Aspects Furniture Int'l, Inc. v. United States

• Decision Date: 21 June 2019
• Docket Number: Slip Op. 19-78,Court No. 18-00222
• Citation: 392 F.Supp.3d 1317
• Parties: ASPECTS FURNITURE INTERNATIONAL, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

392 F.Supp.3d 1317

ASPECTS FURNITURE INTERNATIONAL, INC., Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 19-78

Court No. 18-00222

United States Court of International Trade.

Dated: June 21, 2019

Robert W. Snyder and Leanne R. E. Torres, Law Offices of Robert W. Snyder, of Irvine, CA, for Plaintiff.

Marcella Powell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her on the brief were Amy M. Rubin, Assistant Director, and Joseph H. Hunt, Assistant Attorney General.

OPINION AND ORDER

Barnett, Judge:

In this action, Plaintiff, Aspects Furniture International, Inc. ("Plaintiff" or "AFI"), contests the denial of two protests¹ challenging U.S. Customs and Border Protection's ("CBP" or "Customs") allegedly untimely liquidation of ten entries associated with those protests. See generally Compl., ECF No. 2. The matter is before the court on Defendant's ("the Government") partial motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to United States Court of International Trade ("USCIT" or "CIT") Rule 12(b)(1) with respect to eight entries covered by the 1st Subject Protest. See Def.'s Partial Mot. to Dismiss for Lack of Jurisdiction ("Def.'s Mot."), ECF No. 14. AFI opposes the motion. See Pl. Aspect Furniture Int'l, Inc.'s Opp'n to Def. United States' Partial Mot. to Dismiss for Lack of Jurisdiction [and] Mem. of P&A in Supp. ("Pl.'s Opp'n"), ECF No. 18; see also Decl. of Robert W. Snyder ("Snyder Decl.") and Exs. In Supp. Thereof ("Pl.'s Ex."), ECF No. 18-1. For the reasons discussed herein, Defendant's motion is denied.

BACKGROUND

The imported merchandise at issue in this case consists of wooden bedroom furniture from the People's Republic of China ("the PRC" or "China"). Compl. ¶ 7. AFI is the importer of record. Id. ¶ 4. On various dates in January, February, July, and December of 2014, AFI made ten entries of wooden bedroom furniture. See 1st Subject Protest at 6, 19, 29, 40, 50, 61, 72, 80, 91 (entry summary headers); 2nd Subject Protest at 5 (entry summary header).²

On April 11, 2016, the U.S. Department of Commerce ("Commerce") published the final results of its tenth administrative review of the antidumping duty order on wooden bedroom furniture from China. Compl. ¶ 11 (citing Wooden Bedroom Furniture From the People's Republic of China , 81 Fed. Reg. 21,319 (Dep't Commerce Apr. 11, 2016) (final results and final determination of no shipments, in part; 2014 admin. review) ("Final Results ")). The review covered 18 companies; Commerce determined that 11 companies had no shipments during the period of review, and the remaining 7 did not establish their eligibility for a separate rate.³ Final Results , 81 Fed. Reg. at 21,319 -20. Commerce indicated that it would instruct CBP to liquidate suspended entries of subject merchandise at the assessment rate of 216.01 percent, which is the rate assigned to the PRC-wide entity. Id. at 21,320.

On April 27, 2016, the CIT preliminarily enjoined liquidation of certain entries in connection with a lawsuit filed to challenge the Final Results. Compl. ¶¶ 12-13; see also Am. Furniture Mfrs. Comm. for Legal Trade, et al. v. United States , Court No. 16-00070, 2017 WL 976019 (CIT March 13, 2017). The case was ultimately dismissed on March 13, 2017. Compl. ¶ 16.

On November 24, 2017, CBP liquidated nine entries (Entry Nos. W69-3325900-5, W69-3325953-4, W69-3326026-8, W69-3329300-4, W69-3329302-0, W69-3329955-5, W69-3343109-1, W69-3345392-1, and W69-3368746-0). Compl. ¶ 19; Snyder Decl. ¶ 3; Pl.'s Ex. 1 at 3. On December 1, 2017, CBP liquidated one additional entry (Entry No. W69-3327386-5). Compl. ¶ 20.

On April 6, 2018, AFI filed the 1st Subject Protest. Compl. ¶ 21; 1st Subject Protest at 1. On April 16, 2018, AFI filed the 2nd Subject Protest. Compl. ¶ 22; 2nd Subject Protest at 1.

In the narrative portion of the 1st Subject Protest, AFI stated that it:

respectfully protests [CBP's] noticed rate advance and interest assessed against Entry No. W69-3325900-5, as liquidated on 11/24/2017. [AFI] disputes the amount of interest that [CBP] has assessed on its subject goods and maintains that said goods are not subject to anti-dumping and countervailing liquidation duties due to the construction of the imported product.

Lastly, as the liquidation date for Entry No. W69-3325900-5 did not occur until 11/24/2017, the rate advance noticed and applied to this importer's previously entered subject goods by CBP is untimely. Such liquidation is not in compliance with 19 U.S.C. § 1504(d), after removal of suspension of liquidation for wooden bedroom furniture imported in 2014 from manufacturer Shanghai Jian Pu Import & Export Co., Ltd. [ ("Jian Pu") ], in the [PRC], occurred on or about April 11, 2016, in accordance with the [Final Results ]. While an injunction on liquidation of the aforementioned goods was later imposed due to USCIT Case No. 16-00070 (sometime after April 26, 2016), that injunction was dissolved on 05/12/2017 after determination of USCIT Case No. 16-00070, as reflected in CBP Message No. 7150306. As a result, the asserted liquidation date of 11/24/2017 occurred more than six (6) months after receiving the notice of the removal of the suspension of liquidation; and more than six (6) months after the injunction was dissolved.

Therefore, in consideration of the foregoing, [AFI] asserts it should be granted relief from the noticed rate advance and assessed interest by CBP for Entry No. W69-3325900-5 due to non-conformance with 19 U.S.C. § 1504(d).

1st Subject Protest at 1, 5. AFI used the "Add Additional Entry Numbers" feature in CBP's Automated Commercial Environment ("ACE") system to identify eight additional entry numbers ("the Contested Entries") with the protest; to wit , Entry Nos. W69-3325953-4, W69-3326026-8, W69-3329300-4, W69-3329302-0, W69-3329955-5, W69-3343109-1, W69-3345392-1, and W69-3368746-0, along with their corresponding dates of entry and liquidation. See Pl.'s Ex. 1 at 3; Pl.'s Opp'n at 1; Pl.'s Opp'n at 6 (discussing Customs' guidelines).⁴

CBP denied AFI's protests on May 10, 2018. Compl. ¶¶ 21-22; 1st Subject Protest at 1; 2nd Subject Protest at 1. According to CBP, AFI provided "[i]nsufficient information ... about the ‘construction of the imported product’ " for CBP to reevaluate the propriety of antidumping duties. See, e.g. , 1st Subject Protest at 2. CBP did not address AFI's challenge to the timeliness of liquidation. See id. On October 27, 2018, AFI timely initiated this action challenging the denial of its protests. See Summons; Compl. The court has jurisdiction to consider this motion pursuant to 28 U.S.C. § 1581(a).⁵

DISCUSSION

I. Legal Standard

To adjudicate a case, a court must have subject-matter jurisdiction over the claims 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). A plaintiff bears the burden of establishing subject-matter jurisdiction. See Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006). When, as here, the "motion challenges a complaint's allegations of jurisdiction, the factual allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true." Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States , 672 F.3d 1021, 1030 (Fed. Cir. 2012).⁶ To "resolv[e] these disputed predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings." Id. (internal quotation marks and citation omitted).

In this case, the Government challenges the existence of jurisdiction over the Contested Entries. See Def.'s Mot. at 2-3, 5-6. Therefore, the court may consider extrinsic evidence, if necessary. Shoshone Indian Tribe , 672 F.3d at 1030.

II. Analysis

A. Requirements for Jurisdiction

Pursuant to 28 U.S.C. § 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 section 515 of the Tariff Act of 1930," 19 U.S.C. § 1515. "[A] prerequisite to [CIT] jurisdiction ... is the denial of a valid protest." Saab Cars USA, Inc. v. United States , 434 F.3d 1359, 1365 (Fed. Cir. 2006) (second alteration in original) (citation omitted). A valid protest satisfies the requirements set forth in 19 U.S.C. § 1514(c)(1) and 19 C.F.R. § 174.13(a). Koike Aronson, Inc. v. United States , 165 F.3d 906, 908 (Fed. Cir. 1999) (per curiam).

Pursuant to 19 U.S.C. § 1514,

[a] protest must set forth distinctly and specifically—(A) each decision ... as to which protest is made; (B) each category of merchandise affected by each decision ...; (C) the nature of each objection and the reasons therefor; and (D) any other matter required by [CBP] by regulation.

19 U.S.C. § 1514(c)(1). Customs implementing regulations provide that a protest must contain, inter alia :

(1) The name and address of the protestant, i.e., the importer of record or consignee, and the name and address of his agent or attorney if signed by one of these; (2) The importer number of the protestant. If the protestant is represented by an agent having power of attorney, the importer number of the agent shall also be shown; (3) The number and date of the entry; (4) The date of liquidation of the entry, or the date of a decision not involving a liquidation or reliquidation; (5) A specific description of the merchandise affected by the decision as to which protest is made; (6) The nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal ....

19 C.F.R. § 174.13(a)(1)-(6). When, as here, multiple entries are at issue,

[a] single protest may be filed with respect to more than one entry with CBP, either at any port or electronically, if all such entries involve the same protesting party, and if the same category of

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