Fujitsu Ten Corporation of America v. U.S.
| Decision Date | 29 January 1997 |
| Docket Number | Slip Op. 97-11.,Court No. 95-03-00230. |
| Citation | 957 F.Supp. 245 |
| Parties | FUJITSU TEN CORPORATION OF AMERICA, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. Court of International Trade |
Katten Muchin & Zavis, Chicago, IL (Mark S. Zolno, Kathleen M. Murphy, Michael E. Roll, of counsel), for plaintiff.
Frank W. Hunger, Assistant Attorney General of the United States, David M. Cohen, Director Commercial Litigation Branch Civil Division, United States Department of Justice, Rhonda Schnare, Attorney, Commercial Litigation Branch, Dean Pinkert, Attorney-Advisor, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC, for defendant.
This matter is before the Court on a motion to dismiss the action made by the government prior to filing its Answer, pursuant to CIT Rules 12(b)(1) and 12(b)(5). The government contends that this Court lacks subject matter jurisdiction over this action, and that the third of Plaintiff's three causes of action fails to state a claim upon which relief can be granted.
Fujitsu Ten Corporation of America ("Fujitsu") imported into the United States from Japan merchandise known as "front ends" or "ETV front ends". Complaint ¶¶ 1, 6, 7.1 These goods are parts for automobile radios, which are assembled in the United States. Complaint ¶¶ 8, 13, 14. The entries were made between March 21, 1989 and January 7, 1992. Complaint ¶ 37.
When Fujitsu's front ends entered the United States, the Customs Service of the United States ("Customs") suspended liquidation and required the deposit of estimated antidumping duties. Complaint ¶ 9. Customs took this action under the purported authority of an antidumping order that applied to tuners from Japan, Treasury Department Order A-588-014 (December 12, 1970). Complaint ¶¶ 9, 11. That antidumping order described the affected goods as follows:
Tuners of the type used in consumer electronic products consist primarily of television receiver tuners and tuners used in radio receivers such as household radios, stereo and high fidelity radio systems, and automobile radios. They are virtually all in modular form, aligned, and ready for simple assembly into the consumer electronic product for which they were designed.
Complaint ¶ 11, quoting Treas. Dept. Order A-588-014. Fujitsu deposited estimated antidumping duties, as required, and many of the entries were liquidated without refunds. Complaint ¶ 16.
On July 22, 1992, Alpine Electronics, Inc., an importer unrelated to Fujitsu, requested a scope ruling from the Department of Commerce ("Commerce") pertaining to Alpine's entries of tuner parts. Complaint ¶ 33.2 On October 20, 1992, Fujitsu requested a scope ruling from Commerce that its front ends and ETV front ends were not tuners within the meaning of the antidumping order. Complaint ¶ 35. Both before and after filing its request for a scope ruling, Fujitsu filed protests with Customs relating to the assessment of antidumping duties on the subject merchandise. Complaint ¶ 38.
Commerce determined that no formal inquiry was required to act on Fujitsu's scope request, and on January 20, 1995, found that Fujitsu's front ends and ETV front ends were indeed outside the scope of the antidumping order. Complaint ¶ 41.
This litigation involves the entries that were liquidated prior to the date on which Fujitsu sought the scope ruling and which, by operation of law, were not affected by the subsequently-filed scope ruling request. Fujitsu had filed Customs protests as to these entries, and Customs sought Commerce's advice regarding the action it should take on them. On January 4, 1994, Commerce sent a memorandum to Customs advising that the scope ruling — which had not been decided — would not affect entries that had already been liquidated. Complaint Ex. A. Therefore, Commerce "recommend(ed)" that Customs deny the protests regarding entries that had already been liquidated and "hold" a protest regarding entries whose liquidation had been suspended. Id. On February 24, 1994, Customs denied the protests relating to the already-liquidated goods. Complaint ¶ 40.
Fujitsu's consolidated Complaint sets forth three causes of action. First, Fujitsu alleges that Customs' liquidation of its entries without refunding estimated antidumping duties was erroneous and contrary to law because the subject merchandise was outside the scope of the antidumping order. Complaint ¶ 16. Second, Fujitsu alleges that Commerce's letter regarding recommending action to Customs on Fujitsu's protests, and Commerce's failure to continue suspension of liquidations pending the outcome of the scope inquiry were arbitrary and capricious, abuses of discretion, and otherwise not in accordance with law. Complaint ¶¶ 43, 44. The Third Cause of Action alleges that Fujitsu should not have been required to deposit antidumping duties because the antidumping order "on its face" did not apply to the front ends and ETV front ends. Complaint ¶ 50.
The United States contends that this Court lacks jurisdiction over each of the three causes of action, and in the alternative that the Third Cause of Action fails to state a claim upon which relief can be granted.
For the reasons that follow, the court grants Defendant's motion and dismisses the complaint with prejudice.
The government moves to dismiss for lack of jurisdiction. "Once the court's jurisdiction is challenged, plaintiff bears the burden of proving that the court's exercise of jurisdiction is proper." Playhouse Import & Export, Inc. v. United States, 18 CIT 41, 43, 843 F.Supp. 716, 718 (1994) (citation omitted). The Court will examine each of Fujitsu's causes of action individually.
The gravamen of Fujitsu's First Cause of Action is contained in the following paragraph from the Complaint:
It is claimed that the liquidation of these entries by U.S. Customs without refunds of estimated antidumping duties was erroneous and contrary to law because the imported merchandise was not tuners covered by Treasury Department Order A-588-014.
Complaint ¶ 16. The issue is whether the subject merchandise is "covered" by the antidumping order. In the parlance of antidumping law, that is manifestly a "scope" issue.
In the Trade Agreements Act of 1979, Congress set forth the administrative procedure that a party must follow to challenge a determination by Customs that goods are within the scope of an antidumping order. 19 U.S.C. §§ 1514(b), 1516a(a)(2)(B)(vi). The statute recognizes that Customs makes the initial determination that an existing antidumping order applies to a specific entry of merchandise. 19 U.S.C. § 1514(b). The statute states that such a decision is "final and conclusive" unless it is appealed by petition to Commerce. Id. and 19 U.S.C. § 1516a(a)(2)(B)(vi). Only Commerce's final decision on a scope petition is appealable to this court. Id.
Section 1514(b) states the initial premise:
With respect to determinations made under section 1303 of this title or subtitle IV of this chapter which are reviewable under section 1516a of this title, determinations of the appropriate customs officer are final and conclusive upon all persons (including the United States and any officer thereof) unless a civil action contesting a determination listed in section 1516a of this title is commenced in the United States Court of International Trade....
19 U.S.C. § 1514(b) (1988). Subtitle IV to which the statute refers contains the antidumping laws at issue here.
Section 1516a cited in the statute is entitled "Judicial review in countervailing duty and antidumping duty proceedings". It contains a list of six "Reviewable determinations". The sixth is relevant here:
(vi) A determination by the administering authority [Commerce] as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or antidumping or countervailing duty order.
19 U.S.C. § 1516a(a)(2)(B)(vi). The subsection describes Fujitsu's complaint precisely. Fujitsu is complaining that its front ends and ETV front ends are not within the "class or kind of merchandise described" in Treasury Order A-588-014.
The essence of the statute is that upon being required to deposit antidumping duties for its entries of front ends and ETV front ends, Fujitsu had recourse to an exclusive remedy, viz., a petition to Commerce. Only after having made such a petition and its rejection could Fujitsu have brought the issue before this Court. Fujitsu, however, failed to take the requisite steps with regard to the subject merchandise. Therefore, the decisions of Customs that Fujitsu's goods are within the scope of the antidumping order, erroneous though they may have been, are final and conclusive as to Fujitsu.
Rather than seeking redress with Commerce, Fujitsu filed protests with Customs. The plain language of sections 1514(b) and 1516a, however, forecloses protest to Customs as a remedy here. In fact, section 1514(a), which delineates the issues that are protestable to Customs, itself excludes the matters described by subsection 1514(b) unambiguously:
[e]xcept as provided in subsection (b) of this section... decisions of the appropriate customs officer ... shall be final and conclusive upon all persons ... unless a protest is filed in accordance with this section or unless a civil action ... is commenced in the United States Court of International Trade....
19 U.S.C. § 1514(a) (1988) (emphasis added). Because Fujitsu's protests fall outside the exclusive statutory categories of protestable matters, they are a nullity. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 976 (Fed.Cir.1994). As such, they cannot form the basis for this Court's jurisdiction.3
Fujitsu's failure to pursue the exclusive administrative remedy for the wrongful assessment of antidumping duties forecloses...
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