Slip Op. 17-97
UNITED STATES COURT OF INTERNATIONAL TRADE
MICRO SYSTEMS ENGINEERING,
INC.,
Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Court No. 13-00317
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, Aug. 28, 2013, ECF No. 1; Compl. ¶ 5, Aug. 9, 2016, ECF No. 13.
Plaintiff imported forty entries of the merchandise between January 2011 and June 2011.1 See
Summons. U.S. Customs and Border Protection (“Customs”) classified and liquidated the
1
This case initially concerned forty-two entries, but Entry Nos. UPS-1492397-9 and UPS-
2641343-1 were severed and dismissed from this case on March 2, 2017. See Order, Mar. 2,
2017, ECF No. 23 (granting Plaintiff’s consent motion to sever and dismiss).
Court No. 13-00317 Page 2
merchandise under various provisions of the Harmonized Tariff Schedule of the United States
(“HTSUS”). See Compl. ¶ 5; Answer ¶ 5, Feb. 15, 2017, ECF No. 21. 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. 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 n.1, ¶ 7.
Before the court is Plaintiff’s Motion for Judgment on the Pleadings filed pursuant to
USCIT Rule 12(c). See Mot. J. Pleadings, Mar. 22, 2017, ECF No. 24. 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
(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
Court No. 13-00317 Page 3
goods are classifiable under the Nairobi Protocol. See Mot. J. Pleadings 3. Defendant responds
as follows:
Micro Systems is correct that the Government admits that the imported substrates,
cap sensors, and coils contained in the entries covered by this action are properly
afforded secondary classification under subheading 9817.00.96, HTSUS. See
Answer ¶ 7. However, the Government does not agree that Micro Systems has
established that it is entitled to refunds on “TANT Caps” contained in Entry Nos.
UPS-1590276-6 and UPS-2470970-7, “Tabs” contained in Entry Nos. UPS-
1283211-5 and UPS-2539341-0, and “AOTs” contained in Entry Nos. UPS-
1272304-1 and UPS-1384281-6. “TANT Caps,” “Tabs,” and “AOTs” are not the
subject of the Complaint, and “TANT Caps” and “Tabs” are not the subject of the
protests covering the entries in which they are contained. See Compl. ¶ 7; see
also Entry Papers and Protests.
Def.’s Resp. Pl.’s Mot. J. Pleadings 2, Apr. 17, 2017, ECF No. 27. Plaintiff agrees that “TANT
Caps” and “Tabs” are not classifiable under the Nairobi Protocol. See Reply in Supp. Pl.’s Mot.
J. Pleadings 1, May 26, 2017, ECF No. 33. Plaintiff maintains, however, that the “AOTs” should
be afforded duty-free treatment under the Nairobi Protocol. See id. Plaintiff represents that,
after providing Defendant with documents and technical specifications, Defendant agrees that the
“AOTs” qualify for duty-free treatment under the Nairobi Protocol. See id. The Parties are in
agreement that the imported substrates, cap sensors, coils, and AOTs contained in the entries at
issue in this action are classifiable under the Nairobi Protocol. The Parties are also in agreement
that “TANT Caps” and “Tabs” are not 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, cap sensors, coils, and AOTs.
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
Court No. 13-00317 Page 4
ORDERED that judgment is granted in favor of Plaintiff; it is further
ORDERED that the imported substrates, cap sensors, coils, and AOTs 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
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, cap sensors, coils, and AOTs; it is further
ORDERED that any refunds payable by reason of this judgment shall be paid with any
interest as provided by law; it is further
ORDERED that all claims with respect to “TANT Caps” contained in Entry Nos.
UPS-1590276-6 and UPS-2470970-7 are dismissed; and it is further
ORDERED that all claims with respect to “Tabs” contained in Entry Nos.
UPS-1283211-5 and UPS-2539341-0 are dismissed.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: August 7, 2017
New York, New York
Court No. 13-00317 Page 5
SCHEDULE
Court No. 13-00317
Port: Cleveland, OH (4101)
Protest No. Entry No. Description of Merchandise
4101-12-100417 UPS-1439875-0 Substrate Nos. 358018, 362539
UPS-1455049-1 Substrate No. 380143
UPS-1467605-6 Substrate No. 358018
UPS-1494247-4 Substrate No. 358018
4101-12-100430 UPS-1765499-3 Substrate Nos. 355686, 369164
UPS-1782685-6 Substrate Nos. 355686, 358018
UPS-1829299-1 Substrate Nos. 358018, 362539
4101-12-100775 UPS-2622837-5 Substrate Nos. 375850, 358018
UPS-2648611-4 Substrate No. 358018
UPS-2695243-8 Substrate No. 375851
UPS-2726160-7 Substrate
UPS-2748481-1 Substrate Nos. 375851, 375850
UPS-2812258-4 Substrate No. 375850
4101-12-100416 UPS-1547077-2 Substrate No. 362539
UPS-1547087-1 Substrate Nos. 358018, 355686
UPS-1590276-6 Substrate No. 371594
UPS-1685871-0 Substrate No. 355686
UPS-1702034-4 Substrate No. 355686
UPS-1717033-9 Substrate Nos. 369164, 362539
UPS-1733939-7 Substrate No. 362539
4101-12-100415 UPS-1209282-7 Substrate Nos. 358018, 355686
UPS-1202813-6 Substrate No. 362539
UPS-1184562-1 Substrate Nos. 358018, 362539
UPS-1178068-7 Substrate Nos. 358018, 380143
UPS-1154883-7 Substrate Nos. 362539
UPS-1286564-4 Substrate No. 358018
UPS-1272304-1 Cap Sensor, AOTs
UPS-1270044-5 Substrate No. 369164
UPS-1255860-3 Substrate Nos. 362539, 355686
UPS-1314435-3 Substrate Nos. 355686, 380695
UPS-1283211-5 Coil
UPS-1384281-6 Cap Sensor, AOTs
Court No. 13-00317 Page 6
Protest No. Entry No. Description of Merchandise
4101-12-100728 UPS-2461979-9 Substrate Nos. 358018, 362539
UPS-2470970-7 Cap Sensor
UPS-2476717-6 Substrate
UPS-2506937-4 Substrate Nos. 375850, 375851
UPS-2507255-0 Substrate No. 369164
UPS-2521936-7 Substrate No. 380143
UPS-2539341-0 Coil
UPS-2541579-1 Substrate No. 375851