All Tools Inc v. United States, Slip Op. 10-114
| Decision Date | 05 October 2010 |
| Docket Number | Court No. 07-00237,Slip Op. 10-114 |
| Parties | ALL TOOLS, INC.,Plaintiff, v. UNITED STATES,Defendant. |
| Court | U.S. Court of International Trade |
Before: Richard K. Eaton, Judge
OPINION[Defendant's motion for summary judgment granted.]
Peter S. Herrick, P.A. (Peter S. Herrick), for plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commericial Litigation Branch, Civil Division, United States Department of Justice, (Edward F. Kenny); Office of Assistant Chief Counsel for Import Administration, International Trade Litigation United States Customs and Border Protection (Chi. S. Choy), of counsel, for defendant.
This matter is before the court on defendant's motion for summary judgment based on a claimed lack of subjectmatter jurisdiction. By its motion, defendant alleges that plaintiff, All Tools, Inc. ("All Tools"), failed to file timely its summons pursuant to 28 U.S.C. § 2636(a)(1) (2006), and therefore failed to establish jurisdiction before this Court. Def.'s Mem. in Support of Mot. for Summ. J. ("Def.'s Mem.") 1. All Tools argues that the deadline for filing its suit was equitably tolled pending Customs' issuance of a protest number, and therefore its suit is timely. Pl.'s Mem. in Opp. to Mot. for Summ. J. ("Pl.'s Mem.") 1. Because some of the Counts in the Complaint were untimely filed, and others raise issues not found in a timely protest, the court grants defendant's motion for summary judgment and dismisses the case.
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment in its favor as a matter of law. USCIT R. 56(c). Here, none of the material facts are in dispute. On August 26, 2003, All Tools, through its customs broker, Mr. Pedro Carmona, entered a shipment of Chinese-origin painting accessories through the Port of San Juan, Puerto Rico. Def.'s Mem. Ex. 1. Mr. Carmona completed the entry summary for the merchandise, stating that the entry included paint brushes classified under HTSUS No. 9603.40.4040 as "Natural Bristle Brushes." Def.'s Mem. Ex. 1. Mr. Carmona was listed on the entry summary as the importer of record. Def.'s Mem. Ex. 1.
Following the filing of the entry summary, Customs concluded that, because the paint brushes had natural bristles, they fell within antidumping duty order No. A570-501-000, and therefore were subject to an unfair trade duty of 351.92 percent. Def.'s Mem. Ex. 2; see Natural Bristle Paint Brushes and Brush Headsfrom the People's Republic of China, 61 Fed. Reg. 52, 917 (Dep't of Commerce Oct. 9, 1996) (final results). On January 8, 2004, Customs sent an Informed Compliance Notice addressed to Mr. Carmona, care of All Tools, stating that the paint brushes were subject to this antidumping duty. Def.'s Mem. Ex. 2.
The Informed Compliance Notice also directed All Tools' attention to a Customs Notice (Notice No. 2001-01 of Oct. 4, 2001) regarding the filing of non-reimbursement statements for entries subject to antidumping duties. Def.'s Mem. Ex. 2. The purpose of a non-reimbursement statement is to assure Customs that the importer will not be repaid the antidumping duty by the exporter or producer of the merchandise. 19 C.F.R. § 351.402(f)(1)-(2) (2009). If an importer fails to file a nonreimbursement statement, Commerce may presume that the exporter or purchaser did, in fact, reimburse the importer for the antidumping duties paid. 19 C.F.R. § 351.402(f)(3). In cases where Commerce relies on this presumption, it will treat the duty as if it had been fully reimbursed, and will charge the importer the duty a second time, in effect doubling the duty rate. See Id. All Tools did not file a non-reimbursement statement until February 17, 2006. Def.'s Mem. Ex. 11.
On September 13, 2004, having heard nothing from either Mr. Carmona or All Tools, Customs sent a Notice of Action to Mr. Carmona advising that "dumping duties of 703.84% [were to] beassessed" on the entry as a non-reimbursement statement had not been filed. Def.'s Mem. Ex. 5; see 19 C.F.R. § 152.2. Neither Mr. Carmona nor All Tools responded to the Notice of Action. Customs liquidated the entry on October 15, 2004 and assessed the double duty rate. Def.'s Mem. Ex. 6.
On January 14, 2005, 91 days after the liquidation of All Tools' entry, Mr. Carmona filed a protest against liquidation on the company's behalf, contesting the classification of the entry.1 Def.'s Mem. Ex. 7 ("Protest No. 1"). By seeking to have its merchandise classified as being made of synthetic bristles, All Tools was endeavoring to keep its merchandise from being subject to antidumping duties.
Customs denied Protest No. 1 as untimely on January 18, 2005, stating that it was not filed within ninety days of the liquidation. Def.'s Mem. Ex. 8; see 19 U.S.C. § 1514(c)(3)(A) (2000).2 Pursuant to 19 U.S.C. § 1514(a), an appeal of the denial of Protest No. 1 could have been taken within 180 days of January 18, 2005. All Tools did not appeal the denial of Protest No. 1to this Court.
On September 2, 2005, Mr. Carmona filed a claim with Customs pursuant to 19 U.S.C. § 1520(c)(1)3 alleging a mistake of fact. Def.'s Mem. Ex. 9 ("Carmona Letter"). The basis for Mr. Carmona's claim was that the "Informed Compliance Notice [and the] Notice of Action... treated Carmona as the 'importer' when, in fact, All Tools was the 'importer.'" Carmona Letter 2. Customs denied Mr. Carmona's claim on January 5, 2006, stating that the circumstances "[did] not constitute clerical error, mistake of fact or other inadvertence." Def.'s Mem. Ex. 10.
On March 17, 2006, All Tools filed a protest with Customs to contest the denial of Mr. Carmona's § 1520(c)(1) mistake of factclaim.4 Def.'s Mem. Ex. 11 ("Protest No. 2"). On April 5, 2006, Customs denied Protest No. 2. Def.'s Mem. Ex. 12.
Following the denial of the protest, counsel for All Tools asked Customs to assign a protest number to Protest No. 2 on four occasions beginning on April 13, 2006, eight days after Customs denied All Tools' protest as untimely, and ending on February 20, 2007. Pl.'s Exs. B, C, D, E. Customs assigned a protest number on February 20, 2007, but has given no reason for its failure to assign a number at an earlier date. Pl.'s Mem. 2.
All Tools commenced this suit on July 3, 2007, 133 days after receiving the protest number, seeking: (1) an order reclassifying its merchandise ("Count I"); (2) an order "that the dumping duties cannot be doubled in this case" ("Count II"); (3) the reliquidation of its merchandise at the "at entered" rate because deemed liquidation had occurred on August 26, 2004 ("Count III"); and (4) an order "approving" Protest No. 2 and ordering Customs to refund the duties ("Count IV"). All Tools, Inc. v. United States, Court No. 07-00237, Summons (July 3, 2007); All Tools, Inc. v. United States, Court No. 07-00237, Complaint (Apr. 2, 2008). Prior to filing its summons, All Tools paid the duties owed on the entry as required by 28 U.S.C. § 2637(a).5 Pl.'s Resp. To June 29, 2010 Letter 1. The summons was filed some 896 days after the denial of Protest No. 1, and 274 days after the statutorily-prescribed time for appealing the denial of Protest No. 2. See 19 U.S.C. § 1514(a).
Defendant filed its motion for summary judgment on September 30, 2009. Oral argument was held on April 8, 2010, after which the court ordered additional briefing on a number of issues concerning the § 1520(c)(1) mistake of fact claim. All Tools, Inc. v. United States, Court No. 07-00237 (Apr. 12, 2010) (). On June 29, 2010, the court sent a letter to the parties requesting information as to the status of Mr. Carmona's interest in the matter. All Tools, Inc. v. United States, Court No. 07-00237 (June 29, 2010) ().
Plaintiff asserts that this Court has jurisdiction to hear its claims pursuant to 28 U.S.C. § 1581(a). Pl.'s Mem. 6. Under 28 U.S.C. § 1581(a), the United States Court of International Trade has "exclusive jurisdiction of any civil action commencedto contest the denial of a protest, in whole or in part...."
The defendant's motion for summary judgment is based on its assertion that the court does not have jurisdiction over the Counts of All Tools' complaint. "A jurisdictional challenge to the court's consideration of [p]laintiff's action raises a threshold inquiry." Hartford Fire Ins. Co. v. United States, 31 CIT 1281, 1285, 507 F. Supp. 2d 1331, 1334 (2007) (citations omitted).
Thus, before reaching the merits of plaintiff's Complaint, the court must rule on defendant's motion for summary judgment. "The party seeking to invoke this Court's jurisdiction has the burden of establishing such jurisdiction." Autoalliance Int'l, Inc. v. United States, 29 CIT 1082, 1088, 398 F. Supp. 2d 1326, 1332 (2005) (citations omitted). To avoid dismissal, a plaintiff "must allege in his pleading the facts essential to show jurisdiction." McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936).
The United States, on behalf of Customs, has moved for summary judgment on the basis that All Tools failed to filetimely its summons pursuant to 28 U.S.C. § 2636(a)(1).6 Such timely filing is a prerequisite for the commencement of an action before this Court under 28 U.S.C. § 1581(a). See AutoAlliance Int'l, Inc. v. United States, 26 CIT 1316, 1323, 240 F. Supp. 2d 1315, 1322 (2002) ().
All Tools opposes the motion for summary judgment, but does not dispute any of the jurisdictional facts. Rather, All Tools insists that its lawsuit was timely commenced because the deadline for filing the summons was equitably tolled until Customs issued a protest number for Protest No. 2.
The court finds that All Tools'...
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