Slip Op. 00 - 133

UNITED STATES COURT OF INTERNATIONAL TRADE

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XEROX CORPORATION, :

Plaintiff, :

v. : Court No. 97-03-00435

:

UNITED STATES,

:

Defendant.

:

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Memorandum & Order

[Defendant's motion to dismiss complaint for

recovery of liquidated antidumping duties

granted.]

Decided: October 19, 2000

Neville, Peterson & Williams (John M. Peterson, George W.

Thompson and Curtis W. Knauss) for the plaintiff.

David W. Ogden, Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commerical Litigation Branch, Civil Division, U.S. Department of

Justice (James A. Curley); and Office of Assistant Chief Counsel,

U.S. Customs Service (George Brieger), of counsel, for the defendant.

AQUILINO, Judge: Some five years after publication

of the Antidumping Duty Order of Sales at Less Than Fair Value;

Industrial Belts and Components and Parts Thereof, Whether Cured

or Uncured, From Japan, 54 Fed.Reg. 25,314 (June 14, 1989), by

the International Trade Administration, U.S. Department of Commerce ("ITA"), Inv. No. A-588-807, goods from Japan entered the

port of Rochester, New York, consigned to the Xerox Corporation,
Court No. 97-03-00435 Page 2

Nos. 818-0183467-2 (Sept. 22, 1994) and 818-0187011-4 (April 14,

1995). The entry summary of each, executed by the customhouse

broker on Customs Form 7501, included specific reference to the

aforesaid antidumping-duty order, with the rate thereunder stated

to be 93.16 percent ad valorem. Duties at that rate and the other

imposts upon importation were liquidated by Customs for both entries on June 7, 1996.

Xerox thereupon challenged the payment of the antidumping duties via timely formal protest, lodged with the Service pursuant to 19 U.S.C. §1514 and 19 C.F.R. Part 174 (1996),

which was denied by Customs on the stated ground of "no supporting documentation". This action ensued with the filing and service of a summons and complaint. In the latter, the plaintiff

pleads, among other things:

5. The merchandise which is the subject of

this action consists of certain rubber and plastic feed belts which are used in the manufacture

of photocopiers. . . .

6. The belts . . . are products of Japan.

7. The belts . . . are used to carry paper

across the light-platen or digital scanner platen

of a photocopier machine or digital multifunction

printer.

8. The belts . . . are not used in the transmission of power.

9. The belts involved in this action are not

reinforced with textile or other materials.

***

16. As the imported belts which are the subject of this action are not used in power trans-
Court No. 97-03-00435 Page 3

1 Subsection (j) of that cited regulation provided for suspension of liquidation during the pendency of an ITA scope inquiry.

mission, and do not contain textile fiber (including glass fiber) or steel wire, cord or strand,

they are not within the scope of the antidumping

duty order against Industrial Belts from Japan.

Whereupon, the court is requested to order reliquidation of the

entries with refund of the allegedly-inapposite antidumping duties.

I

Jurisdiction is pleaded under 28 U.S.C. §1581(a), which

the defendant now challenges in a motion to dismiss pursuant to

CIT Rule 12(b)(1). Its gravamen is that plaintiff's merchandise

called into question the precise scope of the antidumping-duty

order, which subject matter Congress has made the responsibility

of Commerce, not Customs. And pursuant thereto, the ITA has and

has had regulations, e.g., 19 C.F.R. §353.29(b) (1995), enabling

importers like Xerox to file applications to determine whether

particular products are within the purview of existing antidumping-duty orders.1 Also, Congress has provided for judicial review of such determinations per 19 U.S.C. §1516a(a)(2)(A)(ii)

and (B)(vi) and 28 U.S.C. §1581(c) (1995). Given this approach,

and the fact that Xerox did not follow it, the defendant takes

the position that this court has no jurisdiction to grant any

relief -- pursuant to section 1581(a) or otherwise.
Court No. 97-03-00435 Page 4

2 Plaintiff's Response to Defendant's Motion to Dismiss, p.

2 (emphasis in original). The quality of this written response

obviates any need to grant plaintiff's motion for oral argument,

which is therefore hereby denied.

The plaintiff responds that the antidumping-duty order

at bar is clear on its face, that the goods at issue just as

clearly are not within its scope, and thus that Customs simply

erred in carrying out its ministerial duty to administer the order as published by the Commerce

Department. In contrast to the situation presented in Sandvik, Inc. v. United States, 164 F.3d 596

(Fed.Cir. 1998), the case around which defendant's

motion to dismiss is constructed, this action does

not involve interpretation or clarification of the

scope of the antidumping duty order; it merely involves a challenge to Customs' findings of fact,

and the application of those facts to an order

whose scope is clear and undisputed.2

However sound plaintiff's factual averments may be,

they are not necessarily dispositive of its current predicament.

To begin with, when a motion is made pursuant to CIT Rule 12(b)-

(1), which

denies or controverts the pleader's allegations

of jurisdiction, . . . the movant is deemed to

be challenging the factual basis for the court's

subject matter jurisdiction. . . . In such a

case, the allegations in the complaint are not

controlling, . . . and only uncontroverted factual allegations are accepted as true for purposes

of the motion.

Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.

1993) (citations omitted), cert. denied, 512 U.S. 1235 (1994).

Moreover, in the opinion relied upon by the defendant and referred to by the plaintiff, supra, the court of appeals affirmed
Court No. 97-03-00435 Page 5

decisions of the Court of International Trade which granted

government motions to dismiss for lack of subject-matter jurisdiction over actions seeking refunds from Customs for allegedlyunwarranted exactions of antidumping duties. See Fujitsu Ten

Corp. of America v. United States, 21 CIT 104, 957 F.Supp. 245

(1997), and Sandvik Steel Co. v. United States, 21 CIT 140, 957

F.Supp. 276 (1997), aff'd sub nom. Sandvik Steel Co. v. United

States, 164 F.3d 596 (Fed.Cir. 1998). The circuit court held

that the

detailed scope determination procedures that Commerce has provided constitute precisely the kind

of administrative remedy that must be exhausted

before a party may litigate the validity of the

administrative action. Applying the exhaustion

doctrine in the present situation "serves the

twin purposes [of the doctrine] of protecting

administrative agency authority and promoting

judicial efficiency."

164 F.3d at 599-600, quoting McCarthy v. Madigan, 503 U.S. 140,

145 (1992).

Both CIT decisions were published before this action

commenced. In Fujitsu as apparently herein, Customs concluded

that an antidumping-duty order covered certain imports, and entries were liquidated to include the duties prescribed by that

order. The importer protested those liquidations with the Service, but also filed a request with the ITA for a formal ruling

as to the scope of its order. While that ruling ultimately proved favorable to the importer, the ITA nonetheless recommended
Court No. 97-03-00435 Page 6

that Customs deny the protests with respect to all entries that

had been liquidated prior to the ruling request. Whereupon suit

was brought against both agencies. Again in Sandvik, the Service

concluded that an antidumping-duty order covered certain imports

and acted accordingly, liquidating entries and collecting antidumping duties thereby. The importer filed a protest, which Customs denied, and its court action ensued, alleging jurisdiction

pursuant to 28 U.S.C. §1581(a) or (i).

Here, the plaintiff attempts to distinguish this action

on the facts, but to little avail. As the court of appeals pointed out in Sandvik, although cases may be factually different,

such difference

is immaterial. The basic principle applied in

Nichimen and Mitsubishi is equally applicable

to the present case: that, as stated in Nichimen, the statute "exclude[s] antidumping determinations from the matters that can be protested

to Customs."

164 F.3d at 602, referring to Mitsubishi Elec. of America, Inc.

v. United States, 44 F.3d 973 (Fed.Cir. 1994), and quoting Nichimen America, Inc. v. United States, 938 F.2d 1286, 1290 (Fed.

Cir. 1991). Indeed, what the plaintiff would in effect now have

is a judicial determination ab initio of the scope of the ITA's

order, but Congress has not authorized such an approach for this

court any more than it has for the Customs Service.
Court No. 97-03-00435 Page 7

II

Hence, defendant's motion to dismiss for lack of subject-matter jurisdiction must be granted. Judgment will enter

accordingly.

So ordered.

Decided: New York, New York

October 19, 2000

______________________________

Judge
J U D G M E N T

UNITED STATES COURT OF INTERNATIONAL TRADE

Thomas J. Aquilino, Jr., Judge

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XEROX CORPORATION, :

Plaintiff, :

v. : Court No. 97-03-00435

:

UNITED STATES,

:

Defendant.

:

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This action having been duly submitted for decision;

and the court, after due deliberation, having rendered a decision herein; Now therefore, in conformity with said decision,

it is

ORDERED, ADJUDGED and DECREED that defendant's motion

to dismiss plaintiff's complaint be, and it hereby is, granted;

and it is further

ORDERED, ADJUDGED and DECREED that this action be, and

it hereby is, dismissed.

Dated: New York, New York

October 19, 2000

Judge