Slip Op. 08-98
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
_____________________________________
:
UNIPRO FOODSERVICE, INC., :
:
Plaintiff, :
:
v. : Court No.: 05-00562
:
UNITED STATES, :
:
Defendant. :
_____________________________________ :
Held: Defendant’s motion to dismiss plaintiff’s complaint for lack
of jurisdiction pursuant to USCIT R. 12(b) is granted. Case
dismissed in its entirety.
Dated: September 17, 2008
Saul Ewing LLP, (Jeffrey S. Levin) for UniPro Foodservice Inc.,
Plaintiff.
Gregory G. Katsas, Assistant Attorney General; Barbara S. Williams,
Attorney-in-Charge, International Trade Field Office; Marcella
Powell, Civil Division, Commercial Litigation Branch, United States
Department of Justice; Of Counsel, Yelena Slepak, Office of the
Assistant Chief Counsel, United States Bureau of Customs and Border
Protection, for the United States, Defendant.
Court No. 05-00562 Page 2
OPINION
TSOUCALAS, Senior Judge: Defendant United States Bureau of Customs
and Border Protection1 (“Defendant” or “Customs”) moves to dismiss
the complaint on the ground that it lacks subject matter
jurisdiction pursuant to USCIT R. 12(b)(1). For the reasons set
forth herein, Defendant’s motion is granted.
DISCUSSION
I. Background
Plaintiff UniPro Food Service, Inc. (“UniPro” or “Plaintiff”)
commenced this action pursuant to § 515 of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1515, contesting Customs’ denial of Protest
No. 1303-04-100195 regarding 94 entries of canned pineapple fruit
(“CPF”) from Thailand entered during the periods July 1, 1996
through June 30, 1997 (“second administrative review”) and July 1,
1997 through June 30, 1998 (“third administrative review”), and
liquidated on July 30, 2004. See Compl. ¶ 1. The subject
merchandise was exported from Thailand by Siam Food Canning (1988)
Co., Ltd. (“SIFCO”). See Compl. ¶ 2. UniPro was the importer of
record. See id.
1
The Bureau of Customs and Border Protection was renamed
United States Customs and Border Protection, effective March 31,
2007. See Name Change From the Bureau of Immigration and Customs
Enforcement to U.S. Immigration and Customs Enforcement, and the
Bureau of Customs and Border Protection to U.S. Customs and
Border Protection, 72 Fed. Reg. 20,131 (Apr. 23, 2007).
Court No.: 05-00562 Page 3
At the time subject merchandise was entered, imports of CPF
from Thailand were subject to an antidumping order. See Canned
Pineapple Fruit from Thailand, 60 Fed. Reg. 36,775 (July 18, 1995).
SIFCO, however, was not a mandatory respondent in the original
investigation and was not subject to the first administrative
review. See Compl. ¶ 12. Therefore, SIFCO’s entries made during
the second and third administrative review periods were subject to
a cash deposit requirement for estimated dumping duties at the “all
others” rate from the underlying antidumping investigation. See
id. In this case, the “all others” rate was 24.64 percent.
SIFCO participated in the second and the third administrative
reviews. See id. ¶¶ 13, 14. In those reviews, the United States
Department of Commerce (“Commerce”) calculated a weighted-average
dumping margin of 5.41 percent ad valorem, 63 Fed. Reg. 43,661
(Aug. 14, 1998), and 3.32 percent ad valorem, 64 Fed. Reg. 69,481
(Dec. 13, 1999), respectively. On June 24, 2004, Commerce issued
liquidation instructions for Customs to assess antidumping duties
at the cash deposit rate in effect on the date of entry. See id.
¶ 5. Pursuant to Commerce’s instructions, Customs liquidated the
entries at issue at the “all others” cash deposit rate of 24.64
percent ad valorem on July 30, 2004. See id. ¶ 6.
In late October of 2004, UniPro filed protest no. 1303-04-
100195. See id. ¶ 8. The basis for UniPro’s protest was that the
subject entries should not have been liquidated at the “all others”
Court No.: 05-00562 Page 4
cash deposit rate because SIFCO was a reviewed producer and
exporter for purposes of the second and third administrative review
periods. See Protest No. 1303-04-100195. Instead, UniPro argued
that the entries from SIFCO should have been liquidated at an
importer-specific assessment rate and that Commerce must have made
an error in its liquidation instructions. See id.
On April 8, 2005, Customs denied UniPro’s protest on the
ground that “[t]his issue, ITA calculations or findings, is not
protestable under 19 U.S.C. §§ 1514 or 1520 because it was
reviewable under 19 U.S.C. § 1516a.” Compl. ¶ 8. On September 28,
2005, UniPro initiated the instant action by filing a summons. See
id. ¶ 9. UniPro sought this Court’s jurisdiction pursuant to 28
U.S.C. §§ 1581(a) and 2636(a). See id. Subsequently, on April 12,
2007, UniPro filed a complaint seeking this Court’s jurisdiction
pursuant to 28 U.S.C. § 1581(i). See Compl. ¶ 11. On December
26, 2007, Customs filed its motion to dismiss this action for lack
of jurisdiction. See Mem. In Supp. Of Def.’s Mot. To Dismiss For
Lack of Jurisdiction Pursuant To R. 12(b) (“Def.’s Mem.”). On
January 30, 2008, UniPro filed its response. See Mem. In Supp. Of
Pl.’s Resp. To Def.’s Mot. To Dismiss For Lack Of Jurisdiction
(“Pl.’s Resp. Br.”). On March 24, 2008, Customs filed its reply.
See Reply Mem. In Further Supp. Of Def.’s Mot. To Dismiss For Lack
of Subject Matter Jurisdiction Pursuant to R. 12(b) (“Def.’s
Reply”).
Court No.: 05-00562 Page 5
II. The Parties’ Contentions
A. Defendant’s Contentions
Customs’ main contention is that UniPro may not challenge
Commerce’s June 24, 2004 liquidation instructions by filing a
protest to Customs because it is not a protestable decision under
19 U.S.C. § 1514(a). See Def.’s Mem. at 5-7. Customs thus argues
that this Court lacks jurisdiction under 28 U.S.C. § 1581(a).
Specifically, Customs points to the language of 28 U.S.C. §
1581(a) which states that a protest can only be filed against a
Customs decision. See id. at 5. According to Customs, Commerce
calculated and determined antidumping duties, and Customs merely
completed a ministerial task in collecting the antidumping duties.
See id. at 6. Since such a passive activity does not constitute a
Customs decision, Customs argues that it cannot be the basis for a
valid protest under 19 U.S.C. § 1514(a). See id. In the absence
of a valid protest, Customs urges this Court to dismiss this action
for lack of jurisdiction.
Court No.: 05-00562 Page 6
Customs admits that 28 U.S.C. § 1581(i)2 provides the proper
jurisdictional basis to challenge the lawfulness of Commerce’s
liquidation instructions. See id. at 7-8. However, it argues that
UniPro’s claim fails because it did not file the summons and
complaint concurrently as required by 28 U.S.C. § 2632(a) and USCIT
R. 3(a). See id. Because UniPro filed its summons on September
28, 2005 and complaint on April 12, 2007, and not concurrently as
2
The statute provides that:
In addition to the jurisdiction conferred upon the
Court of International Trade by subsections (a)-(h) of
this section and subject to the exception set forth in
subsection (j) of this section, the Court of
International Trade shall have exclusive jurisdiction
of any civil action commenced against the United
States, its agencies, or its officers, that arises out
of any law of the United States providing for –
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other than the
raising of revenue;
(3) embargoes or other quantitative restrictions on the
importation of merchandise for reasons other than the
protection of the public health or safety; or
(4) administration and enforcement with respect to the
matters referred to in paragraphs (1)-(3) of this
subsection and subsections (a)-(h) of this section.
This subsection shall not confer jurisdiction over an
antidumping or countervailing duty determination which
is reviewable either by the Court of International
Trade under section 516A(a) of the Tariff Act of 1930
or by a binational panel under article 1904 of the
North American Free Trade Agreement or the United
States-Canada Free-Trade Agreement and section 516A(g)
of the Tariff Act of 1930.
28 U.S.C. § 1581.
Court No.: 05-00562 Page 7
required by § 2632(a) and USCIT R. 3(a), Customs states that this
Court is precluded from exercising jurisdiction under section
1581(i). See id. at 10.
B. Plaintiff’s Contentions
UniPro maintains that this Court has proper jurisdiction under
28 U.S.C. § 1581(a). See Pl.’s Resp. Br. at 6. Specifically,
UniPro points to 19 U.S.C. § 1514(a)(3), which includes as one of
the enumerated grounds for a valid protest that “all charges or
exactions of whatever character within the jurisdiction of the
Secretary of the Treasury” other than ordinary customs duties. See
id. at 5-6. UniPro contends that assessment of antidumping duties
in a sum certain, as is the case here, is properly characterized as
a charge or exaction within the meaning of § 1514(a)(3). See id.
at 6.
UniPro notes that Customs denied its April 8, 2005 protest on
the ground that it is reviewable under 19 U.S.C. § 1516a. See id.
at 5. However, UniPro explains that the “normal” avenue for
pursuing judicial review of Commerce’s final results was
unavailable. See id. According to UniPro, Commerce transmitted
liquidation instructions almost six years after the publication of
the final results of the second period of review and more than four
years after the final results of the third period of review. See
id. Since 19 U.S.C. §1516a requires an action challenging
Commerce’s final determination to be commenced within 30 days after
Court No.: 05-00562 Page 8
the date of publication in the Federal Register, UniPro argues that
it was deprived of an opportunity to seek review of the final
results because of an impermissible delay on the part of Commerce
in issuing the liquidation instructions. See id.
III. Jurisdiction
Title 28 section 1581(a) of the United States Code confers
this court “exclusive jurisdiction of any civil action commenced to
contest the denial of a protest, in whole or in part, under section
515 of the Tariff Act of 1930.” Title 19 section 1514(a) of the
United States Code sets forth an exclusive list of protestable
Customs decisions, which includes a provision covering:
decisions of the Customs Service, including the legality
of all orders and findings entering into the same, as to
– (3) all charges or exactions of whatever character
within the jurisdiction of the Secretary of the Treasury
– shall be final and conclusive upon all persons . . .
unless a protest is filed in accordance with this
section, or unless a civil action contesting the denial
of a protest, in whole or in part, is commenced in the
United States Court of International Trade. 19 U.S.C. §
1514(a)(3).
Plaintiff relies on Alberta Gas Chemicals, Inc. v. Blumenthal, 82
Cust. Ct. 77, 81-82, 467 F. Supp. 1245, 1249-50 (1979), for the
proposition that charges and exactions are “assessments of specific
sums of money (other than ordinary customs duties).” Plaintiff
argues that it disputed an assessment of antidumping duties in a
sum certain separate and apart from ordinary customs duties, which
Court No.: 05-00562 Page 9
must be characterized as a charge or exaction. Plaintiff goes on
to argue that its protest was thus valid.
It is less than clear that assessment of antidumping duties
constitutes a charge or exaction under section 1514(a)(3) as
Plaintiff contends. It is, however, unnecessary for the Court to
clarify this question because this case lacks a necessary precursor
to a valid protest – a Customs decision. See United States Shoe
Corp. v. United States, 114 F.3d 1564, 1569 (Fed. Cir. 1997),
aff’d, United States v. United States Shoe Corp., 523 U.S. 360
(1998); Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973
(Fed. Cir. 1994); American Nat’l Fire Ins. Co. v. United States, 30
CIT __, 441 F. Supp. 2d 1275 (2006).
“‘[D]ecisions’ of Customs are substantive determinations
involving the application of pertinent law and precedent to a set
of facts, such as tariff classification and applicable rate of
duty.” United States Shoe Corp., 114 F.3d at 1569. Calculation of
antidumping duties is performed by Commerce and involves no
decision by Customs. See Mitsubishi Elec. Am., Inc., 44 F.3d at
976; American Nat’l Fire Ins. Co., 441 F. Supp. 2d at 1285.
Moreover, “entry liquidation is a Customs function, it is not
always a Customs decision.” American Nat’l Fire Ins. Co., 441 F.
Supp. 2d at 1285. “Customs’ role in liquidating entries subject to
[antidumping duty] orders is merely ministerial,” id. at 1285, and
when “Customs liquidates an entry to collect antidumping duties per
Court No.: 05-00562 Page 10
Commerce’s instructions, it possesses no discretion in the matter,”
id. at 1286.
It is likewise the case here that Commerce calculated the
antidumping duties. Customs merely followed Commerce’s liquidation
instructions and made no decision which Plaintiff could validly
protest. Thus, this case lacks the necessary Customs decision for
a valid protest under 19 U.S.C. § 1514(a)(3), and this Court lacks
jurisdiction under 28 U.S.C. § 1581(a).
Although UniPro complains that it was deprived of an
opportunity to redress the alleged errors in Commerce’s liquidation
instructions, it could have sought this Court’s jurisdiction under
28 U.S.C. § 1581(i). See e.g., Consolidated Bearings Co. v. United
States, 348 F.3d 997, 1002 (Fed. Cir. 2003)(holding that subsection
1581(i) jurisdiction was proper for a challenge to the lawfulness
of liquidation instructions). Indeed, Plaintiff did belatedly
file a complaint claiming jurisdiction under 28 U.S.C. § 1581(i).
Unfortunately, Plaintiff failed to comply with 28 U.S.C. § 2632(a)
and USCIT R. 3(a) which require concurrent filing of a summons and
complaint. Here, UniPro filed its summons on September 28, 2005,
but did not file a complaint until April 12, 2007.3 Because
3
It appears that even if UniPro had concurrently filed
the summons and complaint, its claim would have been time-barred.
An action brought pursuant to 28 U.S.C. § 1581(i) must be
commenced within two years after the cause of action first
accrues. Plaintiff’s cause of action accrued on June 24, 2004
when Commerce issued the liquidation instructions. See Compl. ¶
5. However, UniPro’s complaint was not filed for almost three
(continued...)
Court No.: 05-00562 Page 11
Plaintiff failed to file a summons and complaint concurrently, this
Court is precluded from exercising jurisdiction under 28 U.S.C. §
1581(i). See e.g., American National Fire Ins. Co., 441 F. Supp.
2d 1275, 1283, n. 8 (strictly construing 28 U.S.C. § 2632(a) and
USCIT R. 3(a)); Washington Int’l Ins. Co. v. United States, 25 CIT
207, 138 F. Supp. 2d 1314 (2001); Autoalliance Int’l. Inc. v.
United States, 29 CIT 1082, 398 F. Supp. 2d 1326 (2005). The Court
has carefully considered Plaintiff’s alternative arguments, but
find that they do not merit discussion.
CONCLUSION
Based on the foregoing, Defendant’s motion to dismiss for lack
of jurisdiction is granted. Case is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: September 17, 2008
New York, New York
(...continued)
years after its cause of action accrued.