Morris Costumes, Inc. v. U.S.
| Decision Date | 06 December 2006 |
| Docket Number | Slip Op. 06-176.,Court No. 05-00184. |
| Parties | MORRIS COSTUMES, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Alston & Bird, LLP, (Jason Matthew Waite and Bobbi Jo Shannon), Atlanta, GA, for Plaintiff, Morris Costumes, Inc. Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney-in-Charge, International Trade Field Office, Marcella Powell, Department of Justice, Civil Division, Commercial Litigation Branch, Beth Brotman, Office of Assistant Chief Counsel, International Trade Litigation, for Defendant, United States.
Before: Wallach, Judge.
Plaintiff Morris Costumes, Inc. ("Morris Costumes") challenges the decision of the United States Bureau of Customs and Border Protection ("CBP" or "Customs") to liquidate the subject entries as wearing apparel rather than as festive articles under 9505.90.6000, Harmonized Tariff Schedule of the United States ("HTSUS"). Defendant agrees to the jurisdiction of this court over Plaintiffs cause of action arising under 19 U.S.C. § 1520(c),1 but disputes jurisdiction over Plaintiffs cause of action brought under 28 U.S.C. § 1581(d). Because Plaintiff could have asserted jurisdiction under 28 U.S.C. § 1581(a), and because there was no mistake of fact on the part of Customs to satisfy the requirement of 19 U.S.C § 1520(c), Plaintiffs Motion for Summary Judgment is denied. For these same reasons, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b) and Defendant's Cross-Motion for Summary Judgment are granted.
Morris Costumes imports flimsy textile costumes and costume accessories into the United States, which, prior to the spring of 2002, it classified as festive articles under 9505.90.6000, HTSUS. On February 19, 2002, the court issued an opinion in Rubie's Costume Co. v. United States, 26 CIT 209, 196 F.Supp.2d 1320 (2002) ("Rubie's I"), overturning CBP's administrative determination and finding that flimsy textiles are to be classified as wearing apparel instead of festive articles.2 Accordingly, Morris Costumes began to classify its flimsy costumes under dutiable provisions, mainly as wearing apparel in chapters 61 and 62, HTSUS. Complaint ¶ 9, Morris Costumes, Inc. v. United States, No. 05-00184, 2006 WL 3518159 (CIT March 3, 2004) ("Complaint"). Subsequently, on April 22, 2002, a Notice of Appeal was filed by Rubie's Costumes, and CBP determined that liquidation of entries of the subject merchandise was to be suspended pending the outcome of the case. Id. Nevertheless, Plaintiffs merchandise was automatically liquidated between March 7, 2003 and August 8, 2003, after the suspension was in effect but before the appellate decision in Rubie's I was rendered. Plaintiffs Statement of Undisputed Material Facts at 2. At that time no Customs employee knew whether or not the subject entries contained merchandise subject to the Rubie's I suspension. Def.'s Resp. to Pl.'s Statement of Undisputed Material Facts, ¶ 7.
On August 1, 2003, the Court of Appeals for the Federal Circuit reversed Rubie's I in Rubie's Costume Co. v. United States, 337 F.3d 1350 (Fed.Cir.2003) ("Rubie's II"), holding that flimsy textile costumes are to be classified as festive articles. Importers were subsequently directed by CBP to classify their flimsy textile costumes accordingly. On February 9, 2004, Morris Costumes filed a request for reliquidation with CBP under 19 U.S.C. § 1516(f) and, alternatively, under 19 U.S.C. § 1520(c), both of which were denied by Customs.3 Complaint ¶ 19. Plaintiff protested the denial of the claim under 19 U.S.C. § 1520(c), which was also denied by CBP.4 Id.
Motions under review in this opinion are Plaintiffs Motion for Summary Judgment, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, and Defendant's Cross-Motion for Summary Judgment. Oral Argument was held on October 18, 2006.
In determining the outcome of a motion for summary judgment, the court must examine whether there remain any "genuine issues of material fact" in dispute on the matter. Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202, 211 (1986). The inquiry therefore is not into factual matters, but whether either party is entitled to a judgment as a matter of law.5
IV
The Court Lacks Jurisdiction under 28 U.S.C. § 1581(i) because 28 U.S.C. § 1581(a) was Available to Plaintiff
Plaintiff argues that CBP is required to reliquidate the subject entries in accordance with Rubie's II because they are "of the character of the merchandise" reviewed in that decision. Plaintiffs Memorandum in Support of its Motion for Summary Judgment ("Plaintiff's Brief") at 6 (citing 19 U.S.C. § 1516(f)). According to Morris Costumes, this court has both inherent ancillary jurisdiction over the matter in order to determine the scope and effect of Rubie's II and jurisdiction under 28 U.S.C. § 1581(i)(1),(4). Id. Additionally, Plaintiff states that it was not required to protest the original liquidations of the subject entries as a condition of relief because section 1516 is an exception to section 1514's mandate for "final and conclusive" determinations and requires suspension of liquidation proceedings by the Government. Id.
Defendant counters that the court lacks jurisdiction over Morris Costumes's claim because it failed to file protests over the liquidations of the entries at issue. Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b) and Cross Motion for Summary Judgment ("Defendant's Brief") at 7. First, according to Customs, Plaintiffs failure to protest the liquidation as required by 19 U.S.C. § 1514(a)6 is dispositive in this case because section 1516 is only exempted from section 1514's finality as it applies to domestic parties, and Plaintiff is an importer. Id. at 9. Second, it concludes that Morris Costumes could have obtained relief through section 1581(a) if it had chosen to utilize the protest procedure provided for therein. Id. at 7.
For This Court to Have Jurisdiction Under 28 U.S.C. § 1581 (i), Jurisdiction Must Not be Available Under any Other Subsection of Section 1581.
This court has jurisdiction under 28 U.S.C. § 1581(i) when there is no jurisdiction available under any other subsection of section 1581 in civil actions concerning:
(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 ... by the Court of International Trade under section 516A(a) ....
28 U.S.C. § 1581© (emphasis added).
Section 1581(i) therefore "should not be utilized to circumvent the exclusive methods of judicial review ... set forth in 19 U.S.C. § 1516(a)," nor can it be used to create new causes of action or supercede specific jurisdictional requirements set forth elsewhere in the statute. Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 586, 717 F.Supp. 847, 849 (1989). As section 1581(a) confers on the court "exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part," 28 U.S.C. § 1581(i) jurisdiction is not available in this case if Plaintiff had the option of protesting the classification and liquidation and failed to do so.
Allowing jurisdiction in that circumstance would first undermine the express language of the statute that section 1581(i) is "in addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section ...." Id. Additionally, the legislative history of the statute illustrates that "Congress did not intend the Court of International Trade to have jurisdiction over appeals concerning completed transactions when the appellant had failed to utilize an avenue for effective protest before the Customs Service." National Corn Growers Ass'n v. Baker, 840 F.2d 1547, 1557-58 (Fed.Cir.1988) (quoting United States v. Uniroyal, Inc., 687 F.2d 467, 471, 69 C.C.P.A. 179, 182 (1982)); see also Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987) (). If 28 U.S.C. § 1581(a) was available to Plaintiff as an avenue for jurisdiction, and is not manifestly inadequate, there can be no jurisdiction under 28 U.S.C. § 1581(i).
Barring exceptions, jurisdiction in this court fails without a properly filed protest because of the finality provision found in 19 U.S.C. § 1514(a). The statute states that:
any clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in an electronic transmission, adverse to the importer, in any entry, liquidation, or reliquidation and, decisions of the Customs Service, including the legality of all orders and findings entering into the same ... shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade....
Included in the...
To continue reading
Request your trial
-
Thyssenkrupp Mexinox S.A. De C.V. v. U.S.
...Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); see also Morris Costumes, Inc. v. United States, ___ CIT ___, ___, 465 F.Supp.2d 1345, 1350-51 (2006); Old Republic Ins., 14 CIT at 381-83, 741 F.Supp. at 1574-76; United States v. Mecca Export Corp., 10 C......