Celta Agencies, Inc. v. United States

• Decision Date: 09 October 2012
• Citation: 865 F.Supp.2d 1348
• Parties: CELTA AGENCIES, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

865 F.Supp.2d 1348

CELTA AGENCIES, INC., Plaintiff,

v.UNITED STATES, Defendant.

United States Court of

International Trade.

Slip Op. 12–128.

Court No. 10–00168.

Oct. 9, 2012.

Andrew Jaxa–Debicki, International Legal and Consulting Services, of Arlington, VA, for plaintiff.

Aimee Lee, Senior Trial Counsel, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Michael Panzera, Senior Trial Counsel, Tony West, Assistant Attorney General, and Barbara S. Williams, Attorney in Charge, International Trade Field Office. Of counsel on the brief was Yelena Slepak, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of Washington, DC.

OPINION

STANCEU, Judge:

Plaintiff Celta Agencies, Inc. (“Celta”) is the importer of record on an entry of steel concrete re-enforcing bar and rod (“re-bar”) from Latvia that was subject to an antidumping duty order (the “Order”). Celta challenges the instructions for the liquidation of entries (“liquidation instructions”) that the United States Department of Commerce (“Commerce” or the “Department”) issued to United States Customs and Border Protection (“Customs” or “CBP”) following the final results of the fourth periodic administrative review of the Order. Compl. ¶¶ 5, 13 (May 23, 2011), ECF No. 19; see Notice of Final Results of Antidumping Duty Administrative Review: Steel Concrete Reinforcing Bars from Latvia, 71 Fed.Reg. 74,900 (Dec. 13, 2006) (“ Final Results ”). Celta claims that the liquidation instructions unlawfully directed Customs to assess duties on Celta's entry at the “all others” duty rate rather than the lower, company-specific rate Commerce assigned in the review to a Latvian producer, Joint Stock Company Liepajas Metalurgs (“Liepajas” or “JSCLM”), which Celta identifies as the producer of the merchandise on the entry. Compl. ¶¶ 15, 18–23.

Before the court is defendant's motion under USCIT Rule 12(b)(1) to dismiss this case for lack of subject matter jurisdiction. Def.'s Mot. to Dismiss (Dec. 23, 2011), ECF No. 23 (“Def.'s Mot.”); Def.'s Mem. in Supp. of its Mot. to Dismiss (Dec. 23, 2011), ECF No. 23 (“Def.'s Mem.”). The court grants defendant's motion, concluding that the court lacks jurisdiction to hear this action pursuant to Section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(a) (2006),¹ and that the action is untimely according to the two-year statute of limitations applying to cases brought under 28 U.S.C. § 1581(i).

I. Background

Celta made the entry at issue, Entry No. ALA–00005884–4, at the port of San Juan, Puerto Rico on December 7, 2004. Compl. ¶¶ 5, 8. The re-bar, which was produced by Liepajas in Latvia and acquired through an intermediary, F.J. Elsner Trading Company, was “subject merchandise,” i.e. merchandise falling within the scope of the Order. Id. ¶ 5; see Antidumping Duty Orders: Steel Concrete Reinforcing Bars From Belarus, Indonesia, Latvia, Moldova, People's Republic of China, Poland, Republic of Korea and Ukraine, 66 Fed.Reg. 46,777 (Sept. 7, 2001) (“ Order ”). The Order set a company-specific antidumping duty cash deposit rate of 17.21% for subject merchandise from Latvia manufactured by Liepajas; the “all others” cash deposit rate was also set at 17.21%. Compl. ¶ 6; Order, 66 Fed.Reg. at 46,778. On December 22, 2003, Commerce published the final results of the first administrative review of the Order, Notice of Final Results of Antidumping Duty Administrative Review: Steel Concrete Reinforcing Bars from Latvia, 68 Fed.Reg. 71,067. The final results of the first administrative review established a cash deposit rate on imports of the subject merchandise manufactured by Liepajas at 0.87% and left unchanged the “all others” deposit rate of 17.21%. Id. at 71,068. Upon entry of its re-bar from Latvia, Celta made a cash deposit of 0.87%. Compl. ¶ 9.

In 2005, Commerce published a notice announcing the initiation of various administrative reviews, including the fourth periodic administrative review of the Order. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 70 Fed.Reg. 61,601 (Oct. 25, 2005). The fourth review pertained to entries of subject merchandise made during the period of September 1, 2004 through August 31, 2005, during which period Celta's entry was made. Id. Liquidation of Celta's entry was suspended pending the completion of the review. Compl. ¶ 10. On December 13, 2006, Commerce published a notice of the final results of the fourth administrative review, which determined an assessment rate of 5.94% for imports from Latvia of re-bar manufactured by Liepajas and a rate of 17.21% for “all others.” Final Results, 71 Fed.Reg. at 74,901. Celta did not participate in the review and was not the recipient of a separate rate for the period of the review. Id. The notice stated that, pursuant to the Department's automatic assessment regulation, 19 C.F.R. § 351.212(c), “[t]he Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review” and to “instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.” Id. Later in December 2006, Commerce issued certain “assessment instructions.” See Def.'s Confidential Ex. A, ECF No. A.

On February 17, 2007, Customs issued a Notice of Action assessing additional duties on Celta's entry. Compl. ¶ 12. On March 30, 2007, Customs liquidated Celta's entry with antidumping duties assessed at the “all others” rate of 17.21%. Id. ¶ 13. On April 26, 2007, Celta paid the additional antidumping duty assessment amount of $412,316.29, including interest, and on June 29, 2007 filed an administrative protest with Customs, claiming “that the Department's liquidation instructions to Customs ... was [ sic ] not in accordance with law.” Id. ¶¶ 14–15. Customs summarily denied the protest on December 4, 2009. Id. ¶ 16.

Celta filed a summons on June 2, 2010 and a complaint on May 23, 2011. Summons, ECF No. 1; Compl. 1. In its complaint, plaintiff asserted jurisdiction “pursuant to 28 U.S.C. § 1581(a), as this action is commenced to contest the denial of a protest under 19 U.S.C. § 1515” and “[a]lternatively and to the extent that any claim herein is not covered by 28 U.S.C. § 1581(a) ... pursuant to 28 U.S.C. § 1581(i).” Compl. ¶¶ 1–2.

Plaintiff's complaint states three claims, each of which challenges the liquidation instructions Commerce transmitted to Customs. Id. ¶¶ 18–35. As relief, plaintiff seeks a judgment directing Customs to refund all duties deemed improperly assessed and collected, in addition to interest, on the subject entry. Id., Request for Judgment and Relief.

On December 23, 2011, defendant United States filed its motion to dismiss and accompanying memorandum of law. Def.'s Mot.; Def.'s Mem. Plaintiff responded to defendant's motion on July 25, 2012, Pl.'s Resp. to Def.'s Mot. to Dismiss, ECF No. 37, and defendant replied to plaintiff's response on August 23, 2012, Def.'s Reply Mem., ECF No. 40 (“Def.'s Reply”).

II. Discussion

The party invoking a court's jurisdiction has the burden of demonstrating the requisite jurisdictional facts. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006). From those facts, the court must glean “the true nature of the action.” Norsk Hydro, 472 F.3d at 1355 (internal quotation marks and citation omitted). In deciding a Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant's allegations, the court assumes “all factual allegations to be true and draws all reasonable inferences in plaintiff's favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Where, as here, claims depend upon a waiver of sovereign immunity, a jurisdictional statute is to be strictly construed. United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995).

A. The Court May Not Exercise Jurisdiction under 28 U.S.C. § 1581(a)

Plaintiff asserts jurisdiction under 28 U.S.C. § 1581(a), under which the Court of International Trade 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.” Tariff Act of 1930 (“Tariff Act”), § 515, 19 U.S.C. § 1515 (2006).² Compl. 1 (“[T]his action challenges, on various grounds, the denial of a protest made pursuant to 19 U.S.C. § 1515 against the assessment of antidumping duties and interest thereon on an entry liquidated by Customs”); Pl.'s Resp. 4 (“This action is properly before the Court under 28 U.S.C. § 1581(a) to contest the denial of a protest.”).

In this case, the court could exercise jurisdiction under § 1581(a) only were Celta contesting the denial of a valid protest of a decision “of the Customs Service.” 19 U.S.C. § 1514(a). Ministerial actions by Customs that do no more than effectuate decisions of Commerce on the assessment of antidumping duties are not protestable decisions under 19 U.S.C. § 1514. Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 976–77 (Fed.Cir.1994) (“Mitsubishi ”) (“[T]itle 19 makes clear that Customs does not make any section 1514 antidumping ‘decisions,’ ” as “Customs cannot modify ... [Commerce's] determinations, their underlying facts, or their enforcement.”).

Plaintiff concedes that the assessment of antidumping duties effected by Customs upon liquidation of Celta's entry occurred at the direction of Commerce. Compl. ¶ 13 (“Based on the instructions from [Commerce], Customs liquidated the entry at issue on March 30, 2007 with [antidumping duties] assessed at the “All others” rate of 17.21% ...”). Celta also concedes that its protest was “made on the grounds that the Department's liquidation instructions to Customs ... was [ sic ] not in...