Nereida Trading Co., Inc. v. US

• Decision Date: 12 March 2010
• Docket Number: Slip Op. 10-27. Court No. 06-00194.
• Parties: NEREIDA TRADING CO., INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

683 F.Supp.2d 1348

NEREIDA TRADING CO., INC., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 10-27. Court No. 06-00194.

United States Court of International Trade.

March 12, 2010.

Stein Shostak Shostak Pollack & O'Hara, LLP (Elon A. Pollack and Juli C. Schwartz) for Plaintiff Nereida Trading Co., Inc.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Civil Division, U.S. Department of Justice (Edward F. Kenny and David S. Silverbrand); Chi S. Choy, Office of the Chief Counsel, U.S. Customs and Border Protection, Of Counsel; and David Richardson, Department of Commerce, Office of the Chief Counsel, Import Administration, Of Counsel, for Defendant United States.

OPINION

Wallach, Judge.

I INTRODUCTION

Plaintiff Nereida Trading Co., Inc. ("Nereida") challenges the imposition of antidumping duties on a single entry of frozen fish fillets from the Socialist Republic of Vietnam ("the subject entry"). Pursuant to U.S. Court of International Trade Rule 12(b)(5), Defendant United States ("Defendant") has moved to dismiss the third and fourth causes of action in Nereida's Complaint "for failure to state a claim upon which relief can be granted." Defendant's Memorandum in Support of Its Motion to Dismiss ("Defendant's Memo") at 1; see Defendant's Motion to Dismiss ("Defendant's Motion"). These causes of action are based on the Fifth Amendment of the U.S. Constitution and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. ("APA"). Because Nereida has not pled facts that show a deprivation of constitutional due process and has not demonstrated that its facts support an independent right of action under the APA, Defendant's Motion is GRANTED and Nereida's third and fourth causes of action are DISMISSED.

II BACKGROUND

Nereida imported the subject entry in early 2003. Nereida alleges that this entry arrived on or before January 30, 2003, Complaint ¶ 11, but Defendant avers that this entry arrived on February 2, 2003, Answer to Complaint ("Answer") ¶ 11.¹ The supplier of this entry was a company known as Mekonimex. Complaint ¶ 9; Answer ¶ 9.²

On January 31, 2003, the U.S. Department of Commerce ("Commerce") announced its preliminary determination "that certain frozen fish fillets from . . . Vietnam are being, or are likely to be, sold in the United States at less than fair value." Notice of Preliminary Determination of Sales at Less Than Fair Value, Affirmative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 Fed.Reg. 4,986, 4,986 (January 31, 2003) ("Preliminary Determination"). Commerce accordingly stated that it would direct U.S. Customs and Border Protection ("Customs") to "suspend liquidation of all imports of subject merchandise, entered. . . for consumption on or after" January 31, 2003 and to "require a cash deposit or posting of a bond equal to the estimated preliminary dumping margins." Id. at 4,997. The preliminary weighted-average margin for Mekonimex was 49.16 percent. Id. Commerce subsequently reduced this margin to 36.76 percent. See Notice of Amended Preliminary Antidumping Duty Determination of Sales at Less Than Fair Value: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 Fed. Reg. 10,440, 10,443 (March 5, 2003) ("Amended Preliminary Determination").

Although Commerce also announced a preliminary finding of critical circumstances with respect to some suppliers, this finding did not extend to Mekonimex. See Preliminary Determination, 68 Fed. Reg. at 4,996; Amended Preliminary Determination, 68 Fed.Reg. at 10,444; Notice of Affirmative Preliminary Determination of Critical Circumstances for Voluntary Section A Respondents: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 Fed.Reg. 31,681, 31,682 (May 28, 2003). A finding of critical circumstances could have triggered the retroactive imposition of antidumping duties on merchandise imported in the 90 days prior to January 31, 2003. See 19 C.F.R. § 351.206(a); Preliminary Determination, 68 Fed.Reg. at 4,985.

In August 2003, Commerce announced that it would direct Customs to assess antidumping duties on "all unliquidated entries of certain frozen fish fillets from Vietnam entered . . . for consumption on or after January 31, 2003." Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed.Reg. 47,909, 47,909 (August 12, 2003) ("AD Order"). The estimated weighted-average margin for Mekonimex was 45.55 percent. Id. at 47,910. Because of a negative critical circumstances determination by the U.S. International Trade Commission, Commerce also announced that it would "instruct Customs to lift suspension and to release any bond or other security, and refund any cash deposit made, to secure the payment of antidumping duties with respect to entries of the merchandise entered . . . for consumption on or after November 2, 2002, but before January 31, 2003." Id. at 47,909.

One year after the AD Order, Commerce announced the opportunity to request an antidumping duty administrative review for the period "1/31/03-7/31/04." Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 69 Fed.Reg. 46,496, 46,497 (August 3, 2004). The following month, Commerce announced that administrative review requests for several suppliers, including Mekonimex, had been received for that period. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 Fed.Reg. 56,745, 56,745 (September 22, 2004).

In January 2005, Commerce announced that it was rescinding its administrative review of four suppliers, including Mekonimex, "for the period January 1, 2003, through July 31, 2004." Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Rescission, in Part, of Antidumping Duty Administrative Review, 70 Fed.Reg. 4,092, 4,092 (January 28, 2005). Accordingly, Commerce would "direct Customs to assess antidumping duties for these companies at the cash deposit rate in effect on the date of entry for entries during the period. . . ." Id. Commerce also reminded "importers of their responsibility under 19 C.F.R. § 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period of time. Failure to comply with this requirement could result in the Commerce Secretary's presumption that reimbursement of antidumping duties occurred and subsequent assessment of double antidumping duties." Id.³

Commerce transmitted liquidation instructions to Customs in February 2005. See U.S. Department of Commerce, Message 5038203 (February 7, 2005) ("Liquidation Instructions"). These instructions directed Customs to liquidate "all shipments of certain frozen fish fillets from . . . Vietnam" that had been produced or exported by one of the four suppliers and "entered . . . for consumption during the period 01/01/2003 through 07/31/2004." Id. at 1 (capitalization modified). The following month, Commerce issued an administrative message stating that the "correct period should be 01/31/03 through 07/31/04." U.S. Department of Commerce, Admin Msg. 05-0328 (March 24, 2008) (capitalization modified).

The liquidation instructions further directed Customs to "assess an antidumping liability equal to the amount of the bond or cash deposit required at the time of entry." Liquidation Instructions at 1 (capitalization modified). Finally, the instructions provided that:

upon assessment of antidumping duties, Customs should require that the importer provide a reimbursement statement as described in 19 C.F.R. § 351.402(f). The importer should provide the reimbursement statement prior to liquidation of the entry. If the importer has been reimbursed antidumping duties, Customs should double the antidumping duties due in accordance with the above-referenced regulation. Additionally, if the importer fails to respond to your formal request (via CF 28 or 29) for the reimbursement statement prior to liquidation, Customs should presume reimbursement and double the antidumping duties due.

Id. (capitalization modified).

Customs issued a CF 29 Notice of Action to Nereida in April 2005 ("Notice of Action"). See Complaint ¶ 16; Answer ¶ 16. The Notice of Action indicated that the subject entry was entered on February 2, 2003 and was covered by the AD Order. See Complaint ¶ 16; Answer ¶ 16. It also proposed an antidumping duty margin of 49.16 percent. See Complaint ¶ 16; Answer ¶ 16. Customs liquidated the subject entry in June 2005. See Complaint ¶ 17; Answer ¶ 17. Because Nereida had not filed a certificate of non-reimbursement prior to that time, Customs doubled the assessed duty margin to 98.32 percent. See Complaint ¶¶ 17-18; Answer ¶¶ 17-18.

Nereida subsequently filed a certificate of non-reimbursement and a timely protest challenging three aspects of the liquidation process. See Complaint ¶ 20, Answer ¶ 20. First, Nereida argued that the assessment of antidumping duties was erroneous because the subject entry "arrived in the Los Angeles Port limits on or before . . . January 30, 2003 and was released . . . by Customs that same day." Complaint ¶¶ 11, 26, 37. Second, Nereida argued that even if the assessment of duties was correct, the proper margin was 45.55 percent rather than 49.16 percent. See id. ¶¶ 17, 26. Third, Nereida argued that both the presumption of reimbursement and the resulting doubling of duties were no longer proper because Nereida filed a certificate of non-reimbursement within the protest period and was never actually reimbursed for the duties that it paid. See id. ¶¶ 17, 18, 37. Customs denied Nereida's protest at the end of 2005. See id. ¶ 4; Answer ¶ 4.

Nereida thereafter commenced this action under 28 U.S.C. § 1581(a)...