704 F.Supp.2d 1315 (CIT 2010), 09-00191, Hitachi Home Electronics (America), Inc. v. United States

Docket NºCourt 09-00191.
Citation704 F.Supp.2d 1315
Opinion JudgeRESTANI, Chief Judge.
Party NameHITACHI HOME ELECTRONICS (AMERICA), INC., Plaintiff, v. UNITED STATES, United States Customs and Border Protection, and Rosa Hernandez, Port Director, United States Customs and Border Protection, (Otay Mesa) San Diego, California, Defendants. Slip Op. 10-46.
AttorneySidney N. Weiss; The Zisser Law Group (Steven B. Zisser), of counsel, for the plaintiff. Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Justin R. Miller); P...
Case DateApril 30, 2010
CourtCourt of International Trade

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704 F.Supp.2d 1315 (CIT 2010)

HITACHI HOME ELECTRONICS (AMERICA), INC., Plaintiff,

v.

UNITED STATES, United States Customs and Border Protection, and Rosa Hernandez, Port Director, United States Customs and Border Protection, (Otay Mesa) San Diego, California, Defendants.

Slip Op. 10-46.

Court No. 09-00191.

United States Court of International Trade.

April 30, 2010

Sidney N. Weiss; The Zisser Law Group (Steven B. Zisser), of counsel, for the plaintiff.

Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Justin R. Miller); Paula S. Smith, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of counsel, for the defendants.

RESTANI, Chief Judge.

This customs duty rate matter is before the court on the motion of defendants, the United States, United States Customs and Border Protection, and Rosa Hernandez, the Port Director for (Otay Mesa) San Diego, California (collectively, " Customs" ), to dismiss for lack of subject-matter jurisdiction pursuant to USCIT Rule 12(b)(1), and on plaintiff Hitachi Home Electronics (America), Inc.'s (" Hitachi" ) cross-motions for consolidation of this case with Court Numbers 07-00422, 08-00128, 08-00226, and 09-00056, pursuant to USCIT Rule 42(a), and summary judgment, pursuant to USCIT Rule 56. For the reasons below, the court grants Customs' motion to dismiss without prejudice and denies Hitachi's cross-motions.

BACKGROUND

Hitachi imported plasma flat panel televisions made and/or assembled in Mexico

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into the United States at the port of (Otay Mesa) San Diego, California between June 1, 2003, and December 27, 2005. (First Am. Compl. 1.) The televisions were liquidated as dutiable under subheading 8528.12.72 of the Harmonized Tariff Schedule of the United States (" HTSUS" ), at a rate of 5.0% ad valorem. ( Id. at 7.) Hitachi claims that the televisions qualify for duty-free treatment under the North American Free Trade Agreement (" NAFTA" ) in accordance with General Note 12 of the HTSUS. ( See id. at 8.) Hitachi does not present an alternative challenge to the tariff classification of its televisions under subheading 8528.12.72, HTSUS. ( Id. )

Hitachi filed several timely protests, beginning with Protest Number 2506-05-100031 in May 2005, and filed supporting documentation and claims pursuant to 19 U.S.C. § 1520(d) for duty-free treatment under NAFTA. ( Id. at 2, Ex. 1.) Hitachi requested an application for further review (" AFR" ) for Protest Number 2506-05-100031. ( See Mem. in Supp. of Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction (" Def.'s Br." ) 3.) That protest became the lead protest, and Hitachi's other protests were suspended pending issuance of the response to the AFR. ( Id. ) Customs did not take any action on the AFR or allow or deny any of the protests. ( See First Am. Compl. 3.)

Hitachi and Customs point to slightly different reasons for Customs' inaction. According to Hitachi, Customs had put Hitachi's protest on hold pending a final decision, following a notice and comment period, on whether to issue a revocation of two prior classification rulings. ( See Zisser Decl. 3-5.) The revocation, which limited the types of plasma flat panel televisions eligible for NAFTA duty-free treatment, was issued in October 2006. Revocation of Ruling Letters & Treatment Relating to the Tariff Classification of Certain Plasma Modules, 40 Cust. B. & Dec. 35 (Oct. 12, 2006). In January 2007, Hitachi contacted Customs, discovered that another Customs attorney was assigned to its case, and volunteered to submit additional information. (Zisser Decl. 5-6.) Customs requested additional information in February 2007, and Hitachi submitted it in March 2007. ( Id. at 6.)

According to Customs, shortly after Hitachi's AFR, Samsung International, Inc. (" Samsung" ), filed protests and an AFR for its imports of " identical or substantially identical" merchandise. (Def.'s Br. 3.) Customs " did not intend to rule on either the Samsung or Hitachi AFR until it had considered all the relevant information submitted by both protestants." ( Id. at 4.) Samsung submitted additional information in August 2007. ( Id. at 3.) In November 2007, while Customs was assessing the AFRs, Hitachi filed a summons in Court Number 07-00422.1 (Def.'s Br. 4.) Customs asserts that it had drafted a response to Hitachi's AFR by then, but could not issue any decision on any of Hitachi's or Samsung's protests under 19 C.F.R. §§ 174.25(b)(2)(ii) and 177.7(b) because a related case was pending before this Court.2 (Def.'s Br. 4; Def.'s Reply Br. 22-23.) Hitachi subsequently filed summonses

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in Court Numbers 08-00128,3 08-00226,4 and 09-00056.5 The summonses in Court Numbers 07-00422, 08-00128, 08-00226, and 09-00056 invoke this Court's 28 U.S.C. § 1581(a) jurisdiction, alleging that Hitachi's protests were denied by operation of law two years after the protests were filed.6 ( See First Am. Compl. Exs. 1-4.)

This action, Court Number 09-00191, arises from Hitachi's importation of plasma flat panel televisions made or assembled in Mexico between November 19, 2005, and December 27, 2005. ( See id. at 1, Ex. 5.) Hitachi filed a timely protest, Protest Number 2506-07-100010, on March 6, 2007. ( Id. at 4-5.) Customs never denied the protest. ( Id. at 4.) In May 2009, Hitachi filed a summons and complaint in this action, citing the basis for the court's jurisdiction as 28 U.S.C. § 1581(a), because its protest was denied or deemed denied after two years under 19 U.S.C. § 1515(a), or 28 U.S.C. § 1581(i), if jurisdiction did not exist under 28 U.S.C. § 1581(a). (Compl. 4; see First Am. Compl. 7.) The complaint, and the subsequent First Amended Complaint filed in July 2009, also referenced Court Numbers 07-00422, 08-00128, 08-00226, and 09-00056. (Compl. 2; First Am. Compl. 2.)

In late July 2009, Customs filed a motion to dismiss this case for lack of subject-

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matter jurisdiction. In September 2009, Hitachi filed a cross-motion for consolidation of this case with Court Numbers 07-00422, 08-00128, 08-00226, and 09-00056 and to designate the First Amended Complaint in this case as the consolidated complaint. (Pl.'s Opp'n to Defs.' Mot. to Dismiss & Pl.s' Cross Mots. for Summ. J. & Consol. 1.) Hitachi also filed a cross-motion for summary judgment. ( Id. ) Hitachi's argument in support of its cross-motion is slightly different from the claim asserted in the First Amended Complaint, as Hitachi now argues with respect to all of the actions that jurisdiction is proper under 28 U.S.C. § 1581(i) and that Hitachi is entitled to summary judgment to recover the amounts protested because Hitachi's protests were allowed by operation of law after Customs failed to allow or deny the protests within the two-year period required by 19 U.S.C. § 1515(a). (Pl.'s Br. in Opp'n to Defs.' Mot. to Dismiss & in Supp. of Pl.'s Cross-Mots. for Summ. J. & for Consol. (" Pl.'s Br." ) 12-43.) Hitachi alternatively argues that jurisdiction is proper under 28 U.S.C. § 1581(a) because Hitachi's protests were denied by operation of law after the two-year period. ( Id. at 43-46.)

DISCUSSION

Hitachi has the burden of establishing jurisdiction under 28 U.S.C. § 1581(a) or (i). See Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006). Under § 1581(a), the court has " exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under [19 U.S.C. § 1515]." 28 U.S.C. § 1581(a). Section 1581(i) provides:

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