Shinyei Corp. of America v. United States

Slip Op. 03-18

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: HONORABLE NICHOLAS TSOUCALAS
___________________________________
:
SHINYEI CORPORATION OF AMERICA, :
:
Plaintiff, :
:
v. : Court No. 00-00130
:
UNITED STATES, et. al., :
:
Defendant. :
___________________________________:

Defendant, the United States (“Defendant”), moves to dismiss
this action pursuant to USCIT R. 12(b)(1) for lack of subject
matter jurisdiction and USCIT R. 12(b)(5) for failure to state a
claim on which relief can be granted. For the reasons stated
herein, defendant’s motion to dismiss is granted under USCIT R.
12(b)(1) for lack of subject matter jurisdiction.

Held: Defendant’s motion to dismiss pursuant to USCIT R.
12(b)(1) is granted. This case is dismissed.

Dated: February 14, 2003

Charles H. Bayar, Esq. for Shinyei Corporation of America,
plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (James A. Curley); of counsel: Edward N.
Maurer, Office of Assistant Chief Counsel, United States Customs
Service, for the United States, defendant.
Court No. 00-00130 Page 2

OPINION

TSOUCALAS, Senior Judge: Defendant, the United States

(“Defendant”), moves to dismiss this action pursuant to USCIT R.

12(b)(1) for lack of subject matter jurisdiction and USCIT R.

12(b)(5) for failure to state a claim on which relief can be

granted. For the reasons stated herein, Defendant’s motion to

dismiss is granted under USCIT R. 12(b)(1) for lack of subject

matter jurisdiction.

DISCUSSION

I. Background

A. Procedural Background

Plaintiff Shinyei Corporation of America (“Shinyei”), a United

States corporation wholly owned by Shinyei Kaisha Company

(“Kaisha”), a Japanese trading company, filed a complaint on March

23, 2000.1 On September 25, 2002, this Court granted Shinyei’s

motion for leave of the Court to amend its complaint filed on March

1
In its original complaint, Shinyei sought: (a) a writ of
mandamus directing the United States Customs Service (“Customs”) to
liquidate sixty-three of Shinyei’s entries of certain bearings, see
Pl.’s Compl. ¶¶ 3(a), 17-26; or (b) to declare certain instructions
issued by the United States Department of Commerce, International
Trade Administration (“Commerce”) in violation of 19 U.S.C. §
1675(a)(2) (1988 & Supp. 1993) and remand this case to Commerce for
the purpose of issuing an appropriate set of instructions to
Customs with regard to liquidation of sixty-three of Shinyei’s
entries of certain bearings and re-liquidation of eighteen of
Shinyei’s entries of certain bearings. See id. ¶¶ 3(b), 27-36;
accord Pl.’s Resp. Def.’s Mot. Dismiss (“Pl.’s Resp.”) at 4.
Court No. 00-00130 Page 3

23, 2000, in which Shinyei seeks to declare certain instructions

issued by the United States Department of Commerce, International

Trade Administration (“Commerce”) in violation of 19 U.S.C. §

1675(a)(2) (1988 & Supp. 1993) and remand this case to Commerce for

the purpose of issuing corrected instructions with regard to

liquidation of the forty-two Shinyei entries2 of certain bearings.

See Pl.’s First Am. Compl. ¶¶ 3-4, 14-15, 17-22; accord Pl.’s Resp.

Def.’s Mot. Dismiss (“Pl.’s Resp.”) at 5-6. Subsequently,

Defendant moved on October 8, 2002, to dismiss this case pursuant

to USCIT R. 12(b)(1) for lack of subject matter jurisdiction3 and

USCIT R. 12(b)(5) for failure to state a claim on which relief can

be granted.4 See Def.’s Mot. Dismiss (“Def.’s Mot.”).

2
The forty-two entries at issue in this case are listed in
Pl.’s First Am. Compl. App. A.
3
On a motion to dismiss pursuant to USCIT R. 12(b)(1) for
lack of subject matter jurisdiction,

the Court considers whether the moving party challenges
the sufficiency of the pleadings or the factual basis
underlying the pleadings. In the first instance, the
Court must accept as true all facts alleged in the non-
moving party’s pleadings. In the second instance, the
Court accepts as true only those facts which are
uncontroverted. All other facts are subject to fact
finding by the Court.

SSK Indus., Inc. v. United States, 24 CIT ___, ___, 101 F. Supp. 2d
825, 829 n.8 (2000) (citing Power-One Inc. v. United States, 23 CIT
959, 962 n.9, 83 F. Supp. 2d 1300, 1303 n.9 (1999)).
4
On a motion to dismiss pursuant to USCIT R. 12(b)(5) for
failure to state a claim on which relief can be granted, “the court
must assume all well-pled factual allegations to be true, and must
(continued...)
Court No. 00-00130 Page 4

B. Factual Background

During the period from May 1, 1990, to April 30, 1991, Shinyei

imported certain merchandise into the United States. See Pl.’s

Resp. at 1. The merchandise at issue was purchased by Shinyei from

Kaisha which, in turn, purchased the merchandise from six Japanese

manufacturers (collectively “Six Manufacturers”), namely, Fujino

Iron Works Co., Ltd. (“Fujino”), Nakai Bearing Co., Ltd. (“Nakai”),

Nankai Seiko Co., Ltd. (“Nankai”), Inoue Jikuuke Kogyo Co.

(“Inoue”), Showa Pillow Block Mfg., Ltd. (“Showa”) and Wada Seiko

Co., Ltd. (“Wada”). See Pl.’s First Am. Compl. ¶ 5; see also Pl.’s

First Am. Compl. App. A.

The merchandise at issue was subject to an antidumping

investigation. See Initiation of Antidumping Duty Investigation;

Antifriction Bearings (Other Than Tapered Roller Bearings) and

Parts Thereof From Japan, 53 Fed. Reg. 15,076 (Apr. 27, 1988). On

November 9, 1988, Commerce published its preliminary determination

with regards to this investigation instructing the United States

Customs Service (“Customs”) that: (a) liquidations of the subject

merchandise should be suspended; and (b) deposits or bonds should

4
(...continued)
make any inferences in favor of the non-moving party.” United
States v. Ferro Union Inc., 2000 Ct. Intl. Trade LEXIS 100, *2,
Slip. Op. 00-100 (Aug. 16, 2000) (citing Kemet Elecs. Corp. v.
Barshefsky, 21 CIT 912, 929, 976 F. Supp. 1012, 1027 (1997)
(quoting in turn Gould, Inc. v. United States, 935 F.2d 1271, 1274
(Fed. Cir. 1991)).
Court No. 00-00130 Page 5

be required at a certain rate for future entries from all non-

investigated manufacturers, producers and exporters, including the

Six Manufacturers. See Preliminary Determinations of Sales at Less

Than Fair Value: Antifriction Bearings (Other Than Tapered Roller

Bearings) and Parts Thereof From Japan, 53 Fed. Reg. 45,343; see

also Pl.’s First Am. Compl. ¶ 6. This deposit and bond rate was

corrected by Commerce in the final determination. See Final

Determinations of Sales at Less Than Fair Value; Antifriction

Bearings (Other Than Tapered Roller Bearings) and Parts Thereof

From Japan (“Determination”), 54 Fed. Reg. 19,101 (May 3, 1989);

see also Pl.’s First Am. Compl. ¶ 6. On the basis of this

Determination, Commerce published an antidumping duty order. See

Antidumping Duty Orders: Ball Bearings, Cylindrical Roller

Bearings, and Spherical Plain Bearings, and Parts Thereof From

Japan, 54 Fed. Reg. 20,904 (May 15, 1989); see also Pl.’s First Am.

Compl. ¶ 6.

During the second review (“POR”)5, Shinyei deposited estimated

antidumping duties on the entries at issue. See Pl.’s First Am.

Compl. ¶ 7; see also Pl.’s Resp. at 2. On June 24, 1992, Commerce

published the final results of the second review in which Commerce

5
The period of review covers May 1, 1990, through April 30,
1991. See Final Results of Antidumping Duty Administrative Reviews
of Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France; et. al. (“Final Results”), 57 Fed. Reg.
28,360 (June 24, 1992).
Court No. 00-00130 Page 6

established specific antidumping duty deposit rates for the

merchandise manufactured by the Six Manufacturers. See Final

Results of Antidumping Duty Administrative Reviews of Antifriction

Bearings (Other Than Tapered Roller Bearings) and Parts Thereof

From France; et. al. (“Final Results”), 57 Fed. Reg. 28,360; see

also Pl.’s First Am. Compl. ¶ 8. Consequently, Commerce issued an

instruction ordering Customs to liquidate all merchandise of the

type at issue that was imported from Japan during the POR (except

for the products of certain manufacturers) at the rate designated

in the Determination. See Pl.’s First Am. Compl. ¶ 9. The list of

manufacturers excepted from the instructions included the Six

Manufacturers. See id. Moreover, on February 23, 1998, Commerce

published the amended final results. See Amended Final Results of

Antidumping Duty Administrative Reviews of Antifriction Bearings

(Other Than Tapered Roller Bearings) and Parts Thereof From France,

et. al. (“Amended Final Results”), 63 Fed. Reg. 8908.

On “October 22, 1998, Commerce issued final amended

instructions to Customs regarding the liquidation of all [second]

[r]eview entries of [the merchandise at issue] from Japan produced

by” Nankai. Pl.’s Resp. at 2. On “June 26, 1998, Commerce issued

instructions to Customs regarding the liquidation of all [second]

[r]eview entries of [the merchandise at issue] from Japan produced
Court No. 00-00130 Page 7

by” Fujino.6 Id. at 3.

Shinyei commenced this case by filing a complaint on March 23,

2000. Shinyei “did not seek, and the Court did not issue, any

injunction to suspend liquidation of the [e]ntries [at issue]

pending its final decision.” Id. at 5. On August 1, 2000,

Commerce issued “a ‘clean-up’ instruction to Customs to liquidate

‘as entered’ all [second] [r]eview [p]eriod entries of [the

merchandise at issue] from Japan that had not been liquidated under

previously-issued instructions.” Id. The liquidation of the

entries at issue, see Pl.’s First Am. Compl. App. A, occurred

“between September 8, 2000, and February 9, 2001 (all but two of

the [e]ntries were liquidated before December 15, 2000).” Id.

On September 25, 2002, this Court granted Shinyei’s motion for

leave of the Court to amend its complaint filed on March 23, 2000,

in which Shinyei limited its claim to Commerce error7 stating in

6
Commerce also issued instructions regarding the liquidation
of the second review entries of the merchandise at issue from Japan
produced by the other four of the Six Manufacturers. See Pl.’s
First Am. Compl. ¶¶ 9-14. However, Shinyei states that the
instructions regarding the other four of the Six Manufacturers “are
no longer in issue in this civil action.” Pl.’s Resp. at 4.
7
In its response brief, Shinyei points out that “[a]fter
Customs posted bulletin notices of the [liquidations of the entries
at issue], [Shinyei] filed protests against them on the ground that
they reflected a different form of Customs Error, i.e., Customs’
failure to liquidate the [e]ntries [at issue] under the [Nankai],
[Fujino] and [o]ther instructions [that is, the instructions
regarding the other four of the Six Manufacturers].” Pl.’s Resp.
(continued...)
Court No. 00-00130 Page 8

pertinent part:

In this civil action, [Shinyei] claims generally that
Commerce issued certain liquidation instructions to
Customs to implement the results of an antidumping
administrative review. In violation of 19 U.S.C. §
1675(a)(2)[], these instructions did not permit the
review results to be the basis for assessments of
antidumping duty on entries for which [Shinyei] was the
importer of record. As a consequence, Customs liquidated
the [e]ntries [at issue] under other, inapplicable
instructions resulting in substantial and erroneous
assessments of excessive antidumping duty on the
[e]ntries [at issue], as well as the attendant denial of
interest on excess deposits of antidumping duty that
should have been refunded.8

7
(...continued)
at 6. Shinyei states that “[Shinyei] is pursuing these protests
strictly to preserve its rights in case it should ultimately be
decided that the . . . liquidations [at issue] reflect Customs
Error rather than Commerce Error.” Id. at n.4.
8
In its civil action, Shinyei contests two instructions,
namely, the Nankai and Fujino instructions. See Shinyei’s Resp. at
2-3 (citing Pl.’s First Am. Compl. ¶¶ 14-15). With respect to the
first instruction at issue, Shinyei argues that

[on] October 22, 1998, Commerce issued final amended
instructions to Customs regarding liquidation of all
[second] [r]eview entries of ball bearings from Japan
produced by [Nankai]. . . . In the [Nankai]
Instructions, Commerce instructed Customs to liquidate
all entries of such ball bearings that were ‘exported by,
imported by, or sold to,’ certain parties, including
certain of the [United States] [c]ustomers, at specific
assessment rates, with interest to be paid on
overpayments and assessed on underpayments of antidumping
duty as provided by law. Commerce, however, did not
state in the [Nankai] instructions or otherwise advise
Customs that [Shinyei] was the importer of the ball
bearings sold to the [United States] [c]ustomers, or that
[Kaisha] was an intermediary in the sales to the [United
States] [c]ustomers. . . . The [Nankai] instructions
stated that they constituted the immediate lifting of
suspension of liquidation of entries of the merchandise
(continued...)
Court No. 00-00130 Page 9

Pl.’s Resp. at 6 (quoting Pl.’s First Am. Compl. ¶ 3).

Subsequently, Defendant, on October 8, 2002, moved to dismiss

this case pursuant to USCIT R. 12(b)(1) for lack of subject matter

jurisdiction and USCIT R. 12(b)(5) for failure to state a claim on

which relief can be granted. See Def.’s Mot. On November 20,

2002, a conference was held in Chambers. A hearing on Defendant’s

8
(...continued)
described therein, and that they were not to be disclosed
to the public.

Pl.’s Resp. at 2-3 (citing Pl.’s First Am. Compl. ¶ 14).

Moreover, with respect to the second instruction at issue,
Shinyei argues that

[on] June 26, 1998, Commerce issued instructions to
Customs regarding the liquidation of all [second]
[r]eview entries of ball bearings from Japan produced by
[Fujino]. . . . In the [Fujino] instructions, [Commerce]
instructed Customs to liquidate all [second] [r]eview
entries of ball bearings from Japan produced by [Fujino]
and ‘exported by, imported by, or sold to,’ certain
parties, including one of the [United States]
[c]ustomers, at specific assessment rates, with interest
to be paid on overpayments and assessed on underpayments
of antidumping duty as provided by law. Commerce,
however, omitted from the [Fujino] Instructions specific
assessment rates that it had calculated in the [second]
[r]eview for five other [United States] [c]ustomers.
Moreover, Commerce did not state in the [Fujino]
Instructions or otherwise advise Customs that [Shinyei]
was the importer of the ball bearings sold to the [United
States] [c]ustomers, or that [Kaisha] was an intermediary
in the sales to the [United States] [c]ustomers. . . .
The [Fujino] instructions stated that they constituted
the immediate lifting of suspension of liquidation of
entries of the merchandise described therein, and that
they were not to be disclosed to the public.

Pl.’s Resp. at 3 (citing Pl.’s First Am. Compl. ¶ 15).
Court No. 00-00130 Page 10

motion to dismiss was held before this Court on January 6, 2003.

II. Contentions of the Parties

A. Defendant’s Contentions

Defendant contends, pursuant to USCIT R. 12(b)(1), that this

Court lacks jurisdiction under 28 U.S.C. § 1581(i) (2000) over this

case because Shinyei’s claim and the relief requested became moot

as a result of Customs’ liquidation of the entries at issue.9

See Def.’s Mot. at 3-4; see also Def.’s Reply Br. Supp. Mot.

Dismiss (“Def.’s Reply”) at 1-8. In particular, Defendant points

out that the Court in Chr. Bjelland Seafoods A/S v. United States,

19 CIT 35 (1995), held that “‘if liquidation occurs prior to

completion of judicial review[,] . . . any outstanding challenges

to the . . . determination are rendered moot as to the liquidated

entries.’” Def.’s Mot. at 4 (quoting Chr. Bjelland, 19 CIT at 51);

see Def.’s Reply at 3. Defendant maintains that although Chr.

9
Defendant points out that when Shinyei commenced this case
by filing a complaint on March 23, 2000, “Shinyei did not request,
and the Court did not grant, an injunction that would have
continued suspension of liquidation by directing Customs not to
liquidate the entries in issue.” Def.’s Reply at 3; see also
Def.’s Reply at 2 (quoting 19 U.S.C. § 1516a(c)(1) (1988 & Supp.
1993) (“‘Unless such liquidation is enjoined by the court . . .
entries of merchandise of the character covered by a determination
of the . . . administering authority . . . shall be liquidated in
accordance with the determination . . . .’”). Defendant further
states that “[a]ccordingly, Commerce instructed Customs to
liquidate the entries in issue with assessment of antidumping
duties, and Customs in turn, liquidated the entries.” Def.’s Reply
at 2.
Court No. 00-00130 Page 11

Bjelland, 19 CIT 35, was a case in which judicial review was sought

under 28 U.S.C. § 1581(c) (2000), “liquidation of the entries

prevents the Court from assuming jurisdiction, or maintaining

jurisdiction, under [28 U.S.C.] § 1581(c) or (i).” Def.’s Reply at

3.

Moreover, Defendant points out in Mitsubishi Elec. Am., Inc.

v. United States, 18 CIT 167, 180, 848 F. Supp. 193, 203 (1994),

aff’d on other grounds, 44 F.3d 973 (Fed. Cir. 1994), the Court

held:

Plaintiff’s failure to seek injunctive relief
against liquidation before commencing this action also
precludes this Court from exercising jurisdiction under
28 U.S.C. § 1581(i). . . . [B]ecause an injunction would
prevent Customs from liquidating plaintiff’s entries and
thereby ensure a party would be able to benefit from
judicial review of its challenge to the regulation, such
relief would seem appropriate. Cf. Zenith [Radio Corp.
v. United States], . . . 710 F.2d [806,] 810 [Fed. Cir.
1983] (A party who wishes to challenge a [19 U.S.C. §
1675] determination will suffer irreparable harm if
Customs liquidates their entries before the party obtains
judicial review because “[t]he statutory scheme has no
provision permitting re-liquidation” and, therefore,
renders the court “powerless to grant the only effective
remedy response” to the party's challenge.). Yet, as the
Zenith court noted with respect to liquidations following
administrative reviews, “[t]he statutory scheme has no
provision permitting re-liquidation” and “once
liquidation occurs, a subsequent decision by the trial
court on the merits . . . can have no effect on the
dumping duties assessed on [subject] entries.” Id. . .
. 710 F.2d at 810. In this case, Customs liquidation
precludes the Court from granting plaintiff the relief it
now seeks. Accordingly, the Court concludes it is unable
to exercise jurisdiction over this action under [28
U.S.C.] § 1581(i).

Id. at 5-6 (quoting Mitsubishi, 18 CIT at 180, 848 F. Supp. at 203)
Court No. 00-00130 Page 12

(emphasis omitted). Defendant maintains that Shinyei is analogous

to the plaintiff in Mitsubishi, 18 CIT at 180, 848 F. Supp. at 203,

in that this Court lacks jurisdiction under 28 U.S.C. § 1581(i) to

grant Shinyei’s relief (that is, “‘reliquidation of the [e]ntries

[at issue] in accordance with corrected [Nankai] and [Fujino]

instructions’”). Def.’s Reply at 7 (quoting Pl.’s Resp. at 17).

Defendant, therefore, asserts that because this case is moot, the

Court lacks subject matter jurisdiction since there “no longer

exists a case or controversy.” Def.’s Mot. at 4.

In the alternative, Defendant argues that pursuant to 19

U.S.C. § 1504(d) (1994) (sic),10 Shinyei’s entries at issue were

deemed liquidated and as a result, Shinyei’s “claim and relief

requested are moot, and Shinyei . . ., moreover, has failed to

state a claim on which relief can be granted.” Def.’s Mot. at 4-5;

10
The corrected version of 19 U.S.C. § 1504(d) that Defendant
relies on is 19 U.S.C. § 1504(d) (1988 & Supp. 1993). See Def.’s
Mot. Correct Error Mot. Dismiss.

Section 1504(d) provides:

When a suspension required by statute or court order
is removed, [Customs] shall liquidate the entry within 6
months after receiving notice of the removal from
[Commerce] . . . or a court with jurisdiction over the
entry. Any entry not liquidated by [Customs] within 6
months after receiving such notice shall be treated as
having been liquidated at the rate of duty, value,
quantity, and amount of duty asserted at the time of
entry by the importer of record.

19 U.S.C. § 1504(d).
Court No. 00-00130 Page 13

see also Def.’s Reply at 8-13. In particular, Defendant asserts

that:

Commerce sent Customs various liquidation instructions
(see [Pl.’s First] Am. Compl. ¶¶ 9-15), which informed
Customs that suspension of liquidation was lifted. The
last instruction [was] sent in October 1998. . . . The
subject entries listed in [Pl.’s First Am. Compl. App. A]
were liquidated between May 1999 and February 2001. None
of the entries, therefore, was liquidated within six
months after the last instruction was sent on October
1998, i.e., by April 30, 1999. The subject entries,
therefore, were deemed liquidated under [19 U.S.C.] §
1504(d) . . . at the cash deposit rate.

Because the subject entries have been liquidated,
Shinyei’s . . . claims that the liquidation instructions
were unlawful, and that the matter should be remanded to
Commerce, are moot, nonjusticiable, and should be
dismissed.

Def.’s Mot. at 5-6.

B. Shinyei’s Contentions

Shinyei responds that this Court possesses jurisdiction over

this case pursuant to 28 U.S.C. § 1581(i)(4) because Customs’

liquidation of the entries at issue “do not preclude reliquidations

of the entries in accordance with corrected [Nankai] and [Fujino]

instructions.” Pl.’s Resp. at 14. In particular, Shinyei argues

that: (1) the case at bar is distinct from Chr. Bjelland, 19 CIT

35, because “[Chr.] Bjelland, [19 CIT 35] [was] a [19 U.S.C. §]

1516a/[28 U.S.C. §] 1581(c) case contesting a Commerce antidumping

review determination and other antidumping and countervailing duty

determinations[,]” Pl.’s Resp. at 15, whereas, in this case,
Court No. 00-00130 Page 14

Shinyei “has brought an [Administrative Procedure Act] APA11/

1581(i) case to enforce [the second] review results by contesting

a subsequent Commerce decision, i.e., the [Nankai] and [Fujino]

Instructions[,]” id. (emphasis omitted); and (2) “§ 1516a

injunction provisions apply only in a 1516a/1581(c) case, and

cannot be engrafted by implication onto an . . . 1581(i) case.”12

11
The Court notes that

[t]he Supreme Court has held that “the APA does not
afford an implied grant of subject matter jurisdiction
permitting federal judicial review of an agency action.”
Califano v. Sanders, 430 U.S. 99, 107 . . . (1977). More
specifically, in Califano the Supreme Court observed that
while 5 U.S.C. § 702 sets forth that affected persons
have a right to review of agency action, “[5 U.S.C.] §
703 suggest that this language was not intended as an
independent jurisdictional foundation, since such
judicial review is to proceed ‘in a court specified by
statute’ or ‘in a court of competent jurisdiction.’” Id.
at 106, n.6. . . . See also American Air Parcel
Forwarding Co., Ltd. v. United States, . . . 718 F.2d
1546, 1552 ([Fed. Cir.] 1983) (“[c]lear precedent exists
that the APA is not a jurisdictional statute and does not
confer jurisdiction on a court not already possessing
it.”).

United States v. Shabahang Persian Carpets, Ltd., 22 CIT 1028,
1032-33, 27 F. Supp. 2d 229, 233-34 (1998).
12
In its response brief, Shinyei relies inter alia on Krupp
Stahl AG v. United States, 4 CIT 244, 553 F. Supp. 394 (1982) to
support its proposition that “‘the Court is empowered to offer
complete relief in all actions within its jurisdiction[.]’” Pl.’s
Resp. at 16 (quoting Krupp Stahl, 4 CIT at 247, 553 F. Supp. at
396. Moreover, Shinyei asserts that “[t]he Court may wish to take
this occasion to crystallize the principle that judicial review of
agency action . . . brought before this Court under 28 U.S.C. §
1581(i), is not to be encumbered by the requirements and procedures
of inapplicable special statutory review proceedings.” Pl.’s Resp.
at 17 (citing United States Cane Sugar Refiners’ Ass’n v. Block, 3
(continued...)
Court No. 00-00130 Page 15

Id. at 17.

Shinyei also argues that “deemed liquidations do not preclude

reliquidations of the entries [at issue] in accordance with

corrected [Nankai] and [Fujino] instructions.”13 Pl.’s Resp. at 17.

Specifically, Shinyei asserts that: (1) “an ‘as entered’ deemed

liquidation favorable to the importer is immediately and

substantively final and conclusive against the Government[,]” id.

at 20, whereas, “an ‘as entered’ deemed liquidation adverse to the

importer is not immediately and substantively final and conclusive

against the importer, but may be contested on the merits[,]”14 id.

(citing Detroit Zoological Soc’y v. United States, 10 CIT 133, 630

F. Supp. 1350 (1986)); (2) Customs has not posted “bulletin notices

[of the deemed liquidations] . . . and so [Shinyei’s] time limit to

12
(...continued)
CIT 196, 200-01, 544 F. Supp. 883, 886 (1982)).
13
Shinyei maintains that “[t]he linchpin of [Shinyei’s] claim
is that the [Nankai] and [Fujino] Instructions unlawfully did not
describe the [e]ntries [at issue], and thereby did not inform
Customs that suspension of their liquidation was lifted under
Commerce’s and Customs’ view of the law at the time.” Pl.’s Resp.
at 18 n.24 (emphasis omitted).
14
Defendant argues that “[s]ection 1504(d) draws no
distinction between a deemed liquidation that is favorable to the
importer, and one that is adverse to the importer. . . . ‘The
purpose of section 1504 was to bring finality to the duty
assessment process.’” Def.’s Reply at 9-10 (quoting United States
v. Cherry Hill Textiles, Inc., 112 F.3d 1550, 1559 (Fed. Cir.
1997)). Moreover, Defendant maintains that “Shinyei’s argument is
misplaced because Shinyei now is contesting the deemed liquidation
on the merits before this Court.” Def.’s Reply at 10.
Court No. 00-00130 Page 16

protest the [d]eemed [l]iquidations never expired[,]”15 Pl.’s Resp.

at 21; (3) “two relatively recent decisions of the [Court of

Appeals for the] Federal Circuit . . . held that Federal Register

publication of a final Commerce antidumping review result serves

both to remove suspension of liquidation of the subject entries and

provide notice to Customs of such removal, thereby triggering the

six-month period at the end of which the subject entries will be

deemed liquidated under 19 U.S.C. § 1504(d)[,]” id. at 18 n.24

(citing International Trading Co. v. United States, 281 F.3d 1268

(Fed. Cir. 2002) and Fujitsu Gen. Am., Inc. v. United States, 283

F.3d 1364 (Fed. Cir. 2002));16 and (4) the Court will be faced with

15
Defendant responds to Shinyei’s argument regarding Customs’
failure to post a bulletin notice of liquidation by stating:

There is no statutory requirement that this case be
remanded to Customs so that Customs can post a bulletin
notice of liquidation, and Shinyei can protest the deemed
liquidation. While 19 U.S.C. § 1500(e) [(1988 & Supp.
1993)] requires Customs to give notice of liquidation,
[19 U.S.C.] § 1504(a) provides that “notwithstanding
section 1500(e) of this title, notice of liquidation need
not be given of an entry deemed liquidated.”

Def.’s Reply at 10-11.
16
Shinyei asserts that on “February 23, 1998[,] Commerce
publishe[d] notice of final court decision and amended final
results of the [second] [r]eview. . . . [P]er March 2002 decisions
by the [CAFC] in International Trading Co.[, 281 F. 3d 1268] and
Fujitsu Gen. Am.[, 283 F.3d 1364], this notice remove[d] suspension
of liquidation of the subject entries and provide[d] Customs with
notice of such removal.” Pl.’s Oral Argument Time Line & Arg.
Chart #1. “Accordingly[,] [on] August 23, 1998[,] . . . [t]he
subject entries [were] ‘deemed liquidated’ under 19 U.S.C. §
1504(d) with ADD as deposited [at] 45.83% ad. val.” Id. Shinyei
(continued...)
Court No. 00-00130 Page 17

a large volume of litigation if Defendant’s motion to dismiss is

granted. See Pl.’s Resp. at 22-23.

III. Analysis

The pertinent issue before this Court is whether the Court has

subject matter jurisdiction over this case pursuant to 28 U.S.C. §

1581(i).17 Defendant and Shinyei agree that jurisdiction is sought

16
(...continued)
further asserts that: (1)“[d]eemed liquidations under [19 U.S.C.]
§ 1504 are subject to importer’s undiminished right of post-
liquidation protest under [19 U.S.C.] § 1514(a) [1988 & Supp.
1993][,]” id.; (2) “[t]he deemed liquidations would become final
and conclusive against Shinyei under [19 U.S.C.] § 1514(a) if
Shinyei did not timely protest Customs’ deemed decision to assess
ADD on the subject entries as deposited [at] 45.83% ad val. rather
than in accordance with the final court decision and final amended
[second] [r]eview results[,]” id.; (3) “Shinyei’s time to protest
the deemed liquidations expired either within 90 days after the
deemed liquidations were effected, or within 90 days after Customs
posted bulletin notices of the deemed liquidations, whichever
occurred last[,]” id. (citing 19 C.F.R. § 159.9(c)(2)(iii) (1993));
(4) “[n]otwithstanding the [19 U.S.C.] § 1504(a) statutory
exemption, . . . Customs [r]egulation [that is, 19 C.F.R. §
159.9(c)(2)(iii)] is mandatory and binds Customs and this Court[,]”
Pl.’s Oral Argument Time Line & Arg. Chart #1; and (5) “[b]ecause
Customs never posted bulletin notices of the deemed liquidations,
Shinyei’s time to protest the deemed liquidations never expired,
and so the deemed liquidations never became final and conclusive
against Shinyei under [19 U.S.C.] § 1514(a).” Id. Shinyei,
therefore maintains that “the deemed liquidations of the subject
entries do not preclude this Court’s remedies and do not render
this case moot.” Id.; see also id. at Charts 2-4.
17
In pertinent part, 28 U.S.C. § 1581(i) provides:

In addition to the jurisdiction conferred upon the Court
of International Trade by subsections (a)-(h) of [§
1581,] . . . the Court of International Trade shall have
(continued...)
Court No. 00-00130 Page 18

under 28 U.S.C. § 1581(i), the Court’s residual jurisdiction

provision. See Pl.’s First Am. Compl. ¶ 4; Pl.’s Resp. at 7;

Def.’s Mot. at 2. However, Defendant argues that this Court lacks

jurisdiction under 28 U.S.C. § 1581(i) over this case because

Shinyei’s claim and the relief requested became moot as a result of

Customs’ liquidation of the entries at issue. See Def.’s Mot. at

3-4; Def.’s Reply at 1-8.

As a preliminary matter, it is incumbent upon the Court to

independently assess the jurisdictional basis for a case, see Ad

Hoc Comm. of Fla. Producers of Gray Portland Cement v. United

States, 22 CIT 902, 906, 25 F. Supp. 2d 352, 357 (1998), a

principal that is especially true where a party seeks to invoke the

court’s residual jurisdiction authority. And, “[i]t is well

established that the residual jurisdiction of the court under

subsection 1581(i) ‘may not be invoked when jurisdiction under

another subsection of § 1581 is or could have been available,

unless the relief provided under that other subsection would be

17
(...continued)
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--
. . .

(4) administration and enforcement with respect to
the matters referred to in paragraphs (1)-(3) of [§
1581(i)] and subsections (a)-(h) of [§ 1581].
Court No. 00-00130 Page 19

manifestly inadequate.’” Id. (citing Norcal/Crosetti Foods, Inc.

v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992) (emphasis in

original)).

Although jurisdiction over this case is properly sought under

28 U.S.C. § 1581(i), the Court finds that Shinyei’s claim and the

relief requested became moot as a result of Customs’ liquidation of

the entries at issue. See Warner-Lambert Co. v. United States,

2000 Ct. Intl. Trade LEXIS 35, *9, Slip. Op. 00-34 (April 4, 2000)

(citation omitted) (“matters that are moot do not entail any live

case or controversy within the meaning of Article III of the

[United States] Constitution, leaving federal courts organized

thereunder with no authority to act in regard thereto); 3V, Inc. v.

United States, 23 CIT 1047, 1049, 83 F. Supp. 2d 1351, 1353 (1999)

(citations omitted) (“[i]f a claim fails the Article III criteria,

the Court must dismiss the claim as non-justiciable regardless of

a statutory grant of jurisdiction”).

In the case at bar, Shinyei commenced this case by filing a

complaint on March 23, 2000. Shinyei “did not seek, and the Court

did not issue, any injunction to suspend liquidation of the

[e]ntries [at issue] pending its final decision.” Pl.’s Resp. at

5. Subsequently, on August 1, 2000, Commerce issued “a ‘clean-up’

instruction to Customs to liquidate ‘as entered’ all [second]

[r]eview [p]eriod entries of [the merchandise at issue] from Japan
Court No. 00-00130 Page 20

that had not been liquidated under previously-issued instructions.”

Id. The liquidation of the entries at issue, see Pl.’s First Am.

Compl. App. A, occurred “between September 8, 2000, and February 9,

2001 (all but two of the [e]ntries were liquidated before December

15, 2000).” Pl.’s Resp. at 5. On September 25, 2002, this Court

granted Shinyei’s motion for leave of the Court to amend its

complaint filed on March 23, 2000, in which Shinyei limited its

claim to Commerce error stating in pertinent part:

Commerce issued certain liquidation instructions [that
is, inter alia, Nankai and Fujino instructions] to
Customs to implement the results of an antidumping
administrative review. In violation of 19 U.S.C. §
1675(a)(2)[], [the Nankai and Fujino] instructions did
not permit the review results to be the basis for
assessments of antidumping duty on entries for which
[Shinyei] was the importer of record. As a consequence,
Customs liquidated the [e]ntries [at issue] under other,
inapplicable instructions [that is, Nankai and Fujino
instructions] resulting in substantial and erroneous
assessments of excessive antidumping duty on the
[e]ntries [at issue], as well as the attendant denial of
interest on excess deposits of antidumping duty that
should have been refunded.

Id. at 6 (quoting Pl.’s First Am. Compl. ¶ 3).

In Chr. Bjelland, the Court determined that:

liquidation renders moot any pending court challenge to
the underlying agency determinations regarding those
entries, for the statutory scheme does not authorize this
court to order a reliquidation of entries once they are
liquidated in accordance with either an outstanding AD or
CVD order, or the final results of an administrative
review of such order. [See] Zenith Radio Corp., . . . 710
F.2d at 810; Ceramica Regiomontana, S.A. v. United
States, 7 CIT 390, 396, 590 F. Supp. 1260, 1265 (1984).
Court No. 00-00130 Page 21

Consequently, if liquidation occurs prior to the
completion of judicial review of an AD or CVD
determination, and duties are assessed pursuant to either
the original order or the final results of an
administrative review of such order, any outstanding
challenges to the AD or CVD determination are rendered
moot as to the liquidated entries because such entries
are no longer amenable to the reach of this court.
Furthermore, if the final results of an administrative
review of an AD or CVD order are published, any
outstanding challenges to Commerce's underlying AD or CVD
determination are similarly rendered moot as to
subsequent entries of the subject merchandise, because
estimated duties are to be assessed on such entries in
accordance with the final results of the administrative
review and not Commerce's original AD or CVD order. See,
e.g., PPG Indus., Inc. v. United States, 11 CIT 303, 309,
660 F. Supp. 965, 970 (1987); Silver Reed Am., Inc. v.
United States, 9 CIT 221, 224 (1985).

19 CIT at 51-52. Although the Court agrees with Shinyei’s

assertion that the Chr. Bjelland case was a 19 U.S.C. § 1516a18/28

18
Section 1516a(c)(1) of Title 19 states:

Unless such liquidation is enjoined by the court
under [19 U.S.C. § 1516a(c)] (2) . . ., entries of
merchandise of the character covered by a determination
of the . . . administering authority . . . shall be
liquidated in accordance with the determination . . . .

Section 1516a(c)(2) of Title 19 provides:

In the case of a determination described in [19
U.S.C. § 1516a(a)] (2) . . . , the United States Court of
International Trade may enjoin the liquidation of some or
all entries of merchandise covered by a determination of
the . . . administering authority . . . upon a request by
an interested party for such relief and a proper showing
that the requested relief should be granted under the
circumstances.
Court No. 00-00130 Page 22

U.S.C. § 1581(c)19 case, the Court finds that once entries are

liquidated, this Court lacks subject matter jurisdiction regardless

of whether jurisdiction is sought under 28 U.S.C. § 1581(c) or 28

U.S.C. § 1581(i). See Mitsubishi Elec. Am., 18 CIT at 180, 848 F.

Supp. at 203.20

19
Section 1581(c) provides that “[t]he Court of International
Trade shall have exclusive jurisdiction of any civil action
commenced under section 516A of the Tariff Act of 1930.”
20
In Mitsubishi Elec. Am., the Court stated in pertinent
part:

Plaintiff’s failure to seek injunctive relief
against liquidation before commencing this action also
precludes this Court from exercising jurisdiction under
28 U.S.C. § 1581(i). . . . [B]ecause an injunction would
prevent Customs from liquidating plaintiff’s entries and
thereby ensure a party would be able to benefit from
judicial review of its challenge to the regulation, such
relief would seem appropriate. Cf. Zenith, . . . 710
F.2d at 810 (A party who wishes to challenge a [19 U.S.C.
§ 1675] determination will suffer irreparable harm if
Customs liquidates their entries before the party obtains
judicial review because “[t]he statutory scheme has no
provision permitting re-liquidation” and, therefore,
renders the court “powerless to grant the only effective
remedy response” to the party's challenge.). Yet, as the
Zenith court noted with respect to liquidations following
administrative reviews, “[t]he statutory scheme has no
provision permitting re-liquidation” and “once
liquidation occurs, a subsequent decision by the trial
court on the merits . . . can have no effect on the
dumping duties assessed on [subject] entries.” Id. . .
. 710 F.2d at 810. In this case, Customs liquidation
precludes the Court from granting plaintiff the relief it
now seeks. Accordingly, the Court concludes it is unable
to exercise jurisdiction over this action under §
1581(i).

18 CIT at 180, 848 F. Supp. at 203 (emphasis supplied).
Court No. 00-00130 Page 23

Moreover, the Court disagrees with Shinyei’s assertion that 19

U.S.C. § 1516a injunction provisions apply only in a 19 U.S.C. §

1516a/28 U.S.C. § 1581(c) case, and cannot be engrafted by

implication onto a 28 U.S.C. § 1581(i) case. See Wear Me Apparel

Corp. v. United States, 1 CIT 194, 196, 511 F. Supp. 814 (1981).21

To hold otherwise would create a floodgate of litigation by

allowing parties, such as Shinyei, who sleep on their rights and

permit liquidation to occur, to use 28 U.S.C. § 1581(i)

jurisdiction to subsequently revive claims that are otherwise moot.

Accordingly, Defendant’s motion to dismiss this action

pursuant to USCIT R. 12(b)(1) for lack of subject matter

jurisdiction is granted.22

21
In Wear Me Apparel Corp. v. United States, the Court stated
in pertinent part that:

section 1581(i) does not require the filing or denial of
a protest as a prerequisite for the exercise of
jurisdiction by this court. . . .

This does not mean, however, that by invoking the
jurisdiction of the court under section 1581(i) the
mandate of section 1581(a) requiring the exhaustion of
administrative remedies, i.e., the filing and denial of
a protest, may thereby be dispensed with.

1 CIT at 196, 511 F. Supp. at 817.
22
The Court does not reach the issue of “deemed liquidations”
of the entries at issue since both Defendant and Shinyei agree that
the entries at issue were in fact liquidated. See Pl.’s Resp. at
5; Def.’s Mot. at 2, 6.
Court No. 00-00130 Page 24

IV. Conclusion

Based on the foregoing, Defendant’s motion to dismiss is

granted.

______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE

DATED: February 14, 2003
New York, New York