P.F. Stores, Inc. v. United States

• Citation: 70 F.Supp.3d 1343
• Decision Date: 09 June 2015
• Docket Number: Court No. 14–00200.,Slip Op. 15–54.
• Parties: P.F. STORES, INC., Plaintiff, v. UNITED STATES, Defendant, and American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., Defendant–Intervenors.
• Court: U.S. Court of International Trade

70 F.Supp.3d 1343

P.F. STORES, INC., Plaintiff

v.UNITED STATES, DefendantandAmerican Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., Defendant–Intervenors.

Slip Op. 15–54.

Court No. 14–00200.

United States Court of International Trade.

June 9, 2015.

Josh Levy, Peter S. Herrick, P.A., of Miami, FL, argued for Plaintiff. On the brief was Peter Stanwood Herrick.

Douglas Glenn Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued 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, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

J. Michael Taylor, King & Spalding, LLP, of Washington, DC, argued for Defendant–Intervenors. With him on the brief were Daniel Lawrence Schneiderman and Joseph W. Dorn.

OPINION

KELLY, Judge:

This matter is before the court on Defendant's, United States, and Defendant–Intervenors', American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., motions to dismiss. Plaintiff, P.F. Stores, Inc. (“Plaintiff” or “PF Stores”), 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 and Defendant–Intervenors argue the court lacks subject-matter jurisdiction because Plaintiff failed to avail itself of adequate judicial remedies under 28 U.S.C. § 1581(a). The court finds that it lacks subject-matter jurisdiction to hear Plaintiff's claims and dismisses Plaintiff's complaint for the reasons set forth below.

BACKGROUND

PF Stores is an importer of wooden bedroom furniture manufactured in China by Dream Rooms Furniture (Shanghai) Co. Ltd. (“Dream”). See Compl. ¶¶ 1, 4–5, Aug. 26, 2014, ECF No. 2 (“Pl.'s Compl.”). PF Stores' 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). Dream filed suit in this Court contesting the results of the third administrative review and obtained an injunction against liquidation of its entries on September 22, 2009. See Pl.'s Compl. ¶¶ 6–7, Ex. A. The injunction provided that the subject entries “shall be liquidated in accordance with the final court decision in this action, including all appeals and remand proceedings, as provided in section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(e) (2006).” Pl.'s Compl. Ex. A at 2.

The court consolidated Dream's action with five other actions contesting the results of the third administrative review on November 6, 2009. Def.'s Mot. Dismiss & App. DA40, Dec. 3, 2014, ECF No. 14 (“Def.'s Mot. & App.”). After several remands, the court sustained Commerce's third remand results on February 5, 2013. See Lifestyle Enterprise, Inc. v. United States, 37 CIT ––––, ––––, 896 F.Supp.2d 1297, 1299 (2013). Two parties to the consolidated action, not including Dream, appealed the court's slip opinions. See Def.'s Mot. & App. DA33–DA34 (docket listing notices of appeal).

On June 13, 2013, the Lifestyle court granted an unopposed motion made by the Defendant–Intervenors in this case, to sever and deconsolidate three of the previously consolidated actions, including Dream's action.See Def.'s Mot. & App. DA34, DA42–43. The court further ordered that Dream's injunction was “hereby 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. at DA43

In a message dated June 25, 2013, Commerce issued instructions to U.S. Customs and Border Protection (“CBP”) to liquidate entries of furniture exported by Dream during 2007 at a final rate of 216.01%. See Pl.'s Compl. ¶ 10, Ex. B at 1. In September 2013, CBP liquidated the entries imported by Plaintiff and exported by Dream at the rates provided in these instructions. Def.'s Mot. & App. DA46, DA49. Plaintiff filed protests arguing that the entries it imported from Dream were deemed liquidated pursuant to Section 504(d) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1504(d) (2012),² six months from the court's February 5, 2013 slip opinion. Id. at DA44–DA49. CBP denied these protests on May 21 and June 5, 2014. Id. at DA46, DA49.

Plaintiff does not challenge the denial of its protests in this action. Rather, Plaintiff argues that it challenges various Commerce actions for which the court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1581(i) because the court could not have jurisdiction pursuant to 28 U.S.C. §§ 1581(a) or (c). See Pl.'s Mot. Opposing Def.'s Mot. Dismiss 3–4, Feb. 6, 2015, ECF No. 19 (“Pl.'s Opp'n Def.'s Mot. Dismiss”).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 claims involves a protestable CBP decision regarding liquidation and/or deemed liquidation, therefore § 1581(a) jurisdiction would not have been manifestly inadequate.

Plaintiff asserts, in each of its three counts, that its entries were deemed liquidated pursuant to 19 U.S.C. § 1504(d). See Pl.'s Compl. ¶¶ 13–20. Plaintiff argues that deemed liquidation occurred as a result of a failure of Commerce to: 1) comply with a statutory time period for issuing liquidation instructions, 2) publish notice of a final disposition in the Federal Register, or 3) issue valid liquidation instructions in violation of the APA. Id. All of these “deemed liquidation” theories essentially argue that administrative errors caused CBP to liquidate entries it should not have liquidated. However, a decision by CBP as to liquidation is a protestable CBP decision regardless of any administrative errors which Commerce may have committed prior to CBP's decision. 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).

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.

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