Slip Op. 09–112
UNITED STATES COURT OF INTERNATIONAL TRADE
GRISEL PADILLA D/B/A
G. PADILLA & COMPANY
Plaintiff,
v. Before: Gregory W. Carman, Judge
UNITED STATES, Court No. 09‐00305
Defendant.
[Defendant’s motion to dismiss granted.]
Peter S. Herrick, P.A. (Peter S. Herrick), for Plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (David Silverbrand); Christine Henter, United States
Department of Commerce, of counsel; Beth Brotman, United States Customs and Border
Protection, of counsel, for Defendant.
October 8, 2009
OPINION
CARMAN, JUDGE: This matter is before the Court on Defendant’s Motion to Dismiss for
lack of subject matter jurisdiction pursuant to USCIT Rule 12(b)(1), and for failure to
state a claim upon which relief can be granted, pursuant to USCIT Rule 12(b)(5). For the
reasons set forth below, Defendant’s motion is granted.
Court No. 09‐00305 Page 2
BACKGROUND
Plaintiff is a licensed customs broker operating in San Juan, Puerto Rico.
(Complaint (“Compl.”) ¶ 2.) In October and November of 2004, Plaintiff was the
importer of record for five entries of polyethylene retail carrier bags (“PRCBs”)
manufactured by King Pac Industrial Co., Ltd. (“King Pac”). (Id. ¶¶ 2, 5.) The PRCBs
from Thailand were subject to antidumping duty order A‐549‐821. (Id. ¶ 1.) At the
time of entry, goods manufactured by King Pac were subject to the cash deposit rate of
2.80%, which was the “all others rate” calculated by the Department of Commerce in
the final determination of sales at less than fair value in July 2004. (Id. ¶ 6; see also
Notice of Amended Final Determination of Sales at LTFV: PRCBs from Thailand,
69 Fed. Reg. 42,419.) Plaintiff made cash deposits for the five entries at the 2.80% cash
deposit rate. (Compl. ¶ 7.) In January 2007, at the completion of the first administrative
review, King Pac was assigned a firm–specific antidumping duty rate of 122.88%.
PRCBs from Thailand: Final Results of Antidumping Duty Administrative Review,
72 Fed. Reg. 1,982 (Jan. 17, 2007). Liquidation of Plaintiff’s entries was enjoined while
the results of the first administrative review were litigated in Universal Polybag Co.,
Ltd. v. United States, 577 F. Supp. 2d 1284 (Ct. Int’l. Trade 2008). (See Compl. Ex. B.)
The injunction issued in Universal Polybag dissolved by its own terms on October 28,
2008 when the opinion of this court was not appealed. (Id.) On December 1, 2008,
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Commerce issued liquidation instructions to U.S. Customs and Border Protection
(“Customs”). (Id.) On January 2, 2009, Customs liquidated Plaintiff’s five entries at an
antidumping duty rate of 122.88%. (Compl. ¶ 10.) Consequently, Plaintiff now owes an
additional $92,176.99 in antidumping duties for these five entries, that it asserts it
cannot afford to pay. (Id. ¶ 17.)
Plaintiff challenged the liquidation of the five entries at the higher antidumping
duty rate by filing a protest with Customs on March 3, 2009. (Id. ¶ 11, Ex. D.) Plaintiff’s
protest was “denied” by Customs as “not protestable under 19 U.S.C. 1514.” (Id. ¶ 12;
Ex. E.) Plaintiff sent Customs a letter asking Customs to void its denial of Plaintiff’s
protest, but Customs declined. (Id. ¶¶ 13, 16, Exs. F, H.) On June 18, 2009, Customs
informed Plaintiff that failure to pay the duties owing on these entries may result in
sundry consequences and penalties. (Id. Ex. I.) Plaintiff then filed this lawsuit on
August 4, 2009.
In its Complaint, Plaintiff advances two “counts.” “Count I” seeks a preliminary
injunction that “enjoin[s] Customs from carrying out its intentions set forth in
Exhibit I . . . , [and] enjoin[s] Customs from denying its protest and application for
further review.” (Id. ¶¶ 18‐19.) “Count II” seeks a writ of mandamus directing
Customs “to refer Padilla’s cap provision protest to Commerce for a decision.” (Id. at
5‐6.) Fourteen days after filing its Complaint, which, by the nature of Count I may also
Court No. 09‐00305 Page 4
be construed as an application for preliminary injunction, Plaintiff filed a motion for a
temporary restraining order. (Pl.’s Corrected Mot. For TRO (Docket # 10).) Defendant
has now filed a motion to dismiss Plaintiff’s Complaint pursuant to USCIT Rules
12(b)(1) and 12(b)(5). (Def.’s Mot. to Dismiss (Docket #14).)
JURISDICTION
I. Parties’ Contentions
Plaintiff asserts that this Court has jurisdiction over this case pursuant to
28 U.S.C. § 1581(i)(4). (Compl. ¶¶ 3‐4.) Defendant argues that in this case, however,
Plaintiff is challenging Customs’ denial of Plaintiff’s protest, and that the appropriate
jurisdictional vehicle for such a case is 28 U.S.C. § 1581(a). (Def.’s Mem. in Supp. of Its
Mot. to Dismiss and Opp’n. To Pl.’s Mot. for a TRO and Prelim. Inj. (“Def.’s Br.”) 1, 5
(citing Compl. ¶¶ 12, 24, 30).) Defendant claims that “[i]f Padilla had complied with the
statutory requirements, this Court would possess jurisdiction to entertain Padilla’s
challenge to CBP’s denial of its protest pursuant to 28 U.S.C. § 1581(a).” (Id. at 6.)
Presumably, the statutory requirement to which Defendant refers is the jurisdictional
prerequisite that “all liquidated duties, charges, or exactions [need to] have been paid at
the time the action is commenced” under § 1581(a). See 28 U.S.C. § 2637(a) (2006).
Because Plaintiff did not pay the outstanding duties before commencing this lawsuit
(Compl ¶ 17), jurisdiction under § 1581(a) is unavailable. Id.
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In response, Plaintiff claims that it “could not challenge CBP’s denial of its
protest pursuant to 28 U.S.C. § 1581(a) since CBP claims the protest raised a non‐
protestable issue.” (Pl.’s Mem. In Opp’n. To Def.’s Mot. to Dismiss and Supp. for Pl.’s
Mot. for a TRO and Prelim. Inj. (“Pl.’s Br.”) 1.) However, Plaintiff does not offer any
explanation as to why a protest “denied” by Customs as “non‐protestable” falls outside
of this Court’s jurisdiction in § 1581(a). Instead, Plaintiff attempts to characterize its
Complaint as “challenging Commerce’s liquidation instructions issued on December 1,
2008,” and reasserts that § 1581(i) is the correct jurisdictional provision. (Id. 1‐2.)
II. Discussion
A. There Is No Jurisdiction Under 28 U.S.C. § 1581(a).
At the heart of this case is a protest that Plaintiff filed with Customs that was
“denied” by Customs as “not protestable.” (See Compl. ¶¶ 11, 12, 13, 16, 19, 27; see also
Exs. D (Padilla’s protest), E (Customs’ denial of the protest).) This case therefore bears
some resemblance to a classic § 1581(a) case, which is brought in this Court “to contest
the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.”
28 U.S.C. § 1581(a) (2006). Plaintiff’s protest was not denied under section 515 of the
Tariff Act of 1930 (19 U.S.C. § 1515), even though it was marked “denied” by Customs
officials; in fact, it was rejected. The government is therefore not correct in asserting
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that § 1581(a) was the appropriate jurisdictional vehicle for Plaintiff to use in bringing
this case. (See Def.’s Br. 6.)
Section 515 of the Tariff Act of 1930 is codified at 19 U.S.C. § 1515. This statute
explains how Customs shall handle an administrative protest filed with the agency. In
pertinent part, the statute provides that “within two years from the date a protest was
filed in accordance with section 1514 of this title . . . [the appropriate customs officer]
shall allow or deny such protest in whole or in part.” 19 U.S.C. § 1515(a) (2006)
(emphasis added). In other words, a protest must be filed “in accordance with section
1514,” before it can be denied “in whole or in part” within the meaning of § 1515 and
before it can be contested in this Court under 28 U.S.C. § 1581(a). See id.
Section 1514, in turn, specifies that only certain Customs decisions are validly the
subject of a protest. See 19 U.S.C. § 1514 (2006); see also Am. Nat’l. Fire Ins. Co. v.
United States, 30 CIT 931, 939‐40, 441 F. Supp. 2d 1275, 1285 (2006) (“The seven
categories listed in § 1514(a) are exclusive, and if Customsʹ underlying decision does not
relate to any of these seven categories, the court may not exercise § 1581(a) jurisdiction
over an action contesting Customsʹ denial of a protest filed against that decision.”)
(internal quotation omitted). When Plaintiff filed a protest challenging the antidumping
duty rate applicable to the five liquidated entries of PRCBs, it was not challenging a
protestable decision of Customs. See Mitsubishi Elecs. Am., Inc. v. United States,
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44 F.3d 973, 977 (Fed. Cir. 1994) (“Customs actions [in antidumping cases] do not fall
within 19 U.S.C. § 1514(a).”). This is because the rote collection of antidumping duties
in compliance with instructions from Commerce does not constitute a “decision” of
Customs within the meaning of § 1514. Id.; see also, Unipro Foodservice, Inc. v. United
States, 32 CIT __ , __ , 577 F. Supp. 2d 1348, 1351‐52 (2008) (finding that Customs’
compliance with liquidation instructions issued by Commerce is “merely ministerial”
and specifically does not fall within the scope of § 1514(a)(3)) (internal quotation
omitted). “Thus, without a decision under section 1514(a), [there is no] jurisdiction
under section 1581(a).” Mitsubishi, 44 F.3d at 977.
Confusion seems to have arisen in this case because Customs marked the face of
the protest as “[d]enied in full for the reason checked,” and explained only in an
attachment to the protest that the issue raised was “not protestable under 19 U.S.C.
1514.” (See Compl. Ex. E (emphasis added).) This marking may have led counsel for
the government to conclude that the protest had been “denied in full” under section 515
of the Tariff Act of 1930, and that Plaintiff should have brought this case under
§ 1581(a). (See Def.’s Br. 6.) As explained above, because a protest not filed in
accordance with § 1514 can never be “denied in full,” it cannot be contested in a
§ 1581(a) case. When Customs receives a protest that does not raise a protestable issue
within the meaning of 19 U.S.C. § 1514, the agency should mark the protest “[r]ejected
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as non‐protestable.” (See Compl. Ex. E, (Part 18 of CBP form 19); see also Ex. F at 3
(Customs’ ADD/CVD handbook excerpt).) Marking the protest “rejected” sends a clear
signal to all involved that there has been no denial of the protest within the meaning of
19 U.S.C. § 1515, and the protest cannot subsequently be contested in this court under
28 U.S.C. § 1581(a). Marking rejected protests as denied only fosters confusion among
the parties bringing or challenging such protests, government attorneys defending
against such litigation, and the courts.
B. There is No Jurisdiction Under 28 U.S.C. § 1581(i)(4)
In its Complaint, Plaintiff asserts that this Court has jurisdiction over this case
pursuant to 28 U.S.C. § 1581(i)(4). (Compl. ¶ 3‐4.) In responding to the government’s
motion to dismiss, Plaintiff attempts to characterize its Complaint as “challenging
Commerce’s liquidation instructions issued on December 1, 2008.” (Pl.’s Br. 1‐2 (citing
Heveafil SDN. BHD v. United States, 23 CIT 447, 449 (1999) (a case in which this court
took jurisdiction over a challenge to Commerce’s liquidation instructions under
28 U.S.C. § 1581(i)).) Because the parties dispute the nature of the action brought by
Plaintiff, the court must first assess the true nature of the complaint. Cf. Norsk Hydro
Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006) (“[M]ere recitation of a
basis for jurisdiction, by either a party or a court, cannot be controlling . . . we look to
the true nature of the action in the district court in determining jurisdiction of the
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appeal.”) (internal quotation omitted).
In Count I of its Complaint, Plaintiff seeks a preliminary injunction against
Customs. (Compl. ¶¶ 18‐24; see also BACKGROUND supra, at 3‐4.) A preliminary
injunction is “[a] procedural device which is interlocutory in nature and which is
designed to preserve the existing status of the litigants until a determination can be
made on merits of the controversy.” Black’s Law Dictionary 1062 (5th ed. 1979)
(citation omitted; emphasis added). Because the purpose of a preliminary injunction is
to preserve the status quo until the merits of the underlying dispute can be resolved, it
is highly irregular for a party to request a preliminary injunction as part of the
substantive relief sought in the Complaint itself. Indeed, such an approach is
conceptually flawed. The Court therefore construes Count I as an application for
preliminary injunction, and not as a substantive cause of action.1
In “Count II,” Plaintiff asks the Court to grant a writ of mandamus instructing
Customs to “refer Padilla’s cap provision protest to Commerce for a decision.”
(Compl. 5‐6; see also BACKGROUND supra, at 3‐4.) A writ of mandamus is used “to
compel performance of [a] ministerial act or mandatory duty where there is a clear
legal right in plaintiff, a corresponding duty in defendant, and a want of any other
1
Because the Court is granting Defendant’s motion to dismiss for lack of subject
matter jurisdiction for the reasons set forth below, the Court does not entertain
Plaintiff’s applications for preliminary injunction or temporary restraining order.
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appropriate and adequate remedy.” Black’s Law Dictionary 866 (5th ed. 1979) (citation
omitted; emphasis added). A writ of mandamus has been described as “a summary,
expeditious, and drastic writ, based on the assumption that the applicant has an
immediate and complete legal right to the relief demanded.” Syntex Agribusiness, Inc.
v. U.S. Int’l Trade Comm’n., 617 F.2d 290, 291 (C.C.P.A. 1980); see also Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (“[T]he writ of
mandamus is an extraordinary remedy, to be reserved for extraordinary situations.”).
Quite simply, Plaintiff has failed to identify any legal basis for its requested writ.
Plaintiff has not established why it has a legal right to have its protest forwarded to
Commerce, why Customs has a legal obligation to do so, or why there is a want of any
other appropriate and adequate remedy. Regardless of the flimsy nature of this
petition, the Court determines that the only substantive cause of action brought in
Plaintiff’s complaint is a naked, unsupported request for a writ of mandamus against
Customs.
While it is clear from the preceding evaluation of the Complaint that Plaintiff has
not stated a claim upon which relief can be granted, it is axiomatic that the Court must
first conduct a threshold inquiry regarding its jurisdiction to hear the case. See Steel Co.
v. Citizens for a Better Env’t., 523 U.S. 83, 94‐95 (1998) (“The requirement that
jurisdiction be established as a threshold matter springs from the nature and limits of
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the judicial power of the United States and is inflexible and without exception.”)
(internal quotations omitted). This Court holds that 28 U.S.C. § 1581(i)(4) does not
provide the court jurisdiction to hear this case. Merely pleading jurisdiction under
§ 1581(i) cannot “be used to create a cause of action where one does not otherwise
exist.” ITT Semiconductors v. United States, 6 CIT 231, 237, 576 F. Supp. 641, 646 (1983).
Plaintiff’s failure to set out allegations in the Complaint in a way that “demonstrate why
this court should exercise such jurisdiction in this case” is grounds for dismissal. See id.
at 237‐38; see also Almond Bros. Lumber Co. v. United States, 32 CIT __ , __ , 2009 WL
1397182 at *8 (2009) (dismissing for lack of jurisdiction under § 1581(i) on account of the
plaintiff’s failure to plead sufficient facts to persuade the court that jurisdiction was
appropriate). For the foregoing reasons, then, Plaintiff’s Complaint is dismissed for lack
of subject matter jurisdiction pursuant to USCIT Rule 12(b)(1).
The Court notes that Plaintiff is correct in asserting in its response papers that
this court has jurisdiction under 28 U.S.C. § 1581(i)(4) to consider a lawsuit brought
under the Administrative Procedure Act to challenge Commerce’s liquidation
instructions, even after the entries in question have been liquidated. See Shinyei Corp.
of Am. v. United States, 355 F.3d 1297, 1312 (Fed. Cir. 2004). However, the Court finds
nothing in the Complaint that advances such a claim.
The Court additionally notes the questionable basis of Plaintiff’s underlying
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grievance with the government. Plaintiff asserts that the so‐called “cap provision”
found in 19 U.S.C. § 1673f(a) applies to its 5 entries of PRCBs made in October and
November of 2004, and that this provision limits the collection of antidumping duties
on those entries to the 2.80% cash deposit rate calculated during the investigation.
(Compl. ¶ 22.) It appears that Plaintiff has misapprehended the operation of the cap
provision. The statute reads:
If the amount of a cash deposit, or the amount of any bond or other security,
required as security for an estimated antidumping duty under section
1673b(d)(1)(B) of this title is different from the amount of the antidumping
duty determined under an antidumping duty order published under section
1673e of this title, then the difference for entries of merchandise entered, or
withdrawn from warehouse, for consumption before notice of the affirmative
determination of the Commission under section 1673d(b) of this title is
published shall be‐‐
(1) disregarded, to the extent that the cash deposit, bond, or other
security is lower than the duty under the order, or
(2) refunded or released, to the extent that the cash deposit, bond, or
other security is higher than the duty under the order.
19 U.S.C. § 1673f(a) (2006). An explanation of this admittedly complex statute was
expertly rendered by the Court of Appeals for the Federal Circuit in Thai Pineapple
Canning Indus. Corp. v. United States, 273 F.3d 1077 (Fed. Cir. 2001).
Once Commerce makes a preliminary determination that merchandise is
being sold in the United States at less than fair value, Commerce orders the
posting of a cash deposit or bond for each entry of merchandise at a rate
based on the preliminary estimated dumping margin. 19 U.S.C.
§ 1673b(d)(1)(B) (1994). After Commerce makes a final determination that the
subject merchandise is being sold at less than fair value, id. § 1673d(a), and
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the International Trade Commission makes a final determination that an
industry is materially injured, id. § 1673d(b), Commerce publishes an
antidumping order with a new assessment rate based on the dumping
margin determined during Commerceʹs investigation. Id. § 1673e(a). For
entries of merchandise after Commerceʹs affirmative preliminary
determination and before the Commissionʹs affirmative injury
determination, if the deposit of estimated duty under § 1673b(d)(1)(B) is
higher than the duty under the antidumping order, the difference is
refunded. 19 U.S.C. § 1673f(a) (Supp. V 1999). On the other hand, if the
deposit is lower than the duty under the order, the difference is disregarded.
Id. That is, the preliminary estimated duty acts as a “cap” on the duty that
can be collected for entries made between the date of Commerceʹs
preliminary determination and the date of the Commissionʹs injury
determination, often referred to as the “cap period.”
Thai Pineapple, 273 F.3d at 1082 (emphasis added). In this case, it appears that the cap
period ran from January 26, 2004 (the date on which Commerce issued its affirmative
preliminary determination in the PRCB investigation) to the end of July 2004,2 when the
Commission issued its affirmative injury determination. Because Plaintiff’s entries
were made after the end of the cap period, those entries do not appear to be subject to
the limitations of 19 U.S.C. § 1673f(a). Indeed, the statutory scheme seems to
contemplate that goods entered at the cash deposit rate after the cap period, but prior to
the completion of the first administrative review, are subject to liquidation at an entirely
different antidumping rate after the administrative review is complete. See generally
2
The USITC website indicates that the “End” of the Commission’s investigation
was July 23, 2004. See http://www.usitc.gov/trade_remedy/731_ad_701_cvd/
investigations/2003/polyethylene_retail_carrier_bags/finalphase.htm (last visited Oct. 8,
2009.) The same date is listed as the end of the cap period in Commerce’s instructions
to Customs following the first administrative review. (See Compl. Ex. B, ¶ 3.)
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19 U.S.C. § 1675(a); see also 19 C.F.R. §§ 159.58(a) (requiring liquidation to be
suspended “on or after the date of publication of the ‘Notice of Preliminary Affirmative
Antidumping Determination.’”); 351.213(e)(1)(ii) (explaining that the first
administrative review ‘will cover . . . entries . . . during the period [of review.]’). As this
is precisely the fact pattern alleged by Plaintiff in this case, it appears that Plaintiff may
not have a legitimate grievance with the United States at all.
CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint is dismissed pursuant to USCIT
Rule 12(b)(1). Judgment will be entered accordingly.
__/s/ Gregory W. Carman_________
Gregory W. Carman, Judge
Dated: October 8, 2009
New York, NY