Slip Op. 10-27
UNITED STATES COURT OFINTERNATIONAL TRADE

____________________________________ : NEREIDA TRADING CO., INC., : : Plaintiff, : : Before: WALLACH, Judge v. : Court. No.: 06-00194 : UNITED STATES, : : Defendant. : : [Defendant’s Motion to Dismiss Plaintiff’s third and fourth ca uses of action is GRANTED.]

Dated: March 12, 2010 Stein Shostak Shostak Pollack & O’Hara, LLP (Elon A. Pollack and Juli C. Schwartz ) for Plaintiff Nereida Trading Co., Inc. Tony West , Assistant Attorney General; Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director, Civil Division, U.S. Department of Justice (Edward F. Kenny and David S. Silverbrand ); Chi S. Choy , Office of the Chief Counsel, U.S. Customs and Border Protection, Of Counsel; and David Richardson , Department of Commerce, Office of the Chief Counsel, Import Administration, Of C ounsel, for Defendant United States.

OPINION Wallach, Judge:
I INTRODUCTION Plaintiff Nereida Trading Co., Inc. (“Nereid a”) challenges the imposition of antidumping duties on a single entry of frozen fish fillets from the Socialist Republic of Vietnam (“the subject entry”). Pursuant to U.S. Court of Internati onal Trade Rule 12(b)(5), Defendant United States (“Defendant”) has moved to dismiss the third and fourth causes of action in Nereida’s Complaint2 “for failure to state a claim upon which relief can be granted.” Defendant’s Memorandum in Support of Its Motion to Dismiss (“ Defendant’s Memo”) at 1; see Defendant’s Motion to Dismiss (“Defendant’s Motion”). These causes of action are based on the Fifth Amendment of the U.S. Constitution and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (“APA”). Because Nereida has not pled facts that show a de privation of constitutional due process and has not demonstrated that its facts support an independent right of action under the APA, Defendant’s Motion is GRANTED and Nereida’ s third and fourth causes of action are
DISMISSED.

II BACKGROUND Nereida imported the subject entry in early 2003 . Nereida alleges that this entry arrived on or before January 30, 2003, Complaint ¶ 11, but Defendant avers that this entry arrived on February 2, 2003, Answer to Complaint (“Answer”) ¶ 11. 1 The supplier of this entry was a company known as Mekonimex. Co mplaint ¶ 9; Answer ¶ 9. 2 On January 31, 2003, the U.S. Department of Commerce (“Comm erce”) announced its preliminary determination “that certain frozen fi sh fillets from . . . Vietnam are being, or are

1 In the Answer, Defendant requested leave to delay its specific answer to the third and fourth causes of action until re solution of its motion to dismiss those causes of action. See Answer ¶¶ 43-61. This request is GRANTED. De fendant need not specifically answer those causes of action, as they are dismissed.

2 Mekonimex is the company alternatively referred to as Mekong Fish Company, Mekongfish Company, and Mekong Industries Joint Stock Company. See Certain Frozen Fish Fillets From the Socialist Republic of Vietna m: Notice of Preliminary Results and Partial Rescission of the Third Antidumping Duty Administrative Review, 72 Fed. Reg. 53,527, 53,528 (September 19, 2007); Notice of Amended Final Re sults of Antidumping Duty Administrative Review: Certain Frozen Fish Fillets from th e Socialist Republic of Vietnam, 72 Fed. Reg. 23,800, 23,801 (May 1, 2007).3 likely to be, sold in the United States at less than fair value.” Notice of Preliminary Determination of Sales at Less Than Fair Valu e, Affirmative Preliminary Determination of Critical Circumstances and Postpone ment of Final Determination: Certain Frozen Fish Fillets From the Socialist Republic of Viet nam, 68 Fed. Reg. 4,986, 4,986 (January 31, 2003) (“Preliminary Determination”). Commerce accordi ngly stated that it would direct U.S. Customs and Border Protection (“Customs”) to “sus pend liquidation of all imports of subject merchandise, entered . . . for consumption on orafter” January 31, 2003 and to “require a cash deposit or posting of a bond equal to the es timated preliminary dumping margins.” Id. at 4,997. The preliminary weighted-average marg in for Mekonimex was 49.16 percent. Id. Commerce subsequently reduced this margin to 36.76 percent. See Notice of Amended Preliminary Antidumping Duty Determination of Sales at Less Than Fair Value: Certain Frozen Fish Fillets From the Socialist Republic of Vi etnam, 68 Fed. Reg. 10,440, 10,443 (March 5, 2003) (“Amended Preliminary Determination”). Although Commerce also announced a preliminary finding of critical circumstances with respect to some suppliers, this findi ng did not extend to Mekonimex. See Preliminary Determination, 68 Fed. Reg. at 4,996; Amended Preliminary Determination, 68 Fed. Reg. at 10,444; Notice of Affirmative Preliminary Dete rmination of Critical Circumstances for Voluntary Section A Respondents: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 68 Fed. Reg. 31,681, 31,682 (May 28, 2003). A finding of critical circumstances could have triggered the retroactive imposition of an tidumping duties on merchandise imported in the 90 days prior to January 31, 2003. See 19 C.F.R. § 351.206(a); Preliminary Determination, 68 Fed. Reg. at 4,985.4 In August 2003, Commerce announced that it would direct Customs to assess antidumping duties on “all unliquidated entries of certain frozen fish fillets from Vietnam entered . . . for consumption on or after January 31, 2003.” Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Soci alist Republic of Vietnam, 68 Fed. Reg. 47,909, 47,909 (August 12, 2003) (“AD Order”). The estimated weighted-average margin for Mekonimex was 45.55 percent. Id. at 47,910. Because of a negative critical circumstances determination by the U.S. International Trade Co mmission, Commerce also announcedthat it would “instruct Customs to lift suspension and to release any bon d or other security, and refund any cash deposit made, to secure the payment of antidumping dutie s with respect to entries of the merchandise entered . . . for consumption on or after November 2, 2002, but before January 31, 2003.” Id. at 47,909. One year after the AD Order, Commerce announced the opportunity to request an antidumping duty administrative review for th e period “1/31/03-7/31/04.” Antidumping or Countervailing Duty Order, Finding, or Suspe nded Investigation; Opportunity To Request Administrative Review, 69 Fed. Reg. 46,496, 46,497 (August 3, 2004). The following month, Commerce announced that administrative review requests for several suppliers, including Mekonimex, had been received for that period. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 Fed. Reg. 56,745, 56,745 (September 22, 2004). In January 2005, Commerce announced that it was rescinding its administrative review of four suppliers, including Mekonimex, “for th e period January 1, 2003, through July 31, 2004.” Certain Frozen Fish Fillets From the Socialis t Republic of Vietnam: Rescission, in Part, of Antidumping Duty Administrative Review , 70 Fed. Reg. 4,092, 4,092 (January 28, 2005).5 Accordingly, Commerce would “direct [Custo ms] to assess antidumping duties for these companies at the cash deposit rate in effect on the date of entry for entries during the period. . . .” Id. Commerce also reminded “importers of thei r responsibility under [19 C.F.R. § 351.402(f)] to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period of time. Failure to comply with this requirement could result in the [Commerce] Secretary’s presumption that reimbursement of antidumping duties occurred and subsequent assessment of double antidumping duties.” Id. 3 Commerce transmitted liquidation instructi ons to Customs in February 2005. See U.S. Department of Commerce, Message 5038203 (Februar y 7, 2005) (“Liquidati on Instructions”). These instructions directed Customs to liquidate “a ll shipments of certain frozen fish fillets from . . . Vietnam” that had been produced or exported by one of the four suppliers and “entered . . . for consumption during the peri od 01/01/2003 through 07/31/2004.” Id. at 1 (capitalization modified). The following month, Commerce issued an administrative message stating that the “correct period should be 01/31/ 03 through 07/31/04.” U.S. Department of Commerce, Admin Msg. 05-0328 (March 24, 2008) ( capitalization modified). The liquidation instructions further directed Customs to “assess an antidumping liability equal to the amount of the bond or cash depos it required at the time of entry.” Liquidation Instructions at 1 (capitali zation modified). Finally, th e instructions provided that:

3 19 C.F.R. § 351.402(f), which was promulgate d by Commerce, has three parts relevant to this action. First, importers “must” certify to Customs prior to liquidation whether an exporter or producer has agreed to pay or reimburse the relevant antidumping duties. 19 C.F.R. § 351.402(f)(2). Second, Commerce “may” presume from the failure to file such a certification that the exporter or producer has paid or reimbursed those duties. Id. § 351.402(f)(3). Third, Commerce “will” reduce the export price by the amount that the exporter or producer has paid or reimbursed. Id. § 351.402(f)(1)(i).6 [u]pon assessment of antidumping duties, Customs should require that the importer provide a reimbursement statement as described in [19 C.F.R. § 351.402(f)]. The importer should provide th e reimbursement statement prior to liquidation of the entry. If the importe r has been reimbursed antidumping duties, Customs should double the antidumping dutie s due in accordance with the abovereferenced regulation. Additionally, if the importer fails to respond to your formal request (via CF 28 or 29) for the reimbursement statement prior to liquidation, Customs should presume reim bursement and double the antidumping duties due. Id. (capitalization modified). Customs issued a CF 29 Notice of Action to Nereida in April 2005 (“Notice of Action”).
See Complaint ¶ 16; Answer ¶ 16. The Notice of Action indicatedthat the subject entry was entered on February 2, 2003 and was covered by the AD Order. See Complaint ¶ 16; Answer ¶ 16. It also proposed an antidumping duty margin of 49.16 percent. See Complaint ¶ 16; Answer ¶ 16. Customs liquidated the subject entry in June 2005. See Complaint ¶ 17; Answer ¶ 17. Because Nereida had not filed a certificate of non-reimbursement prior to that time, Customs doubled the assessed duty margin to 98.32 percent. See Complaint ¶¶ 17-18; Answer ¶¶ 17-18. Nereida subsequently filed a certificate of non-reimbursement and a timely protest challenging three aspects of the liquidation process. See Complaint ¶ 20, Answer ¶ 20. First, Nereida argued that the assessment of antidum ping duties was erroneous because the subject entry “arrived in the Los Angeles Port limits on or before . . . January 30, 2003 and was released . . . by Customs that same day.” Complaint ¶¶ 11, 26, 37. Second, Nereida argued that even if the assessment of duties was correct, the pr oper margin was 45.55 percent rather than 49.16 percent. See id. ¶¶ 17, 26. Third, Nereida argued that bo th the presumption of reimbursement and the resulting doubling of duties were no longer proper because Nereida filed a certificate of non-reimbursement within the protest period and was never actually re imbursed for the duties7 that it paid. See id. ¶¶ 17, 18, 37. Customs denied Nereid a’s protest at the end of 2005. See id. ¶ 4; Answer ¶ 4. Nereida thereafter commenced this action unde r 28 U.S.C. § 1581(a) and asserted four “causes of action” in its Compla int, each of which encompasses one or more specific claims involving determinations attributed to Customs. See Complaint ¶¶ 3, 23-62. The first cause of action (“incorrect liquidation” ) challenges the assessment of antidumping duties and the selection of the antidumping duty margin. See id. at 4, ¶¶ 31-33. The second cause of action (“incorrect duty assessment”) and the third cau se of action (“due pro cess violation”) both challenge the presumption of reimbursemen t and the doubling of antidumping duties. See id. at 5, 7, ¶¶ 42, 52. The fourth cause of action (“AP A violation”) challenge s the assessment of antidumping duties, the selection of the an tidumping duty margin, the presumption of reimbursement, and the doubling of antidumping duties. See id. at 8, ¶¶ 57-61. Defendant admitted jurisdiction under 28 U.S.C. § 1581(a), see Answer ¶ 3, and moved to dismiss the third and fourth causes of action “f or failure to state a claim upon which relief can be granted,” Defendant’s Memo at 1.

III STANDARD OF REVIEW In deciding a motion to dismiss, “the Court a ssumes that ‘all well-pled factual allegations are true,’ construing ‘all reasonable inferences in favor of th e nonmovant.’” United States v. Islip , 22 CIT 852, 854, 18 F. Supp. 2d 1047 (1998) (quoting Gould, Inc. v. United States , 935 F.2d 1271, 1274 (Fed. Cir. 1991)). “Dismissal for fa ilure to state a claim upon which relief can be granted is proper if the plain tiff’s factual allegations are not ‘e nough to raise the right to relief above the speculative level on the assumption that all the allegati ons in the complaint are true8 (even if doubtful in fact).’” Int’l Custom Prods. v. United States , 549 F. Supp. 2d 1384, 1389 (CIT 2008) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)); cf. Ashcroft v. Iqbal , 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009) (“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that the pl eader is entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)(2)).

IV DISCUSSION Nereida and Defendant agree that 28 U.S. C. § 1581(a) provides jurisdiction over Nereida’s claims. See Complaint ¶ 3; Answer ¶ 3. 4 Because Nereida has not pled facts that show a deprivation of constitutional due process, its third cause of action fails to state a claim for which relief can be granted. See infra Part IV.A. Because Nereida has not demonstrated that its facts support an independent APA right of action, its fourth cause of action also fails to state a claim for which relief can be granted. See infraPart IV.B.

A Nereida’s Third Cause Of Action Fails To State A Claim For Which Relief Can Be Granted Nereida’s third cause of action alleges that the presumption of reimbursement, which it attributes to Customs, worked a deprivati on of property unaccompanied by the procedural protections required by the due pr ocess clause of the Fifth Amendment to the U.S. Constitution.
See Complaint ¶¶ 43-52. Defendant challenges this cause of action with an expansive reading of

4 At oral argument, the court directed the parties to review whether 28 U.S.C. § 1581(a) is the appropriate jurisdictional basis for each of th e specific claims encomp assed by Nereida’s four causes of action. February 8, 2010 Or al Argument at 11:02:03-11:02:47.9 Federal Circuit precedent that w ould erect a firewall between fore ign trade and Fifth Amendment due process. See Defendant’s Memo at 4-5 (“Because Nereida’s claims are based upon the imposition of tariffs . . . there can be no taki ng of property without due process of law.”). Federal Circuit precedent reflects a more nuanc ed approach to questions of constitutional due process. “Indisputably, engaging in forei gn commerce is not a funda mental right protected by notions of substantive due process. . . . Nonetheless, an importer may be entitled to procedural due process regarding the resolution of disputed facts involved in a case of foreign commerce when the importer faces a deprivation of ‘life, liberty, or pr operty’ by the Federal Government.” NEC Corp. v. United States , 151 F.3d 1361, 1369-70 (Fed. Cir. 1998); cf. Transcom, Inc. v. United States , 24 CIT 1253, 1272, 121 F. Supp. 2d 690 (2000) (“It is impossible to comprehend how an importer’s lack of vested right to import merchandise in the future negates the obligation to provide th e importer with notice prior to imposing an antidumping duty for the merchandise already im ported. The Court shares [the importer’s] bewilderment [and] shall not entertain [the govern ment’s] argument since it fails to differentiate between substantive and procedural Due Pro cess claims and lacks any merit.”), aff’d , 294 F.3d 1371 (Fed. Cir. 2002). “It is well established that wh en considering a procedural due process issue, ‘the court must first determine whether a prot ected property or liberty interest exists, and if such an interest exists, then determine what procedures are necessary to protect that interest.’” Int’l Trading Co. v. United States , 24 CIT 596, 609, 110 F. Supp. 2d 977 (2000) (quoting Techsnabexport, Ltd. v. United States , 16 CIT 420, 426, 795 F. Supp. 428 (1992) (citing Am. Ass’n of Exporters & Importers v. United States , 751 F.2d 1239, 1250 (Fed. Cir. 1985)) (additional citation omitted)), aff’d , 281 F.3d 1268 (Fed. Cir. 2008). This court has pr eviously recognized that trade statutes10 give rise to protected interests in some circumstances. See, e.g. , Int’l Custom Prods. , 549 F. Supp. 2d at 1396; Int’l Trading , 24 CIT at 610; Techsnabexport , 16 CIT at 427 (citing examples). Like the Federal Circuit in NEC Corp. , 151 F.3d at 1371, this court has also declined to determine whether a protected interest exists in other circumstances, see Techsnabexport , 16 CIT
at 427-28. Gilda Industries v. United States , 446 F.3d 1271 (Fed. Cir. 2006), does not compel a departure from this careful approach to procedural due process. In that case, the Federal Circuit held that the U.S. Trade Representative’s cont inuation of a retaliatory tariff on toasted breads from the European Community “did not deprive [t he importer] of a property interest as to which it was entitled to additional procedural protecti ons as a matter of constitutional due process.” Gilda Indus. , 446 F.3d at 1284. This holding is consiste nt with the longstanding recognition that importers lack a protected interest in the future importation of goods at a particular tariff rate, see Norwegian Nitrogen Prods. Co. v. United States , 288 U.S. 294, 297, 318-19, 53 S. Ct. 350, 77 L. Ed. 796 (1933) (upholding a new tariff rate on goods subsequently imported), and does not preclude a protected inte rest in the proper assessment of tariffs on goods already imported. On the assumption that Nereida has such an in terest, “the question that remains . . . is what process is due.” NEC Corp. , 151 F.3d at 1371. “Procedural due process is not an inflexible, absolute standard.” Techsnabexport , 16 CIT at 427 (citing Board of Curators of the Univ. of Mo. v. Horowitz , 435 U.S. 78, 86, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978)). “[T]he essential elements of due process are notice and the opportunity to be heard. The test is one of fundamental fairness in light of the total circumstances.” Id. at 427-28 (citations and quotations omitted). Nereida has not pled facts that show any deprivation of eith er notice or the opportunity to be heard. To the contrary, Nereida concedes fact s that show both of these elements. The Notice11 of Action put Nereida on notice th at Customs intended to liquidate the subject entry pursuant to the AD Order. See Complaint ¶ 16. Nereida subsequently failed to take advantage of its opportunity to be heard when it “i nadvertently neglected to file” the required certificate of nonreimbursement prior to liquidation. Complaint ¶ 18. The additional facts pled by Ne reida do not change this analysis. Nereida alleges that, two months after liquidation, Cust oms directed it to file a certif icate of non-reimbursement. See id. ¶ 19. However, a directive that Customs issuedafter liquidation could not have affected the process that Customs provided prior to liquidatio n. Moreover, Nereida does not allege, and the court cannot reasonably infer, that Customs issueda similar directive prior to liquidation. See id. ¶¶ 1-62. Nereida also alleges that it “was never reimbursed its [antidumping duty] assessment by Mekonimex or any other party.” Id. ¶ 18. However, its asserted property interest does not here excuse its noncompliance with a deadline of wh ich it had notice. In decisions involving a different Commerce regulation, this court has held that procedur al due process does not require the acceptance of an untimely submission. See Seattle Marine Fishing Supply Co. v. United
States , 12 CIT 60, 74-77, 679 F. Supp. 1119 (1988) ( upholding Commerce’s rejection of untimely responses to a questionnaire); Kerr-McGee Chem. Corp. v. United States , 21 CIT 11, 20, 955 F. Supp. 1466 (1997) (describing decisions upholding the rejection of untimely information from the administrative record); cf. Charles Alan Wright & Charles H. Koch, Jr., 33 Federal Practice and Procedure: Judicial Review § 8303 (1st Ed. 2009) (“Only the most extreme excuse will justify missing a deadline” to seek judicial review of agency action.). Because Nereida has not pled facts that show a deprivatio n of constitutional due process, its third cause of action fails to state a claim for which relief can be granted.12 B Nereida’s Fourth Cause Of Action Fails To State A Claim For Which Relief Can Be Granted Nereida’s fourth cause of action challenge s the assessment of an tidumping duties, the selection of the antidumping duty margin, the presumption of reimbursement, and the doubling of antidumping duties. See Complaint ¶¶ 57-61. Like the corresponding portions of the other causes of action, the fourth cause at tributes these determinations to Customs and alleges that they were factually or legally erroneous. See id. Unlike the corresponding portions of the other causes, the fourth cause explicitly relies on the APA’s judicial review provisions. See id. ¶¶ 55- 56. The APA’s judicial review pr ovisions recognize that specif ic statutes may govern the review of particular agency actions. The APA provisions apply “except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a re levant statute, is entitled to judicial review thereof.” Id. § 702. “Agency action made review able by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” Id. § 704. “The form of proceeding for judicial revi ew is the special statutory review proceeding relevant to the subject matter in a co urt specified by statute. . . .” Id. § 703. These provisions are consistent with actio ns under this court’ s 28 U.S.C. § 1581(a) jurisdiction. The denial of a valid protest by Customs is “mad e reviewable by statute.” Id. § 704;

see 19 U.S.C. § 1514(a). In turn, 28 U.S.C. §§ 2 631-2646 establish the “speci al statutory review proceeding” for an action seeking such a review. 5 U.S.C. § 703; see, e.g. , 28 U.S.C. §§ 2631, 2632, 2636, 2640, 2643 (specifying, respectively, pers ons entitled to commence an action,13 procedures to commence an action, time limitations , standards of review, and forms of relief). Accordingly, when jurisdiction is invoked unde r 28 U.S.C. § 1581(a), a generalized right of action under the APA would appear to be depe ndent on and coterminous with a more specific right of action under 19 U.S.C. § 1514(a). Defendant argues that 19 U.S.C. § 1514 disp laces the APA’s judici al review provisions and that the fourth cause of action’s reliance on these provisi ons is therefore fatal. See Defendant’s Memo at 5-6; Defe ndant’s Reply in Support of Its Motion to Dismiss (“Defendant’s Reply”) at 6-7. Volkswagen of America, Inc. v. United States , 532 F.3d 1365 (Fed. Cir. 2008), on which Defendant bases its argument, addressed a different circumstance under this court’s 28 U.S.C. § 1581(i) jurisdiction. The plaintiff in that case “i nvoke[d] a Customs regulation, 19 C.F.R. § 158.12, as a cause of action independent from the protest procedures in 19 U.S.C. § 1514.” Volkswagen , 532 F.3d at 1367. The Federal Circuit de termined that jurisdiction under 28 U.S.C. § 1581(i) was appropriate , in part because the plainti ff “could not have filed a valid protest under” 28 U.S.C. § 1581(a). Id. at 1369 (describing this c ourt’s holding), 1374. It then determined that the plaintiff’s right of action ac tually fell under the APA but that, pursuant to 5 U.S.C. § 701(a)(1), 19 U.S.C. § 1514 precluded such an “inde pendent cause of action.” Id. at 1369, 1373, 1374; see also Volkswagen of Am., Inc. v. United States , 540 F.3d 1324, 1331 n.2 (Fed. Cir. 2008) (“[Volkswagen , 532 F.3d at 1369,] held that 19 C.F.R. § 158.12 does not create a separate cause of action for [the allowance sought by the plaintiff], and that the only cause of action for such an allowance must be made pursu ant to the procedures set forth in 19 U.S.C. § 1514.”). The Federal Circuit explained that reco gnition of that “independent cause of action” would “frustrate” 19 U.S.C. § 1514’s “‘single, co ntinuous procedure for d eciding all issues in14 any entry of merchandise.’” Volkswagen , 532 F.3d at 1373 (quoting S. Rep. No. 91-576 at 11 (1969)). In contrast, the fourth cause of action woul d appear to be dependent on and consistent with the single procedure specified by 19 U.S.C. § 1514. Pursuant to that procedure, Nereida protested the liquidation of the subject entry along with “[f]indings related to liquidation.” Volkswagen , 532 F.3d at 1370. After Customs denied it s protest, Nereida invoked this court’s 28 U.S.C. § 1581(a) jurisdiction in order to obtain the “special statutory review proceeding relevant to” decisions of Customs. 5 U.S.C. § 703. On this view, the fourth cause would be merely a redundant reference to that proceeding. See Complaint at 4-5, ¶¶ 23-33 (“First Cause of Action: Incorrect Liquidation” ), 5-6, ¶¶ 34-42 (“Second Cause of Action: Incorrect Duty Assessment”). However, Nereida has implied that its fourth cau se of action is distin ct from rather than duplicative of its other causes of action. In its Complaint, Nereida asserted this cause separately, labeled it “violation” of the APA, and describe d it through exclusive re ference to the APA’s general judicial revi ew provisions. See Complaint at 8, ¶¶ 53-61. Mo reover, at oral argument, Nereida characterized the cause as an “alternative” basis for relief. See February 8, 2010 Oral Argument at 11:22:40-11:23:19. Since the fourth cause of action accordingly a sserts an independent APA right of action, it must fail for two reasons. First, Nereida has no t demonstrated that the actions it attributes to Customs fall beyond 5 U.S.C. § 704’s first prong (“[a ]gency action made reviewable by statute”) and under U.S.C. § 704’s second prong (“final agency action for which there is no other adequate remedy in a court”). See Plaintiff’s Memorandum in O pposition to Defendant’s Motion to Dismiss for Failure to State a Claim Under U. S. CIT R. 12(b)5 (“Nereida’s Opposition”) at 7-15 9. Second, even if Nereida had situated those actions under the second prong, it has not demonstrated that recognition of an “independent cause of ac tion” would not “frustrate” 19 U.S.C. § 1514. Volkswagen , 532 F.3d at 1373; see Nereida’s Opposition at 7-9. In short, Nereida has distinguished the fourth cause of action too much from its other causes of action and too little from Volkswagen , 532 F.3d 1365. Because Nereida has not demonstrated that its facts support an independent APA right of action, its fourth cause of ac tion fails to state a claim for which relief can be granted.

V CONCLUSION For the reasons stated above, Defendant’s Motion is GRANTED and Nereida’s third and fourth causes of action are DISMISSED.

__/s/ Evan J. Wallach____ Evan J. Wallach, Judge

Dated: March 12, 2010 New York, New York