Ssk Industries, Inc. v. U.S.

• Decision Date: 10 May 2000
• Docket Number: Court No. 97-02-00322.,Slip Op. 00-52.
• Parties: SSK INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

101 F.Supp.2d 825

SSK INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 00-52.

Court No. 97-02-00322.

United States Court of International Trade.

May 10, 2000.

Law Offices of Nicholas H. Cobbs (Nicholas H. Cobbs), Washington, DC; Creskoff

& Doram, LLP (Stephen M. Creskoff), Washington, DC, of Counsel, for plaintiff.

David W. Ogden, Acting Assistant Attorney General of the United States, Washington, DC; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York City (Bruce N. Stratvert); Yelena Slepak, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, of Counsel, for defendant.

OPINION

CARMAN, Chief Judge.

Pursuant to U.S. CIT R. 12(b)(1), the defendant, United States, moves to dismiss this action for lack of subject matter jurisdiction. Plaintiff opposes defendant's motion asserting this Court has subject matter jurisdiction under 28 U.S.C. § 1581(a) (1994). This Court has jurisdiction to resolve this question under 28 U.S.C. § 1581(a).

BACKGROUND

Between July 2, 1995, and January 16, 1996, plaintiff, SSK Industries, Inc. (SSK), through UPS Customhouse Brokerage, Inc. (UPS), imported merchandise known as the Cybernetic Parachute Release System (Cypres).¹ The 25 Cypres entries at issue in this matter were liquidated on February 16, 1996.²

SSK entered the Cypres under the duty free subheading 9014.20.80, Harmonized Tariff Schedule of the United States (HTSUS), as "Direction finding compasses; other navigational instruments and appliances; parts and accessories thereof ... Instruments and appliances for aeronautical or space navigation (other than compasses) ... Other." The United States Customs Service (Customs), however, liquidated the Cypres entries under subheading 8804.00.00, HTSUS, as "Parachutes (including dirigible parachutes) and rotochutes; parts thereof and accessories thereto," dutiable at a rate of 5.4% ad valorem in 1995 and 4.8% ad valorem in 1996.³

Acting as SSK's agent,⁴ UPS protested Customs' liquidation of the Cypres entries under subheading 8804.00.00, HTSUS, claiming the merchandise was properly classified under subheading 9014.20.80, HTSUS. On August 26, 1996, Customs denied UPS's protest in part and on September 13, 1996, reliquidated⁵ the Cypres entries under subheading 8479.89.95 HTSUS, as "Machines and mechanical appliances having individual functions ... Other ... Other," dutiable at a rate of 3.5% ad valorem in 1995 and 3.2% ad valorem in 1996⁶. Neither SSK nor UPS, as SSK's agent, protested the reliquidation of the Cypres entries under subheading 8479.89.95, HTSUS. On February 14, 1997, SSK filed a summons in this Court contesting Customs' classification of the Cypres entries under subheading 8479.89.95, HTSUS. In the summons, SSK cited Customs' August 26, 1996, denial of UPS's protest challenging Customs' original classification of the Cypres entries under subheading 8804.00.00, HTSUS, and claimed the Cypres entries were properly classified under subheading 9014.20.80, HTSUS.

CONTENTIONS OF THE PARTIES

A. Defendant

Defendant, United States, argues this Court lacks subject matter jurisdiction under 28 U.S.C. § 1581(a) because SSK failed to file a protest within 90 days after the final decision by Customs, i.e. the reliquidation of the Cypres entries under subheading 8479.89.95, HTSUS, pursuant to 19 U.S.C. § 1514(a) and (c) (1994); therefore, the reliquidations of the Cypres entries have become final and conclusive and not subject to judicial review. See 19 U.S.C. § 1514(a). Defendant supports its position by citing United States v. Parkhurst & Co., 12 Ct. Cust. App. 370, T.D. 40522 (1924), which held when a reliquidation has occurred "[t]he reliquidation, not the original liquidation, is the final decision of the collector as to the rate and amount of duty to be paid by the importer, and the time to protest begins to run from the date of the latest liquidation." Id. at 373.

Defendant argues the court's holding in Parkhurst as interpreted in Transflock, Inc. v. United States, 765 F.Supp. 750, 751 (CIT 1991) and Mitsubishi Electronics Am., Inc. v. U.S., 865 F.Supp. 877 (CIT 1994) precludes the Court's jurisdiction in this matter. Contending the situation is similar to the one at bar, defendant notes in Transflock, the importer protested classification of the merchandise as entered requesting an alternative tariff classification, Customs reliquidated the entries under a third classification, and the importer failed to protest the reliquidations; therefore, the Court lacked jurisdiction. Transflock, 765 F.Supp. at 751-752. Similarly, in Mitsubishi, defendant argues, the Court found it lacked jurisdiction under 28 U.S.C. § 1581(a) because the importer failed to protest Customs' reliquidation of the entries after Customs denied the importer's protest of Customs' original liquidation. Mitsubishi, 865 F.Supp. at 879-80. Defendant, citing Mitsubishi, contends a protest against a reliquidation by Customs is a prerequisite to judicial review of Customs' reliquidation; therefore, without a valid and timely protest, the Court lacks subject matter jurisdiction to review the reliquidation of entries.

Defendant maintains because SSK failed to protest the reliquidation of the Cypres entries, this Court lacks subject matter jurisdiction to review the reliquidation of the Cypres entries.

B. Plaintiff

Plaintiff, SSK, argues this Court has jurisdiction to review classification of the Cypres entries under 19 U.S.C. § 1581(a) which confers exclusive jurisdiction to this Court of any civil action commenced to contest the denial of a protest, in whole or in part. SSK contends the Court has jurisdiction by the plain language of the statute because SSK is properly contesting Customs' denial in part of its protest against Customs' original liquidation of the Cypres entries.

Additionally, SSK argues the statement from Parkhurst relied on by defendant in its motion to dismiss is pure dictum. Plaintiff contends the issue in Parkhurst was the ability of an importer to protest a reliquidation and not whether an importer was required to file such a protest in order to obtain judicial review. Accordingly, plaintiff argues the Court's holdings in Transflock, 765 F.Supp. 750, and Mitsubishi, 865 F.Supp. 877, where the Court held, based on Parkhurst, it did not have jurisdiction due to the importer's failure to protest a reliquidation, improperly expanded the protest requirement under 19 U.S.C. § 1514(a) as the means for judicial review.

Also, citing Novell, Inc. v. United States, 985 F.Supp. 121, 123 (CIT 1997), plaintiff argues Transflock and Mitsubishi do not control because Novell held the statutory justification for denial of jurisdiction for failure to protest a reliquidation was limited to situations in which Customs reliquidated the entries under an alternative classification offered by the importer in its protest of the original liquidation. Plaintiff contends where the relief requested by the importer in a protest is not granted and the shipment is reliquidated under a wholly different tariff heading, as in this case, the relief that the importer requested is clearly denied and jurisdiction in this Court is appropriate under 28 U.S.C. § 1581(a) because Customs' reliquidation did not alter or affect the denial of plaintiff's protest.

SSK argues this Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1581(a).⁷

DISCUSSION

When a defendant challenges the Court's jurisdiction, the plaintiff has the burden of demonstrating that jurisdiction exists. See Lowa, Ltd. v. United States, 561 F.Supp. 441, 443 (CIT 1983).

Pursuant to 28 U.S.C. § 1581(a), this Court "has exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [the Act]." Codified at 19 U.S.C. § 1515(a) (1994), section 515(a) of the Act provides, "the appropriate customs officer, within two years from the date a protest was filed in accordance with section 1514 of this title, shall review that protest and shall allow or deny such protest in whole or in part." Section 1514(a) states a final decision of the Customs Service including "the liquidation or reliquidation of an entry ... shall be final and conclusive upon all persons ... unless a protest is filed in accordance with this section [1514(a)]." 19 U.S.C. § 1514(a) (1994). Defendant argues this Court lacks subject matter jurisdiction in this matter because plaintiff failed to file a section 1514 protest against Customs' reliquidation of the Cypres entries at issue in this case.⁸ This Court agrees.

This Court repeatedly has interpreted the statute establishing subject matter jurisdiction in this Court, 28 U.S.C. § 1581(a), to require a party protest Customs' reliquidation of entries "as a prerequisite to seeking judicial review of the reliquidation." Mitsubishi, 865 F.Supp. at 880; see also Novell, 985 F.Supp. at 123; Transflock, 765 F.Supp. at 751. Under this Court's precedent⁹, it is well-established that a "`[r]eliquidation vacates and is substituted for the collector's original liquidation.'" Mitsubishi, 865 F.Supp. at 879 (quoting Parkhurst, 12 Ct. Cust.App. at 373). Therefore, if a party fails to protest a reliquidation by Customs within ninety days of the reliquidation, the reliquidation becomes final and is not subject to judicial review by this Court. See id. 879-80 (citing 19 U.S.C. §§ 1514(a) and (c)(2)(A)); see also Transflock, 765 F.Supp. at 751. Because this Court finds "plaintiff has not shown this action is unusual or unique or advanced any other reason for the Court to dispense with the statutory requirement [under 19 U.S.C. § 1514]," this Court does not have subject matter jurisdiction over the entries at issue in this matter. Transflock, 765 F.Supp. at 751.

The Court fi...