1 See Name Chang e Fro m the Burea u of Immigration and Customs Enforcement to U.S. Immigration and Customs Enforcement, and the Bureau of Customs and Border

Protection to U.S. Customs and Border Protection , 72 Fed. Reg. 20131 (Apr. 23. 2007). Slip Op 07 - 98 

## UNITED STATES COURT OF INTERNATIONAL TRADE

: DENTAL EZ, I

NC., : : Plaintiff, :

: v. : Befor e: MUSGRA

VE, Judge : Court No. 07-00029 UNI TED STATE S, : : Defend ant. : :

OPINION

AND ORDER [Defendant’s USCIT Rule 12(b)(1) motion to dismiss denied.] Dated: June 28, 2007 Barnes, R ichardson& Colburn ( David G. Forgue , Nicole A. Kehoskie ), for the plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, Jeanne E. Davidson , Dir ecto r, Patricia M. McCart hy , Assistant Director, Commercial Litiga tion Branch, Civil Division, United Stat e s Departm e ntof Justice (

Michael David Pan

zera ); Office of Chief Counsel for I mport Administration , United States Department of Commerce ( Jonathan Zielinski ), of cou nsel, for the defe ndant.

Denta lEZ, Inc., a United States importer, brought this action alleging error in the liquidation instructions issued by the U.S. Depar tment of Commerc e, International Trade Administration (“Commerce”) to what is now the U.S. Customs and Border Protection 1 (“Cust oms”) af te r publication of Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, andCourt No. 07-00029 Page 2

the United

Ki ngdom: Fi

nal Result

s of Antidum

ping Duty

Administra tive Reviews , 70 Fed . Reg. 54711 (Sep. 16, 2005) (“

Final Determination ”). DentalEZ did not participate in the administrative review. Its amended complaint asserts the jurisdiction of this Cour

t pursuan t to 28 U.S.C. § 1581(i)and purp orts that D entalE Z ent ered ba ll bearin gs subject to the administrative review that had been imported between May

1, 2003 and A

pril 30, 2004, the period covered by the Final Determination , and that had been manufactured by Barden Corpora tio n (U.K.) (“ Barden”). See Am. Compl. ¶¶ 1-3, 7, 15. The amended complaint further allege s, inter alia , that Ba rden sold the merchandise to DentalEZ’s U.K. af filiate which shipped the mercha ndise to these U

nited State s with Ba

rden’s “ knowledg e at the ti

me of in voi cing tha

t its bearin gs were

desti ned f or the Unite d States[, ]” that Barden particip ated in the administrative review, that “Comm erce

appa rent ly fail ed to request in form ation from Bar den r ega rding these shipm ents[ ,]” and that Comme

rce issued liquida

tion instru

cti on to Cu stoms that resulted in the merchandise at issue being li quidated

at the “a ll others” rate de sp ite DentalEZ ’s request that the merchandise be liquid atedat the rat e assessed for Barden at the a dministrative review or, in the alternative, at the cash deposit rate at the time of entry

. See id . at ¶¶ 8-11, 13- 14, 18-19 ; see also Pl.’s Resp. at 4. The

essence of DentalEZ’s complaint is that Commerce’s liquidation instruction s were a rb it ra ry, capric ious, and not in accordance with law or the terms of Commerc e’s own regulations at 19 C.F.R. § 351.212( c) or the

clarifi cation th ereof a

t Antidumping and C

o untervai ling Duty P

roceedi ngs: Assessment

of Antidumping Duties , 68 Fed. Reg. 23954 (May 6, 2003) (“

Assessment Clarification ”). See id . at ¶ 18; 19 C.F.R. § 351.212(c).Court No. 07-00029 Page 3

To assess the validity of the complaint, a c ourt must lookto the true nature of the action when determining jurisdiction. See Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006) (c itations o mitted). Subsection (i) jurisdiction is appropriate when jurisdiction under another subsecti on of sec tion 1581 is inappropriat e or “the remedy provided under that other subsectionwould be manifestly inade quate.” Miller & Co. v. United States , 824 F.2d 961, 963 (Fed. Cir. 1987). The gov ernment thus moves pursuant to USCIT Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction, arguing that DentalEZ in reality

is challenging

a determination made by Commerce during an administrative review in which DentalE Z was r equired to participate in order to bring a “proper” judicial challenge of the review pursua nt to 28 U.S.C. § 1581(c). The government

argues DentalEZ did not ava il itself o f that “d esignated statutory path for judicial review” and

theref ore this ma

tter shou ld be dismis sed. Def

.’s Mot. to

Dismiss at 1. Cf. 19 U.S.C. § 1516a(a)(2)(B)(iii); 19 U.S.C. § 1675; 28 U.S.C. § 1581(c). It is settled that this Co

urt has su bject mat t er jurisd iction over a challenge to Commerce’s liquidation instructions pursuant to the “administration and enforc ement ” langu age of 28 U.S.C. § 1581(i)(4) as that subsection relates to subsection (2). E.g. , Shinyei Corp. of Am. v. United States , 355 F.3d 1297 , 1304, 130 5 (Fed. Cir. 2004) ; Consolidated Bearings Co. v. United States , 348 F.3d 997, 1002 (Fed. Cir. 2003 ). A challenge to liquidation instructions essentially contends that the instructions do no t “ ac cu ra te ly” ( i.e. , lawfully) re flect the results of the underly ing administrative procee ding. See , e.g. , Corus Staal BV v. United States , Slip Op. 07-90 (June 5, 200 7) (ci ting Shinyei Corp. of Am. v. United States , 355 F.3d 1297, 1302-03 (Fed. Cir. 2003) and Consolidated Bearings ). In Consolidated Bearings , the fact that an importer of subject merchandise from an unrelated re sellerCourt No. 07-00029 Page 4

did not participate in an administrative review did not bar the importer from bringing an action to chall enge the lawf

ulness of liquidation instruc tions that C ommerce issued to im

pleme nt t he review’s final res ults. 348 F.3d at 1004. On remand, the court was allowed to consider evidence of Commerce’s practice regarding assessment rates for unrelat ed importe rs and resellers of subject mercha ndise who do not participate in an administrative review. Consolidated Bearings Co. v. United States , 2 8 C IT _

__ , 3 46 F. Su pp .2 d 1 34 3 ( 20 04 ). Si mi la rl y, in Shinyeithe appe llate court he ld that notwithstanding liquidation, subsection 1581(i) jurisdiction was proper for a challenge to the lawfulne ss of liquidation instructions as the embodiment of the proper application of final review results to antidumping duty assessments on imported mer chandise. 355 F.3d at 1310-12. DentalEZ claims tha

t it “does not challenge the final results.” The government argues the reality of this action is that it does, but the court disagrees and conclude s that the “ true nature” of DentalEZ’s amended complaint is not an action under section 516A of th e T ar if f A ct bu t s im pl y a chall enge to Commerce’s liquidationinstructions to Customs. The claim concerns only the manne r inwhich Commerce impl emented the final results of an administrative review afte r Commerce supposedly “clar

ified” its policy in the Assessment Clarification . The claim is that the liquidation instructions were u nlawful as issued after Commerce failed to make the ty pe of determination promised in the Assessment Clarification , to wit, whether Barden did or did not have knowledge that mercha ndise sold to DentalEZ’s U.K. affiliate was destined for the United States. While DentalEZ might have administratively prote cted the subsidiary issue ( i.e ., determination of kno wledge on the part of Barden) by particip ati ng in the administrative review, the Assessment Clarification reas onabl y led it to believe it was not required to do so. Regardless, insofar as DentalEZ only

challenges theCourt No. 07-00029 Page 5

lawfulne ss of the liqu

idation ins tructions , th ere is no “administrative remedy ” to exhaust as such. See 348 F.3d at 1003-04. DentalEZ claims Commerce was required to issue instructions to liquidate its entries at the rate assessed

for Barden or alternatively to liquidate at the cash deposit rate at the time of entry, as “promised

by” Commerce

in the Assessment Clarification

. See Pl.’s Resp. at 4. The government claims the liquidation instructions were entirely consistent

with the Assessment Clarification and it further implies tha

t Commerc e acted

affirma tively to find thatBarden did not have knowledge that merchandise sold to DentalEZ’s U.K. aff iliate was destined for the United States. Def.’s Reply a t 6 (“[h]aving not found...”). That remains to be seen, but all that need be said on the matter at this point is that the government’s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction must be, and it hereby is, denie d. The parties shall confer

and pro vi de a pro pos ed s che dul in g or der in acc ord anc e wi th US CIT Rule 16 of fuller briefing on the merits within 10 day s from the date of this opinion. SO ORDERED

.

/s/ R. Kenton Musgrave R. KENTON MUSGRAVE, JUDGE Dated: June 28, 2007 New York, New York