Slip Op. 08-98

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

_____________________________________

:

UNIPRO FOODSERVICE, INC., :

:

Plaintiff, :

:

v. : Court No.: 05-00562

:

UNITED STATES, :

:

Defendant. :

_____________________________________ :

Held: Defendant’s motion to dismiss plaintiff’s complaint for lack

of jurisdiction pursuant to USCIT R. 12(b) is granted. Case

dismissed in its entirety.

Dated: September 17, 2008

Saul Ewing LLP, (Jeffrey S. Levin) for UniPro Foodservice Inc.,

Plaintiff. 

Gregory G. Katsas, Assistant Attorney General; Barbara S. Williams,

Attorney-in-Charge, International Trade Field Office; Marcella

Powell, Civil Division, Commercial Litigation Branch, United States

Department of Justice; Of Counsel, Yelena Slepak, Office of the

Assistant Chief Counsel, United States Bureau of Customs and Border

Protection, for the United States, Defendant.
Court No. 05-00562 Page 2

1 The Bureau of Customs and Border Protection was renamed

United States Customs and Border Protection, effective March 31,

2007. See Name Change From the Bureau 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. 20,131 (Apr. 23, 2007).

OPINION

TSOUCALAS, Senior Judge: Defendant United States Bureau of Customs

and Border Protection1 (“Defendant” or “Customs”) moves to dismiss

the complaint on the ground that it lacks subject matter

jurisdiction pursuant to USCIT R. 12(b)(1). For the reasons set

forth herein, Defendant’s motion is granted.

DISCUSSION

I. Background

Plaintiff UniPro Food Service, Inc. (“UniPro” or “Plaintiff”)

commenced this action pursuant to § 515 of the Tariff Act of 1930,

as amended, 19 U.S.C. § 1515, contesting Customs’ denial of Protest

No. 1303-04-100195 regarding 94 entries of canned pineapple fruit

(“CPF”) from Thailand entered during the periods July 1, 1996

through June 30, 1997 (“second administrative review”) and July 1,

1997 through June 30, 1998 (“third administrative review”), and

liquidated on July 30, 2004. See Compl. ¶ 1. The subject

merchandise was exported from Thailand by Siam Food Canning (1988)

Co., Ltd. (“SIFCO”). See Compl. ¶ 2. UniPro was the importer of

record. See id. 
Court No.: 05-00562 Page 3 

At the time subject merchandise was entered, imports of CPF

from Thailand were subject to an antidumping order. See Canned

Pineapple Fruit from Thailand, 60 Fed. Reg. 36,775 (July 18, 1995).

SIFCO, however, was not a mandatory respondent in the original

investigation and was not subject to the first administrative

review. See Compl. ¶ 12. Therefore, SIFCO’s entries made during

the second and third administrative review periods were subject to

a cash deposit requirement for estimated dumping duties at the “all

others” rate from the underlying antidumping investigation. See

id. In this case, the “all others” rate was 24.64 percent. 

SIFCO participated in the second and the third administrative

reviews. See id. ¶¶ 13, 14. In those reviews, the United States

Department of Commerce (“Commerce”) calculated a weighted-average

dumping margin of 5.41 percent ad valorem, 63 Fed. Reg. 43,661

(Aug. 14, 1998), and 3.32 percent ad valorem, 64 Fed. Reg. 69,481

(Dec. 13, 1999), respectively. On June 24, 2004, Commerce issued

liquidation instructions for Customs to assess antidumping duties

at the cash deposit rate in effect on the date of entry. See id.

¶ 5. Pursuant to Commerce’s instructions, Customs liquidated the

entries at issue at the “all others” cash deposit rate of 24.64

percent ad valorem on July 30, 2004. See id. ¶ 6.

In late October of 2004, UniPro filed protest no. 1303-04-

100195. See id. ¶ 8. The basis for UniPro’s protest was that the

subject entries should not have been liquidated at the “all others”
Court No.: 05-00562 Page 4 

cash deposit rate because SIFCO was a reviewed producer and

exporter for purposes of the second and third administrative review

periods. See Protest No. 1303-04-100195. Instead, UniPro argued

that the entries from SIFCO should have been liquidated at an

importer-specific assessment rate and that Commerce must have made

an error in its liquidation instructions. See id.

On April 8, 2005, Customs denied UniPro’s protest on the

ground that “[t]his issue, ITA calculations or findings, is not

protestable under 19 U.S.C. §§ 1514 or 1520 because it was

reviewable under 19 U.S.C. § 1516a.” Compl. ¶ 8. On September 28,

2005, UniPro initiated the instant action by filing a summons. See

id. ¶ 9. UniPro sought this Court’s jurisdiction pursuant to 28

U.S.C. §§ 1581(a) and 2636(a). See id. Subsequently, on April 12,

2007, UniPro filed a complaint seeking this Court’s jurisdiction

pursuant to 28 U.S.C. § 1581(i). See Compl. ¶ 11. On December

26, 2007, Customs filed its motion to dismiss this action for lack

of jurisdiction. See Mem. In Supp. Of Def.’s Mot. To Dismiss For

Lack of Jurisdiction Pursuant To R. 12(b) (“Def.’s Mem.”). On

January 30, 2008, UniPro filed its response. See Mem. In Supp. Of

Pl.’s Resp. To Def.’s Mot. To Dismiss For Lack Of Jurisdiction

(“Pl.’s Resp. Br.”). On March 24, 2008, Customs filed its reply.

See Reply Mem. In Further Supp. Of Def.’s Mot. To Dismiss For Lack

of Subject Matter Jurisdiction Pursuant to R. 12(b) (“Def.’s

Reply”).
Court No.: 05-00562 Page 5 

II. The Parties’ Contentions

A. Defendant’s Contentions

Customs’ main contention is that UniPro may not challenge

Commerce’s June 24, 2004 liquidation instructions by filing a

protest to Customs because it is not a protestable decision under

19 U.S.C. § 1514(a). See Def.’s Mem. at 5-7. Customs thus argues

that this Court lacks jurisdiction under 28 U.S.C. § 1581(a). 

Specifically, Customs points to the language of 28 U.S.C. §

1581(a) which states that a protest can only be filed against a

Customs decision. See id. at 5. According to Customs, Commerce

calculated and determined antidumping duties, and Customs merely

completed a ministerial task in collecting the antidumping duties.

See id. at 6. Since such a passive activity does not constitute a

Customs decision, Customs argues that it cannot be the basis for a

valid protest under 19 U.S.C. § 1514(a). See id. In the absence

of a valid protest, Customs urges this Court to dismiss this action

for lack of jurisdiction.
Court No.: 05-00562 Page 6 

2 The statute provides that:

In addition to the jurisdiction conferred upon the

Court of International Trade by subsections (a)-(h) of

this section and subject to the exception set forth in

subsection (j) of this section, the Court of

International Trade shall have exclusive jurisdiction

of any civil action commenced against the United

States, its agencies, or its officers, that arises out

of any law of the United States providing for – 

(1) revenue from imports or tonnage;

(2) tariffs, duties, fees, or other taxes on the

importation of merchandise for reasons other than the

raising of revenue;

(3) embargoes or other quantitative restrictions on the

importation of merchandise for reasons other than the

protection of the public health or safety; or

(4) administration and enforcement with respect to the

matters referred to in paragraphs (1)-(3) of this

subsection and subsections (a)-(h) of this section.

This subsection shall not confer jurisdiction over an

antidumping or countervailing duty determination which

is reviewable either by the Court of International

Trade under section 516A(a) of the Tariff Act of 1930

or by a binational panel under article 1904 of the

North American Free Trade Agreement or the United

States-Canada Free-Trade Agreement and section 516A(g)

of the Tariff Act of 1930. 

28 U.S.C. § 1581. 

Customs admits that 28 U.S.C. § 1581(i)2

 provides the proper

jurisdictional basis to challenge the lawfulness of Commerce’s

liquidation instructions. See id. at 7-8. However, it argues that

UniPro’s claim fails because it did not file the summons and

complaint concurrently as required by 28 U.S.C. § 2632(a) and USCIT

R. 3(a). See id. Because UniPro filed its summons on September

28, 2005 and complaint on April 12, 2007, and not concurrently as
Court No.: 05-00562 Page 7 

required by § 2632(a) and USCIT R. 3(a), Customs states that this

Court is precluded from exercising jurisdiction under section

1581(i). See id. at 10. 

B. Plaintiff’s Contentions

UniPro maintains that this Court has proper jurisdiction under

28 U.S.C. § 1581(a). See Pl.’s Resp. Br. at 6. Specifically,

UniPro points to 19 U.S.C. § 1514(a)(3), which includes as one of

the enumerated grounds for a valid protest that “all charges or

exactions of whatever character within the jurisdiction of the

Secretary of the Treasury” other than ordinary customs duties. See

id. at 5-6. UniPro contends that assessment of antidumping duties

in a sum certain, as is the case here, is properly characterized as

a charge or exaction within the meaning of § 1514(a)(3). See id.

at 6. 

UniPro notes that Customs denied its April 8, 2005 protest on

the ground that it is reviewable under 19 U.S.C. § 1516a. See id.

at 5. However, UniPro explains that the “normal” avenue for

pursuing judicial review of Commerce’s final results was

unavailable. See id. According to UniPro, Commerce transmitted

liquidation instructions almost six years after the publication of

the final results of the second period of review and more than four

years after the final results of the third period of review. See

id. Since 19 U.S.C. §1516a requires an action challenging

Commerce’s final determination to be commenced within 30 days after
Court No.: 05-00562 Page 8 

the date of publication in the Federal Register, UniPro argues that

it was deprived of an opportunity to seek review of the final

results because of an impermissible delay on the part of Commerce

in issuing the liquidation instructions. See id.

III. Jurisdiction

Title 28 section 1581(a) of the United States Code confers

this court “exclusive jurisdiction of any civil action commenced to

contest the denial of a protest, in whole or in part, under section

515 of the Tariff Act of 1930.” Title 19 section 1514(a) of the

United States Code sets forth an exclusive list of protestable

Customs decisions, which includes a provision covering:

decisions of the Customs Service, including the legality

of all orders and findings entering into the same, as to

– (3) all charges or exactions of whatever character

within the jurisdiction of the Secretary of the Treasury

– shall be final and conclusive upon all persons . . .

unless a protest is filed in accordance with this

section, or unless a civil action contesting the denial

of a protest, in whole or in part, is commenced in the

United States Court of International Trade. 19 U.S.C. §

1514(a)(3). 

Plaintiff relies on Alberta Gas Chemicals, Inc. v. Blumenthal, 82

Cust. Ct. 77, 81-82, 467 F. Supp. 1245, 1249-50 (1979), for the

proposition that charges and exactions are “assessments of specific

sums of money (other than ordinary customs duties).” Plaintiff

argues that it disputed an assessment of antidumping duties in a

sum certain separate and apart from ordinary customs duties, which
Court No.: 05-00562 Page 9 

must be characterized as a charge or exaction. Plaintiff goes on

to argue that its protest was thus valid. 

It is less than clear that assessment of antidumping duties

constitutes a charge or exaction under section 1514(a)(3) as

Plaintiff contends. It is, however, unnecessary for the Court to

clarify this question because this case lacks a necessary precursor

to a valid protest – a Customs decision. See United States Shoe

Corp. v. United States, 114 F.3d 1564, 1569 (Fed. Cir. 1997),

aff’d, United States v. United States Shoe Corp., 523 U.S. 360

(1998); Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973

(Fed. Cir. 1994); American Nat’l Fire Ins. Co. v. United States, 30

CIT __, 441 F. Supp. 2d 1275 (2006). 

“‘[D]ecisions’ of Customs are substantive determinations

involving the application of pertinent law and precedent to a set

of facts, such as tariff classification and applicable rate of

duty.” United States Shoe Corp., 114 F.3d at 1569. Calculation of

antidumping duties is performed by Commerce and involves no

decision by Customs. See Mitsubishi Elec. Am., Inc., 44 F.3d at

976; American Nat’l Fire Ins. Co., 441 F. Supp. 2d at 1285.

Moreover, “entry liquidation is a Customs function, it is not

always a Customs decision.” American Nat’l Fire Ins. Co., 441 F.

Supp. 2d at 1285. “Customs’ role in liquidating entries subject to

[antidumping duty] orders is merely ministerial,” id. at 1285, and

when “Customs liquidates an entry to collect antidumping duties per
Court No.: 05-00562 Page 10 

3 It appears that even if UniPro had concurrently filed

the summons and complaint, its claim would have been time-barred. 

An action brought pursuant to 28 U.S.C. § 1581(i) must be

commenced within two years after the cause of action first

accrues. Plaintiff’s cause of action accrued on June 24, 2004

when Commerce issued the liquidation instructions. See Compl. ¶

5. However, UniPro’s complaint was not filed for almost three

(continued...)

Commerce’s instructions, it possesses no discretion in the matter,”

id. at 1286.

It is likewise the case here that Commerce calculated the

antidumping duties. Customs merely followed Commerce’s liquidation

instructions and made no decision which Plaintiff could validly

protest. Thus, this case lacks the necessary Customs decision for

a valid protest under 19 U.S.C. § 1514(a)(3), and this Court lacks

jurisdiction under 28 U.S.C. § 1581(a).

Although UniPro complains that it was deprived of an

opportunity to redress the alleged errors in Commerce’s liquidation

instructions, it could have sought this Court’s jurisdiction under

28 U.S.C. § 1581(i). See e.g., Consolidated Bearings Co. v. United

States, 348 F.3d 997, 1002 (Fed. Cir. 2003)(holding that subsection

1581(i) jurisdiction was proper for a challenge to the lawfulness

of liquidation instructions). Indeed, Plaintiff did belatedly

file a complaint claiming jurisdiction under 28 U.S.C. § 1581(i).

Unfortunately, Plaintiff failed to comply with 28 U.S.C. § 2632(a)

and USCIT R. 3(a) which require concurrent filing of a summons and

complaint. Here, UniPro filed its summons on September 28, 2005,

but did not file a complaint until April 12, 2007.3 Because
Court No.: 05-00562 Page 11 

(...continued)

years after its cause of action accrued. 

Plaintiff failed to file a summons and complaint concurrently, this

Court is precluded from exercising jurisdiction under 28 U.S.C. §

1581(i). See e.g., American National Fire Ins. Co., 441 F. Supp.

2d 1275, 1283, n. 8 (strictly construing 28 U.S.C. § 2632(a) and

USCIT R. 3(a)); Washington Int’l Ins. Co. v. United States, 25 CIT

207, 138 F. Supp. 2d 1314 (2001); Autoalliance Int’l. Inc. v.

United States, 29 CIT 1082, 398 F. Supp. 2d 1326 (2005). The Court

has carefully considered Plaintiff’s alternative arguments, but

find that they do not merit discussion. 

CONCLUSION

Based on the foregoing, Defendant’s motion to dismiss for lack

of jurisdiction is granted. Case is dismissed.

 /s/ Nicholas Tsoucalas 

 NICHOLAS TSOUCALAS 

 SENIOR JUDGE 

Dated: September 17, 2008

New York, New York