Slip Op. 17-99
UNITED STATES COURT OF INTERNATIONAL TRADE
MICRO SYSTEMS ENGINEERING,
INC.,
Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Court No. 14-00005
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, Jan. 6, 2014, ECF No. 1; Compl. ¶ 5, Aug. 2, 2016, ECF No. 14.
Plaintiff imported nine entries of the merchandise between August 2011 and January 2012.1 See
Summons. U.S. Customs and Border Protection (“Customs”) classified and liquidated the
1
This case initially concerned thirty-nine entries, but the thirty entries covered in Protest Nos.
4101-13-100120, 4196-13-100069, 4196-13-100142, 4196-13-100240, 4196-13-100036, and
4196-13-100034 were severed and dismissed from this case on May 10, 2017. See Order, May
10, 2017, ECF No. 31 (granting Plaintiff’s consent motion to sever and dismiss).
Court No. 14-00005 Page 2
merchandise under various provisions of the Harmonized Tariff Schedule of the United States
(“HTSUS”). See Compl. ¶ 5; Answer ¶ 5, Mar. 23, 2017, ECF No. 23. 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, Feb. 15, 2017, ECF No. 21.
Before the court is Plaintiff’s Motion for Judgment on the Pleadings filed pursuant to
USCIT Rule 12(c). See Mot. J. Pleadings, May 9, 2017, ECF No. 30. 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
goods are classifiable under the Nairobi Protocol. See id. at 3. Defendant responds as follows:
Court No. 14-00005 Page 3
We agree with Micro Systems that these substrates “are properly classified under
HTSUS 9817.00.96 (Nairobi Protocol), which carries 0% duties ad valorem and
are excepted from payment of merchandise processing fees.” Pl. Motion at 2–3.
Def.’s Resp. Pl.’s Mot. J. Pleadings 2, May 15, 2017, ECF No. 32. The Parties are in agreement
that the imported substrates contained in the entries at issue in this action are 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.
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
ORDERED that judgment is granted in favor of Plaintiff; it is further
ORDERED that the imported substrates 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; and it is further
ORDERED that any refunds payable by reason of this judgment shall be paid with any
interest as provided by law.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: August 7, 2017
New York, New York
Court No. 14-00005 Page 4
SCHEDULE
Court No. 14-00005
Port: Cleveland, OH (4101)
Protest No. Entry No. Description of Merchandise
4101-13-100193 UPS-4688147-6 Substrate, Part No. 380143
UPS-5021804-5 Substrate, Part No. 380143
UPS-4771421-3 Substrate, Part No. 358018
UPS-5135668-7 Substrate, Part No. 358018
UPS-4806542-5 Substrate, Part No. 375851
UPS-4850454-8 Substrate, Part No. 375850
UPS-4838964-3 Substrate, Part No. 369164
UPS-4875845-8 Substrate, Part No. 369164
UPS-5101677-8 Substrate, Part No. 369164