Duferco Steel, Inc. v. U.S.

• Citation: 403 F.Supp.2d 1281
• Decision Date: 05 October 2005
• Docket Number: Court No. 05-00389.,Slip Op. 05-132.
• Parties: DUFERCO STEEL, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

403 F.Supp.2d 1281

DUFERCO STEEL, INC., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 05-132.

Court No. 05-00389.

United States Court of International Trade.

October 5, 2005.

White & Case (Richard J. Burke and Joanna Ritcey-Donohue), Washington, DC, for Plaintiff Duferco Steel, Inc.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; Stephen C. Tosini, Attorney, Department of Justice, Civil Division, Commercial Litigation Branch, for Defendant United States.

OPINION

GOLDBERG, Senior Judge:

This matter is before the Court on Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to USCIT R. 12(b)(1). The plaintiff Duferco Steel, Inc. ("Duferco") brought a petition seeking a writ of mandamus to compel certain actions by the U.S. Department of Commerce ("Commerce") and the Bureau of Customs and Border Protection ("Customs"). First, Duferco seeks a writ of mandamus compelling Commerce to instruct Customs to liquidate and/or reliquidate entries of small diameter carbon and alloy seamless standard, line, and pressure pipe ("SLP") for the review period of February 4, 2000 through July 31, 2001. According to Duferco, the liquidation and/or reliquidation instructions should be without regard to antidumping duties, in accordance with Commerce's final results contained in Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe from Romania, Final Results of Antidumping Duty and Administrative Review, 68 Fed.Reg. 12,672 (Dep't Commerce Mar. 17, 2003). In addition, Duferco contends Commerce must instruct Customs to refund, with interest, any antidumping duty deposits to Duferco with respect to Entry Numbers 558-1171537-8 and 558-2014403-2 ("the Entries"). Duferco also seeks an order demanding Customs liquidate and/or reliquidate the Entries without regard to antidumping duties. As relief, Duferco requests that Customs refund, with interest, all antidumping duty deposits, in accordance with 19 U.S.C. § 1675(a)(2)(C).

Defendant does not contest that the Court of International Trade has statutory authority to order relief by granting a petition for a writ of mandamus.¹ See 28 U.S.C.A. § 2643(c)(1) (1999). Defendant's objection, however, addresses a logically antecedent question: does the Court have jurisdiction to issue a writ of mandamus ordering Commerce and Customs to liquidate and/or reliquidate the Entries despite Duferco's failure to protest the denial of its 19 U.S.C. § 1520(c) reliquidation request?² For the reasons discussed below, the Court finds that it does not possess jurisdiction over Duferco's claim and grants Defendant's motion to dismiss under USCIT R. 12(b)(1).

I. Background

On July 22, 2000, Duferco imported two SLP entries from Romanian manufacturer Silcotub. See Defendant's Motion to Dismiss ("Def.'s Motion"), Ex. 1. Customs issued automatic liquidation instructions for entries subject to the antidumping duty order for SLP from Romania. Complaint, at ¶ 15. The instructions were to liquidate all Romanian SLP entries except entries entered by Silcotub. Id. The entry forms provided to Customs by Duferco's customs broker designated Duferco as the "manufacturer" of the Entries, and as such Customs, consistent with its own instructions, liquidated the Entries, respectively, on November 8, 2001 and November 30, 2001.³ Def.'s Motion, Ex. 1 at box 21.

On December 9, 2003, Duferco, through its import manager M.G. Maher & Co. ("M.G.Maher"), subsequently filed a reliquidation request for each of the Entries pursuant to 19 U.S.C. § 1520(c). Def.'s Motion, Ex. 3. On February 13, 2004, Customs denied the request for exceeding the one year time period from the date of exaction or the date of liquidation within which protests must be filed under that section.⁴ Id. The M.G. Maher letter requested Customs to consider the date of exaction to be March 17, 2003 — the date Commerce issued its final results of the antidumping investigation of Silcotub-and not October 21, 2001, which was the actual date of liquidation of the Entries.⁵ Id. Such postdating was warranted, according to the M.G. Maher letter, on account of Custom's erroneous liquidation of the goods. Id. Following the denial of the 19 U.S.C. § 1520(c) protests, Duferco filed its petition for a writ of mandamus on June 15, 2005. On August 5, 2005, Defendant filed its motion to dismiss for lack of subject matter jurisdiction.

II. Standard of Review

Once a defendant moves to dismiss an action under USCIT R. 12(b)(1) for lack of subject matter jurisdiction, the plaintiff has the burden of proving that assertion of jurisdiction is proper. See United States v. Gold Mountain Coffee, Ltd., 8 CIT 247, 248-49, 597 F.Supp. 510, 513 (1984). The Court must limit its inquiry to the jurisdictional question, and avoid examining the merits of a case. See Syva Co. v. United States, 12 CIT 199, 201, 681 F.Supp. 885, 887 (1988) (citing Feudor, Inc. v. United States, 79 Cust.Ct. 179, 442 F.Supp. 544 (1977)).

III. Discussion

28 U.S.C. § 1581 sets forth the jurisdiction of the Court of International Trade. Subsections (a) through (h) of 28 U.S.C. § 1581 grant the court jurisdiction over specific types of disputes that commonly arise before the Court. Subsection (i) — the so-called "residual" grant of jurisdiction⁶ — is a general grant of jurisdiction for any civil action against the United States, its agencies, or its officers, that arises out of any law of the United States providing for, inter alia, "tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue ... [or the] administration and enforcement with respect to the matters referred to in [section 1581]." The issue before the Court is the interaction of the residual grant with the rest of section 1581, and specifically whether there is a "remedy exhaustion" requirement implicit in section 1581(i)'s residual grant.

Duferco contends that the Court has jurisdiction under 28 U.S.C. § 1581(i) to hear its petition for mandamus relief from the agency's denial of its section 1520(c) reliquidation request, despite Duferco's failure to invoke section 1581(a) and the appropriate administrative review procedures. According to Duferco, Defendant misunderstands the nature of its petition, and "has submitted a motion to dismiss a claim Duferco did not make...." Plaintiff's Response in Opposition to Def.'s Motion, at 4. Plaintiff also points out that "28 U.S.C. § 1581(a) is not nor could have been available." Id. In essence, Plaintiff argues that the Court cannot consider a litigant's seeking redress under section 1581(a) as a precondition for a successful section 1581(i) claim because the latter claim does not implicate the former. Such a position flies in the face of clear precedent that binds this Court.

By its terms, the 28 U.S.C. § 1581(i) gives the court exclusive jurisdiction over

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 the 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.

The breadth of the residual jurisdiction could, if not interpreted restrictively, threaten to strip subsections (a) through (h) of any operative force. Courts, cognizant of this interpretive difficulty, have decided that a plaintiff may successfully seek redress under section 1581(i)'s residual jurisdiction only after exhausting its remedies under subsections (a) through (h) of that section. Section 1581(i) is a litigant's port of last resort. If a plaintiff can access the Court of International Trade through section 1581(a) — or any other means short of invoking section 1581(i) — "it must avail itself of [that] avenue of approach, complying with all the relevant prerequisites thereto. It cannot circumvent the prerequisites of 1581(a) by invoking jurisdiction under 1581(i)...." American Air Parcel, 5 CIT at 10, 557 F.Supp. at 607.

Moreover, a plaintiff must exhaust administrative remedies before resorting to residual jurisdiction. See 28 U.S.C.A. § 2637 (1999) ("[T]he Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies."); Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed.Cir.2003).

The only circumstance wherein a plaintiff may successfully assert a claim under section 1581(i) before invoking an alternative and available method of redress is when such redress is "manifestly inadequate." Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.Cir. 1992); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987); Carnival Cruise Lines, Inc. v. United States, 18 CIT 1020, 1025, 866 F.Supp. 1437, 1441-42 (1994); Carnation Enterprises Pvt., Ltd. v. U.S. Dept. of Commerce, 13 CIT 604, 607, 719 F.Supp. 1084, 1087 (1989).

In order to hurdle the exhaustion bar, a remedy must be inadequate both prospectively and retrospectively. It is not enough for a plaintiff to allege that section 1581(a) is an inadequate means, at the time it invokes section 1581(i), to protect plaintiff's rights. A plaintiff waives its right to invoke section 1581(i)'s "manifest inadequacy" safe harbor if jurisdiction under another subsection of section 1581 could have been available but no longer is available.

In Star Sales, the plaintiff argued in the alternative that should the court find that it did not have jurisdiction under 1581(a), "the Court should find residual jurisdiction for its action under ...