Hutchison Quality Furniture, Inc. v. United States

• Decision Date: 09 June 2015
• Docket Number: Court No. 14–00248.,Slip Op. 15–55.
• Parties: HUTCHISON QUALITY FURNITURE, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

71 F.Supp.3d 1375

HUTCHISON QUALITY FURNITURE, INC., Plaintiff

v.UNITED STATES, Defendant.

Slip Op. 15–55.

Court No. 14–00248.

United States Court of International Trade.

June 9, 2015.

John M. Peterson, Richard F. O'Neill, Russell Andrew Semmel, Neville Peterson, LLP, of New York, NY, for Plaintiff.

Stephen Carl Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With him on the brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Shana Ann Hofstetter, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION

KELLY, Judge:

This matter is before the court on Defendant's, United States, motion to dismiss. Plaintiff, Hutchison Quality Furniture, Inc. (“Plaintiff” or “Hutchison”), argues the court has 28 U.S.C. § 1581(i) (2012)¹ jurisdiction because the U.S. Department of Commerce's (“Commerce”) actions resulted in Plaintiff's entries being deemed liquidated. Defendant argues the court lacks subject-matter jurisdiction because Plaintiff failed to avail itself of adequate judicial remedies under 28 U.S.C. § 1581(a). Alternatively, Defendant argues that Plaintiff has failed to state a claim.² The court finds that it lacks subject-matter jurisdiction to hear Plaintiff's claim and dismisses Plaintiff's complaint for the reasons set forth below.³

BACKGROUND

Hutchison, an importer of furniture, entered merchandise as G.S. Sales Inc. (“G.S. Sales”), produced by Tianjin First Wood Co. (“Tianjin First”), a Chinese producer, and exported by Orient International Holding Shanghai Foreign Trade Co., Ltd. (“Orient International”). Compl. ¶¶ 11–12, Oct. 7, 2014, ECF No. 6 (“Pl.'s Compl.”). Hutchison's entries were subject to the third administrative review of the antidumping order on wooden bedroom furniture from the People's Republic of China, covering entries made in 2007. See Wooden Bedroom Furniture from the People's Republic of China, 74 Fed. Reg. 41,374 (Dep't Commerce Aug. 17, 2009) (final results of antidumping duty administrative review and new shipper reviews). Orient International filed suit in this Court contesting the results of the third administrative review and obtained an injunction against liquidation of its entries on September 9, 2009. See Pl.'s Compl. ¶¶ 21, 25, 28, Ex. A. The injunction provided “that the entries subject to this injunction shall be liquidated in accordance with the final court decision in this action, including all appeals, as provided in 19 U.S.C. § 1516a(e).” Pl.'s Compl. Ex. A at 2.

The court consolidated Orient International's action with five other actions contesting the results of the third administrative review. Pl.'s Compl. ¶ 32. After several remands, the court sustained Commerce's third remand results on February 5, 2013. See Lifestyle Enter., Inc. v. United States, 37 CIT ––––, ––––, 896 F.Supp.2d 1297, 1299 (2013). In early April, two parties to the consolidated action filed notices of appeal, not including Orient International. Pl.'s Compl. ¶ 38.

On June 13, 2013, the Lifestyle court granted an unopposed motion made by one of the Proposed Intervenors in this case, AFMC, to sever and deconsolidate three of the previously consolidated actions, including Orient International's action. See Pl.'s Compl. ¶¶ 47–48. The court further ordered that Orient International's injunction was “hereby dissolved[amended as follows] ... all entries exported by Orient International Holding Shanghai Foreign Trade Co., Ltd. and Dream Rooms Furniture (Shanghai) Co., Ltd. shall be liquidated without delay in accordance with this Court's February 5, 2013 final judgment for the period January 1, 2007 to December 31, 2007 ....” Id. ¶ 48 (citations omitted).

In a message dated June 25, 2013, Commerce issued instructions to U.S. Customs and Border Protection (“Customs” or “CBP”) to liquidate entries of furniture exported by Orient International during 2007 at a final rate of 83.55%. See Pl.'s Compl. ¶ 50, Ex. B at 2–3. In September 2013, CBP liquidated the entries imported by Plaintiff at the rates provided in these instructions. Id. ¶ 52.

Plaintiff challenges the validity of Commerce's liquidation instructions. It alleges that the merchandise at issue here was deemed liquidated six months following the February 5, 2013 judgment in Lifestyle. As a result, it contends that “the Liquidation Instructions [that] list June 13, 2007 as the ‘effective date’ on which the suspension of liquidation of the subject entries was dissolved,” are in fact invalid. Pl.'s Compl. ¶ 2. Plaintiff explains that it “seeks a declaratory judgment that entries covered by the challenged liquidation instructions, and not affirmatively liquidated by [CBP] within six (6) months of February 5, 2013 are deemed liquidated by operation of law ....” Id. ¶ 3.

JURISDICTION

“The Court of International Trade, like all federal courts, is a court of limited jurisdiction.” See Sakar Int'l, Inc. v. United States, 516 F.3d 1340, 1349 (Fed.Cir.2008). A party invoking the court's jurisdiction bears the burden of establishing it and may not expand jurisdiction by creative pleading. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006). It is well-settled that a party may not invoke jurisdiction under § 1581(i) “when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.” Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987) (citations omitted). Thus, the court must look to the “true nature of the action” to determine whether jurisdiction under § 1581(i) exists. Norsk Hydro Can., 472 F.3d at 1355.

DISCUSSION

As indicated above, Plaintiff claims jurisdiction exists pursuant to 28 U.S.C. § 1581(i), the Court of International Trade's residual jurisdiction, which provides:

(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—

(1) revenue from imports or tonnage;

(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;

(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or

(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.

This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable either by the Court of International Trade under section 516A(a) of the Tariff Act of 1930 or by a binational panel under article 1904 of the North American Free Trade Agreement or the United States–Canada Free–Trade Agreement and section 516A(g) of the Tariff Act of 1930.

28 U.S.C. § 1581(i). The true nature of Plaintiff's claim involves a protestable CBP decision regarding liquidation and/or deemed liquidation, therefore § 1581(a) jurisdiction would not have been manifestly inadequate.

Plaintiff asserts in its single count that its entries were deemed liquidated by operation of law pursuant to Section 504(d) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1504(d) (2012).⁴ See Pl.'s Compl. ¶ 58. Plaintiff's “deemed liquidation” theory is that the Lifestyle court's February 5, 2013 judgment was a final court decision and constituted notice to CBP triggering the six month period specified in § 1504(d). Id. ¶¶ 53–58. However, a decision by CBP as to liquidation is a protestable decision regardless of whether the Lifestyle court's judgment constituted a final court decision or whether the court's judgment constituted notice to CBP starting the six month period in § 1504(d). While CBP makes no decision as to the substance of Commerce's instructions, i.e.,antidumping duty rates, the decision as to when to implement those instructions through the process of liquidation belongs to CBP. See, e.g., Cemex, S.A. v. United States, 384 F.3d 1314, 1324 (Fed.Cir.2004) (footnotes omitted) (explaining that Customs makes no decision in calculating antidumping duties, but makes a decision regarding liquidation). As stated, Plaintiff's theory of its case is that the Lifestyle court's judgment constituted notice to CBP under § 1504(d).

Section 1504(d) provides:

(d) Removal of suspension

Except as provided in section 1675(a)(3) of this title, when a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry, unless liquidation is extended under subsection (b) of this section, within 6 months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry (other than an entry with respect to which liquidation has been extended under subsection (b) of this section) not liquidated by the Customs Service within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer of record or (in the case of a drawback entry or claim) at the drawback amount asserted by the drawback claimant.

19 U.S.C. § 1504(d). Section 1514(a)(5) specifically identifies decisions under § 1504(d) as protestable decisions. It provides that CBP decisions,

including the legality of all orders and findings entering into the same, as to—

...

(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any

...