C.B. Imports Transamerica Corp. v. United States ( 2011 )


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  •                          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