Acquisition 362, LLC v. United States

• Decision Date: 21 April 2021
• Docket Number: Slip Op. No. 21-46,Court No. 1:20-cv-03762
• Citation: 517 F.Supp.3d 1318
• Court: U.S. Court of International Trade
• Parties: ACQUISITION 362, LLC dba Strategic Import Supply, Plaintiff, v. UNITED STATES, Defendant.

517 F.Supp.3d 1318

ACQUISITION 362, LLC dba Strategic Import Supply, Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. No. 21-46

Court No. 1:20-cv-03762

United States Court of International Trade.

April 21, 2021

Heather L. Marx, Cozen O'Connor, of Minneapolis, MN, for Plaintiff Acquisition 362, LLC dba Strategic Import Supply. With her on the brief were Thomas G. Wallrich and Cassandra M. Jacobsen.

Hardeep K. Josan, Trial Attorney, International Trade Field Office, Civil Division, Commercial Litigation Branch, U.S. Department of Justice, of New York, NY for Defendant United States. With him on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Commercial Litigation Branch and Offices of Foreign Litigation and International Legal Assistance, Aimee Lee, Assistant Director, Commercial Litigation Branch and Offices of Foreign Litigation and International Legal Assistance, and Justin R. Miller, Attorney-In-Charge, International Trade Field Office. Of Counsel was Paula S. Smith, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection.

OPINION

Vaden, Judge:

Plaintiff Acquisition 362, LLC, doing business as Strategic Import Supply, filed this case under Section 515 of the Tariff Act of 1930, as amended, contesting the denial of its protests over countervailing duties. Specifically, Plaintiff challenges a decision by U.S. Customs and Border Protection (Customs) to assess countervailing duties on the importation from the People's Republic of China (China) of certain passenger vehicle and light truck tires over the course of multiple entries throughout 2016. Compl., ECF No. 5. Before the Court is the Government's motion to dismiss for lack of subject matter jurisdiction. Def.’s Mot. to Dismiss (Def.’s Mot.), ECF No. 25. For the reasons set forth below, this Court finds that it lacks subject matter jurisdiction and grants the Government's motion.

BACKGROUND

On August 10, 2015, the U.S. Department of Commerce (Commerce) issued a countervailing duty order regarding tires from China. See Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China , 80 Fed. Reg. 47902 (Aug. 10, 2015). Commerce's order included tire imports from Zhongyi Rubber Company Ltd. (Zhongyi). See Compl. ¶ 4, ECF No. 5; 80 Fed. Reg. at 47905. Plaintiff, an importer of tires, imported tires from Zhongyi on several occasions in 2016. Compl. ¶ 7, ECF No. 5; Pl.’s Mem. of Law in Opp'n to Def.’s Mot. to Dismiss (Pl.’s Mem.) at 2, ECF No. 27. Because Plaintiff's tire imports were subject to the duties established in Commerce's 2015 order, it "deposited payment of the assessed countervailing duties at a rate of 30.61%, the rate assigned ... at the time entries were made." Pl.’s Mem. at 2, ECF No. 27.

Zhongyi and other interested parties requested that Commerce initiate an administrative review of its 2015 order. Id. at 7; Protests and Entries from the Port of Wilmington, NC., ECF No. 11-1 at 8 (Protest NC). Commerce agreed and published a notice in the Federal Register on October 16, 2017. Initiation of Antidumping and Countervailing Duty Administrative Reviews , 82 Fed. Reg. 48051 (Oct. 16, 2017). Zhongyi would later withdraw its individual request for administrative review and therefore "Commerce rescinded this review of the [countervailing duty] Order on ... tires from China with regard to Zhongyi."¹ Protest NC, ECF No. 11-1 at 8.

If an interested party, domestic or otherwise, does not request an administrative review of the applicability of a countervailing duty order to it, the regulations require the Secretary of Commerce to instruct Customs to assess countervailing duties on merchandise described by the order. 19 C.F.R. § 351.212(c). As such, Customs liquidated Plaintiff's entries between October 19, 2018 and November 9, 2018, at the 30.61% countervailing duty rate. Compl. ¶ 11, ECF No. 5; Summons ECF No. 1-1. Plaintiff did not file a protest of the liquidation within 180 days of its completion. Cf. 19 U.S.C. § 1514(c)(3).

On June 17, 2019, Commerce issued its Amended Final Results following its administrative review of the Countervailing Duty Order. See Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review ; 2016, 84 Fed. Reg. 28011 (June 17, 2019) (Amended Final Results); Pl.’s Mem. at 2, ECF No. 27. The Amended Final Results concluded that the applicable countervailing duty amount should be nearly cut in half — from 30.61% to 15.56%. Id. at 28012. The International Trade Administration (ITA) issued Message No. 9184301 to Customs on July 3, 2019, instructing Customs to liquidate the relevant entries at the newly calculated rate.² Pl.’s Mem. at 3, ECF No. 27; Liquidation instructions for passenger vehicle and light truck tires from the People's Republic of China for the period of 01/01/2016 through 12/31/2016 , ITA Message No. 9184301 (July 3, 2019) available at https://aceservices.cbp.dhs.gov/adcvdweb/#9184301 (last visited Apr. 16, 2021).

Plaintiff filed protests on December 12 and December 13, 2019, for each already liquidated entry for its 2016 tire imports. Pl.’s Mem. at 4. Customs denied Plaintiff's protests as untimely and emailed the rejection notices to Plaintiff on April 24, 2020. Protests, ECF Nos. 11 to 21, 24. Plaintiff argues the protests were timely as they were filed within 180 days of Customs’ decision not to apply an amended countervailing duty rate after receipt of instructions from the ITA to assess amended duty rates. Plaintiff subsequently commenced this action on October 15, 2020, to challenge the denial of the protests. Summons, ECF No. 1.

The Government moves to dismiss Plaintiff's Complaint. It argues that 19 U.S.C. § 1514(a) enumerates the Customs decisions that are protestable, a prerequisite to asserting jurisdiction under 28 U.S.C. § 1581(a). Unless a party files a protest of those enumerated actions within the required time limits, Customs’ decision becomes final and conclusive. See 19 U.S.C. § 1514. The Government claims that Plaintiff's challenge to Customs’ "decision" not to apply the amended countervailing duty rates to Plaintiff's already liquidated entries is not a valid claim under section 1514 because Customs made no decision that may now be challenged. See Def.’s Reply in Supp. of Mot. to Dismiss (Def.’s Reply) at 9, ECF No. 28. To the Government, it is simple: Because Plaintiff's protests arrived more than 180 days after the liquidations, Plaintiff is precluded from challenging the denial of its untimely protests now that Commerce has agreed the duty rate should be less. See Def.’s Mot. at 12, ECF No. 25. Accordingly, the Government argues that this Court lacks subject-matter jurisdiction to hear Plaintiff's case.

STANDARD OF REVIEW

"[A] court's subject-matter jurisdiction defines its power to hear cases." Lightfoot v. Cendant Mortgage Corp., ––– U.S. ––––, 137 S. Ct. 553, 560, 196 L.Ed.2d 493 (2017). To adjudicate a case, a court must have subject-matter jurisdiction over the claim presented. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Even where the parties themselves fail to raise the issue, "federal courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise the issue sua sponte. " Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int'l., Ltd., 556 F.3d 459, 465 (6th Cir. 2009) ; see also Capron v. Van Noorden , 6 U.S. (2 Cranch) 126, 127, 2 L.Ed. 229 (1804) ("[I]t [is] the duty of the Court to see that they had jurisdiction, for the consent of the parties could not give it."). "[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the [claim] in its entirety." Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

This Court's jurisdiction under 28 U.S.C. § 1581(a) provides for "exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930." Section 1581(a) grants this Court jurisdiction over Customs’ denial of protests and " ‘provides no jurisdiction for protests outside the [ ] exclusive categories’ listed in 19 U.S.C. § 1514(a)." Sunpreme Inc. v. United States, 892 F.3d 1186, 1191 (Fed. Cir. 2018) (quoting Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976 (Fed. Cir. 1994) ) (brackets in original). A plaintiff bears the burden of establishing subject-matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In resolving disputed predicate jurisdictional facts, this Court may review evidence extrinsic to the pleadings. Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012).

This Court's jurisdiction is limited furthermore to cases in which the United States has waived sovereign immunity and consented to suit. United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Consent cannot be implied "but must be unequivocally expressed." Id. Without jurisdictional statutes enacted by Congress authorizing suit against the United States, there would be no jurisdiction to entertain claims against the United States. Id. Plaintiff must demonstrate that its claims come within the confines of the statutory conditions set by Congress. Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983) (holding that waivers of immunity authorized by statute must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires).

DISCUSSION

Plaintiff claims jurisdiction under 28 U.S.C. § 1581(a), asserting it "is protesting the decision by U.S. Customs and Border Protection ... to ignore the mandate of the Amended...