Slip Op. 00 - 133
UNITED STATES COURT OF INTERNATIONAL TRADE
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XEROX CORPORATION, :
Plaintiff, :
v. : Court No. 97-03-00435
:
UNITED STATES,
:
Defendant.
:
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Memorandum & Order
[Defendant's motion to dismiss complaint for
recovery of liquidated antidumping duties
granted.]
Decided: October 19, 2000
Neville, Peterson & Williams (John M. Peterson, George W.
Thompson and Curtis W. Knauss) for the plaintiff.
David W. Ogden, Assistant Attorney General; Joseph I. Lieb-
man, Attorney in Charge, International Trade Field Office, Com-
merical Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley); and Office of Assistant Chief Counsel,
U.S. Customs Service (George Brieger), of counsel, for the de-
fendant.
AQUILINO, Judge: Some five years after publication
of the Antidumping Duty Order of Sales at Less Than Fair Value;
Industrial Belts and Components and Parts Thereof, Whether Cured
or Uncured, From Japan, 54 Fed.Reg. 25,314 (June 14, 1989), by
the International Trade Administration, U.S. Department of Com-
merce ("ITA"), Inv. No. A-588-807, goods from Japan entered the
port of Rochester, New York, consigned to the Xerox Corporation,
Court No. 97-03-00435 Page 2
Nos. 818-0183467-2 (Sept. 22, 1994) and 818-0187011-4 (April 14,
1995). The entry summary of each, executed by the customhouse
broker on Customs Form 7501, included specific reference to the
aforesaid antidumping-duty order, with the rate thereunder stated
to be 93.16 percent ad valorem. Duties at that rate and the other
imposts upon importation were liquidated by Customs for both en-
tries on June 7, 1996.
Xerox thereupon challenged the payment of the anti-
dumping duties via timely formal protest, lodged with the Ser-
vice pursuant to 19 U.S.C. §1514 and 19 C.F.R. Part 174 (1996),
which was denied by Customs on the stated ground of "no support-
ing documentation". This action ensued with the filing and ser-
vice of a summons and complaint. In the latter, the plaintiff
pleads, among other things:
5. The merchandise which is the subject of
this action consists of certain rubber and plas-
tic feed belts which are used in the manufacture
of photocopiers. . . .
6. The belts . . . are products of Japan.
7. The belts . . . are used to carry paper
across the light-platen or digital scanner platen
of a photocopier machine or digital multifunction
printer.
8. The belts . . . are not used in the trans-
mission of power.
9. The belts involved in this action are not
reinforced with textile or other materials.
* * *
16. As the imported belts which are the sub-
ject of this action are not used in power trans-
Court No. 97-03-00435 Page 3
mission, and do not contain textile fiber (includ-
ing glass fiber) or steel wire, cord or strand,
they are not within the scope of the antidumping
duty order against Industrial Belts from Japan .
Whereupon, the court is requested to order reliquidation of the
entries with refund of the allegedly-inapposite antidumping du-
ties.
I
Jurisdiction is pleaded under 28 U.S.C. §1581(a), which
the defendant now challenges in a motion to dismiss pursuant to
CIT Rule 12(b)(1). Its gravamen is that plaintiff's merchandise
called into question the precise scope of the antidumping-duty
order, which subject matter Congress has made the responsibility
of Commerce, not Customs. And pursuant thereto, the ITA has and
has had regulations, e.g., 19 C.F.R. §353.29(b) (1995), enabling
importers like Xerox to file applications to determine whether
particular products are within the purview of existing antidump-
ing-duty orders. 1 Also, Congress has provided for judicial re-
view of such determinations per 19 U.S.C. §1516a(a)(2)(A)(ii)
and (B)(vi) and 28 U.S.C. §1581(c) (1995). Given this approach,
and the fact that Xerox did not follow it, the defendant takes
the position that this court has no jurisdiction to grant any
relief -- pursuant to section 1581(a) or otherwise.
1
Subsection (j) of that cited regulation provided for sus-
pension of liquidation during the pendency of an ITA scope in-
quiry.
Court No. 97-03-00435 Page 4
The plaintiff responds that the antidumping-duty order
at bar is clear on its face, that the goods at issue just as
clearly are not within its scope, and thus that Customs simply
erred in carrying out its ministerial duty to ad-
minister the order as published by the Commerce
Department. In contrast to the situation present-
ed in Sandvik, Inc. v. United States , 164 F.3d 596
(Fed.Cir. 1998), the case around which defendant's
motion to dismiss is constructed, this action does
not involve interpretation or clarification of the
scope of the antidumping duty order; it merely in-
volves a challenge to Customs' findings of fact,
and the application of those facts to an order
whose scope is clear and undisputed. 2
However sound plaintiff's factual averments may be,
they are not necessarily dispositive of its current predicament.
To begin with, when a motion is made pursuant to CIT Rule 12(b)-
(1), which
denies or controverts the pleader's allegations
of jurisdiction, . . . the movant is deemed to
be challenging the factual basis for the court's
subject matter jurisdiction. . . . In such a
case, the allegations in the complaint are not
controlling, . . . and only uncontroverted factu-
al allegations are accepted as true for purposes
of the motion.
Cedars-Sinai Med. Ctr. v. Watkins , 11 F.3d 1573, 1583 (Fed.Cir.
1993) (citations omitted), cert. denied, 512 U.S. 1235 (1994).
Moreover, in the opinion relied upon by the defendant and re-
ferred to by the plaintiff, supra, the court of appeals affirmed
2
Plaintiff's Response to Defendant's Motion to Dismiss, p.
2 (emphasis in original). The quality of this written response
obviates any need to grant plaintiff's motion for oral argument,
which is therefore hereby denied.
Court No. 97-03-00435 Page 5
decisions of the Court of International Trade which granted
government motions to dismiss for lack of subject-matter juris-
diction over actions seeking refunds from Customs for allegedly-
unwarranted exactions of antidumping duties. See Fujitsu Ten
Corp. of America v. United States , 21 CIT 104, 957 F.Supp. 245
(1997), and Sandvik Steel Co. v. United States , 21 CIT 140, 957
F.Supp. 276 (1997), aff'd sub nom. Sandvik Steel Co. v. United
States, 164 F.3d 596 (Fed.Cir. 1998). The circuit court held
that the
detailed scope determination procedures that Com-
merce has provided constitute precisely the kind
of administrative remedy that must be exhausted
before a party may litigate the validity of the
administrative action. Applying the exhaustion
doctrine in the present situation "serves the
twin purposes [of the doctrine] of protecting
administrative agency authority and promoting
judicial efficiency."
164 F.3d at 599-600, quoting McCarthy v. Madigan, 503 U.S. 140,
145 (1992).
Both CIT decisions were published before this action
commenced. In Fujitsu as apparently herein, Customs concluded
that an antidumping-duty order covered certain imports, and en-
tries were liquidated to include the duties prescribed by that
order. The importer protested those liquidations with the Ser-
vice, but also filed a request with the ITA for a formal ruling
as to the scope of its order. While that ruling ultimately prov-
ed favorable to the importer, the ITA nonetheless recommended
Court No. 97-03-00435 Page 6
that Customs deny the protests with respect to all entries that
had been liquidated prior to the ruling request. Whereupon suit
was brought against both agencies. Again in Sandvik, the Service
concluded that an antidumping-duty order covered certain imports
and acted accordingly, liquidating entries and collecting anti-
dumping duties thereby. The importer filed a protest, which Cus-
toms denied, and its court action ensued, alleging jurisdiction
pursuant to 28 U.S.C. §1581(a) or (i).
Here, the plaintiff attempts to distinguish this action
on the facts, but to little avail. As the court of appeals point-
ed out in Sandvik, although cases may be factually different,
such difference
is immaterial. The basic principle applied in
Nichimen and Mitsubishi is equally applicable
to the present case: that, as stated in Nichi-
men, the statute "exclude[s] antidumping deter-
minations from the matters that can be protested
to Customs."
164 F.3d at 602, referring to Mitsubishi Elec. of America, Inc.
v. United States, 44 F.3d 973 (Fed.Cir. 1994), and quoting Ni-
chimen America, Inc. v. United States , 938 F.2d 1286, 1290 (Fed.
Cir. 1991). Indeed, what the plaintiff would in effect now have
is a judicial determination ab initio of the scope of the ITA's
order, but Congress has not authorized such an approach for this
court any more than it has for the Customs Service.
Court No. 97-03-00435 Page 7
II
Hence, defendant's motion to dismiss for lack of sub-
ject-matter jurisdiction must be granted. Judgment will enter
accordingly.
So ordered.
Decided: New York, New York
October 19, 2000
______________________________
Judge
J U D G M E N T
UNITED STATES COURT OF INTERNATIONAL TRADE
Thomas J. Aquilino, Jr., Judge
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XEROX CORPORATION, :
Plaintiff, :
v. : Court No. 97-03-00435
:
UNITED STATES,
:
Defendant.
:
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This action having been duly submitted for decision;
and the court, after due deliberation, having rendered a deci-
sion herein; Now therefore, in conformity with said decision,
it is
ORDERED, ADJUDGED and DECREED that defendant's motion
to dismiss plaintiff's complaint be, and it hereby is, granted;
and it is further
ORDERED, ADJUDGED and DECREED that this action be, and
it hereby is, dismissed.
Dated: New York, New York
October 19, 2000
Judge