Slip Op. 02-45

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE RICHARD W. GOLDBERG

LIBAS, LTD.,

Plaintiff,

 v.

UNITED STATES

Defendant.

 

Court No. 98-06-02316

[Judgment ordered for plaintiff.]

Law Offices of Elon A. Pollack (Elon A. Pollack, Eugene P. Sands,

and Wayne Jarvis), for plaintiff Libas, Ltd.

Robert D. McCallum, Jr., Assistant Attorney General, Joseph I.

Liebman, Attorney in Charge, International Trade Field Office,

Commercial Litigation Branch, Civil Division, United States

Department of Justice (Bruce N. Stratvert), for defendant United

States.

OPINION

The plaintiff importer in this case, Libas, Ltd. (“Libas”),

brought this suit challenging the United States Customs Service’s

(“Customs”) classification of twenty-nine entries of woven

fabrics of cotton. Customs originally classified the fabrics as

machine-made under HTSUS 5208.41.60, dutiable at a rate of 11.4%

ad valorem and subject to quota restrictions. Libas filed a

timely protest, claiming that the entries should be classified as

hand-woven under HTSUS 5208.42.10 or HTSUS 5208.41.20, depending

on weight, and subject to a duty of 6% ad valorem, without quota
1 Entries G51-0130598-7; G51-0130623-3; and G51-0130624-1.

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restrictions. Customs denied the protest, and Libas sought

relief before this Court. 

Subsequent to the initiation of this suit, the United States

Court of Appeals for the Federal Circuit decided another case

involving the same parties and different entries of the same

merchandise. See Libas, Ltd. v. United States, 193 F.3d 1361

(Fed. Cir. 1999). In that decision, the Federal Circuit held

that the reliability of Customs’s methodology for determining

whether the imported fabrics were power- or hand-loomed was open

to challenge under the factors enumerated in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On remand, this

Court held that Customs’s test was not reliable, and ordered the

entries in question to be reliquidated at the rate applicable to

hand-loomed fabrics. See Libas, Ltd. v. United States, 24 CIT

__, 118 F. Supp. 2d 1223 (2000).

In light of these decisions, Customs now concedes that the

entries at issue in this case were of hand-woven cotton fabrics,

and should be classified accordingly. However, Customs has moved

to sever and dismiss three1 of the twenty-nine entries at issue

here, on the grounds that the Court lacks jurisdiction. With

respect to these three entries, Customs claims that Libas has

failed to satisfy the jurisdictional prerequisites of 28 U.S.C. §

2637(a), which provides that “[a] civil action contesting the

denial of a protest . . . may be commenced in the Court of
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International Trade only if all liquidated duties, charges, or

exactions have been paid at the time the action is commenced.” 

28 U.S.C. § 2637(a) (2000). As the Court of International Trade

has recognized, this requirement is strict. See Dazzle Mfg.,

Ltd. v. United States, 21 CIT 827, 828, 971 F. Supp. 594, 596

(1996). Because the government has challenged jurisdiction in

this case, the burden falls on Libas to show that jurisdiction

exists. Hambro Automotive Corp. v. United States, 66 CCPA 113,

117, 603 F.3d 850, 853 (1979).

The parties submitted letter memoranda and supporting

evidence, including copies of checks tendered by Libas and its

surety, and argued the matter in a conference call with the

Court. After review of all papers had herein, and upon further

investigation and due deliberation, the Court finds that Libas

has proven its compliance with the requirements of § 2637(a). 

Accordingly, the Court has jurisdiction over all twenty-nine

entries at issue in this case, and will enter judgment directing

Customs to reliquidate said entries under HTSUS 5208.42.10, HTSUS

5208.41.20, or HTSUS 5209.41.30, depending on weight.

_____________________

Richard W. Goldberg

Senior Judge

Dated: May 13, 2002

 New York, NY
ERRATUM

Libas, Ltd. v. United States, Court No. 98-06-02316, Slip Op. 02-

45, issued May 13, 2002.

On Page 1, in the identification of counsel, “Joseph I. Liebman,

Attorney in Charge” should read “John J. Mahon, Acting Attorney

in Charge”.

May 16, 2002.