ThyssenKrupp Steel N. Am., Inc. v. United States, Court No. 15–00072
| Decision Date | 25 October 2016 |
| Docket Number | Court No. 15–00072,Slip Op. 16–101 |
| Citation | 190 F.Supp.3d 1205 |
| Parties | ThyssenKrupp Steel North America, Inc., Plaintiff, v. United States, Defendant. |
| Court | U.S. Court of International Trade |
Robert L. LaFrankie, Matthew R. Nicely, and Alexandra B. Hess, Hughes Hubbard & Reed LLP, of Washington, DC, for plaintiff.
Justin R. Miller, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With him on the brief were Benjamin C. Mizer, Principle Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director.
Plaintiff, ThyssenKrupp Steel North America ("Plaintiff"), challenges United States Customs and Border Protection's ("CBP") rejection of its protests regarding CBP's refusal to reliquidate Plaintiff's entries. In the alternative, Plaintiff challenges the lawfulness of liquidation instructions issued by the United States Department of Commerce ("Commerce"). Commerce, CBP, and the United States (collectively, "Defendant") move for dismissal of Plaintiff's first claim for lack of subject matter jurisdiction and for judgment on the pleadings with respect to Plaintiff's alternative claim. The court grants both motions.
In 1993, Commerce published an antidumping duty order on certain corrosion-resistant steel from Germany ("CORE"). Certain Hot–Rolled Carbon Steel Flat Products, Certain Cold–Rolled Carbon Steel Flat Products, Certain Corrosion–Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from Germany , 58 Fed. Reg. 44,170 (Dep't Commerce Aug. 19, 1993) (amended final determ.).
On January 3, 2012, the International Trade Commission ("ITC") instituted the third sunset review of the antidumping duty order on CORE. Corrosion–Resistant Carbon Steel Flat Products from Germany and Korea , 77 Fed. Reg. 301 (ITC Jan. 4, 2012) ().
From February 14, 2012 through July 14, 2012, Plaintiff entered eight shipments of CORE that are the subject of this action. See HQ H243862 and H260365 (Dec. 29, 2014) at 1, ECF No. 41–2, Ex. 7 ("Decision Letter"). Six entries arrived through the Port of Mobile, AL and two entries arrived through the Port of Philadelphia, PA. Id. at 1–2. At the time of entry, Plaintiff deposited estimated antidumping duties on these entries at the 10.02% rate then in effect. Compl. ¶ 19, ECF No. 5. As part of its annual review process, Commerce solicited requests for review of the CORE antidumping order. See19 U.S.C. § 1675(a). Liquidation of subject entries was suspended during the review process. No interested party requested a review and, therefore, Commerce lifted the suspension of liquidation and issued liquidation instructions. Admin. Message No. 2291302 (October 17, 2012), ECF No. 41–2, Ex. 1.
Commerce's October 17, 2012 liquidation instructions directed CBP to assess antidumping duties "at the cash deposit or bonding rate in effect on the date of entry." Id. ¶ 2. CBP liquidated Plaintiff's Mobile entries on November 16, 2012 and liquidated Plaintiff's Philadelphia entries on December 21, 2012. Compl. ¶ 21.
On March 11, 2013, the ITC published its final determination pursuant to the sunset review, finding that revocation of the CORE antidumping order was warranted. Corrosion–Resistant Carbon Steel Flat Products from Germany and Korea , 78 Fed. Reg. 15,376 (ITC Mar. 11, 2013) (final determ.).
On March 19, 2013, pursuant to the ITC's determination, Commerce revoked the CORE antidumping order. Corrosion–Resistant Carbon Steel Flat Products from Germany and Korea , 78 Fed. Reg. 16,832 (Dep't Commerce Mar. 19, 2013) (revocation of orders). Commerce's revocation was effective retroactively, applicable to entries back to and including February 14, 2012. Id.
On April 4, 2013, Commerce issued new liquidation instructions advising CBP that it had revoked the order on CORE. Admin. Message No. 3094301 (April 4, 2013), ECF No. 41–2, Ex. 2. Commerce's instructions directed CBP to liquidate all relevant "unliquidated entries .... without regard to antidumping duties." Id. ¶¶ 2, 3.
On April 16, 2013, Plaintiff filed protests with the Port of Mobile. ECF No. 41–2, Ex. 4 ("Port of Mobile Protests"). Plaintiff argued that the liquidation of its entries was not "final" as Plaintiff had filed valid protests, that its entries therefore remained "unliquidated" within the meaning of the new liquidation instructions, and that CBP should now reliquidate those entries without antidumping duties. Id. at Attachment. The Port of Mobile forwarded the protests to CBP Headquarters ("HQ") for further review. See Decision Letter 3.
On May 2, 2013, Plaintiff filed a similar protest with the Port of Philadelphia. ECF No. 41–2, Ex. 6 ("Port of Philadelphia Protest"). On June 4, 2013, the Port of Philadelphia denied the protest and Plaintiff's application for further review. See Decision Letter 3. In its denial, the Port of Philadelphia stated that Commerce's instructions applied only to "unliquidated entries," which it interpreted to exclude Plaintiff's previously-liquidated entries. Port of Philadelphia Protest at item 18.
On August 1, 2013, Plaintiff requested that CBP HQ set aside the Port of Philadelphia's denial of further review of Plaintiff's protest. See Decision Letter 3. On August 29, 2013, CBP HQ granted Plaintiff's request for further review and voided the Port of Philadelphia's actions so that CBP HQ could review the Mobile and Philadelphia protests together. See id.
On December 29, 2014, CBP HQ issued its Decision Letter, ruling that no protestable issues existed because CBP had properly interpreted the term "unliquidated" in Commerce's April 4, 2013 instructions to exclude Plaintiff's entries. The ports of Mobile and Philadelphia thereafter rejected Plaintiff's protests in accordance with CBP HQ's decision. Compl. ¶¶ 32–33.
On March 19, 2015, Plaintiff brought a claim under 28 U.S.C. § 1581(a) to challenge CBP's decisions. Summons and Compl., ECF Nos. 1, 5. Plaintiff also filed an alternative claim under 28 U.S.C. § 1581(i) challenging Commerce's April 4, 2013 liquidation instructions as contrary to law. Compl. ¶ 2.
Defendant now moves to dismiss, under USCIT R. 12(b)(1), Plaintiff's claim against CBP for lack of subject matter jurisdiction. Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction under 28 U.S.C. § 1581(a), or in the Alternative, Mot. for J. on the Pleadings, ECF No. 32 ("MTD"). Defendant argues that CBP's actions with respect to Plaintiff were not protestable, such that this court lacks jurisdiction under § 1581(a). Def.'s Mem. in Support of its MTD at 7, ECF No. 32 ("MTD Memo"). Because the court agrees, and for additional reasons stated below, the court grants Defendant's motion. Defendant also moves, pursuant to USCIT R. 12(c), for judgment on the pleadings with respect to Plaintiff's alternative claim. MTD. The court finds that Defendant is entitled to judgment as a matter of law and grants Defendant's motion for judgment on the pleadings.
"Once jurisdiction is challenged, the plaintiff bears the burden of proving that the court's jurisdiction is invoked properly." Pentax Corp. v. Robison , 125 F.3d 1457, 1462 (Fed. Cir. 1997). In considering this USCIT R. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court assumes that well-pleaded factual allegations are true. See Cisco Sys., Inc. v. United States , 35 C.I.T. ––––, ––––, 804 F.Supp.2d 1326, 1330 (2011).
Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. See New Zealand Lamb Co. v. United States , 40 F.3d 377, 380 (Fed. Cir. 1994). "A ruling on a motion for judgment on the pleadings is reviewed under the same standard as a motion to dismiss under USCIT R. 12(b) for failure to state a claim" and the court "must accept all well-pleaded facts as true." Forest Labs., Inc. v. United States , 29 C.I.T. 1401, 1402–03, 403 F.Supp.2d 1348, 1349 (2005), aff'd , 476 F.3d 877 (Fed. Cir. 2007). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Macclenny Prod. v. United States , 38 C.I.T. ––––, ––––, 963 F.Supp.2d 1348, 1357 n.16 (2014) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
An importer can only protest "decisions" by CBP that concern one or more of seven events listed in 19 U.S.C. § 1514(a). Consequently, a protest is invalid if the challenged action does not fit within § 1514(a) or if the challenged action cannot be characterized as a "decision" of CBP. See Mitsubishi Elecs. Am., Inc. v. United States , 44 F.3d 973 (Fed. Cir. 1994) (). A protest must also be filed "within 180 days after but not before [the] date of liquidation or reliquidation," or "the date of the decision as to which protest is made." 19 U.S.C. § 1514(c)(3). This court has "exclusive jurisdiction of any civil action commenced to contest the denial of a protest." 28 U.S.C. § 1581(a).
Because Plaintiff has alleged jurisdiction under § 1581(a), the court must determine whether Plaintiff timely protested a protestable CBP decision and whether CBP subsequently denied that protest. The court finds that Plaintiff has established none of these requisite jurisdictional facts.
First, with respect to CBP's refusal to reliquidate Plaintiff's entries, Plaintiff's protests were untimely. 19 U.S.C. § 1514(c)(3) . Plaintiff's...
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Thyssenkrupp Steel N. Am., Inc. v. United States
...§ 1581(a) and for judgment on the pleadings under § 1581(i). The court granted the motion. ThyssenKrupp Steel N. Am., Inc. v. United States , 190 F.Supp.3d 1205, 1212 (Ct. Int'l Trade 2016).ThyssenKrupp timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(5).IIA We review the dis......