Shinyei Corp. of America v. U.S.

• Decision Date: 14 February 2003
• Docket Number: Slip Op. 03-18.,No. 00-00130.,00-00130.
• Citation: 248 F.Supp.2d 1350
• Parties: SHINYEI CORPORATION OF AMERICA, Plaintiff, v. UNITED STATES, et. al., Defendant.
• Court: U.S. Court of International Trade

248 F.Supp.2d 1350

SHINYEI CORPORATION OF AMERICA, Plaintiff, v. UNITED STATES, et. al., Defendant.

Slip Op. 03-18.

No. 00-00130.

United States Court of International Trade.

February 14, 2003.

Charles H. Bayar, New York, NY, for Shinyei Corporation of America, plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General; John J. Mahon, Acting Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (James A. Curley); Edward N. Maurer, Office of Assistant Chief Counsel, United States Customs Service, for the United States, defendant, of counsel.

BEFORE: Honorable NICHOLAS TSOUCALAS.

OPNION

TSOUCALAS, Senior Judge.

Defendant, the United States ("Defendant"), moves to dismiss this action pursuant to USCIT R. 12(b)(1) for lack of subject matter jurisdiction and USCIT R. 12(b)(5) for failure to state a claim on which relief can be granted. For the reasons stated herein, Defendant's motion to dismiss is granted under USCIT R. 12(b)(1) for lack of subject matter jurisdiction.

DISCUSSION

1. Background

A. Procedural Background

Plaintiff Shinyei Corporation of America ("Shinyei"), a United States corporation wholly owned by Shinyei Kaisha Company ("Kaisha"), a Japanese trading company, filed a complaint on March 23, 2000.¹ On September 25, 2002, this Court granted Shinyei's motion for leave of the Court to amend its complaint filed on March 23, 2000, in which Shinyei seeks to declare certain instructions issued by the United States Department of Commerce, International Trade Administration ("Commerce") in violation of 19 U.S.C. § 1675(a)(2) (1988 & Supp.1993) and remand this case to Commerce for the purpose of issuing corrected instructions with regard to liquidation of the forty-two Shinyei entries² of certain bearings. See Pl.'s First Am. Compl. ¶¶ 3-4, 14-15, 17-22; accord Pl.'s Resp. Def.'s Mot. Dismiss ("Pl.'s Resp.") at 5-6. Subsequently, Defendant moved on October 8, 2002, to dismiss this case pursuant to USCIT R. 12(b)(1) for lack of subject matter jurisdiction³ and USCIT R. 12(b)(5) for failure to state a claim on which relief can be granted.⁴ See Def.'s Mot. Dismiss ("Def.'s Mot.").

B. Factual Background

During the period from May 1, 1990, to April 30, 1991, Shinyei imported certain merchandise into the United States. See Pl.'s Resp. at 1. The merchandise at issue was purchased by Shinyei from Kaisha which, in turn, purchased the merchandise from six Japanese manufacturers (collectively "Six Manufacturers"), namely, Fujino Iron Works Co., Ltd. ("Fujino"), Nakai Bearing Co., Ltd. ("Nakai"), Nankai Seiko Co., Ltd. ("Nankai"), Inoue Jikuuke Kogyo Co. ("Inoue"), Showa Pillow Block Mfg., Ltd. ("Showa") and Wada Seiko Co., Ltd. ("Wada"). See Pl.'s First Am. Compl. ¶ 5; see also Pl.'s First Am. Compl. App. A.

The merchandise at issue was subject to an antidumping investigation. See Initiation of Antidumping Duty Investigation; Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan, 53 Fed.Reg. 15,076 (Apr. 27, 1988). On November 9, 1988, Commerce published its preliminary determination with regards to this investigation instructing the United States Customs Service ("Customs") that: (a) liquidations of the subject merchandise should be suspended; and (b) deposits or bonds should be required at a certain rate for future entries from all non-investigated manufacturers, producers and exporters, including the Six Manufacturers. See Preliminary Determinations of Sales at Less Than Fair Value; Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan, 53 Fed.Reg. 45,343; see also Pl.'s First Am. Compl. 116. This deposit and bond rate was corrected by Commerce in the final determination. See Final Determinations of Sales at Less Than Fair Value; Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan ("Determination"), 54 Fed.Reg. 19,101 (May 3, 1989); see also Pl's First Am. Compl. II 6. On the basis of this Determination, Commerce published an antidumping duty order. See Antidumping Duty Orders; Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904 (May 15, 1989); see also Pl.'s First Am. Compl. ¶ 6.

During the second review ("POR"),⁵ Shinyei deposited estimated antidumping duties on the entries at issue. See Pl.'s First Am. Compl. ¶ 7; see also Pl.'s Resp. at 2. On June 24, 1992, Commerce published the final results of the second review in which Commerce established specific antidumping duty deposit rates for the merchandise manufactured by the Six Manufacturers. See Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et. al. ("Final Results"), 57 Fed.Reg. 28,360; see also Pl.'s First Am. Compl. 118. Consequently, Commerce issued an instruction ordering Customs to liquidate all merchandise of the type at issue that was imported from Japan during the POR (except for the products of certain manufacturers) at the rate designated in the Determination. See Pl.'s First Am. Compl. ¶ 9. The list of manufacturers excepted from the instructions included the Six Manufacturers. See id. Moreover, on February 23, 1998, Commerce published the amended final results. See Amended Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et. al. ("Amended Final Results"), 63 Fed.Reg. 8908.

On "October 22, 1998, Commerce issued final amended instructions to Customs regarding the liquidation of all [second] [r]eview entries of [the merchandise at issue] from Japan produced by" Nankai. Pl.'s Resp. at 2. On "June 26, 1998, Commerce issued instructions to Customs regarding the liquidation of all [second] [r]eview entries of [the merchandise at issue] from Japan produced by" Fujino.⁶ Id. at 3.

Shinyei commenced this case by filing a complaint on March 23, 2000. Shinyei "did not seek, and the Court did not issue, any injunction to suspend liquidation of the [e]ntries [at issue] pending its final decision." Id. at 5. On August 1, 2000, Commerce issued "a `clean-up' instruction to Customs to liquidate `as entered' all [second] [r]eview [p]eriod entries of [the merchandise at issue] from Japan that had not been liquidated under previously-issued instructions." Id. The liquidation of the entries at issue, see Pl.'s First Am. Compl. App. A, occurred "between September 8, 2000, and February 9, 2001 (all but two of the [e]ntries were liquidated before December 15, 2000)." Id.

On September 25, 2002, this Court granted Shinyei's motion for leave of the Court to amend its complaint filed on March 23, 2000, in which Shinyei limited its claim to Commerce error⁷ stating in pertinent part:

In this civil action, [Shinyei] claims generally that Commerce issued certain liquidation instructions to Customs to implement the results of an antidumping administrative review. In violation of 19 U.S.C. § 1675(a)(2)[ ], these instructions did not permit the review results to be the basis for assessments of antidumping duty on entries for which [Shinyei] was the importer of record. As a consequence, Customs liquidated the [e]ntries [at issue] under other, inapplicable instructions resulting in substantial and erroneous assessments of excessive antidumping duty on the [e]ntries [at issue], as well as the attendant denial of interest on excess deposits of antidumping duty that should have been refunded.⁸

Pl.'s Resp. at 6 (quoting Pl.'s First Am. Compl. 113).

Subsequently, Defendant, on October 8, 2002, moved to dismiss this case pursuant to USCIT R. 12(b)(1) for lack of subject matter jurisdiction and USCIT R. 12(b)(5) for failure to state a claim on which relief can be granted. See Def.'s Mot. On November 20, 2002, a conference was held in Chambers. A hearing on Defendant's motion to dismiss was held before this Court on January 6, 2003.

II. Contentions of the Parties

A. Defendant's Contentions

Defendant contends, pursuant to USCIT R. 12(b)(1), that this Court lacks jurisdiction under 28 U.S.C. § 1581(i) (2000) over this case because Shinyei's claim and the relief requested became moot as a result of Customs' liquidation of the entries at issue.⁹ See Def.'s Mot. at 3-4; see also Def.'s Reply Br. Supp. Mot. Dismiss ("Def.'s Reply") at 1-8. In particular, Defendant points out that the Court in Chr. Bjelland Seafoods A/S v. United States, 19 CIT 35 (1995), held that "`if liquidation occurs prior to completion of judicial review[,] ... any outstanding challenges to the ... determination are rendered moot as to the liquidated entries.'" Def.'s Mot. at 4 (quoting Chr. Bjelland, 19 CIT at 51); see Def.'s Reply at 3. Defendant maintains that although Chr. Bjelland, 19 CIT 35, was a case in which judicial review was sought under 28 U.S.C. § 1581(c) (2000), "liquidation of the entries prevents the Court from assuming jurisdiction, or maintaining jurisdiction, under [28 U.S.C] § 1581(c) or (i)." Def.'s Reply at 3.

Moreover, Defendant points out in Mitsubishi Elec. Am., Inc. v. United States, 18 CIT 167, 180, 848 F.Supp. 193, 203 (1994), aff'd on other grounds, 44 F.3d 973 (Fed. Cir.1994), the Court held:

Plaintiffs failure to seek injunctive relief against liquidation before commencing this action also precludes this Court from exercising jurisdiction under 28 U.S.C. § 1581(i).... [B]ecause an injunction would prevent Customs from liquidating plaintiffs entries and thereby ensure a party would be able to benefit from judicial review of its challenge to the regulation, such relief would seem appropriate. Cf. Zenith [Radio Corp. v. United States], ... 710 F.2d [806,] 810 [Fed. Cir.1983] (A party who wishes to challenge a [19 U.S.C. § 1675] determination will suffer irreparable harm if Customs liquidates their entries before the...