TR Int'l Trading Co. v. United States

• Decision Date: 16 March 2020
• Docket Number: Court No. 19-00022,Slip Op. 20-34
• Citation: 433 F.Supp.3d 1329
• Parties: TR INTERNATIONAL TRADING COMPANY, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. Court of International Trade

433 F.Supp.3d 1329

TR INTERNATIONAL TRADING COMPANY, Plaintiff,

v.UNITED STATES, et al., Defendants.

Slip Op. 20-34

Court No. 19-00022

United States Court of International Trade.

March 16, 2020

John M. Peterson, Neville Peterson LLP, of New York, NY, argued for Plaintiff. With him on the brief were Lawrence J. Bogard and Michael K. Tomenga.

Justin R. Miller, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, argued for Defendant. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, L. Misha Preheim, Assistant Director, and Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC. Of counsel on the brief were Paula S. Smith, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, and Emma T. Hunter, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Justice.

OPINION AND ORDER

Barnett, Judge:

In this case, an importer asserts that the product it imports should be considered a product of India. The importer contends that its supplier produces the subject imports in India from an input sourced in India, but of undetermined country of origin. U.S. Customs and Border Protection ("CBP" or "Customs") determined that the supplier’s processing of the input did not constitute a substantial transformation. In the absence of a substantial transformation by the Indian supplier and documentation otherwise supporting India as the country of origin, CBP determined that the subject imports were of Chinese origin and subject to the antidumping and countervailing duty orders on the same. The importer seeks to invoke the court’s residual jurisdiction to challenge that determination, and the matter is now subject to a motion to dismiss for lack of subject matter jurisdiction.

The aforementioned importer, TR International Trading Company ("Plaintiff" or "TRI"), commenced this action specifically seeking an injunction directing Customs to reliquidate 17 entries of citric acid imported into the United States from India without regard to antidumping ("AD") or countervailing ("CVD") duties. See generally Compl. for Inj. Relief ("Compl."), ECF No. 4. Plaintiff alleges unlawful action by Customs and the U.S. Department of Commerce ("Commerce" or "the agency") and asserts three counts relevant thereto. Count one alleges, "[o]n information and belief," that Customs assessed AD/CVD duties on TRI’s entries in response to "undisclosed or confidential instructions from [Commerce]." Id. ¶ 68. According to TRI, Commerce’s alleged authorization of the assessment of AD/CVD duties "was arbitrary, capricious, [ ] an abuse of process," id. ¶ 70, and "without observance of procedure required by law," id. ¶ 71. Count two alleges that Customs exceeded its authority when it determined that TRI’s imports of citric acid anhydrous from India were within the scope of certain AD/CVD orders because such determinations are reserved to Commerce. See id. ¶¶ 72–84. Count three alleges that Customs misapplied Commerce liquidation instructions and disregarded procedural requirements to issue notices of action proposed or action taken "before liquidating TRI’s entries" and thereby deprived TRI of the opportunity to "present[ ] ‘compelling reasons’ for Customs to withhold liquidation of the entries at issue." Id. ¶ 94. As noted, Plaintiff seeks to invoke this court’s subject matter jurisdiction pursuant to 28 U.S.C. § 1581(i). Id. ¶ 16.

Defendant United States ("Defendant" or "the Government") moves to dismiss TRI’s complaint for lack of subject matter jurisdiction pursuant to United States Court of International Trade ("USCIT" or "CIT") Rule 12(b)(1) or, alternatively, for failure to state claim upon which relief can be granted pursuant to USCIT Rule 12(b)(6). Def.’s Mot. to Dismiss ("Def.’s Mot."), ECF No. 17; see also Defs.’ Reply in Supp. of Their Mot. to Dismiss ("Def.’s Reply"), ECF No. 29.¹ TRI opposes the motion. Pl. TR Int'l Trading Co.’s Resp. to Defs.’ Mot. to Dismiss ("Pl.’s Opp'n"), ECF No. 26.

Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle Ingredients Americas LLC (collectively, "Proposed Intervenors") are members of the domestic industry relevant to the orders on Citric Acid from the People’s Republic of China and seek to intervene as Defendant-Intervenors. See Partial Consent Mot. to Intervene, ECF No. 9. Defendant consents to the motion. Id. at 1. Plaintiff opposes the motion. See Opp'n to Partial Consent Mot. to Intervene, ECF No. 12.

For the following reasons, the court grants Defendant’s motion to dismiss for lack of subject matter jurisdiction, does not reach Defendant’s alternative basis for dismissal, and denies as moot Proposed Intervenors’ motion to intervene.

STANDARD OF REVIEW

To adjudicate a case, a court must have subject-matter jurisdiction over the claims presented. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety." Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

Plaintiff bears the burden of establishing subject-matter jurisdiction. See Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006). When, as here, the plaintiff asserts section 1581(i) jurisdiction, it "bears the burden of showing that another subsection is either unavailable or manifestly inadequate." Erwin Hymer Group N. Am., Inc. v. United States , 930 F.3d 1370, 1375 (Fed. Cir. 2019) (citation omitted). Because the pending motion to dismiss rests on the availability of jurisdiction pursuant to other subsections, and therefore challenges the existence of jurisdiction, "the factual allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true." See Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States , 672 F.3d 1021, 1030 (Fed. Cir. 2012). To resolve the pending motion, the "court is not restricted to the face of the pleadings" and may, if necessary, "review evidence extrinsic to the pleadings." Id. (internal quotation marks and citation omitted).

BACKGROUND

From July to December 2017, TRI filed 17 entries ("the subject entries") at various U.S. ports of entry of citric acid anhydrous purchased from the Indian manufacturer Posy Pharmachem PVT. LTD ("Posy"). Compl. ¶ 18. The subject entries identified India as the country of origin. Id. ¶ 19. TRI filed the subject entries "as type 01 ‘consumption’ entries and not as type 03 ‘consumption—antidumping (AD)/countervailing duty (CVD)’ entries." Id. ¶ 21. TRI sought "duty free treatment for the merchandise as qualifying goods under the Generalized System of Preferences." Id. ¶ 2.

On February 1, 2018, Customs requested from TRI information regarding "value, production, and process quality" for the subject entries. Id. ¶ 24. On March 19, 2018, TRI responded to the request, documenting, inter alia , Posy’s purchase and receipt of citric acid monohydrate from suppliers in India and "Posy’s processing, in India, of the [citric acid monohydrate] into citric acid anhydrous." Id. ¶ 25; see also Def.’s Mot., Attach. B (TR Int'l Trading Co.—Resp. to Request for Information on Citric Acid Anhydrous from India (March 19, 2018)).² TRI averred that "[t]he processing of the citric acid monohydrate into citric acid anhydrous performed by Posy satisfies the new and different product test for a substantial transformation thereby establishing India as the country of origin of the citric acid anhydrous it supplied to TRI." Def.’s Mot., Attach. B at 6. On May 16, 2018, CBP extended liquidation of the subject entries. Compl. ¶ 33; see also 19 U.S.C. § 1504(b)(1) (permitting extension of the time period for liquidation when CBP requires additional information "for the proper appraisement or classification of the imported or withdrawn merchandise").

On October 3, 2018, CBP informed TRI (via email to TRI’s counsel) ("CBP’s 10/3/18 Email") that its review of TRI’s entries had been transferred to CBP’s Pharmaceuticals, Health & Chemicals Center for Excellence and Expertise ("the PCEE"). Compl. ¶ 34; see also Def.’s Mot., Attach. A at 1 (Email from Lori J. Kreidermacher-Carter, Senior Import Specialist, PCEE, CBP, Port of Chicago, to M. Tomenga, Esq., Neville Peterson, LLP (Oct. 3, 2018)). In the email, the PCEE official explained that, as of September 6, 2018, she had not received TRI’s response to CBP’s February 1, 2018 request for information and, thus, on September 6, 2018, CBP had issued a Notice of Action to TRI on CBP Form 29 setting the entries for liquidation. Def.’s Mot., Attach. A at 1. The PCEE official directed TRI’s counsel to the "attached CBP-29 for reference"; i.e. , a copy of CBP’s Form 29 Notice of Action, dated September 6, 2018 ("CBP’s 9/6/18 Notice"). Id.³

CBP’s 9/6/18 Notice stated:

As of today, this office has not received a response to the CBP-28 originally sent on 2/1/18 requesting information to support the use of India as the country of origin for the Citric acid on these entries. We believe the Citric Acid is of Chinese origin and subject to antidumping and countervailing duties. The proposed change includes changing the entry to type 03 and adding antidumping case A570-937-000 /156.87% and countervailing case C570-938-000/8.14%. If this office does not receive documents to support your use of [India] as country of origin within 20 days of this notice, the entries will be changed as proposed.

Def.’s Mot., Attach. A at 2 (emphasis added); see also Compl., Ex. 1 ( Citric Acid and Certain Citrate Salts from Canada and the People’s Republic of China , 74 Fed. Reg. 25,703 (Dep't Commerce May 29, 2009) (antidumping duty...