Slip Op. 16-113 

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Timothy C. Stanceu, Chief Judge 

Court No. 15-00056 

[Dismissing the action for mootness] 

OPINION 

Lizbeth R. Levinson, Ronald M. Wisla, and Brittney R. McClain, Kutak Rock LLP, of 

Washington, DC, argued for plaintiff. 

Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the briefs 

were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, 

Director, and Claudia Burke, Assistant Director. Of counsel for defendant was Shelby M. 

Anderson, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department 

of Commerce, of Washington, DC. 

Stanceu, Chief Judge: Plaintiff Qingdao Barry Flooring Co., Ltd. (“Qingdao Barry”) 

commenced this action “to obtain a writ of mandamus compelling the U.S. Department of 

Commerce (“Commerce”) to conduct a new shipper’s review (“NSR”) of Qingdao Barry’s 

shipment of multilayered wood flooring (“MLWF”) from the People’s Republic of China.” 

Compl. ¶ 1 (Mar. 2, 2015), ECF No. 6. Due to administrative actions taken by Commerce, 

which occurred after the commencement of this action on March 2, 2015, see id., the court 

concludes that the action is now moot and, accordingly, must be dismissed for lack of 

jurisdiction. 

QINGDAO BARRY FLOORING CO., 

LTD. 

Plaintiff, 

v. 

UNITED STATES, 

Defendant. 
Court No. 15-00056 Page 2 

I. BACKGROUND

On October 26, 2015, the International Trade Administration, U.S. Department of 

Commerce (“Commerce” or the “Department”) published a notice in the Federal Register 

announcing that it was initiating a new shipper review of an antidumping duty order on 

multilayered wood flooring from China according to Section 751(a)(2)(B) of the Tariff Act of 

1930, 19 U.S.C. § 1675(a)(2)(B), and 19 C.F.R. § 351.214(b), in response to a request submitted 

to Commerce by Qingdao Barry on December 19, 2014 and supplemented thereafter.1 

Multilayered Wood Flooring from the People’s Republic of China: Initiation of Antidumping 

Duty New Shipper Review; 2013-2014, 80 Fed. Reg. 65,200 (Int’l Trade Admin. Oct. 26, 2015). 

Commerce designated December 1, 2013 through November 30, 2014 as the period of review for 

the new shipper review. Id.

Commerce published a second Federal Register notice on June 2, 2016 stating its 

preliminary determination to rescind the review on the ground that the single sale of exported 

multilayered wood flooring to the United States upon which Qingdao Barry relied for its 

entitlement to a new shipper review was not a “bona fide” sale. Multilayered Wood Flooring 

from the People’s Republic of China: Preliminary Rescission of 2013-2014 New Shipper Review, 

81 Fed. Reg. 35,306 (Int’l Trade Admin. June 2, 2016). Commerce gave the following as the 

reason for its preliminary decision as to the sale in question: 

The Department reached this conclusion based on the totality of circumstances 

surrounding the reported sale, including, among other things, the price of the sale 

and Qingdao Barry’s failure to provide evidence that the subject merchandise was 

resold at a profit. Because the non-bona fide sale was the only reported sale of 

subject merchandise during the POR, and thus there are no reviewable 

transactions on this record, we are preliminarily rescinding the instant NSR. 

1

 Citations to the United States Code are to the 2012 edition, and citations to the Code of 

Federal Regulations are to the 2015 edition. 
Court No. 15-00056 Page 3 

Id. at 35,307. On July 19, 2016, Commerce published a third Federal Register notice affirming 

its preliminary conclusion that the sale was not bona fide and reaching a final decision to rescind 

the new shipper review. Multilayered Wood Flooring from the People’s Republic of China: 

Rescission of New Shipper Review; 2013-2014, 81 Fed. Reg. 46,906 (Int’l Trade Admin. July 19, 

2016). 

II. DISCUSSION

A federal court may exercise the judicial power granted by Article III of the Constitution 

only in the presence of an actual case or controversy. CONSTITUTION, Art. III, § 2. The court 

concludes that no live case or controversy remains such as to allow this action to proceed. The 

court rejects plaintiff’s contentions to the contrary for the reasons discussed below. 

At the time of commencing this suit, plaintiff Qingdao Barry had filed with Commerce 

and supplemented a request for initiation of a new shipper review under the relevant provision of 

the antidumping duty statute, 19 U.S.C. § 1675(a)(2)(B), but Commerce had taken no action. 

After this action was commenced, the parties entered into consultations, following which the 

parties informed the court “of their view that, this action having commenced, Commerce now 

may lack the authority to initiate and conduct the requested new shipper review unless first 

granted the leave of court to do so.” Order 1 (Oct. 14, 2015), ECF No. 23. In its Order of 

October 14, 2015, the court stated that “[w]ithout deciding this question, the court is entering this 

Order to clarify that Commerce has the necessary authority to initiate and conduct the review, so 

that the parties’ efforts to resolve the issue in this case may proceed.” Id. To this end, the court 

ordered that “Commerce be, and hereby is, granted the permission of the court, to the extent such 

permission is or may become necessary, to initiate and conduct the requested new shipper 

review.” Id. at 2. 
Court No. 15-00056 Page 4 

The Department’s issuance of the three Federal Register notices discussed above, i.e., the 

notice initiating the new shipper review, the preliminary notice of intention to rescind, and the 

final notice of rescission, has not resulted in a settlement of this case. Plaintiff takes the position 

that Commerce “failed to comply with the Court’s Order to ‘initiate and conduct’ the new 

shipper review.” Status Report of Pl. Qingdao Barry Flooring Co., Ltd. and Req. for Relief 1 

(July 18, 2016), ECF No. 25. According to plaintiff, “[a]lthough Commerce did initiate the new 

shipper review, Commerce failed to conduct the new shipper review in accordance with the 

statute and Commerce’s own regulations.” Id. In an effort to continue this litigation, plaintiff 

argues specifically that “Commerce improperly truncated the review so as to coincide with the 

deadline for the 2013-2014 regular administrative review” and “failed to conduct a public 

hearing in this matter” as required by regulation. Id. at 2; Joint Status Report and Proposed 

Briefing Schedule (Oct. 26, 2016), ECF No. 15, at 1-2. Defendant argues that this case should 

be dismissed, giving among its reasons that “Qingdao Barry has received the relief it sought in 

its complaint: Commerce has initiated and conducted a new shipper review.” Def.’s Status 

Report 3 (July 22, 2016), ECF No. 26. 

The court begins by considering the true nature of plaintiff’s claim when viewed 

according to the only jurisdictional provision upon which it possibly could have been brought. 

Plaintiff asserted jurisdiction under 28 U.S.C. § 1581(c) and, as an alternative basis, 28 U.S.C. 

§ 1581(i). Under § 1581(c), the court may hear actions commenced under Section 516A of the

Tariff Act of 1930, 19 U.S.C. § 1516a, to contest certain final decisions reached in antidumping 

duty proceedings, including the final results of a new shipper review, but nothing in 19 U.S.C. 

§ 1516a or 28 U.S.C. § 1581(c) grants the court subject matter jurisdiction of a claim that

Commerce unlawfully has refused to initiate or refused to conduct a new shipper review. Under 
Court No. 15-00056 Page 5 

28 U.S.C. § 1581(i), the “residual” jurisdiction provision, the court may take jurisdiction of 

various actions arising under the tariff laws; such actions may arise either under the Constitution 

or, as is relevant here, the Administrative Procedure Act (the “APA”). See Motion Sys. v. Bush, 

437 F.3d 1356, 1370-71 (Fed. Cir. 2006). Plaintiff’s claim arguably is of a type that would have 

arisen under the APA, over which the court might have exercised jurisdiction according to 

28 U.S.C. § 1581(i), but the court need not resolve this issue because any action plaintiff could 

have brought thereunder is no longer based on a current case or controversy and, for this reason, 

beyond the Article III power of the court to adjudicate. 

The claim as set forth in plaintiff’s complaint and the subsequent actions by Commerce 

remove any doubt that this action is moot. The injury of which plaintiff complained was the 

Department’s failure to initiate and conduct a new shipper review of Qingdao Barry. Compl. ¶ 1, 

Prayer for Relief. Plaintiff argues now that Commerce failed to adhere to the statutory and 

regulatory deadlines by which it was required to conduct the new shipper review and that 

Commerce unlawfully failed to hold a public hearing; based on these allegations plaintiff 

submits that Commerce did not conduct a lawful new shipper review. Status Report of Pl. 

Qingdao Barry Flooring Co., Ltd. and Req. for Relief at 1-2. However, these are objections as to 

how the review was conducted, not as to whether the review was conducted.2

 The Department’s 

three Federal Register notices, of which the court takes judicial notice in ascertaining 

jurisdictional facts, demonstrate a fact about which there can be no controversy: a new shipper 

review of Qingdao Barry was initiated and conducted. Qingdao Barry’s claim that the review 

2

 Plaintiff also is incorrect in arguing that Commerce “failed to comply with the Court’s 

Order to ‘initiate and conduct’ the new shipper review.” Status Report of Pl. Qingdao Barry 

Flooring Co., Ltd. and Req. for Relief 1 (July 18, 2016), ECF No. 25, at 1. The court’s order, as 

discussed above, merely clarified that Commerce had the authority to initiate and conduct the 

review; it did not order Commerce to take any administrative action. 
Court No. 15-00056 Page 6 

was not conducted according to law could be asserted only in an action contesting the final 

results of the new shipper review, not in the instant case, which plaintiff brought before the 

Department conducted that review and published any of the three Federal Register notices.3

III. CONCLUSION

For the reasons discussed in the foregoing, the court will enter judgment dismissing this 

action for lack of jurisdiction. 

/s/ Timothy C. Stanceu 

Timothy C. Stanceu 

Chief Judge 

Dated: 

New York, New York 

3

 Qingdao Barry has filed a second case, Court No. 16-00144, contesting the final results 

of the new shipper review. 

December 2, 2016