Slip Op. 05 - 74

 UNITED STATES COURT OF INTERNATIONAL TRADE

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THE COALITION FOR THE PRESERVATION 

OF AMERICAN BRAKE DRUM AND ROTOR : 

AFTERMARKET MANUFACTURERS, 

 :

 Plaintiff, 

 : 

 v. Court No. 01-00825

 :

THE UNITED STATES, 

 :

 Defendant. 

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 Memorandum

[Defendant's motion to dismiss this action

 in lieu of compliance with an outstanding 

 order of remand to the International Trade

 Administration granted.]

 Decided: June 21, 2005

Porter Wright Morris & Arthur LLP (Leslie Alan Glick) 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 (Stephen

C. Tosini); and Office of Chief Counsel for Import Administration,

U.S. Department of Commerce (Augusto Guerra), of counsel, for the

defendant.

AQUILINO, Senior Judge: The court's slip opinion 04-31,

28 CIT , 318 F.Supp.2d 1305 (2004), familiarity with which is

presumed, granted plaintiff's motion herein for judgment upon the

record compiled by the International Trade Administration, U.S.

Department of Commerce ("ITA") sub nom. Brake Rotors From the

People's Republic of China: Final Results and Partial Rescission of
Court No. 01-00825 Page 2

 1 The motion does request an extension of time to "allow

Commerce to file the remand results in this case within 30 days

after the Court's decision concerning [the] motion to dismiss, if

necessary."

Fifth New Shipper Review, 66 Fed.Reg. 44,331 (Aug. 23, 2001), to

the extent of remand to the ITA for reconsideration of its

determination to grant Shandong Laizhou Huanri Group General Co. a

separate antidumping-duty rate in the absence of that company's

presentment to, and analysis by, the agency of communist China's

Organic Law of the Village Committee. The defendant was afforded

90 days to reopen the record in that regard and to report to the

court the results of such reconsideration.

I

It has not done so. Exactly ninety days after entry of

the court's order, counsel came forth with a motion to dismiss this

lawsuit for lack of jurisdiction, stated to be made pursuant to

USCIT Rule 12(b)(1).1

 But of course that rule of traditional

federal practice has been available upon the attempted commencement

of an action, not after substantive issue has been joined by the

parties and decided by the court, which is this case.

Be this very belated misapplication as it is, a

court of 

limited jurisdiction must [continuously] determine that

the matter brought before it remains within the metes and

bounds of such delimitation.

Agro Dutch Industries Limited v. United States, 29 CIT , , 

358 F.Supp.2d 1293, 1294 (2005), appeal docketed, No. 05-1288
Court No. 01-00825 Page 3

(Fed.Cir. March 22, 2005), citing Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83 (1998). That limited jurisdiction

has been posited herein under 19 U.S.C. §1516a(a)(2)(A) and 28

U.S.C. §§ 1581(c), 2631(c), 2632(c), 2636(c).

. . .[T]his 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 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).

Ibid., 29 CIT at , 358 F.Supp.2d at 1294.

This enduring interpretation of judicial review pursuant

to the Trade Agreements Act of 1979, as amended, has resulted in

regular applications for, and grants of, preliminary injunctions,

suspending liquidations of entries of goods specifically implicated
Court No. 01-00825 Page 4

by administrative and then court reviews thereunder. Plaintiff's

complaint and required other papers filed upon commencement of this

case do not list or otherwise indicate those entries herein,

although the ITA, in publishing its Preliminary Results at 66 Fed.

Reg. 29,080 et seq. (May 29, 2001), advised all parties in regular

course of the potential consequences for them upon rendering the

Final Results. See 66 Fed.Reg. at 29,085-86. Apparently, the

plaintiff did not heed that warning, nor did it take the all-butautomatic step for judicial suspension of liquidation pending entry

of final judgment upon its CIT complaint, if not subsequent appeal

therefrom to the Federal Circuit.

The defendant has now notified this court that, on

January 16, 2003, the Department of Commerce issued liquidation

instructions to Customs, which complied on February 28, 2003. See

Defendant's Motion to Dismiss, p. 3 and Attachments 1 and 2. Those

actions thus took place more than a year before the court was able

to hand down slip opinion 04-31, the publication of which itself

apparently did not induce counsel to make the aforesaid notification any sooner than the end of the additional, 90-day period

granted to carry out the court's order of remand.

Suffice it to state that the record developed in this

matter is not a favorable reflection of USCIT Rule 1. On its part,

the plaintiff still argues that (i) there is a live case and controversy to be decided, (ii) the case is not moot, (iii) defend-
Court No. 01-00825 Page 5

ant's tactics violate its obligations to the court, and (iv) the

court is empowered to make a declaratory judgment in this case.

Plaintiff's Response to Defendant's Motion to Dismiss, p. i 

(capitalization deleted). Whatever defendant's obligations may be,

however, there is no seeming recognition that 

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.

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

Agro Dutch Industries Limited v. United States, 29 CIT at , 358

F.Supp.2d at 1296. With regard to this kind of case's jurisdictional predicate, counsel state:

Liquidation of entries in this case is of minimal

impact to Plaintiff in view of the low value of the

shipment ($18,195.00). . . . The duties at the "country

wide" rate would amount to a little more than $6,000.00.

New shippers usually file requests for reviews of

antidumping orders based on a single entry to the United

States, like Huanri General did in the challenged action.

[] This is a unique characteristic of requests for new

shipper reviews, which is highly relevant to the mootness

issue. . . . The value of the duties themselves are

often so small that it would not justify the cost of

litigation, if that was the only basis for filing suit.

If the duties themselves were not the motivating reason

for filing an appeal, it follows that the liquidation of

these duties does not remove the rationale for the

appeal. As indicated by Defendant's motion, the value of

the shipment is so low that any duties imposed on them

would be of negligible benefit to the Plaintiff in

monetary terms. . . . If the duties were the only issue,

it might never be economical to file an appeal of a new

shipper review determination in a non-market economy

antidumping case; thus, these cases would be forever

"evading review".
Court No. 01-00825 Page 6

What is the real value to Plaintiff, and which

constitutes the real controversy in this case is the

decision of this Court as to whether a separate rate, as

applied to Huanri General, is based on substantial

evidence and in accordance with law given the lack of

real investigation by the Department into the village

committee ownership issue. . . .

Plaintiff's Response to Defendant's Motion to Dismiss, pp. 4-5

(citations omitted; emphasis in original). This may very well all

be true, but it also has always been true that

[w]ithout 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); Agro Dutch

Industries Limited v. United States, 29 CIT at , 358 F.Supp.2d

at 1296.

II

In view of the foregoing, this matter must now be dismissed for lack of subject-matter jurisdiction. Judgment will

enter accordingly.

Decided: New York, New York

June 21, 2005

 Thomas J. Aquilino, Jr. 

 Senior Judge