                                        Slip Op. 16-113

                UNITED STATES COURT OF INTERNATIONAL TRADE


  QINGDAO BARRY FLOORING CO.,
  LTD.

                         Plaintiff,
                                                    Before: Timothy C. Stanceu, Chief Judge
                 v.
                                                    Court No. 15-00056
  UNITED STATES,

                         Defendant.


[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.
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: December 2, 2016
       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.
