Slip Op. 05 - 2

 UNITED STATES COURT OF INTERNATIONAL TRADE

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AGRO DUTCH INDUSTRIES LIMITED, :

 Plaintiff, : v. : UNITED STATES, : Court No. 02-00499 Defendant, :

 -and- 

 :

COALITION FOR FAIR PRESERVED MUSHROOM

TRADE, : Intervenor-Defendant. : 

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 Opinion 

[Plaintiff's motion for judgment upon 

 agency record denied; action dismissed.]

 Decided: January 7, 2005

Garvey Schubert Barer (Lizbeth R. Levinson, John C. Kalitka

and Ronald M. Wisla) for the plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen,

Director, and Jeanne E. Davidson, Deputy Director, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice (A.

David Lafer); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (William G. Isasi), of counsel,

for the defendant.

Collier Shannon Scott, PLLC (Michael J. Coursey and Adam H.

Gordon) for the intervenor-defendant.

AQUILINO, Senior Judge: By letter dated November 23,

2004, counsel for the plaintiff seek to supplement their motion for

judgment upon the administrative record compiled by the International Trade Administration, U.S. Department of Commerce ("ITA")

sub nom. Certain Preserved Mushrooms From India: Final Results of
Court No. 02-00499 Page 2

1

 Plaintiff's Brief, p. 24.

2

 Id.

3

 See, e.g., Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998), and cases cited therein.

Antidumping Duty Administrative Review, 67 Fed.Reg. 46,172 (July

12, 2002). In addition to contesting various elements of that

agency determination, plaintiff's motion represents that "many"1 or

"almost all"2 entries within the determination's purview have

already been liquidated by Customs pursuant to ITA instructions.

Whereupon the plaintiff prays that 

the Court order the liquidations [] be rescinded and the

entries reliquidated in accordance with the corrected

final results of the Department, as ordered by the Court.

Plaintiff's Reply Brief, p. 13.

I

Before relief of any kind can be granted, of course, a

court of limited jurisdiction must determine that the matter

brought before it remains within the metes and bounds of such

delimitation.3

 They are for an action such as this that a summons

be filed within 30 days after publication of the ITA's determination, followed no later than 30 days thereafter by the docketing of

a complaint. See 19 U.S.C. §1516a(a)(2)(A). See also 28 U.S.C. §§

1581(c), 2631(c), 2632(c), 2636(c). On its face, this 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
Court No. 02-00499 Page 3

statutes cited have "no provision permitting reliquidation in this

[type of] case . . . after liquidation". Zenith Radio Corp. v.

United States, 710 F.2d 806, 810 (Fed.Cir. 1983).

In this case, we conclude that liquidation would

indeed eliminate the only remedy available . . . for an

incorrect review determination 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 liquidating 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. 

Id. See, e.g., SKF USA Inc. v. United States, 28 CIT , , 316

F.Supp.2d 1322, 1327 (2004).

Here, the record reflects timely compliance with the

brief periods of limitation for commencement of this action. It

also reflects substitution of counsel for the plaintiff thereafter

and submission by the second law firm (some 73 days after commencement) of an application for a preliminary injunction that

ENJOINED during the pendency of this action . . .

liquidation of any and all unliquidated entries of certain preserved mushrooms exported by Agro Dutch Industries Limited that are covered by Certain Preserved

Mushrooms from India: Final Results of Administrative

Review, 67 Fed.Reg. 46172 . . . [,] and were entered or

withdrawn from warehouse, f[or] consumption between

February 1, 2000, through January 31, 2001, and remain

unliquidated as of 5:00 p.m. on the fifth business day

upon which copies of this ORDER are personally served by

plaintiff[,]

to quote from the court's injunction signed the same day the

application was filed.
Court No. 02-00499 Page 4

As indicated, plaintiff's motion for judgment would

extend relief to all entries, liquidated and unliquidated. Its

papers point to a notice detected on the Department of Commerce's

website, to wit:

The Department . . . announces that, effective immediately, it intends to issue liquidation instructions

pursuant to administrative reviews conducted under section 751 of the Tariff Act of 1930, as amended, to the

U.S. Customs Service within 15 days of publication of the

final results of review in the Federal Register or any

amendments thereto. This announcement applies to reviews

conducted under sections 751(a)(1) and (2) of the Tariff

Act. If you have any questions, please contact the staff

member identified in the notice of final results of

review published in the Federal Register. 

Plaintiff's Brief, pp. 26-27 n. 6, citing U.S. Dep't of Commerce,

Import Admin., Announcement Concerning Issuance of Liquidation

Instructions Reflecting Results of Administrative Reviews (Aug. 9,

2002), available at http://ia.ita.doc.gov/download/liquidationannouncement.html. The plaintiff also points to Tianjin Machinery Import & Export Corp. v. United States, 28 CIT , Slip Op.

04-125 (Oct. 4, 2004), appeal docketed, No. 05-1077 (Fed.Cir. Nov.

15, 2004), wherein the plaintiff also took issue with the foregoing

change in ITA approach to liquidation on the ground that it was in

conflict with the 60-day period contemplated by the statutes and

related Court of International Trade rules of practice. The court

concluded that this "new policy is not in accordance with law." 28

CIT at , Slip Op. 04-125, p. 31 (footnote omitted). The

declaratory judgment entered thereon does not appear, however, to
Court No. 02-00499 Page 5

4

 28 CIT at , Slip Op. 04-132, p. 3.

5

 See 28 CIT at and Slip Op. 04-132, p. 2 n.*.

have any impact on the jurisdiction or merits of that action. The

same can be said of the subsequent opinion in Corus Staal BV v.

United States, 28 CIT , Slip Op. 04-132 (Oct. 19, 2004), which,

in extending a partial-consent motion for a preliminary injunction,

suspending liquidation "until a final and conclusive court decision

is reached"4, merely noted the existence of the Tianjin decision5.

In other words, neither opinion serves to extricate the plaintiff

from its current predicament, which fundamentally is one of its own

making herein.

That is, it was free to change counsel, it was at liberty

to delay in seeking suspension of liquidation, it may not have been

able to anticipate the severe change in course by the ITA in regard

thereto, but public announcement of that new administrative tack

occurred almost two months before it sailed into court for injunctive relief. Furthermore, this court cannot and does not find

any equitable weak link in the chain of cases that has developed in

the light of Zenith Radio Corp. v. United States, supra.

This being the case, on December 1, 2004, the court

requested in writing that plaintiff's counsel "advise . . . which,

if any, implicated, specific entries of subject merchandise remain

unliquidated at this time." In the absence of any response to this

query, the court is now constrained to conclude that there are none
Court No. 02-00499 Page 6

and that it thus has no jurisdiction to decide the other issues

raised in plaintiff's motion.

. . . Without 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). Cf. Avanti

Products, Inc. v. United States, 16 CIT 453, 453-54 (1992):

. . . The absence of any alleged supportive facts is all

the more critical in view of the precise nature of the

relief the plaintiff seeks. Indeed, a party plaintiff

has a primary and independent obligation 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.

II

In view of the foregoing, judgment must be entered,

denying plaintiff's motion for judgment upon the agency record and

dismissing this action.

Decided: New York, New York

 January 7, 2005

 Thomas J. Aquilino, Jr. 

 Senior Judge