C.B. Imports Transamerica Corp. v. United States , 807 F. Supp. 2d 1350 ( 2011 )

Slip Op. 11 - 156
UNITED STATES COURT OF INTERNATIONAL TRADE
C.B. IMPORTS TRANSAMERICA
CORP.,
Before: Donald C. Pogue,
Plaintiff, Chief Judge
v.
Court No. 11-00036
UNITED STATES,
Defendant.
OPINION
[Granting Defendant’s motion to dismiss]
Dated: December 14, 2011
Peter S. Herrick of Miami, FL, for Plaintiff.
Jason M. Kenner, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of New York,
NY, for Defendant. With him on the brief were Tony West,
Assistant Attorney General and Barbara S. Williams, Attorney in
Charge, International Trade Field Office. Of counsel on the
brief was Beth Brotman, Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border
Protection, of New York, NY.
Pogue, Chief Judge: In this matter, Plaintiff, C.B. Imports
Transamerica Corporation (“C.B. Imports”), seeks review of the
liquidation, by the Defendant, United States Customs and Border
Protection (“Customs”), of an entry of automotive safety glass
from the People’s Republic of China (“China”). Am. Compl. ¶¶
23–39, ECF No. 8. Customs moves to dismiss for lack of subject
Court No. 11-00036 Page 2
matter jurisdiction.1 Mem. Supp. Def.’s Mot. Dismiss 3–4, ECF No.
16.
The court finds that Plaintiff’s alleged claim under 28
U.S.C. § 1581(i) (2006) is time-barred. Accordingly, this case
will be dismissed.
BACKGROUND
C.B. Imports is an importer located in Puerto Rico. Am.
Compl. ¶ 1. On September 20, 2002, C.B. Imports made entry2
number 261-0419198-1, consisting of automotive safety glass from
China. Am. Compl. ¶ 5; Mem. Supp. Def.’s Mot. Dismiss 1. Customs
entered the goods on October 31, 2002, subject to an antidumping
duty under case number A-570-867-000. Am. Compl. ¶ 9. The goods
were entered at a duty rate of 124.50%, requiring C.B. Imports to
make a $51,250.43 cash deposit. Id. ¶¶ 5–9. Customs liquidated3
the entry on February 6, 2004 with a doubling of antidumping
duties and then reliquidated the entry on February 27, 2004 to
1
Customs, in the alternative, seeks dismissal for failure
to state a claim. Mem. Supp. Def.’s Mot. Dismiss 3–4. However,
because the court concludes that the Plaintiff’s claim is time-
barred, it does not reach the question of whether Plaintiff has
stated a claim upon which relief can be granted.
2
“‘Entry’ means that documentation required . . . to be
filed with the appropriate Customs officer to secure the release
of imported merchandise from Customs custody, or the act of
filing that documentation.” 19 C.F.R. § 141.0a(a) (2011).
3
“Liquidation means the final computation or ascertainment
of duties on entries for consumption or drawback entries.” 19
C.F.R. § 159.1 (2011).
Court No. 11-00036 Page 3
correct the erroneous doubling of duties. Id. ¶ 13; Mem. Supp.
Def.’s Mot. Dismiss 2.
C.B. Imports claims that its entry was actually subject to
antidumping duty case number A-570-867-009, for which
liquidations were suspended on July 31, 2003. Am. Compl. ¶¶ 11,
14. In addition, the antidumping duty order for automotive
safety glass from China was revoked on June 5, 2007. Automotive
Replacement Glass Windshields from the People’s Republic of
China, 72 Fed. Reg. 31,052, 31,052 (Dep’t Commerce June 5, 2007)
(final results of sunset review and revocation of antidumping
duty order) (“Revocation Order”). On August 24, 2009, C.B.
Imports requested that, in light of the revocation, Customs
refund its cash deposit. Am. Compl. ¶ 19. Customs responded on
August 26, 2009, informing C.B. Imports that it would not refund
the deposit because the entry had already been liquidated. Id. ¶
20.
C.B. Imports initiated this action on February 17, 2011,
asserting that the court has jurisdiction to hear its claim under
§ 1581(i). Am. Compl. ¶ 4. Customs contends that C.B. Imports
cannot assert § 1581(i) jurisdiction because it should have filed
a protest of the liquidation and subsequently sought review of
any denial of its protest under 28 U.S.C. § 1581(a)(2006). Mem.
Supp. Def.’s Mot. Dismiss 3. Customs also contends that C.B.
Imports’ claim under § 1581(i) is time-barred by the two year
Court No. 11-00036 Page 4
statute of limitations for such claims.4 Id.; see also 28 U.S.C.
§ 2636(i) (2006).
STANDARD OF REVIEW
Whether jurisdiction exists is a question of law. See Sky
Tech. LLC v. SAP AG, 576 F.3d 1374, 1378 (Fed. Cir. 2009).
Because the Defendant has moved to dismiss for lack of
jurisdiction, the court accepts as true the factual allegations
in the Plaintiff’s Amended Complaint. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974), overruled on other grounds, Davis v. Scherer,
468 U.S. 183, 191 (1984). However, the Plaintiff bears the
burden of establishing jurisdiction. Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991) (“A party seeking the exercise
of jurisdiction in its favor has the burden of establishing that
4
Because the court concludes that Plaintiff’s alleged
§ 1581(i) claim is time-barred, it need not address the
Defendant’s other claimed basis for dismissal, that a § 1581(i)
claim is barred because § 1581(a) provided an adequate, available
remedy. See Volkswagen of Am., Inc. v. United States, 31 CIT 233,
236, 475 F. Supp. 2d 1385, 1389 (2007) (“Jurisdiction is not
appropriate under § 1581(i) when ‘another subsection of § 1581 is
or could have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.’” (quoting
Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir.
1987))). Section 1581(a) gives the court jurisdiction over “any
civil action commenced to contest the denial of a protest, in
whole or in part, under [19 U.S.C. § 1515].” 19 U.S.C. § 1581(a).
When a plaintiff fails to protest a Customs duty and seeks review
under § 1581(a), that plaintiff cannot then seek recourse under
§ 1581(i). Hartford Fire Ins. Co. v. United States, 544 F.3d
1289, 1292 (Fed. Cir. 2008) (“[A plaintiff] cannot circumvent the
prerequisites of 1581(a) by invoking jurisdiction under 1581(i)
unless such traditional means are manifestly inadequate.”
(internal quotation marks ommitted)); Shah Bros. v. United
States, CIT , 770 F. Supp. 2d 1367, 1369–70 (2011).
Court No. 11-00036 Page 5
such jurisdiction exists.” (citing KVOS, Inc. v. Associated
Press, 299 U.S. 269, 278 (1936))).
DISCUSSION
I. Plaintiff’s alleged claim under 28 U.S.C. § 1581(i) is
statutorily time-barred
The court has broad residual jurisdiction under § 1581(i)
over actions challenging Customs’ administration and enforcement
of antidumping duty orders.5 However, C.B. Imports’ alleged
§ 1581(i) claim is statutorily time-barred.
Actions brought pursuant to § 1581(i) must be brought
“within two years after the cause of action first accrues.” 28
U.S.C. § 2636(i). C.B. Imports filed suit on February 17, 2011
5
Section 1581(i) states in relevant part:
In addition to the jurisdiction conferred upon the
Court of International Trade by subsections (a)–(h) of
this section . . . the Court of International Trade
shall have 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––
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on
importation of merchandise for reasons other than
the raising of revenue;
(3) embargoes or other quantitative restrictions
on the importation of merchandise for reasons
other than the protection of the public health or
safety; or
(4) administration and enforcement with respect to
the matters referred to in paragraphs (1)–(3) of
this subsection and subsections (a)–(h) of this
section.
28 U.S.C. § 1581(i).
Court No. 11-00036 Page 6
to challenge what it believes was the improper liquidation of its
entry by Customs on February 27, 2004. Giving C.B. Imports the
benefit of the doubt, the court will assume, arguendo, that the
cause of action accrued when the antidumping duty order was
revoked and C.B. Imports became eligible for the refund of its
cash deposit. However, the notice of that revocation was
published in the Federal Register on June 5, 2007.6 Revocation
Order, 72 Fed. Reg. at 31,052. Thus, C.B. Imports’ alleged claim
under § 1581(i) was time-barred as of June 6, 2009. See 28 U.S.C.
§ 2636(i).
II. The Administrative Procedures Act does not offer an
alternative basis for jurisdiction
C.B. Imports argues that it is not subject to the statute of
limitations applicable to § 1581(i) claims because it has an
independent cause of action under section 10 of the
Administrative Procedures Act (“APA”), 5 U.S.C. § 702 (2006).
Mem. Supp. Pl.’s Opp’n Def.’s Mot. Dismiss 5, ECF No. 18.
However, it is well established that the APA is not a
jurisdictional statute. See Volkswagen of Am., 31 CIT at 235, 475
F. Supp. 2d at 1388. To hear an APA claim, the court must “have
an independent basis for jurisdiction under 28 U.S.C. § 1581.”
6
Because a Federal Register publication is always
constructive notice, see Isaac Indus. v. United States, CIT
, 780 F. Supp. 2d 1372, 1375 & 1375 n.8 (2011), C.B. Imports
cannot toll the statute of limitations based on lack of notice of
the revocation.
Court No. 11-00036 Page 7
Id. As C.B. Imports cannot assert a timely claim under
§ 1581(i), as explained above, it also cannot assert a cause of
action under the APA. See Royal United Corp. v. United States,
CIT , 714 F. Supp. 2d 1307, 1314 (2010) (“It is, of course,
axiomatic that this Court exercises jurisdiction pursuant to
Subsection 1581(i) to adjudicate a cause of action under the
APA.”).
CONCLUSION
For the foregoing reasons, the court concludes that
Plaintiff’s alleged claim is time-barred. The case must
therefore be DISMISSED. Judgment will be entered accordingly.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: December 14, 2011
New York, New York