Mukand Intern. Ltd. v. U.S.

Decision Date31 August 2006
Docket NumberSlip Op. 06-130. Court No. 05-00108.
PartiesMUKAND INTERNATIONAL LIMITED and Isibars Limited, Plaintiffs, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

Miller & Chevalier Chartered (Peter Koenig), Washington, DC, for Plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Patricia M. McCarthy and Michael Panzera); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Ada E. Bosque), of counsel, for Defendant.


GORDON, Judge.

Plaintiffs commenced this action to challenge as unlawful the liquidation instructions issued by the United States Department of Commerce ("Commerce") pursuant to the final results of an administrative review of an antidumping duty order and to void the resulting liquidations. Defendant moves to dismiss for lack of subject matter jurisdiction pursuant to USCIT R. 12(b)(1) or for failure to state a claim upon which relief can be granted pursuant to USCIT R. 12(b)(5). Although the Court has subject matter jurisdiction to review plaintiffs' claim under 28 U.S.C. § 1581(i) (2000), plaintiffs have failed to state a claim upon which relief can be granted. Therefore, defendant's motion to dismiss is granted.

I. Background

On May 26, 2004, the Final Results of the second administrative review of the antidumping duty order covering stainless steel wire rods from India were published in the Federal Register. Stainless Steel Wire Rods from India, 69 Fed.Reg. 29,923 (Dep't of Commerce May 26, 2004) (final results admin. review) ("Final Results"). Plaintiffs timely sought judicial review of the Final Results by filing a summons and then a complaint pursuant to 28 U.S.C. § 1581(c) (2000) and Section 516a of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (all further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of the U.S.Code, 2000 edition).

The following table chronicles the relevant dates and events for plaintiffs' entries:

                                                        Days after
                                                         Register          Days after
                Event Date '04 Noticee           Liquidation
                1.  Federal Register Notice                    May 26     0            _
                2.  Summons Filed Liquidation Instructions    June 25     30           _
                3.  Issued                                    June 30     35           _
                4.  Complaint Filed                           July 26    161 (Mon.)    _
                5.  Liquidation                                Aug. 9     75           _
                6.  Consent Motion for Prelim. Injunction
                    Filed                                      Aug. 31    97           22
                7.  Injunction Effective                      Sept. 19   116           41

As is apparent from the foregoing chart, after liquidation of the subject entries, plaintiffs unwittingly filed a moot consent motion to enjoin liquidation. Defendant's counsel was equally ignorant about the status of plaintiffs' entries and consented to the motion, which the prior assigned judge granted, effective September 19, 2004. By that time though, the entries had already been liquidated 41 days earlier on August 9, 2004. Plaintiffs subsequently commenced this action on February 11, 2005. Pending the decision in this case, the previously assigned judge stayed plaintiffs' action challenging the Final Results. Both actions were then transferred to this judge for disposition.

Plaintiffs contend that Commerce's liquidation instructions to United States Customs and Border Protection ("Customs") were unlawful because Commerce may not issue liquidation instructions within the 60-day period established by 19 U.S.C. § 1516a(a)(2)(A) for commencing an action in the Court of International Trade (30 days to file a summons, and 30 days thereafter to file a complaint). Otherwise, plaintiffs argue, Commerce could deprive an interested party of its right to judicial review simply by instructing Customs to liquidate the entries, mooting an action before the expiration of the time allowed to Me a summons and complaint and to enjoin liquidation. Accordingly, plaintiffs maintain that liquidations based on unlawful instructions are void.

Defendant, on the other hand, urges the court to hold that the liquidation instructions were lawfully issued, that the liquidations were valid, and that the entries may not be reliquidated.

II. Standard of Review

Where jurisdiction is challenged, "[p]laintiffs carry the burden of demonstrating that jurisdiction exists." Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant's allegations, and when deciding a USCIT R. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, the court assumes all factual allegations to be true and draws all reasonable inferences in plaintiffs favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir. 1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim).

III. Discussion
A. Jurisdiction

Defendant invokes the general rule that section 1581(i) jurisdiction attaches only if jurisdiction under another section of 28 U.S.C. § 1581 (2000) is unavailable or manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir.1987). Defendant contends that plaintiffs had an available remedy to challenge the liquidations via the protest procedure of 19 U.S.C. § 1514(a)(5), 19 U.S.C. § 1515, and 28 U.S.C. § 1581(a) (2000). Defendant's proposed jurisdictional basis, however, is not responsive to the gravamen of plaintiffs' complaint because the protest procedure of sections 1514 and 1515 applies to decisions of Customs, not Commerce. Plaintiffs' challenge is to an action of Commerce. See Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304-05, 1309-10 (Fed.Cir.2004) ("Because the alleged agency error in [this] . . . case is on the part of Commerce, and not Customs, sections 514 and 515 [of the Tariff Act of 1930] do not apply."); Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1295-96 (Fed.Cir.2006) ("Belgium"); see also Mukand Int'l, Ltd. v. United States, 29 CIT ___, ___, 412 F.Supp.2d 1312, 1316-17 (2005).

Once Commerce issues liquidation instructions, Customs must liquidate the subject entries "promptly and, to the greatest extent practicable, within " 90 days." 19 U.S.C. § 1675(a)(3)(B). Consistent with this statutory obligation, Customs liquidated plaintiffs' entries 40 days after issuance of the instructions. Customs is therefore not the alleged wrongdoer—Commerce is.

Commerce's issuance of liquidation instructions in this case arises from its "administration and enforcement" of an administrative review of an antidumping duty order pursuant to 19 U.S.C. § 1675, a United States law providing for "tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." 28 U.S.C. § 1581(i)(2) (2000). Therefore, the Court of International Trade's residual jurisdiction provision, 28 U.S.C. § 1581(i) (2000), supplies the requisite jurisdictional basis to review plaintiffs' claim that Commerce's liquidation instructions were unlawful and the resulting liquidations were void. See Shinyei, 355 F.3d at 1304-05, 1309-10; Consol. Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed.Cir.2003) ("an action challenging Commerce's liquidation instructions is not a challenge to the final results, but a challenge to the `administration and enforcement' of those final results.").

B. Failure to State a Claim upon which Relief can be Granted

Defendant argues that plaintiffs fail to state a claim upon which relief can be granted because Commerce's issuance of the liquidation instructions was lawful and the resulting liquidations were valid. For the following reasons, the court agrees and therefore does not reach defendant's separate contention that the Court of International Trade is powerless to void the liquidations in question.

Liquidation Instructions and Liquidation

To facilitate the liquidation of entries covered by the final results of an administrative review, Commerce issues instructions to Customs that include the final antidumping duty assessment rates for those entries. The administrative review statute, 19 U.S.C. § 1675, alludes to the issuance of liquidation instructions, but does not prescribe a specific time for the issuance of instructions or for the corresponding liquidation. See 19 U.S.C. § 1675(a)(3)(B). The instructions, though, do trigger liquidation because Customs must liquidate "promptly and, to the greatest extent practicable, within 90 days after the instructions to Customs are issued." 19 U.S.C. § 1675(a)(3)(B).

Commerce has a policy of issuing liquidation instructions to Customs within 15 days of publication of the final results of an administrative review in the Federal Register. See download/liquidation-announcement.html.

Although Commerce notified plaintiffs of this policy in the Final Results,...

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