Slip Op. 17-98
UNITED STATES COURT OF INTERNATIONAL TRADE
MICRO SYSTEMS ENGINEERING,
INC.,
Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Court No. 13-00376
UNITED STATES,
Defendant.
JUDGMENT
[Granting Plaintiff’s USCIT Rule 12(c) motion for judgment on the pleadings.]
Dated: August 7, 2017
Elon A. Pollack, Stein Shostak Shostak Pollack & O’Hara, LLP, of Los Angeles, CA, for
plaintiff.
Alexander Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Dept. of Justice, of New York, NY, for defendant. With him on brief were Chad A. Readler,
Acting Assistant Attorney General, Amy M. Rubin, Assistant Director.
Choe-Groves, Judge: This case involves the classification of certain parts used to
manufacture subassemblies for pacemakers imported by Micro Systems Engineering, Inc.
(“Plaintiff”). See Summons, Nov. 8, 2013, ECF No. 1; Compl. ¶ 5, Feb. 13, 2017, ECF No. 15.
Plaintiff imported twenty-four entries of the merchandise between June 2011 and February
2012.1 See Summons. U.S. Customs and Border Protection (“Customs”) classified and
1
This case initially concerned forty-three entries. See Summons. The nineteen entries covered
in Protest Nos. 4196-13-100098, 4196-13-100058, 4196-13-100210, 4196-13-100065, 4196-13-
100059, 4196-13-100140, and 4101-13-100192 were severed and dismissed from this case on
(footnote continued)
Court No. 13-00376 Page 2
liquidated the merchandise under various provisions of the Harmonized Tariff Schedule of the
United States (“HTSUS”). See Compl. ¶ 5; Answer ¶ 5, Mar. 23, 2017, ECF No. 16. Plaintiff’s
complaint alleges that Customs misclassified the imported merchandise because the parts are
specially designed or adapted for use in heart pacemakers and are classifiable under the Nairobi
Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural
Materials (“Nairobi Protocol”). See Compl. ¶¶ 7–9. The HTSUS implemented the Nairobi
Protocol under subheading 9817.00.96, which is a duty free provision that exempts payment of
certain merchandise processing fees. See 19 C.F.R. § 24.23(c)(1)(i). Defendant agrees that the
imported pacemaker components contained in the entries at issue are classifiable under HTSUS
subheading 9817.00.96. See Answer ¶¶ 7–9.
Before the court is Plaintiff’s Motion for Judgment on the Pleadings filed pursuant to
USCIT Rule 12(c). See Mot. J. Pleadings, May 9, 2017, ECF No. 23. USCIT Rule 12(c)
permits a party to move for judgment on the pleadings “after the pleadings are closed and if it
would not delay trial.” Forest Labs., Inc. v. United States, 29 CIT 1401, 1402, 403 F. Supp. 2d
1348, 1349 (2005), aff’d, 476 F.3d 877 (Fed. Cir. 2007). A judgment on the pleadings is
appropriate where there are no material facts in dispute and the moving party is entitled to
judgment as a matter of law. See New Zealand Lamb Co., Inc. v. United States, 40 F.3d 377,
380 (Fed. Cir. 1994) (citing Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day
Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079
May 10, 2017 and August 1, 2017. See Order, May 10, 2017, ECF No. 25 (granting Plaintiff’s
consent motion to sever and dismiss); Order, Aug. 1, 2017, ECF No. 29 (granting Plaintiff’s
consent motion to sever and dismiss).
Court No. 13-00376 Page 3
(1990)). Plaintiff asserts that there are no factual or legal disputes for the court to review and the
court should enter judgment in Plaintiff’s favor because Defendant admits that the imported
goods are classifiable under the Nairobi Protocol. See Mot. J. Pleadings 3. Defendant responds
as follows:
[W]e agree with Micro Systems that the substrates, coils, diodes and integrated
circuits in the remaining . . . entries before the Court “are properly classified
under HTSUS 9817.00.96 (Nairobi Protocol), which carries 0% duties ad valorem
and are excepted from payment of merchandise processing fees.” Pl. Motion at
2–3.
Def.’s Resp. Pl.’s Mot. J. Pleadings 2, May 15, 2017, ECF No. 26. The Parties are in agreement
that the imported substrates, coils, diodes, and integrated circuits contained in the entries at issue
in this action are classifiable under the Nairobi Protocol. Judgment on the pleadings is
appropriate here because the pleadings do not raise any triable material issue of fact and Plaintiff
is entitled to judgment as a matter of law regarding the classification of the imported substrates,
coils, diodes, and integrated circuits.
Therefore, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings, and
all other papers and proceedings in this action, and upon due deliberation, it is hereby
ORDERED that judgment is granted in favor of Plaintiff; it is further
ORDERED that the imported substrates, coils, diodes, and integrated circuits contained
in the entries set forth on the attached Schedule are classifiable under HTSUS subheading
9817.00.96, which is a duty free provision that exempts payment of merchandise processing fees;
it is further
Court No. 13-00376 Page 4
ORDERED that, in accordance with this judgment, U.S. Customs and Border Protection
shall reliquidate and issue refunds for those entries on the attached Schedule containing
substrates, coils, diodes, and integrated circuits; and it is further
ORDERED that any refunds payable by reason of this judgment shall be paid with any
interest as provided by law.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: August 7, 2017
New York, New York
Court No. 13-00376 Page 5
SCHEDULE
Court No. 13-00376
Port: Cleveland, OH (4101)
Protest No. Entry No. Description of Merchandise
4101-12-100774 UPS-2820507-4 Substrate No. 382159
UPS-2853368-1 Substrate No. 375851
UPS-2935425-1 Substrate Nos. 358018, 375850
UPS-2974236-4 Substrate No. 369164
UPS-2983617-4 Substrate Nos. 380143, 375850
4101-13-100366 UPS-5249407-3 Substrate No. 369164
UPS-5322143-4 Substrate No. 381978
UPS-5216520-2 Substrate No. 358018
UPS-5295260-9 Substrate No. 358018
UPS-5181551-8 Integrated Circuits
4101-13-100397 UPS-5267472-4 Substrate Nos. 375850, 375851, 388143
UPS-5558872-3 Substrate Nos. 375850, 380143
UPS-5322139-2 Substrate No. 380143
UPS-5399461-8 Substrate No. 375851
UPS-5434839-2 Substrate No. 365754
4101-13-100398 UPS-5251974-7 Diodes
UPS-5481026-8 Diodes
Port: Los Angeles International Airport (2720)
Protest No. Entry No. Description of Merchandise
2720-13-100071 UPS-3938534-5 Coil (Frame, Shield)
2720-13-100147 UPS-4502677-6 Coil Circuit
UPS-4542473-2 Coil Frame
2720-13-100170 UPS-4632367-7 Coil Frame, Shield
UPS-4696268-0 Coil Frame
UPS-4764926-0 Coil Shield
UPS-4953780-2 Coil (Frame, Circuit, Shield)