403 F.Supp.2d 1281 (CIT. 2005), 05-00389, Duferco Steel, Inc. v. United States

Docket Nº:Court No. 05-00389.
Citation:403 F.Supp.2d 1281
Party Name:DUFERCO STEEL, INC., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 05-132.
Case Date:October 05, 2005
Court:Court of International Trade

Page 1281

403 F.Supp.2d 1281 (CIT. 2005)

DUFERCO STEEL, INC., Plaintiff,

v.

UNITED STATES, Defendant.

Slip Op. 05-132.

Court No. 05-00389.

United States Court of International Trade.

Oct. 5, 2005

Page 1282

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) .

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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

Page 1284

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...

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