GERDAU AMERISTEEL CORP.,

Plaintiff,

v.

UNITED STATES,

Defendant,

and

ICDAS CELIK ENERJI TERSANE

ve ULASIM SANAYI, A.S.,

Defendant-Intervenor.

Slip Op 06-125 

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Gregory W. Carman, Judge

Court No. 04-00608

[Defendant’s motion to dismiss for lack of jurisdiction granted.]

Brickfield, Burchette, Ritts & Stone, PC (Damon E. Xenopoulos), Washington, D.C., for

Plaintiff.

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

Davidson, Deputy Director; David S. Silverbrand, Trial Attorney, Commercial Litigation Branch,

Civil Division, U.S. Department of Justice; Robert E. Nielsen, Of Counsel, Senior Attorney,

Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for

Defendant.

Arnold & Porter LLP (Lawrence A. Schneider), Washington, D.C., for DefendantIntervenor.

Dated: August 10 , 2006

OPINION

Carman, Judge: In this action, Plaintiff Gerdau Ameristeel Corporation (“Plaintiff” or

“Gerdau”) challenges Defendant United States Department of Commerce’s (“Defendant” or
Court No. 04-00608 Page 2

 19 U.S.C. § 1514(a)(5) provides, in pertinent part:

1

[D]ecisions of the Customs Service, including the legality of all orders and

“Commerce”) final results in Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg.

64,731 (Dep’t Commerce Nov. 8, 2004) (“Final Results”). Defendant moves to dismiss this

action for lack of jurisdiction. Because all of the subject entries at issue have been liquidated,

this Court lacks jurisdiction to hear this matter. Accordingly, Defendant’s motion is granted, and

this matter is dismissed.

PROCEDURAL HISTORY

On May 21, 2003, Commerce initiated an administrative review on steel concrete

reinforcing bars (“rebar”) from Turkey. Certain Steel Concrete Reinforcing Bars from Turkey,

68 Fed. Reg. 27,781 (Dep’t Commerce May 21, 2003) (initiation of antidumping review). The

period of review is April 1, 2002, through March 31, 2003. On May 5, 2004, Commerce issued

its preliminary results. Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg.

25,063 (Dep’t Commerce May 5, 2004) (preliminary results). On November 8, 2004, Commerce

issued its final determination. Final Results, 69 Fed. Reg. at 64,731. On December 17, 2004,

and February 11, 2005, the United States Bureau of Customs and Border Protection (“Customs”)

liquidated subject entries.

On December 29, 2004, Plaintiff filed a timely action, challenging the company-specific

dumping margin of 0.00 percent ad valorem assigned to ICDAS Celik Enerji Tersane ve Ulasim

Sanayi, A.S. (“ICDAS”), which is Defendant-Intervenor in this case. On September 7, 2005,

Defendant moved to dismiss pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction, asserting

that the relevant entries were properly liquidated pursuant to 19 U.S.C. § 1514(a) (2000).1
Court No. 04-00608 Page 3

findings entering into the same, as to – 

. . .

(5) the liquidation or reliquidation of an entry, or reconciliation as to

the issues contained therein, or any modification thereof;

. . . 

shall be final and conclusive upon all persons (including the United States

and any officer thereof) unless a protest is filed in accordance with this

section, or unless a civil action contesting the denial of a protest, in whole

or in part, is commenced in the United States Court of International Trade

. . . within the time prescribed . . . . 

 19 U.S.C. § 1516a(a)(2)(B)(iii) states, in relevant part:

2

(a) Review of determination

. . . 

(2) Review of determinations on record

. . . 

(B) Reviewable determinations

The determinations which may be contested under

subparagraph (A) are as follows:

. . . 

(iii) A final determination . . . by the

administering authority or the Commission

under section 1675 of this title. 

STANDARD OF REVIEW

When considering a motion to dismiss, a court “must assume all well-pled factual

allegations are true and indulge in all reasonable inferences in favor of the nonmovant.” Gould,

Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991). The threshold question for any

court, however, begins with jurisdiction.

JURISDICTION

Statutory authority dictates this Court’s jurisdiction. Plaintiff brings its claim under

section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000).

2

Compl. ¶ 1. This Court has exclusive jurisdiction to review cases properly brought under
Court No. 04-00608 Page 4

 28 U.S.C. § 1581(c) grants:

3

The Court of International Trade shall have exclusive jurisdiction of any

civil action commenced under section 516A of the Tariff Act of 1930.

19 U.S.C. § 1516a pursuant to 28 U.S.C. § 1581(c) (2000). Defendant, however, challenges this 3

Court’s subject matter jurisdiction and asserts Plaintiff’s claim is rendered moot by proper

liquidation. Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 1-2. 

It is well established that “liquidation [of subject merchandise] eliminates the only

remedy available . . . for an incorrect review determination by depriving the trial court of the

ability to assess dumping duties . . . .” Zenith Radio Corp. v. United States, 710 F.2d 806, 810

(Fed. Cir. 1983). Furthermore, without an injunction, liquidation means an interested party will

“forever lose its statutory right” to challenge an administrative review. The Timken Co. v. United

States, 6 CIT 75, 80, 569 F. Supp. 65 (1983). 

To balance this potential injustice, an interested party, on proper foundation, may request

a preliminary injunction barring liquidation. SKF USA Inc. v. United States, 28 CIT __, 316 F.

Supp. 2d 1322, 1326-27 (2004); cf. Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1310

(Fed. Cir. 2004) (not requiring an injunction where suit was not brought under section 516A of

the Tariff Act). Because liquidation permanently deprives a party of the opportunity to contest

the results of an administrative review by rendering moot the cause of action, courts routinely

issue preliminary injunctions in antidumping cases. SKF, 316 F. Supp. 2d at 1327, 1332; see

also Nucor Corp. v. United States, 29 CIT __, 412 F. Supp. 2d 1341, 1348 (2005) (“preliminary

injunctions restraining the liquidation of [period of review] entries are sought and granted almost

reflexively in cases . . . challenging the outcome of administrative reviews”). The interested
Court No. 04-00608 Page 5

party, however, must request an injunction. It is undisputed that such a request was never made

in this case. Def.’s Mot. at 3; Pl.’s Resp. to Def.’s Mot. to Dismiss (“Pl.’s Resp.”) at 9. 

All parties to this action concede that the subject entries have been liquidated. Pl.’s Resp.

at 5; Def.’s Mot. at 2; Def.-Intervenor ICDAS’ Reply in Supp. of Mot. to Dismiss at 1. 

Moreover, this Court notes that Plaintiff had sufficient notice that the suspension of liquidation

of subject entries was lifted upon publication of the Final Results in the Federal Register. Def.’s

Mot. at 3; Int’l Trading Co. v. United States, 412 F.3d 1303, 1309 (Fed. Cir. 2005). Because

Plaintiff’s cause of action is rendered moot by liquidation of the subject entries, this Court lacks

subject matter jurisdiction over this case.

CONCLUSION

For the reasons stated herein, this Court holds that it lacks subject matter jurisdiction in

this action and grants Defendant’s motion to dismiss. Accordingly, this Court need not reach the

merits of the case, and therefore, the motion for judgment on the agency record before this Court

is hereby rendered moot. Judgment shall be entered accordingly.

 /s/ Gregory W. Carman 

Gregory W. Carman

Dated: August 10, 2006

New York, New York