the [I TC] has no au thority to institute San Vicente requested that the antidumping investigations be continued , no twithstanding the 2002 Suspension

Agree ment; but its req uest was denied. 11 It did not seek t

o appea l that den ial. Next, SVC asked the ITC to “reopen” its sunset review. The ITC denied SV C’s reque st. SVC then
set its sights on Comm e rce, requesting that it reopen its sunset review. Tha t request, too, was denied. Commerce reiterated that it could not “conduct a sunset review of a non-existent suspension agreement.” 12Court No. 03- 00517 Pag e 6

the requested five-y

ear review”) (Pub. Doc. No. 179,568 ); Letter from Counsel to SVC, dated May 1, 2003, requesting that Commerce reopen its suns et re view (Pub. Doc. No. 1926); Letter f rom Commerce, dated June 27, 2003, denying SVC’s request (Pub. Doc. No. 1961).

13 Pursuant t

o 28 U.S.C. § 1581: (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsecti ons (a)- (h) of th

is section and subje ct to the e xception se t forth in subsection (j) of this section, the Court of Inter na tional Trade shall have exclusive j ur isdiction of any civil action commenc ed against the United States, its agencies, or its officer s, that arises out of any la w of the United States providing for – (1) revenue from imports or tonnage; (2) tariffs , duties, f

ees, or o ther taxes

on th e import ation of On July 29, 2003 – a

pproximate ly o ne y

ear af ter the a gencie s termina

ted their sunset reviews

– SVC commenced this action, challenging th ose ter mi nat io ns. In the alternative, SVC challenges the agencies’ denials of its requests to reope n their sunset reviews. See Complaint ¶¶ 25-30 (Count I, challenging Commerce’s termination of sunse t review), ¶¶ 31-3 5 (C ount II , challenging I TC’s termination of sunset review), ¶¶ 36-41 (Count II I, challenging Commerce’s denial of

SVC’s req

uest to reopen sunset review), ¶¶ 42-46 (Count IV, challeng ing ITC’s denial of SVC’s request to reope n sunset review). II. Analysis Where a plaintiff’s assertio n of jurisd iction is challeng ed by

a motion to d

ismiss purs

uant to US CIT Rule 1 2(b) (1), the plaintiff bears the burden of proving the soundness of its jurisdictional allega tions. See McNutt v. Gen. Motors Acceptance Corp. , 298 U.S. 1 78, 189 (1 936); Rocovich v. United States , 933 F.2d 991, 993 (Fed. Ci r. 1991); Elkem Metals Co. v. United States , 23 CIT 170, 175, 44 F. Supp. 2d 288, 292 (1999). Here, SVC’s cla im to jurisdict

ion under 28 U.S.C. § 1 581(i) 13Court No. 03- 00517 Pag e 7

merchandise for reasons other than the ra ising of revenue; (3) embargoes or other quantitative restrictions on the importation of merc handi se for reasons other than the protection of the public health or safety ; or (4) administration and enforcement with r es pect to the matters referred to in paragraphs (1)-(3) o f t his subsection and subsections (a)-(h) of this section. T h is subsection shall not confer jurisdiction over an antidumping or countervailing duty

determination

which is reviewable either by the Court of International

Trade under [19 U.S.C. § 1516a(a)] or by a binational panel und er articl e 1904 of the North American Free Trade Agreement or the Unite d States-C anad

a Fr ee-T rade Agr eeme nt an d [19 U .S.C. § 1516 a(g )].

14 SVC’s claim to jurisdiction under § 1581(i) is pred icated entirely on its assertion that jurisdiction did not lie

under § 1581(c) – or, for that matter, under any

other subsection of § 1581. In particular, SVC has not alleged that a remedy

unde r any other

subsection of § 1581 would be “manife stly

inadequate.” See DOJ Brief at 10; I TC Brief

at 5-6; I TC Reply Brief a t 3, 8-9; SV C Response Brief at 8 (arguing only that jurisdiction under § 1581(c) is una vailable).

15 Jurisdiction lies unde

r § 1581(c ) for “a

ny c ivil actio n commenced under [19 U.S.C. § 1516a].” In tur

n, 19 U.S.C. § 1516a(a)(2)(B)(iii) provides for review of “[a] final determination . . ., by [Commerce] or the [I TC] under section 1675 of this title.” turns on whether it could have availed itself of jurisdiction under some other provision of § 1581. See JCM, Ltd. v. United States , 210 F.3d 1357, 1359 (Fed. Cir. 2000) ( quoting Norc al/ Crosetti Foods, Inc. v. United States , 963 F.2d 356, 359 (

Fed. Cir . 1992)) (

jurisdict ion lies under §158 1(i) only where there is no jurisdiction under any other subsection of

§ 1581, unless the remedy unde r that other subsection would be “manifestly inadequate”). 14 Commerce and the ITC maintain that the
court would have had jurisdiction to review the agencies’ determinations under § 1581(c), 15 if SVC had filed its challenge within 30 day s of their publication. In a nutshell, SVC’s argument is that jurisdiction under § 1581(c) could not lie, because –Court No. 03- 00517 Pag e 8

16 Section 1675(c) requires, in pertinent part, that every five yea rs after notice of a suspension agreement is published: [Commerce] and

the [ITC] shall conduct a review to determine, in accordance with section 1675a of this ti tle, whet her . . . termination of the investigation suspended under section 1671c or 1673c of

this title w ould be lik

ely to lead to continuation or recurrence of dumping or a c ou nt er va il ab le su bs id y (a s t he ca se ma y be ) a nd of ma te ri al in

ju ry. 19 U.S.C. § 1675(c). S VC contends – the contested agency actions did not constitute “final determinations” under th e statute, since the

agenc ies neve

r reac hed the ul

timate fin dings on the merit s th at are made when a
sunset re view is co mpleted. In sh ort, SVC re asons: Section 1581(c) states that “[t]he Court of International Trade

shall have exclusive jurisdiction of any

civil action commenced under section 516A of the Tarif f Act of 1930 [19 U.S.C. § 1516a].” Among the actions that may be commenced

pursuant to 19 U.S.C. § 1516a are “final de terminations” by the [I TC] or [Commerce] made “under section 1675 of this title.” Subsection (c) of 19 U.S.C. § 1675 addresses fiveyear reviews, the type

of review at issue in this action. Therefore, for jurisdict ion to exist in this case under 28 U.S .C. § 1581(c), there must be a “final determination” made pursuant to 19 U.S.C. § 1675(c). SVC Response Brief at 1-2 (footnotes omitted). Quoting the text of § 16 75(c), 16 S VC further contend s that t

here is a “final d etermina tion” in a sunset re view ca se only

if Commerc e makes a finding as to whe ther “sto pping the investig ation will l ikely

lead to dumping” and

the I TC makes a finding as to whether “stopping the investigation will likely lead to material injury.”

SVC Response Brief a t 2 (first and second alter

ations in o rigina

l) (footn ote omitte d). SVC co ncludes: When Commerce ended its five-y ear revie w of the suspended antidumping investigation

. . ., it did not “determine . . . whe ther . . . termination of the investigation

suspended . . . would be likely to lea d to the continuation or recurrence of dum pin g.” Similarly, whe n the [ITC] ended its five-y ear review, it did not “determine . . . whether . . . termination of the investigation suspended . . . would be likely to lead to continuation or recurrence . . . of mater ial injury.” There fore, neither agency made a “final determination” pursuant to 19 U.S.C . § 1675(c). Since 28Court No. 03- 00517 Pag e 9

U.S.C. § 1581(c ) requir

es such a “final d etermina tion” bef ore it ve sts jurisdi ction in the Court, the agency

actions challenged by

SVC clearly ca

nnot be reviewed under that section. SVC Response Brief at 2-3 (all but first and fifth altera tions in origina

l) (footnotes omitted). However, SVC’s stra

ined arg ument ig nores bot h the unam

biguous fin alit y of

the age ncies’ determinations he

re, and t he perti nent pre cedent. The determin ations by

Commerce

and the I TC termina

ting the sunset re views we re clea rly the final and defini tive acti o ns in those proceedings. There was nothing whatsoever about the determinations that was i n an y wa y pr el im in ar y, i nt er lo cu to ry, in te ri m, pr ov is io na l, or te mp or ar y. They were final dete

rminations terminat

ing the s unset re views, driven in turnby the termination of the 1996 Suspension Agreement. The statute pro vides for sunse t review s only

where an antidumping order or a suspe

nsion ag reemen t is in place. A nd, at the time, neit her existe d in this ca se. 19 U.S. C. § 1675(c) ; DOJ Reply

Brief a t 2-3 ; IT C Reply

Brief a t 3. Moreo ver, bec ause the agenc ies’ terminations were the final and definitive resolution of the sunset reviews and any issues presented therein, the agencies’ determinations on termina tion were every bit as final as determinations on the merits of the ultimate substantive issues under 19 U.S.C. § 1675(c) would have been – and they were every bit as reviewab le under 19 U.S.C. § 151 6a and 28 U.S.C. § 158 1(c), a s well. Even SVC does not contend that the agencies’ termination determinations were in any

way preliminary

in nature. Nor does SVC explain how, had the sunset reviews continued, Commerce and the ITC could have logica lly and meaning fully completed the sunset review analy sis required under § 1675(c), given that the fo cus of that analy sis was the antidumping investigation as it was suspended

under the

terms of t

he 1996 Sus

pension A greem e nt – a suspension agreement that noCourt No. 03- 00517 Pag e 10

17 The no ti on of

re su mi ng th e s un se t r ev ie w n ow is , i f a nyt hing, even mor e absurd. At the time the sunset review was terminated, the 1996 Suspension Agreement had only been terminated, and the antidumping investigation (once suspended) had be en resumed. But those events too have now been affirmatively

superseded , by

ye t a nother suspension agreement – the 2002 Suspension Agreement – which SVC is challenging in a companion case. See n.10, supra . 18 SVC seeks in vain to distinguish GSA and Windmill from this cas e , emphasizing that sunset reviews under § 1675(c) are “ mandatory,” “ initiated automatically . .

. five y ears af ter a da te longer existed. 17 See generally ITC Reply Brief at 4. SVC’s argume

nt is also a

t odds with r

elevant judicia l p recedent. Significantly , SVC cites

no case law to s upport it s theory that an a gency decision terminating a sunset review does not

co nstitute a “final determination” simply because that determination does not reach ultimat e finding s

on the continuation or recurrence of dumping and material injury. I

ndeed, e xi sting au

thority is to th e c on tr ar y. For example, in disputes arising out of ad ministrat ive revi ews cond ucted und er 19 U.S. C. § 1675(a), the courts have routinely reviewed cases pursuant

to § 1 581(c ), even thou gh such actions

are not specifically identified in the a pplicable statute. See , e.g. , GSA, S.r.l. v. United States , 23 CIT 920, 921, 77 F. Supp. 2d 1349, 1350 (1999) (invoking jurisdiction pursuant to 28 U.S.C. § 1581(c) in a chall enge to a termi

nation of an antidu mping ne w shipper review) ; Windmill Int’l Pte., Ltd. v. United States , 26 CIT 221, 222, 193 F. Supp. 2d 1303, 1305 (2002) (finding jurisdiction pursuant
to 28 U.S.C. § 1581(c) in a challenge to a rescission of an antidumping a dministrative review). See generall y DOJ Brief at 8-9; DOJ Reply Br ief at 4-5. Just as the termination at issue in GSA and the rescissionat issue in Windmill b oth constituted “final determinations” under § 1675 that were properl y reviewable under § 1581(c), so too the ag encies’ terminat ions here at issue constituted “final determinations” under § 1675 that were prope rly review able under § 1581(c). 18Court No. 03- 00517 Pag e 11

certain,” in contrast to the “non-obligatory section 1675(a) reviews considered . . . in Windmill and GSA .” See SVC Response Brief at 3 n.7, 5. But SVC’s arg

ument is a c lassic case of “a distinction without a diffe

rence. ” SV C has failed to explain why the means by which administrative procee dings are triggered ( i.e. , initiated automatically, pursuant to a statute vs. initiated

at the re quest of an interested party) ha s any bearing on the “f inality ” of the a gency determinations re

ndered i n those proceedings. See ITC Reply Brief at 6; DOJ Reply B rief at 4-5. Equally futile is SVC’s attempt to dismiss GSA and Windmill on the grounds that they do not “address[] in detail issues of jurisdiction under 28 U.S.C. § 1581(c).” See SVC Response Brief at 5-6. Contr

ary to SVC’s imp lication, the relative silence in GSA and Windmill actually spea ks volumes about the self-evident nature of jurisdiction in those cases. And even if, as SVC hints, the parties in those c ases ga

ve little o r no thoug

ht to jurisdiction, it is “always nece ssary that the court determine its [own] jurisdiction irrespective of what parties aver, or

even agree among

themselves.” Brecoflex Co. v. United States , 23 CIT 84, 86, 44 F. Supp. 2d 225, 228 (1999) (emphasis adde d). See generally ITC Reply

Brief at 6 n.13. SVC’s reliance on Jeumont Schneider Transformateurs v. United States , 18 CIT 647, 650 (1994), is similarly unavail ing. SVC c ites Jeumont for the ( seeming ly n on-contr oversia l) propos itio n that jurisdiction may

lie under § 1581(i) if an ac tion does n ot contes t a “final determination” issued under § 1675. See SVC Respons e Brief at 3 & n.7 . But Jeumont does not address the definition of a “final determination.” Moreover, as discussed above, the a gency actions here in fact

constituted “final determinations.” Jeumont is thus irrelevant. See generally ITC Reply Brief at 5-6. Si mi la rl y, in Tu py I , Commerce’s decision not to revoke an antidumping order was held to be a final determination reviewable under 19 U.S .C. § 1516a (a)(2) (B)(ii i), ev en tho ugh that decision did not reach

the ul tima te fin dings specified in the statute. Industria Fundicao Tupy v. Brown , 18 CIT 933, 940-41, 866 F. Supp. 565, 571-72 (1994) (“ Tu py I ”). Indeed, Tup y II expressly

rejected the argument that jurisdiction did not lie under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c) because Commerce’s decision not to revoke was not a “determination” specific ally

listed as a

n appea lable determination

under § 1516a. Industria Fundicao Tupy v. Brown , 19 CIT 1266, 1269-71, 904 F. Supp. 1398, 1400-02 (1995) (“ Tup y II ”). See ITC Reply Brief at 4-5. SVC points to several cases that sugge st that residual jurisdiction under § 1581(i) might lieCourt No. 03- 00517 Pag e 12

if “‘the ‘ legali

ty’ of the ad

ministrati ve proce eding is

a t issue.’” Se e SVC Response Brief at 8-9 ( quoting Ad Hoc Com

m. of Flor

id a Producers of Gray

Portland Cement v. United States , 22 CIT 902, 908, 25 F. Supp. 2d 352 , 358 (199 8)). Bu t those ca ses are

si mply inappos ite here . In th is action, SVC is not ch alleng ing the l egalit y of the sun set revie

ws. Rathe

r, SVC con

tests the age

ncies’ determinations terminating those reviews because the 1996 Suspension Agreement was no longer in ef fect. Indeed, f

or example, in Asociacion Colombiana de Exportadores de Flores v. United States , 13 CIT 584, 586-88, 717 F. Supp. 847, 850-51 (1989), aff’d , 903 F.2d 1555 (Fed. Cir. 1990), and Carnat i on Enterprises Pvt. Ltd. v. Dep’t of Commerce , 13 CIT 604, 612, 719 F. Supp. 1084, 1091 (1989) – cases on which SVC relies – the clai ms of illegality we re asserted before the proceedi ngs had rea

ched “f inal dete rmination s.” As a r

esult, in b oth case s, the cou rt held tha

t § 1516a and § 1581(c) did not apply

. See generally ITC Reply Brief at 5; DOJ Reply B rief at 5-6. Certainl y the cases that SVC cites do not stand for the proposition that (i) juri sdiction lies whenever a plaintiff (like SVC here) claims that a final determination in aprocee ding is c ontrary to law. The standard of

review in all cases under § 1516a is whether the agency determination at issue is contrary

to law – i.e. , “not

in accordance with law.” See 19 U.S.C. §§ 1516a(b)(1)(A), (B)(i), and (B)(ii).Court No. 03- 00517 Pag e 13

19 The jurisdictional basis for Counts III and I V of SVC’s Complaint – whic h chal lenge the denial of its reque sts to reop en their sunset re views – is n

o less fla wed than that for C ounts I

and II, which ch alleng e the ter

minations o f those r

eviews. SVC cannot in

voke (i) jurisdict

ion – afte r failing to challe nge the agencies’ August 2002 determinations terminating the sunset reviews within 30 day s of those determinations (as required to invoke jurisdiction under § 1516a and § 1581(c)) – simply by requesting

that the agencies retract or reconsider

their determinations. See gen erally ITC Reply

Brief at 8. Section 1581(i) was never intended to create new causes of ac tion. H.R. Rep. N o. 96-123 5, at 47 (1 980). Nor was it intended to supersede more specific jurisdictional provisions. Koyo Seiko Co. v. United States , 13 CIT 461, 46 3, 71 5 F . S up p. 10 97 , 1 09 9 ( 19 89 ). Si mi la rl y, where Congress has prescribed in g reat detail a par ticular t rack fo r a claim ant to follow, in administ

rative o r judicia

l procee dings, a

nd partic ularly where th e claim is agains t the United

States . . . , the rem edy

will be co nstrued a s exclusive without a specific statemen t to that eff

ect. The claimant will not be

allowed t

o sail pas t caref ully constructed limitations simply by invoki ng oth er and more general legislation. This is so even when the general legislation might have been construed to cover the case if the specific legislation had not been enacted. Nat’l Corn Growers Ass’n v. Baker , 840 F.2d 1547, 1558 (Fed. Cir. 1988). SVC thus cannot make an“end run

” around § 1581(c ) and sec

ure (i) j urisdicti on simply by u sing the

procedu ral mech anism of a request to reopen. In sum, here, much like Tu py I , “pursuant to 19 U.S.C. § 1516a, plaintiffs had 30 day s from the . . . publication date[s]” of the agencies’ determinations – i.e. , 30 day s from Aug

ust 6, 2002 (for Commerce) and from August 15, 2002 (for the ITC) – to initiat e an act ion conte sting tho se determinations. But, by

the time SVC’s Complaint was filed, those deadlines had long since passed. “Havingfailed to [initiate any action], plaintiffs may not now resort to the residual jurisdiction of this court.” Tu py I , 18 CIT at 941, 866 F. Supp. at 572 ( quoted in ITC Reply Brief at 7). 19Court No. 03- 00517 Pag e 14

III. Conclusion For all the reasons set forth above, residual jurisdiction under 28 U.S.C. § 1581(i) will not lie in this cas e ; an d SVC failed to timely invoke jurisdiction under 28 U.S.C. § 1581(c). The motions to dismiss filed on behalf of Commerce and the IT C are therefore gra nted, and this action is dismissed. Judgment will enter accordingly

.

/s/ De li ss a A . R id gw ay, Judge Decided: April 18, 2005 New York, New YorkERRATA

San Vicente Camalu SPR de RI and Expo Fresh, L LC v. United States , Court No. 03-00517, Slip Op. 05-50, dated April 18, 2005. Page 4: In footnote 7, replace “372 F.2d” with “372 F.3d”. Page 8: In line 12, a fter “SV C Response Brie f at 1-2”, and befo re “(footnotes omitted)”, insert “(first and second alterations in original)”

. Page 8: In line 16, after “Brief at 2”, and be fore “(footnote omitted)”, delete “(first and second alterations in original)”. Page 8: In footnote 16, delete “e very”.

April 22, 2005