ALUMINUM EXTRUSIONS FAIR TRADE 

COMMITTEE 

 Plaintiff, 

 v. 

UNITED STATES 

 Defendant, 

 and 

AAVID THERMALLOY, LLC, EVERGREEN 

SOLAR, INC., ZHONGYA SHAPED 

ALUMINUM (HK) HOLDING LTD., and 

ZHAOQING NEW ZHONGYA ALUMINUM 

CO., LTD., 

 Defendant-Intervenors. 

Slip Op. 13 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

MEMORANDUM and ORDER 

 Upon consideration of Defendant-Intervenor’s, Aavid 

Thermalloy, LLC (“Aavid”), and Defendant’s motions to dismiss, 

any responses thereto, and the record as a whole, it is hereby 

ORDERED that the Defendant’s motion is GRANTED and the 

Defendant-Intervenor’s motion is GRANTED in part and DENIED in 

part. 

																																																								 1

 This action is consolidated with Court No. 11-00218. 

Before: Donald C. Pogue, 

 Chief Judge 

Consol.1

 Court No. 11-00216 
Consol. Court No. 11-00216 Page 2 

 Defendant properly contends that the court lacks 

subject matter jurisdiction over Plaintiff’s claims under 28 

U.S.C. § 1581(i) because jurisdiction is currently available 

under § 1581(c). Therefore, Defendant concludes, the portions 

of Plaintiff’s Complaint which assert jurisdiction under 1581(i) 

should be dismissed. The court agrees. 

It is settled that this court may take jurisdiction under 

1581(i) only when jurisdiction is unavailable under other 

subsections of 28 U.S.C. § 1581. See Hartford Fire Ins. Co. v. 

United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008) (citing 

Int’l Custom Prods. v. United States, 467 F.3d 1324, 1327 (Fed. 

Cir. 2006)). Here, jurisdiction is available under 1581(c) 

because Commerce’s exclusionary language in the Antidumping Duty 

and Countervailing Duty Orders (collectively “the Orders”) 

explicitly stated that it was revising the scope of the Orders 

and therefore the exclusion of all finished heat sinks may be 

challenged under 1581(c) as a negative part of Commerce’s final 

determination. E.g., Aluminum Extrusions from the People’s 

Republic of China, 76 Fed. Reg. 30,650 (Dep’t Commerce May 26, 

2011) (antidumping duty order) (“ . . . the Department is 

revising the scope of the subject merchandise stated in the 

Final Determination to exclude finished heat sinks from the 

scope of the order.” ); 19 U.S.C. § 1516a(a)(2)(B)(i) (granting 
Consol. Court No. 11-00216 Page 3 

jurisdiction over “final affirmative determinations . . . 

including any negative part of such a determination”). 

Defendant-Intervenors assert that this case is not ripe for 

judicial review under 1581(c) because Plaintiffs failed to 

exhaust their administrative remedies and must first file a 

request for a scope determination pursuant to 19 C.F.R. 

§ 351.225(c). This argument misses the point. A scope 

determination would only suffice to address whether specific 

imports fall under the scope of Commerce’s final determinations 

and their accompanying orders. Plaintiff’s complaint is that 

Commerce’s Orders (revising the scope of the Final 

Determinations) unlawfully and erroneously excluded all finished 

heat sinks and deprived Plaintiff of relief to which it was 

otherwise entitled because the International Trade Commission’s 

negative injury determination was limited to the subset of 

finished heat sinks sold to electronic manufacturers. Pl’s 

Compl., ECF No. 7 at ¶¶ 7, 13, 14, and 23. A scope 

determination request, therefore, could not address the 

sufficiency of the Orders as a whole. 

Defendant and Defendant-Intervenor’s motions to dismiss for 

lack of subject matter jurisdiction under 28 U.S.C. § 1581(i) 

are therefore GRANTED and Defendant-Intervenor’s motion to 
Consol. Court No. 11-00216 Page 4 

dismiss for failure to exhaust administrative remedies is 

DENIED. 

 It is so ORDERED. 

___/s/ Donald C. Pogue______ 

Donald C. Pogue, Chief Judge 

Dated: February 27, 2013 

 New York, NY