E&S Express Inc. v. United States

• Decision Date: 18 September 2013
• Docket Number: Slip Op. 13–122.,Court No. 13–00083.
• Court: U.S. Court of International Trade
• Parties: E & S EXPRESS INC. and Simon Ying, Plaintiffs, v. UNITED STATES, Defendant.

938 F.Supp.2d 1316

E & S EXPRESS INC. and Simon Ying, Plaintiffs,

v.UNITED STATES, Defendant.

Slip Op. 13–122.

Court No. 13–00083.

United States Court of

International Trade.

Sept. 18, 2013.

Carolyn Shields, Liu & Shields LLP, of Flushing, NY, for Plaintiffs.

Marcella Powell, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Civil Division, and Barbara S. Williams, Attorney in Charge, International Trade Field Office. Of counsel on the brief was Chi S. Choy, Office of the Assistant Chief Counsel, International Trade Litigation, Bureau of Customs and Border Protection, U.S. Department of Homeland Security, of New York, NY.

OPINION

RIDGWAY, Judge:

In this action, Plaintiffs E & S Express Inc. and Simon Ying (“E & S Express”) challenge the decision of the Bureau of Customs and Border Protection denying E & S Express's protest contesting the assessment of supplemental antidumping duties, with interest, on certain entries of wooden bedroom furniture from the People's Republic of China (“PRC”). Complaint¶¶ 2, 4, 31–32, 34.¹ E & S Express contends that the supplemental antidumping duties were erroneously assessed and that no additional duties are owed, and, through this action, seeks various assorted forms of relief. See generally Complaint.

The Government has moved to dismiss the action for want of subject matter jurisdiction, arguing that, because E & S Express failed to pay the outstanding duties and interest before commencing this action, the company failed to fulfill the mandatory statutory prerequisites for jurisdiction. See generally Defendant's Memorandum in Support of Defendant's Motion to Dismiss for Lack of Jurisdiction at 1–4 (“Def.'s Motion to Dismiss”); Defendant's Reply Memorandum in Further Support of Motion to Dismiss for Lack of Jurisdiction (“Def.'s Reply Brief”). But see Plaintiffs' Opposition to the Government's Motion to Dismiss (“Pls.' Response Brief”).

As set forth below, Defendant's Motion must be granted, and this action must be dismissed.

I. Background

As a general matter, on a motion to dismiss for lack of jurisdiction, “a court must accept as true all undisputed facts asserted in the plaintiff's complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011).² At issue in this action is Customs' assessment of $76,895.26 in supplemental antidumping duties, with interest, on nine entries of wooden bedroom furniture from the PRC which was produced by Chinese manufacturer Wanhengtong Nueevder (Furniture) Manufacture Co., Ltd. See Complaint ¶¶ 4, 9. E & S Express imported the merchandise and took delivery in 2009. See id. ¶ 4. At the times of entry, E & S Express paid or deposited antidumping duties of at least $14,613.66. See id. ¶ 11. In addition, the entries were covered by a continuous customs bond in the amount of $50,000 posted by E & S Express, which was in effect from June 28, 2007 until January 28, 2011. See id. ¶ 14; Declaration of Carolyn Shields ¶ 3.

E & S Express sold the subject merchandise in 2009 and 2010. See Complaint ¶ 9. In February 2012, Customs sent the company bills for supplemental antidumping duties and interest assertedly owed on the nine entries. See id. ¶ ¶ 4, 13. E & S Express avers that the nine bills that it received in February 2012—“[b]etween more than two years and more than three years” after the merchandise was imported, and “approximately ten months after [the company] was dissolved” in 2011—were the first notice that the company had received of Customs' claim for supplemental antidumping duties and interest. See id. ¶¶ 1, 4, 12–14.

E & S Express contends, among other things, that the supplemental antidumping duties were assessed at a rate that was not applicable because, according to the company, the “effective date [of the rate] post-date[d] the dates of entry” of the relevant merchandise, and because, according to the company, the rate was rescinded by the U.S. Department of Commerce. See Complaint ¶¶ 5–6, 15–16 ( citingWooden Bedroom Furniture From the People's Republic of China: Final Results and Final Rescission in Part, 76 Fed.Reg. 49,729 (Aug. 11, 2011) (administrative review covering period January 1, 2009 through December 31, 2009); Wooden Bedroom Furniture From the People's Republic of China: Partial Rescission of Antidumping Duty Administrative Review and Intent to Rescind, in Part, 77 Fed.Reg. 52,311 (Aug. 29, 2012) (administrative review covering period January 1, 2011 through December 31, 2011)). Specifically, E & S Express asserts that, as of August 2012, Commerce “rescinded the rate it had determined to apply to merchandise manufactured” by Wanhengtong (the producer of the merchandise at issue in this action), and that Commerce “instructed Customs to impose antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry ... [ i.e.], 7.24 percent”—a sum that E & S Express states it had previously paid, “leaving no additional duties owed.” See Complaint ¶ 16 ( citingWooden Bedroom Furniture From the People's Republic of China: Partial Rescission of Antidumping Duty Administrative Review and Intent to Rescind, in Part, 77 Fed.Reg. 52,311 (Aug. 29, 2012); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order/Pursuant to Court Decision: Wooden Bedroom Furniture From the People's Republic of China, 71 Fed.Reg. 67,099 (Nov. 20, 2006)).

In addition, E & S Express argues that—even if the assessment of supplemental antidumping duties was otherwise proper—the assessment, “coming more than two to more than three years after the dates of entry of the goods, and without notice to [the company], and after [the company] had sold the goods to U.S. customers and no longer could increase the price of goods sold” denied the company due process and “defeat[ed] a primary purpose of antidumping duties.” See Complaint ¶ 8. E & S Express further alleges a wide range of procedural irregularities ( see generally id. ¶¶ 18–29, 33–34), and specifically claims (in five causes of action) that (1) it is improper to impose antidumping duties on a dissolved corporation ( id. ¶¶ 35–38), (2) that the antidumping duties at issue are “impermissibly retroactive” ( id. ¶¶ 39–44), (3) that imposition of the antidumping duties would violate E & S Express's procedural due process rights ( id. ¶¶ 45–50), (4) that the claim for interest lacks merit and would deprive E & S Express of due process ( id. ¶¶ 51–54), and (5) that the claim for antidumping duties is barred by the applicable statute of limitations or laches ( id. ¶¶ 55–57).

E & S Express filed a protest as to the claim for supplemental antidumping duties and interest on April 20, 2012. See Complaint ¶ 31. The protest was denied on August 31, 2012, and this action—commenced with E & S Express's filing of its Summons on February 27, 2013—followed. See id. ¶ 32; Summons (filed Feb. 27, 2013). Customs issued a “Follow Up on Formal 612 Demand” on E & S Express's surety on April 17, 2013. See Shields Declaration ¶ 5 & Exh. A (copy of “Follow Up on Formal 612 Demand”). As the name of the mid-April 2013 document suggests, it was a “follow up” to an earlier demand on the surety, made May 1, 2012. See Def.'s Reply Brief at 2 n. 2 & Exh. A (“Formal Demand on Surety for Payment of Delinquent Amounts Due”). The amount of the relevant bond—$50,000—would have sufficed to cover the duties allegedly owed under the first six of the nine bills at issue. See Shields Declaration ¶¶ 3, 6.³ As of at least late July 2013, however, Customs still had received no payment from the surety. See Def.'s Reply Brief at 2 n. 2.

II. Analysis

The existence of subject matter jurisdiction is a threshold inquiry. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Where subject matter jurisdiction is challenged, the plaintiff bears the burden of proving that jurisdiction exists. Trusted Integration, Inc., 659 F.3d at 1163;see also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006).

As a sovereign, the United States is immune from suit, unless and except to the extent that it consents to be sued. See Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed.Cir.1986) ( quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). Thus, where—as here—a waiver of sovereign immunity is at issue, the language of the statute must be strictly construed, and any ambiguities resolved in favor of immunity. FAA v. Cooper, ––– U.S. ––––, ––––, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012) ( citing United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995)); Zoltek Corp. v. United States, 672 F.3d 1309, 1318 (Fed.Cir.2012); Blueport Co. v. United States, 533 F.3d 1374, 1378 (Fed.Cir.2008). The limits of a waiver of sovereign immunity define a court's jurisdiction to entertain suit. See Hercules, Inc. v. United States, 516 U.S. 417, 422–23, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996); Blueport Co., 533 F.3d at 1378;United States v. Boe, 64 C.C.P.A. 11, 15, 543 F.2d 151, 154 (1976).

Here, E & S Express invokes 28 U.S.C. § 1581(a), which vests the U.S. Court of International Trade with exclusive jurisdiction over “any civil action commenced to contest the denial of a protest.” See Complaint ¶ 3; 28 U.S.C. § 1581(a) (2006).⁴ Under that provision, a plaintiff is entitled to challenge Customs' denial of its protest in this Court, provided that the plaintiff does two things to “perfect” jurisdiction. Like so much of life, it boils down to a matter of time and money.

Specifically, 28 U.S.C. § 2636(a)(1)—the “time”...