Special Commodity Group v. Baldridge

• Decision Date: 23 November 1983
• Docket Number: Court No. 83-3-00458.
• Citation: 575 F. Supp. 1288,6 CIT 264
• Parties: SPECIAL COMMODITY GROUP ON NON-RUBBER FOOTWEAR FROM BRAZIL, AMERICAN ASSOCIATION OF EXPORTERS AND IMPORTERS, Plaintiff, v. The Honorable Malcolm BALDRIDGE, Secretary of Commerce of the United States, and, The Honorable Donald T. Regan, Secretary of the Treasury of the United States, and, The Honorable William Von Raab, Commissioner of Customs, Defendants.
• Court: U.S. Court of International Trade

575 F. Supp. 1288

6 CIT 264

SPECIAL COMMODITY GROUP ON NON-RUBBER FOOTWEAR FROM BRAZIL, AMERICAN ASSOCIATION OF EXPORTERS AND IMPORTERS, Plaintiff, v. The Honorable Malcolm BALDRIDGE, Secretary of Commerce of the United States, and, The Honorable Donald T. Regan, Secretary of the Treasury of the United States, and, The Honorable William Von Raab, Commissioner of Customs, Defendants.

Court No. 83-3-00458.

United States Court of International Trade.

November 23, 1983.

Plaia, Schaumberg & Dekieffer, Chartered, Herbert C. Shelley, Washington, D.C., on the motion, for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., Velta Melnbrencis, New York City, on the motion, for defendants.

MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

INTRODUCTION

In this action, plaintiff seeks, among other things, a writ of mandamus to compel the Secretary of the Treasury and the Commissioner of Customs to liquidate certain entries of non-rubber footwear imported from Brazil. Plaintiff also moves for a preliminary injunction to enjoin the Secretary of Commerce (a) from issuing a final determination in an annual administrative review of a countervailing duty order under section 751 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(a) (1982), covering January 4, 1980 to December 31, 1980 entries of certain non-rubber footwear from Brazil; (b) from directing the United States Customs Service (Customs) to assess any countervailing duties on those entries greater than the amount already deposited with Customs as estimated countervailing duties; and, (c) from conducting a further administrative review of such entries from January 1, 1981, through September 11, 1981. Defendant cross-moves to dismiss for lack of jurisdiction and failure to state a claim as to which relief may be granted.

The facts in this case are not in issue. In September 1974, a countervailing duty order was issued covering certain non-rubber footwear from Brazil. 39 Fed.Reg. 32,903 (1974). On January 4, 1980, Customs published a notice in the Federal Register suspending liquidation of all entries of non-rubber footwear from Brazil and requiring the deposit of an estimated countervailing duty at the rate of 1 percent on all future entries. 45 Fed.Reg. 1013 (1980). Plaintiff members continued to deposit estimated countervailing duties for entries in the amount of 1 percent pursuant to the notice of January 4, 1980. The Department of Commerce (Commerce, which had assumed the duties of administering the countervailing duty laws from the Treasury Department, indicated on March 9, 1983, see 48 Fed.Reg. 9901 (1983), that it had conducted a preliminary administrative review and had preliminarily determined that net subsidies on exports from December 7, 1979, through December 31, 1979, were 4.77 percent and that net subsidies on exports from January 1, 1980 to December 31, 1980 were 3.48 percent. Id at 9903. The Department of Commerce has not indicated when the final administrative review for 1980 entries will be completed.¹ Commerce has not indicated whether the net amount of the bounty paid or bestowed upon non-rubber footwear from Brazil will be higher or lower than the 1 percent ad valorem rate that has been collected as estimated countervailing duties upon entry.

Plaintiff commenced this action on March 30, 1983, more than 3 years after the publication of the notice of January 4, 1980, suspending liquidation. The plaintiff asserts that, pursuant to 19 U.S.C. § 1504 (1982), all entries must be liquidated within 1 year from the date of entry unless, among other reasons, liquidation is suspended as required by statute or court order.² Plaintiff also claims that this court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (Supp. V 1981),³ since the subject matter of this action arose out of 19 U.S.C. § 1504, and concerns the liquidation of entries subject to a countervailing duty order. Plaintiff declares further that this court should assume jurisdiction in this matter pursuant to 28 U.S.C. § 1581(i), since sections 701-707 of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 1671-1671f (1982) cover assessments of countervailing duties against subsidized imports to the United States.

Defendant contends that a preliminary determination to suspend liquidation of entries pending a section 751 annual review to assess countervailing duties in the liquidation of entries can only be reviewed pursuant to 19 U.S.C. § 1516a(c) and 28 U.S.C. § 1581(c) (Supp. V 1981) when there has been a final administrative determination. Defendant cites United States v. Uniroyal, Inc., 69 CCPA ___, 687 F.2d 467 (1982), for the proposition that the judicial review provisions of 19 U.S.C. § 1516a (1982) cannot be circumvented by characterizing a challenge to preliminary decisions during the course of a section 751 administrative review of a countervailing duty order as an action to enforce the provisions of 19 U.S.C. § 1504(a), invoking the jurisdiction of the court pursuant to 28 U.S.C. § 1581(i).

The court concludes, for the reasons set forth below, that although subject matter jurisdiction exists under 28 U.S.C. § 1581(i), the action must be dismissed for failure to state grounds under which relief can be granted.

The initial question is whether this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(i) enabling it to compel Customs to liquidate merchandise after 1 year from date of entry while a section 751 annual review is in progress.

In American Air Parcel Forwarding Co. v. United States, 1 CIT 293, 515 F.Supp. 47 (1981), the court, while examining the statutory and regulatory authority of the Customs Service to receive uncertified checks, construed the jurisdictional provisions of the Customs Court Act of 1980 and stated:

This case comes within the broad "residual grant of jurisdictional authority" of this court as described in 28 U.S.C. § 1581(i) * * * * In particular, paragraphs (i)(1) and (4) confer jurisdiction over any civil action

"that arises out of any law of the United States providing for—

"(1) revenue from imports or tonnage

* * * * * *

"(4) administration and enforcement with respect to matters referred to in paragraphs (1)-(3) of this subsection * * *"

This court's jurisdiction over plaintiff's cause of action "arises out of a law of the United States" * * * and the Customs Service's administration and enforcement of its regulations.

Id. at 295, 515 F.Supp. at 50.

This analysis is instructive in the matter at hand. The instant case is concerned with laws providing for revenue as well as the administration and enforcement of regulations of the Customs Service.

The difference between American Air Parcel and the instant matter is the former construed a statute and regulations concerning the acceptance of uncertified checks while the latter has been presented with statutes to construe, i.e. 19 U.S.C. § 1504 and § 1675 in regard to liquidation and countervailing duty review.

In United States v. Uniroyal, Inc., 69 CCPA ___, 687 F.2d 467 (1982), the court established that while the jurisdictional grant under 28 U.S.C. § 1581(i) is in addition to the jurisdiction conferred upon this court in subsections (a)-(h) of 28 U.S.C. § 1581, Congress did not intend generally that § 1581(i) be used to circumvent subsections (a)-(h) of 28 U.S.C. § 1581.

In the concurring opinion of Judge Nies in Uniroyal, which was cited by the majority with approval⁴, the notion was expressed:

The broad subject matter jurisdiction of the court under § 1581(i) may be invoked only when no other remedy is available or the remedies provided under other provisions of 28 U.S.C. § 1581 are manifestly inadequate.

United States v. Uniroyal, Inc., 69 CCPA at ___, 687 F.2d at 475 (Nies, J., concurring).⁵

In Uniroyal, although the court spoke of jurisdiction, its concern was what administrative and judicial remedies were available and when subsections of 28 U.S.C. § 1581 should be used or invoked in pursuit of those remedies.

Whether or not a complaint states a claim upon which relief may be granted should not be confused with the threshold question of the jurisdiction of the court over the subject matter.

In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Court held subject matter jurisdiction of a court cannot be defeated on the theory that the allegations of the plaintiff fail to state grounds upon which relief may be granted. The Court observed:

Failure to state a proper cause of action calls for a judgment on the merits and not a dismissal for want of subject matter jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law, and just as issues of fact, it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.

Id. at 682, 66 S.Ct. at 776 (emphasis added).

In Bush v. State Industries Inc., 599 F.2d 780 (6th Cir.1979), the court pointed out that in determining whether a federal court has jurisdiction over the subject matter, it must ascertain whether the case arises under the Constitution or federal statutes and has not been advanced solely to obtain federal jurisdiction. Whether a complaint fails to state a claim upon which relief can be granted is irrelevant to the question of subject matter jurisdiction.

This analysis of federal jurisdiction (under 28 U.S.C. § 1331 (Supp. V 1981) is directly applicable when considering Court of International Trade jurisdiction under section 1581(i). See American Air Parcel Forwarding Co., 1 CIT at 296, 515 F.Supp. at 51. Indeed, just as the plaintiff in Bell v. Hood was entitled to have his claim heard in federal court because his complaint was "so drawn as...