Slip Op. 02-45
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE RICHARD W. GOLDBERG
LIBAS, LTD.,
Plaintiff,
v. Court No. 98-06-02316
UNITED STATES
Defendant.
[Judgment ordered for plaintiff.]
Law Offices of Elon A. Pollack (Elon A. Pollack, Eugene P. Sands,
and Wayne Jarvis), for plaintiff Libas, Ltd.
Robert D. McCallum, Jr., Assistant Attorney General, Joseph I.
Liebman, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Bruce N. Stratvert), for defendant United
States.
OPINION
The plaintiff importer in this case, Libas, Ltd. (“Libas”),
brought this suit challenging the United States Customs Service’s
(“Customs”) classification of twenty-nine entries of woven
fabrics of cotton. Customs originally classified the fabrics as
machine-made under HTSUS 5208.41.60, dutiable at a rate of 11.4%
ad valorem and subject to quota restrictions. Libas filed a
timely protest, claiming that the entries should be classified as
hand-woven under HTSUS 5208.42.10 or HTSUS 5208.41.20, depending
on weight, and subject to a duty of 6% ad valorem, without quota
restrictions. Customs denied the protest, and Libas sought
relief before this Court.
Subsequent to the initiation of this suit, the United States
Court of Appeals for the Federal Circuit decided another case
involving the same parties and different entries of the same
merchandise. See Libas, Ltd. v. United States, 193 F.3d 1361
(Fed. Cir. 1999). In that decision, the Federal Circuit held
that the reliability of Customs’s methodology for determining
whether the imported fabrics were power- or hand-loomed was open
to challenge under the factors enumerated in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On remand, this
Court held that Customs’s test was not reliable, and ordered the
entries in question to be reliquidated at the rate applicable to
hand-loomed fabrics. See Libas, Ltd. v. United States, 24 CIT
__, 118 F. Supp. 2d 1223 (2000).
In light of these decisions, Customs now concedes that the
entries at issue in this case were of hand-woven cotton fabrics,
and should be classified accordingly. However, Customs has moved
to sever and dismiss three1 of the twenty-nine entries at issue
here, on the grounds that the Court lacks jurisdiction. With
respect to these three entries, Customs claims that Libas has
failed to satisfy the jurisdictional prerequisites of 28 U.S.C. §
2637(a), which provides that “[a] civil action contesting the
denial of a protest . . . may be commenced in the Court of
1
Entries G51-0130598-7; G51-0130623-3; and G51-0130624-1.
-2-
International Trade only if all liquidated duties, charges, or
exactions have been paid at the time the action is commenced.”
28 U.S.C. § 2637(a) (2000). As the Court of International Trade
has recognized, this requirement is strict. See Dazzle Mfg.,
Ltd. v. United States, 21 CIT 827, 828, 971 F. Supp. 594, 596
(1996). Because the government has challenged jurisdiction in
this case, the burden falls on Libas to show that jurisdiction
exists. Hambro Automotive Corp. v. United States, 66 CCPA 113,
117, 603 F.3d 850, 853 (1979).
The parties submitted letter memoranda and supporting
evidence, including copies of checks tendered by Libas and its
surety, and argued the matter in a conference call with the
Court. After review of all papers had herein, and upon further
investigation and due deliberation, the Court finds that Libas
has proven its compliance with the requirements of § 2637(a).
Accordingly, the Court has jurisdiction over all twenty-nine
entries at issue in this case, and will enter judgment directing
Customs to reliquidate said entries under HTSUS 5208.42.10, HTSUS
5208.41.20, or HTSUS 5209.41.30, depending on weight.
_____________________
Richard W. Goldberg
Senior Judge
Dated: May 13, 2002
New York, NY
-3-
ERRATUM
Libas, Ltd. v. United States, Court No. 98-06-02316, Slip Op. 02-
45, issued May 13, 2002.
On Page 1, in the identification of counsel, “Joseph I. Liebman,
Attorney in Charge” should read “John J. Mahon, Acting Attorney
in Charge”.
May 16, 2002.