Ocean Duke Corp.. v. United States, Slip Op. 11–85.Court No. 11–00140.

• Court: U.S. Court of International Trade
• Writing for the Court: BARZILAY, Senior Judge:
• Citation: 781 F.Supp.2d 1374
• Parties: OCEAN DUKE CORPORATION, Plaintiff,v.UNITED STATES, Defendant.
• Docket Number: Slip Op. 11–85.Court No. 11–00140.
• Decision Date: 18 July 2011

781 F.Supp.2d 1374

OCEAN DUKE CORPORATION, Plaintiff,
v.
UNITED STATES, Defendant.

Slip Op. 11–85.Court No. 11–00140.

United States Court of International Trade.

July 18, 2011.

[781 F.Supp.2d 1376]

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP (Frances P. Hadfield, New York, NY, Robert B. Silverman, Lakewood, NJ, and Peter W. Klestadt, New York, NY), for Plaintiff.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Washington, DC; Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Of Counsel, Chi S. Choy, Senior Attorney, Office of Assistant Chief Counsel, U.S. Customs & Border Protection, and Edward F. Kenny, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, New York, NY, for Defendant.

[781 F.Supp.2d 1377]

OPINION & ORDER BARZILAY, Senior Judge:

The present dispute between Plaintiff Ocean Duke Corporation (“Ocean Duke”) and Defendant United States concerns five continuous entry bonds subject to enhanced bond requirements that U.S. Customs & Border Protection (“Customs”) once imposed on certain importers. The salient question before the court asks whether the relevant statute of limitations prevents judicial review. Defendant contends that the two year period for Ocean Duke to bring an action has passed and, as a result, 28 U.S.C. § 2636(i) deprives the court of subject matter jurisdiction or otherwise bars suit.¹ Def.'s Mot. to Dismiss 9–14. Plaintiff counters by pointing to Customs's recent denial of the company's request to release and replace the subject bonds as the moment the claim accrued. Pl.'s Opp'n 9–16. Because Plaintiff offers an unavailing distinction and fails to demonstrate that it timely filed suit, the court finds that the statute of limitations alone bars suit and, accordingly, dismisses the case for Plaintiff's failure to state a claim for which the court may grant relief pursuant to Rule 12(b)(5).

I. Background

In July 2004, Customs amended the guidelines, later clarified and supplemented by subsequent agency pronouncements, under which port directors set continuous entry bond requirements for importers of shrimp subject to antidumping or countervailing duties. Admin. R. 1–9. These altered rules, known as the “enhanced bond requirements,” significantly increased the minimum bond amounts due from shrimp importers. Admin. R. 1–9. At that time, Customs stated that it would require enhanced bonding for entries made subject to new antidumping duty orders. Admin. R. 6.

In February 2005, the U.S. Department of Commerce (“Commerce”) issued new antidumping duty orders covering shrimp from six countries. See, e.g., Certain Frozen Warmwater Shrimp From the People's Republic of China, 70 Fed.Reg. 5,149 (Dep't of Commerce Feb. 1, 2005) (final investigation determination). As an importer and distributor of seafood products, including shrimp, Ocean Duke had grown accustomed to posting import bonds for such goods in amounts calculated under the old rules. Lin Aff. ¶¶ 5–6. Following the entry of the new antidumping duty orders on shrimp, however, Customs pronounced the amount of Ocean Duke's continuous entry bonds insufficient in view of the enhanced bond requirements and advised Plaintiff that it should post new

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bonds that comport with the amended rules. Compl. ¶ 37; Lin Aff. ¶ 7. As a result, Ocean Duke obtained five separate continuous entry bonds between 2005 and 2008 in amounts that conformed to the enhanced bond requirements, the last of which took effect on February 5, 2008. Compl. ¶¶ 38–39; Murphy Aff. Ex. 1 at 1–5.

In August 2009, the Court found that Customs acted arbitrarily and contrary to law in several respects when it promulgated the enhanced bond requirements and applied them only to importers entering shrimp subject to antidumping duty orders.² Nat'l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., 33 CIT ––––, ––––, 637 F.Supp.2d 1270, 1285–1300 (2009) ( “ Nat'l Fisheries Inst. II ”). Ultimately, the Court enjoined the continued application of these rules. Nat'l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., 34 CIT ––––, ––––, 751 F.Supp.2d 1318, 1322–26 (2010).

Prior to the Court's decision in Nat'l Fisheries Inst. II, Plaintiff submitted two separate requests asking Customs to cancel one of the subject continuous entry bonds and to replace it with a superseding bond with a limit of liability calculated in accordance with the preliminary injunction issued in Nat'l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., 30 CIT 1838, 465 F.Supp.2d 1300 (2006) (“ Nat'l Fisheries Inst. I ”). Admin. R. 74–88. The agency rejected both requests. Admin. R. 89. Invigorated by the Court's decision in Nat'l Fisheries Inst. II, Ocean Duke intensified its efforts, submitting four additional requests between September 2009 and April 2011. Admin. R. 102–05, 108–37. In the latter petitions, Plaintiff asked Customs to undo all five bonds in dispute. Admin. R. 102–05, 108–37. Customs denied these demands, rejecting the sixth and final request on April 18, 2011. ³ Compl. ¶ 4. Plaintiff followed with this suit on May 11, 2011. See generally Compl.

II. Subject Matter Jurisdiction & Standard of Review

The court exercises subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1581(i)(4).⁴ See

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Nat'l Fisheries Inst. II, 33 CIT at ––––, 637 F.Supp.2d at 1281; Nat'l Fisheries Inst. I, 30 CIT at 1847, 465 F.Supp.2d at 1309. In deciding a motion to dismiss based on Rule 12(b)(5), the court takes all factual allegations as true and construes all reasonable inferences in favor of the plaintiff. Cedars–Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 n. 13 (Fed.Cir.1993); accord Sioux Honey Ass'n v. United States, 34 CIT ––––, ––––, 722 F.Supp.2d 1342, 1349–50 (2010). Yet, the plaintiff bears the burden of pleading and proving the requisite facts needed to present a valid claim for relief. USCIT R. 8(a)(2) (“A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (noting plaintiff's obligation to provide “grounds of his entitlement to relief” and to offer factual allegations that raise “a right to relief above the speculative level.” (citations, internal quotation marks & brackets omitted)); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed.Cir.2009) (“[A] plaintiff must plead factual allegations that support a facially ‘plausible’ claim to relief ....” (citation omitted)). To satisfy this burden and thereby present a facially plausible claim, the plaintiff must plead “factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955), and demonstrate that the claim accrued within the prescribed time limits, see, e.g., Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487–88, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (describing policy behind statutes of limitations and stating that “Congress, unless it has spoken to the contrary, did not intend by the mere creation of a ‘cause of action’ or ‘claim for relief’ that any plaintiff filing a complaint would automatically prevail if only the necessary elements of the federal substantive claim for relief could be established”); Hair v. United States, 350 F.3d 1253, 1256 (Fed.Cir.2003) (“It has been the common understanding that wrongs for which the law grants a remedy are subject to a requirement that, in fairness,

[781 F.Supp.2d 1380]

the party wronged must pursue the...