Slip Op. 03-19

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: HONORABLE NICHOLAS TSOUCALAS

___________________________________

:

SHINYEI CORPORATION OF AMERICA, :

:

Plaintiff, :

:

v. : Court No. 01-00759

:

UNITED STATES, et. al., :

:

Defendant. :

___________________________________:

Defendant, the United States (“Defendant”), moves to dismiss

this action pursuant to USCIT R. 12(b)(1) for lack of subject

matter jurisdiction and USCIT R. 12(b)(5) for failure to state a

claim on which relief can be granted. For the reasons stated

herein, Defendant’s motion to dismiss is granted under USCIT R.

12(b)(1) for lack of subject matter jurisdiction.

Held: Defendant’s motion to dismiss pursuant to USCIT R.

12(b)(1) is granted. This case is dismissed. 

Dated: February 14, 2003

Charles H. Bayar, Esq. for Shinyei Corporation of America,

plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General; John J.

Mahon, Acting Attorney in Charge, International Trade Field Office,

Commercial Litigation Branch, Civil Division, United States

Department of Justice (James A. Curley); of counsel: Edward N.

Maurer, Office of Assistant Chief Counsel, United States Customs

Service, for the United States, defendant. 
Court No. 01-00759 Page 2

1 In its original complaint, Shinyei sought: (a) a writ of

mandamus directing the United States Customs Service (“Customs”) to

liquidate Shinyei’s entries of certain bearings, see Pl.’s Compl.

¶¶ 3(a), 10-14; or (b) to declare certain instructions issued by

the United States Department of Commerce, International Trade

Administration (“Commerce”), in violation of 19 U.S.C. § 1675(a)(2)

(1988 & Supp. 1993) and remand this case to Commerce for the

purpose of issuing an appropriate set of instructions to Customs

with regard to liquidation of the merchandise at issue. See id. ¶¶

3(b), 15-20; accord Pl.’s Resp. Def.’s Mot. Dismiss (“Pl.’s Resp.”)

at 3. 

OPINION

TSOUCALAS, Senior Judge: Defendant, the United States

(“Defendant”), moves to dismiss this action pursuant to USCIT R.

12(b)(1) for lack of subject matter jurisdiction and USCIT R.

12(b)(5) for failure to state a claim on which relief can be

granted. For the reasons stated herein, Defendant’s motion to

dismiss is granted under USCIT R. 12(b)(1) for lack of subject

matter jurisdiction.

DISCUSSION

I. Background

A. Procedural Background 

Plaintiff Shinyei Corporation of America (“Shinyei”), a New

York corporation wholly owned by Shinyei USA Corp., a Delaware

corporation which in turn is wholly owned by Shinyei Kaisha Company

(“Kaisha”), a Japanese company, filed a complaint on August 24,

2001.1 On September 25, 2002, this Court granted Shinyei’s motion
Court No. 01-00759 Page 3

2 The entries at issue in this case are listed in Pl.’s First

Am. Compl. App. A.

3 On a motion to dismiss pursuant to USCIT R. 12(b)(1) for

lack of subject matter jurisdiction, 

the Court considers whether the moving party challenges

the sufficiency of the pleadings or the factual basis

underlying the pleadings. In the first instance, the

Court must accept as true all facts alleged in the nonmoving party’s pleadings. In the second instance, the

Court accepts as true only those facts which are

uncontroverted. All other facts are subject to fact

finding by the Court. 

SSK Indus., Inc. v. United States, 24 CIT ___, ___, 101 F. Supp. 2d

825, 829 n.8 (2000) (citing Power-One Inc. v. United States, 23 CIT

959, 962 n.9, 83 F. Supp. 2d 1300, 1303 n.9 (1999)). 

4 On a motion to dismiss pursuant to USCIT R. 12(b)(5) for

(continued...)

for leave of the Court to amend its complaint filed on August 24,

2001, in which Shinyei seeks to declare certain instructions issued

by the United States Department of Commerce, International Trade

Administration (“Commerce”), in violation of 19 U.S.C. § 1675(a)(2)

(1988 & Supp. 1993) and remand this case to Commerce for the

purpose of issuing corrected instructions with regard to

liquidation of the Shinyei entries2 of certain bearings. See Pl.’s

First Am. Compl. ¶¶ 3-4, 8-13; accord Pl.’s Resp. Def.’s Mot.

Dismiss (“Pl.’s Resp.”) at 2-3, 5-6. Subsequently, Defendant on

October 8, 2002, moved to dismiss this case pursuant to USCIT R.

12(b)(1) for lack of subject matter jurisdiction3 and USCIT R.

12(b)(5) for failure to state a claim on which relief can be

granted.4 See Def.’s Mot. Dismiss (“Def.’s Mot.”). 
Court No. 01-00759 Page 4

4

(...continued)

failure to state a claim on which relief can be granted, “the court

must assume all well-pled factual allegations to be true, and must

make any inferences in favor of the non-moving party.” United

States v. Ferro Union Inc., 2000 Ct. Intl. Trade LEXIS 100, *2,

Slip. Op. 00-100 (Aug. 16, 2000) (citing Kemet Elecs. Corp. v.

Barshefsky, 21 CIT 912, 929, 976 F. Supp. 1012, 1027 (1997)

(quoting in turn Gould, Inc. v. United States, 935 F.2d 1271, 1274

(Fed. Cir. 1991)).

B. Factual Background

During the period from May 1, 1992, to April 30, 1993, Shinyei

imported certain merchandise into the United States. See Pl.’s

Resp. at 1. The merchandise at issue was purchased by Shinyei from

Kaisha which, in turn, purchased the merchandise from certain

Japanese manufacturers, one of which was Nankai Seiko Co., Ltd.

(“Nankai”). See id. (citing Pl.’s First Am. Compl. ¶ 4); see also

Pl.’s First Am. Compl. App. A.

The merchandise at issue was subject to an antidumping

investigation. See Initiation of Antidumping Duty Investigation;

Antifriction Bearings (Other Than Tapered Roller Bearings) and

Parts Thereof From Japan, 53 Fed. Reg. 15,076 (Apr. 27, 1988). On

November 9, 1988, Commerce published its preliminary determination

with regards to this investigation instructing the United States

Customs Service (“Customs”) that: (a) liquidations of the subject

merchandise should be suspended; and (b) deposits or bonds should

be required at a certain rate for future entries from all non-
Court No. 01-00759 Page 5

5 The period of review covers May 1, 1992, through April 30,

1993. See Final Results of Antidumping Duty Administrative

Reviews, Partial Termination of Administrative Reviews, and

Revocation in Part of Antidumping Duty Orders of Antifriction

Bearings (Other Than Tapered Roller Bearings) and Parts Thereof

From France, et. al. (“Final Results”), 60 Fed. Reg. 10,900 (Feb.

28, 1995). 

investigated manufacturers, producers and exporters, including

Nankai. See Preliminary Determinations of Sales at Less Than Fair

Value: Antifriction Bearings (Other Than Tapered Roller Bearings)

and Parts Thereof From Japan, 53 Fed. Reg. 45,343; see also Pl.’s

First Am. Compl. ¶ 5. This deposit and bond rate was corrected by

Commerce in the final determination. See Final Determinations of

Sales at Less Than Fair Value; Antifriction Bearings (Other Than

Tapered Roller Bearings) and Parts Thereof From Japan

(“Determination”), 54 Fed. Reg. 19,101 (May 3, 1989); see also

Pl.’s First Am. Compl. ¶ 5. On the basis of this Determination,

Commerce published an antidumping duty order. See Antidumping Duty

Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical

Plain Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904

(May 15, 1989); see also Pl.’s First Am. Compl. ¶ 5. 

During the fourth review (“POR”)5, Shinyei deposited estimated

antidumping duties on the entries at issue at certain specified

rates. See Pl.’s First Am. Compl. ¶ 6; see also Pl.’s Resp. at 2.

On February 28, 1995, Commerce published the final results of the

fourth review in which Commerce established inter alia a specific
Court No. 01-00759 Page 6

antidumping duty deposit rate for the merchandise manufactured by

Nankai. Final Results of Antidumping Duty Administrative Reviews,

Partial Termination of Administrative Reviews, and Revocation in

Part of Antidumping Duty Orders of Antifriction Bearings (Other

Than Tapered Roller Bearings) and Parts Thereof From France, et.

al. (“Final Results”), 60 Fed. Reg. 10,900; see also Pl.’s First

Am. Compl. ¶ 7. Consequently, on August 26, 1999, Commerce issued

Message No. 9238114 (“Nankai Instructions”) instructing Customs to

liquidate the merchandise manufactured by Nankai entered during the

POR at specified per-unit assessment rates. See Pl.’s First Am.

Compl. ¶ 8

Shinyei commenced this case by filing a complaint on August

24, 2001. Shinyei “did not seek, and the Court did not issue, any

injunction to suspend liquidation of the [e]ntries [at issue]

pending its final decision.” Pl.’s Resp. at 4. On April 26, 2002,

Commerce issued “a ‘clean-up’ instruction to Customs to liquidate

‘as entered’ all [fourth] [r]eview [p]eriod entries of [the

merchandise at issue] from Japan that had not been liquidated under

previously-issued instructions[.]” Id. at 5. The entries at issue

were liquidated as follows: (1) “[t]he New York/JFK [e]ntries were

liquidated on April 26, 2002”; (2) “[t]he [e]ntries made through

the port of Boston . . . were liquidated on June 21, 2002”; and (3)

“those made through the port of New York/Newark . . . were

liquidated on June 28, 2002.” Id. (citing Pl.’s First Am. Compl.
Court No. 01-00759 Page 7

6 In its response brief, Shinyei points out that “[a]fter

Customs posted bulletin notices of the [liquidations of the entries

at issue], [Shinyei] filed protests against them on the ground that

they reflected a different form of Customs Error, i.e., Customs’

failure to liquidate the [e]ntries [at issue] under the [Nankai]

Instructions.” Pl.’s Resp. at 5. Shinyei states that “[Shinyei]

is pursuing these protests strictly to preserve its rights in case

it should ultimately be decided that the . . . liquidations [at

issue] reflect Customs Error rather than Commerce Error.” Id. at

5 n.8. 

7 In its civil action, Shinyei contests the Nankai

Instructions and argues that

[o]n August 26, 1999, . . . Commerce [issued the Nankai

Instructions] instruct[ing] . . . Customs . . . to

liquidate all [fourth] [r]eview entries of ball bearings

from Japan produced by [Nankai] and ‘exported by,

imported by, or sold to’ certain parties, including the

[United States] [c]ustomers, with assessments of

antidumping duty at specified per-unit rates, and with

interest as provided by law. . . . The [Nankai]

Instructions did not direct[ly] mention [Kaisha] as an

exporter or purchaser or [Shinyei] as an importer or

purchaser, nor did they inform Customs that [Shinyei] was

the importer of record in sales to the [United States]

[c]ustomers. . . . On information and belief, the

(continued...)

¶ 9); see also Pl.’s First Am. Compl. App. A.

On September 25, 2002, this Court granted Shinyei’s motion for

leave of the Court to amend its complaint filed on August 24, 2001,

in which Shinyei limited its claim to Commerce error6 stating in

pertinent part: 

In this civil action, [Shinyei] alleges that Commerce has

formulated the [Nankai Instructions] which, unlawfully,

do not reflect the relevant antidumping duty

determinations that Commerce made in the [fourth review].

As a consequence of unlawful instructions, Customs has

[liquidated the entries at issue] with incorrect

assessments of antidumping duty.7
Court No. 01-00759 Page 8

7

(...continued)

[Nankai] Instructions stated that they constituted the

immediate lifting of suspension of liquidation of entries

of the merchandise described therein, and that they were

not to be disclosed to the public.

Pl.’s Resp. at 2-3 (citing Pl.’s First Am. Compl. ¶¶ 8, 10).

8 Defendant points out that when Shinyei commenced this case

by filing a complaint on August 24, 2001, “Shinyei did not request,

(continued...)

Pl.’s Resp. at 5-6 (quoting Pl.’s First Am. Compl. ¶ 3).

Subsequently, Defendant on October 8, 2002, moved to dismiss

this case pursuant to USCIT R. 12(b)(1) for lack of subject matter

jurisdiction and USCIT R. 12(b)(5) for failure to state a claim on

which relief can be granted. See Def.’s Mot. On November 6, 2002,

this Court granted Defendant’s motion to stay discovery and extend

the time to respond to Shinyei’s discovery request and motion for

a protective order. On November 20, 2002, a conference was held in

Chambers. A hearing on Defendant’s motion to dismiss was held

before this Court on January 6, 2003. 

II. Contentions of the Parties

A. Defendant’s Contentions

Defendant contends, pursuant to USCIT R. 12(b)(1), that this

Court lacks jurisdiction under 28 U.S.C. § 1581(i) (2000) over this

case because Shinyei’s claim and the relief requested became moot

as a result of Customs’ liquidation of the entries at issue.8
Court No. 01-00759 Page 9

8

(...continued)

and the Court did not grant, an injunction that would have

continued suspension of liquidation by directing Customs not to

liquidate the entries in issue.” Def.’s Reply at 3; see also

Def.’s Reply at 2 (quoting 19 U.S.C. § 1516a(c)(1) (1988 & Supp.

1993) (“‘Unless such liquidation is enjoined by the court . . .

entries of merchandise of the character covered by a determination

of the . . . administering authority . . . shall be liquidated in

accordance with the determination . . . .’”). Defendant further

states that “[a]ccordingly, Commerce instructed Customs to

liquidate the entries in issue with assessment of antidumping

duties, and Customs in turn, liquidated the entries.” Def.’s Reply

at 2. 

See Def.’s Mot. at 3-4; see also Def.’s Reply Br. Supp. Mot.

Dismiss (“Def.’s Reply”) at 1-8. In particular, Defendant points

out that the Court in Chr. Bjelland Seafoods A/S v. United States,

19 CIT 35 (1995), held that “‘if liquidation occurs prior to

completion of judicial review[,] . . . any outstanding challenges

to the . . . determination are rendered moot as to the liquidated

entries.’” Def.’s Mot. at 3-4 (quoting Chr. Bjelland, 19 CIT at

51); see Def.’s Reply at 3. Defendant maintains that although Chr.

Bjelland, 19 CIT 35, was a case in which judicial review was sought

under 28 U.S.C. § 1581(c) (2000), “liquidation of the entries

prevents the Court from assuming jurisdiction, or maintaining

jurisdiction, under [28 U.S.C.] § 1581(c) or (i).” Def.’s Reply at

3. 

Moreover, Defendant points out in Mitsubishi Elec. Am., Inc.

v. United States, 18 CIT 167, 180, 848 F. Supp. 193, 203 (1994),

aff’d on other grounds, 44 F.3d 973 (Fed. Cir. 1994), the Court
Court No. 01-00759 Page 10

held:

Plaintiff’s failure to seek injunctive relief

against liquidation before commencing this action also

precludes this Court from exercising jurisdiction under

28 U.S.C. § 1581(i). . . . [B]ecause an injunction would

prevent Customs from liquidating plaintiff’s entries and

thereby ensure a party would be able to benefit from

judicial review of its challenge to the regulation, such

relief would seem appropriate. Cf. Zenith [Radio Corp.

v. United States], . . . 710 F.2d [806,] 810 [Fed. Cir.

1983] (A party who wishes to challenge a [19 U.S.C. §

1675] determination will suffer irreparable harm if

Customs liquidates their entries before the party obtains

judicial review because “[t]he statutory scheme has no

provision permitting re-liquidation” and, therefore,

renders the court “powerless to grant the only effective

remedy response” to the party's challenge.). Yet, as the

Zenith court noted with respect to liquidations following

administrative reviews, “[t]he statutory scheme has no

provision permitting re-liquidation” and “once

liquidation occurs, a subsequent decision by the trial

court on the merits . . . can have no effect on the

dumping duties assessed on [subject] entries.” Id. . .

. 710 F.2d at 810. In this case, Customs liquidation

precludes the Court from granting plaintiff the relief it

now seeks. Accordingly, the Court concludes it is unable

to exercise jurisdiction over this action under [28

U.S.C.] § 1581(i).

Id. at 5-6 (quoting Mitsubishi, 18 CIT at 180, 848 F. Supp. at 203)

(emphasis omitted). Defendant maintains that Shinyei is analogous

to the plaintiff in Mitsubishi, 18 CIT at 180, 848 F. Supp. at 203,

in that this Court lacks jurisdiction under 28 U.S.C. § 1581(i) to

grant Shinyei’s relief (that is, “‘reliquidation of the [e]ntries

[at issue] in accordance with corrected [Nankai] instructions’”)

Def.’s Reply at 7 (quoting Pl.’s Resp. at 16). Defendant,

therefore, asserts that because this case is moot, the Court lacks

subject matter jurisdiction since there “no longer exists a case or
Court No. 01-00759 Page 11

9 The corrected version of 19 U.S.C. § 1504(d) that Defendant

relies on is 19 U.S.C. § 1504(d) (1988 & Supp. 1993). See Def.’s

Mot. Correct Error Mot. Dismiss. 

Section 1504(d) provides: 

When a suspension required by statute or court order

is removed, [Customs] shall liquidate the entry within 6

months after receiving notice of the removal from

[Commerce] . . . or a court with jurisdiction over the

entry. Any entry not liquidated by [Customs] within 6

months after receiving such notice shall be treated as

having been liquidated at the rate of duty, value,

quantity, and amount of duty asserted at the time of

entry by the importer of record.

19 U.S.C. § 1504(d). 

controversy.” Def.’s Mot. at 4.

In the alternative, Defendant argues that pursuant to 19

U.S.C. § 1504(d) (1994) (sic),9 Shinyei’s entries at issue were

deemed liquidated and as a result, Shinyei’s “claim and relief

requested are moot, and Shinyei . . ., moreover, has failed to

state a claim on which relief can be granted.” Def.’s Mot. at 4;

see also Def.’s Reply at 8-13. In particular, Defendant asserts:

Commerce sent Customs liquidation instructions on August

26, 1999 (see [Pl.’s First] Am. Compl. ¶ 8), which

informed Customs that suspension of liquidation was

lifted. The subject entries listed in [Pl.’s First Am.

Compl. App. A] were liquidated between April and June

2002. [See id.] ¶ 9. None of the entries, therefore, was

liquidated within six months after the instruction was

sent on August 26, 1999, i.e., by February 26, 2000. The

subject entries, therefore, were deemed liquidated under

[19 U.S.C.] § 1504(d) . . . at the cash deposit rate.

Because the subject entries have been liquidated,

Shinyei’s . . . claims that the liquidation instructions

were unlawful, and that the matter should be remanded to
Court No. 01-00759 Page 12

10 The Court notes that 

[t]he Supreme Court has held that “the APA does not

afford an implied grant of subject matter jurisdiction

permitting federal judicial review of an agency action.”

Califano v. Sanders, 430 U.S. 99, 107 . . . (1977). More

specifically, in Califano the Supreme Court observed that

while 5 U.S.C. § 702 sets forth that affected persons

have a right to review of agency action, “[5 U.S.C.] §

703 suggest that this language was not intended as an

independent jurisdictional foundation, since such

judicial review is to proceed ‘in a court specified by

statute’ or ‘in a court of competent jurisdiction.’” Id.

at 106, n.6. . . . See also American Air Parcel

(continued...)

Commerce to cure the violation, are moot, nonjusticiable,

and should be dismissed.

Def.’s Mot. at 5-6. 

B. Shinyei’s Contentions

Shinyei responds that this Court possesses jurisdiction over

this case pursuant to 28 U.S.C. § 1581(i)(4) because Customs’

liquidation of the entries at issue “do not preclude reliquidations

of the entries in accordance with corrected [Nankai] Instructions.”

Pl.’s Resp. at 13. In particular, Shinyei argues that: (1) the

case at bar is distinct from Chr. Bjelland, 19 CIT 35, because

“[Chr.] Bjelland, [19 CIT 35] [was] a [19 U.S.C. §] 1516a/[28

U.S.C. §] 1581(c) case contesting a Commerce antidumping review

determination and other antidumping and countervailing duty

determinations[,]” Pl.’s Resp. at 14, whereas, in this case,

Shinyei “has brought an [Administrative Procedure Act] APA

10/
Court No. 01-00759 Page 13

10(...continued)

Forwarding Co., Ltd. v. United States, . . . 718 F.2d

1546, 1552 ([Fed. Cir.] 1983) (“[c]lear precedent exists

that the APA is not a jurisdictional statute and does not

confer jurisdiction on a court not already possessing

it.”).

United States v. Shabahang Persian Carpets, Ltd., 22 CIT 1028,

1032-33, 27 F. Supp. 2d 229, 233-34 (1998). 

11 In its response brief, Shinyei relies inter alia on Krupp

Stahl AG v. United States, 4 CIT 244, 553 F. Supp. 394 (1982), to

support its proposition that “‘the Court is empowered to offer

complete relief in all actions within its jurisdiction[.]’” Pl.’s

Resp. at 16 (quoting Krupp Stahl, 4 CIT at 247, 553 F. Supp. at

396). Moreover, Shinyei asserts that “[t]he Court may wish to take

this occasion to crystallize the principle that judicial review of

agency action . . . brought before this Court under 28 U.S.C. §

1581(i), is not to be encumbered by the requirements and procedures

of inapplicable special statutory review proceedings.” Pl.’s Resp.

at 16 (citing United States Cane Sugar Refiners’ Ass’n v. Block, 3

CIT 196, 200-01, 544 F. Supp. 883, 886 (1982)).

12 Shinyei maintains that “[t]he linchpin of [Shinyei’s] claim

is that the [Nankai] Instructions unlawfully did not describe the

[e]ntries [at issue], and thereby did not inform Customs that

suspension of their liquidation was lifted under Commerce’s and

Customs’ view of the law at the time.” Pl.’s Resp. at 17 n.28

(emphasis omitted). 

1581(i) case to enforce [the fourth] review results by contesting

a subsequent Commerce decision, i.e., the [Nankai] Instructions[,]”

id. at 15 (emphasis omitted); and (2) “§ 1516a injunction

provisions apply only in a 1516a/1581(c) case, and cannot be

engrafted by implication onto a[] . . . 1581(i) case.”11 Id. at 16.

Shinyei also argues that “deemed liquidations do not preclude

reliquidations of the entries [at issue] in accordance with

corrected [Nankai] Instructions.”12 Id. Specifically, Shinyei
Court No. 01-00759 Page 14

13 Defendant argues that “[s]ection 1504(d) draws no

distinction between a deemed liquidation that is favorable to the

importer, and one that is adverse to the importer. . . . ‘The

purpose of section 1504 was to bring finality to the duty

assessment process.’” Def.’s Reply at 9-10 (quoting United States

v. Cherry Hill Textiles, Inc., 112 F.3d 1550, 1559 (Fed. Cir.

1997)). Moreover, Defendant maintains that “Shinyei’s argument is

misplaced because Shinyei now is contesting the deemed liquidation

on the merits before this Court.” Def.’s Reply at 10.

14 Defendant responds to Shinyei’s argument regarding Customs’

failure to post a bulletin notice of liquidation by stating:

There is no statutory requirement that this case be

remanded to Customs so that Customs can post a bulletin

notice of liquidation, and Shinyei can protest the deemed

liquidation. While 19 U.S.C. § 1500(e) [(1988 & Supp.

1993)] requires Customs to give notice of liquidation,

[19 U.S.C.] § 1504(a) provides that “notwithstanding

section 1500(e) of this title, notice of liquidation need

not be given of an entry deemed liquidated.”

Def.’s Reply at 10-11. 

asserts that: (1) “an ‘as entered’ deemed liquidation favorable to

the importer is immediately and substantively final and conclusive

against the Government[,]” id. at 19, whereas, “an ‘as entered’

deemed liquidation adverse to the importer is not immediately and

substantively final and conclusive against the importer, but may be

contested on the merits[,]”13 id. (citing Detroit Zoological Soc’y

v. United States, 10 CIT 133, 630 F. Supp. 1350 (1986)); (2)

Customs has not posted “bulletin notices [of the deemed

liquidations] . . . and so [Shinyei’s] time limit to protest the

[d]eemed [l]iquidations never expired[,]”14 Pl.’s Resp. at 21; (3)

“two relatively recent decisions of the [Court of Appeals for the]

Federal Circuit . . . held that Federal Register publication of a
Court No. 01-00759 Page 15

15 In pertinent part, 28 U.S.C. § 1581(i) provides:

In addition to the jurisdiction conferred upon the Court

of International Trade by subsections (a)-(h) of [§

1581,] . . . 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-- 

. . . 

(4) administration and enforcement with respect to

the matters referred to in paragraphs (1)-(3) of [§

1581(i)] and subsections (a)-(h) of [§ 1581].

final Commerce antidumping review result serves both to remove

suspension of liquidation of the subject entries and provide notice

to Customs of such removal, thereby triggering the six-month period

at the end of which the subject entries will be deemed liquidated

under 19 U.S.C. § 1504(d)[,]” id. at 17 n.28 (citing International

Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. 2002) and

Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364 (Fed. Cir.

2002)); and (4) the Court will be faced with a large volume of

litigation if Defendant’s motion to dismiss is granted. See Pl.’s

Resp. at 21-23. 

III. Analysis

The pertinent issue before this Court is whether the Court has

subject matter jurisdiction over this case pursuant to 28 U.S.C. §

1581(i).15 Defendant and Shinyei agree that jurisdiction is sought

under 28 U.S.C. § 1581(i), the Court’s residual jurisdiction
Court No. 01-00759 Page 16

provision. See Pl.’s First Am. Compl. ¶ 3; Pl.’s Resp. at 6;

Def.’s Mot. at 2. However, Defendant argues that this Court lacks

jurisdiction under 28 U.S.C. § 1581(i) over this case because

Shinyei’s claim and the relief requested became moot as a result of

Customs’ liquidation of the entries at issue. See Def.’s Mot. at

3-4; Def.’s Reply at 1-8. 

As a preliminary matter, it is incumbent upon the Court to

independently assess the jurisdictional basis for a case, see Ad

Hoc Comm. of Fla. Producers of Gray Portland Cement v. United

States, 22 CIT 902, 906, 25 F. Supp. 2d 352, 357 (1998), a

principal that is especially true where a party seeks to invoke the

court’s residual jurisdiction authority. And, “[i]t is well

established that the residual jurisdiction of the court under

subsection 1581(i) ‘may not be invoked when jurisdiction under

another subsection of § 1581 is or could have been available,

unless the relief provided under that other subsection would be

manifestly inadequate.’” Id. (citing Norcal/Crosetti Foods, Inc.

v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992) (emphasis in

original)).

Although jurisdiction over this case is properly sought under

28 U.S.C. § 1581(i), the Court finds that Shinyei’s claim and the

relief requested became moot as a result of Customs’ liquidation of

the entries at issue. See Warner-Lambert Co. v. United States,
Court No. 01-00759 Page 17

2000 Ct. Intl. Trade LEXIS 35, *9, Slip. Op. 00-34 (April 4, 2000)

(citation omitted) (“matters that are moot do not entail any live

case or controversy within the meaning of Article III of the

[United States] Constitution, leaving federal courts organized

thereunder with no authority to act in regard thereto); 3V, Inc. v.

United States, 23 CIT 1047, 1049, 83 F. Supp. 2d 1351, 1353 (1999)

(citations omitted) (“[i]f a claim fails the Article III criteria,

the Court must dismiss the claim as non-justiciable regardless of

a statutory grant of jurisdiction”). 

Shinyei commenced this case by filing a complaint on August

24, 2001. Shinyei “did not seek, and the Court did not issue, any

injunction to suspend liquidation of the [e]ntries [at issue]

pending its final decision.” Pl.’s Resp. at 4. Subsequently, on

April 26, 2002, Commerce issued “a ‘clean-up’ instruction to

Customs to liquidate ‘as entered’ all [fourth] [r]eview [p]eriod

entries of [the merchandise at issue] from Japan that had not been

liquidated under previously-issued instructions[.]” Id. at 5. The

entries at issue were liquidated as follows: (1) “[t]he New

York/JFK [e]ntries were liquidated on April 26, 2002”; (2) “[t]he

[e]ntries made through the port of Boston . . . were liquidated on

June 21, 2002”; and (3) “those made through the port of New

York/Newark . . . were liquidated on June 28, 2002.” Id. (citing

Pl.’s First Am. Compl. ¶ 9); see also Pl.’s First Am. Compl. App.

A. On September 25, 2002, this Court granted Shinyei’s motion for
Court No. 01-00759 Page 18

leave of the Court to amend its complaint filed on August 24, 2001,

in which Shinyei limited its claim to Commerce error stating in

pertinent part: 

In this civil action, [Shinyei] alleges that Commerce has

formulated the [Nankai Instructions] which, unlawfully,

do not reflect the relevant antidumping duty

determinations that Commerce made in the [fourth review].

As a consequence of unlawful instructions, Customs has

[liquidated the entries at issue] with incorrect

assessments of antidumping duty. 

Pl.’s Resp. at 5-6 (quoting Pl.’s First Am. Compl. ¶ 3).

In Chr. Bjelland, the Court determined that: 

liquidation renders moot any pending court challenge to

the underlying agency determinations regarding those

entries, for the statutory scheme does not authorize this

court to order a reliquidation of entries once they are

liquidated in accordance with either an outstanding AD or

CVD order, or the final results of an administrative

review of such order. [See] Zenith Radio Corp., . . . 710

F.2d at 810; Ceramica Regiomontana, S.A. v. United

States, 7 CIT 390, 396, 590 F. Supp. 1260, 1265 (1984).

Consequently, if liquidation occurs prior to the

completion of judicial review of an AD or CVD

determination, and duties are assessed pursuant to either

the original order or the final results of an

administrative review of such order, any outstanding

challenges to the AD or CVD determination are rendered

moot as to the liquidated entries because such entries

are no longer amenable to the reach of this court.

Furthermore, if the final results of an administrative

review of an AD or CVD order are published, any

outstanding challenges to Commerce's underlying AD or CVD

determination are similarly rendered moot as to

subsequent entries of the subject merchandise, because

estimated duties are to be assessed on such entries in

accordance with the final results of the administrative

review and not Commerce's original AD or CVD order. See,

e.g., PPG Indus., Inc. v. United States, 11 CIT 303, 309,

660 F. Supp. 965, 970 (1987); Silver Reed Am., Inc. v.
Court No. 01-00759 Page 19

16 Section 1516a(c)(1) of Title 19 states: 

Unless such liquidation is enjoined by the court

under [19 U.S.C. § 1516a(c)] (2) . . . , entries of

merchandise of the character covered by a determination

of the . . . administering authority . . . shall be

liquidated in accordance with the determination . . . .

Section 1516a(c)(2) of Title 19 provides:

In the case of a determination described in [19

U.S.C. § 1516a(a)] (2) . . . , the United States Court of

International Trade may enjoin the liquidation of some or

all entries of merchandise covered by a determination of

the . . . administering authority . . . upon a request by

an interested party for such relief and a proper showing

that the requested relief should be granted under the

circumstances.

17 Section 1581(c) provides that “[t]he Court of International

Trade shall have exclusive jurisdiction of any civil action

commenced under section 516A of the Tariff Act of 1930.” 

18 In Mitsubishi Elec. Am., the Court stated in pertinent

part:

Plaintiff’s failure to seek injunctive relief

against liquidation before commencing this action also

precludes this Court from exercising jurisdiction under

28 U.S.C. § 1581(i). . . . [B]ecause an injunction would

(continued...)

United States, 9 CIT 221, 224 (1985).

19 CIT at 51-52. Although the Court agrees with Shinyei’s

assertion that the Chr. Bjelland case was a 19 U.S.C. § 1516a16/28

U.S.C. § 1581(c)17 case, the Court finds that once entries are

liquidated, this Court lacks subject matter jurisdiction regardless

of whether jurisdiction is sought under 28 U.S.C. § 1581(c) or 28

U.S.C. § 1581(i). See Mitsubishi Elec. Am., 18 CIT at 180, 848 F.

Supp. at 203.18 
Court No. 01-00759 Page 20

18(...continued)

prevent Customs from liquidating plaintiff’s entries and

thereby ensure a party would be able to benefit from

judicial review of its challenge to the regulation, such

relief would seem appropriate. Cf. Zenith, . . . 710

F.2d at 810 (A party who wishes to challenge a [19 U.S.C.

§ 1675] determination will suffer irreparable harm if

Customs liquidates their entries before the party obtains

judicial review because “[t]he statutory scheme has no

provision permitting re-liquidation” and, therefore,

renders the court “powerless to grant the only effective

remedy response” to the party's challenge.). Yet, as the

Zenith court noted with respect to liquidations following

administrative reviews, “[t]he statutory scheme has no

provision permitting re-liquidation” and “once

liquidation occurs, a subsequent decision by the trial

court on the merits . . . can have no effect on the

dumping duties assessed on [subject] entries.” Id. . .

. 710 F.2d at 810. In this case, Customs liquidation

precludes the Court from granting plaintiff the relief it

now seeks. Accordingly, the Court concludes it is unable

to exercise jurisdiction over this action under §

1581(i).

18 CIT at 180, 848 F. Supp. at 203 (emphasis supplied).

19 In Wear Me Apparel Corp. v. United States, the Court stated

in pertinent part that: 

section 1581(i) does not require the filing or denial of

a protest as a prerequisite for the exercise of

jurisdiction by this court. . . . 

This does not mean, however, that by invoking the

jurisdiction of the court under section 1581(i) the

mandate of section 1581(a) requiring the exhaustion of

(continued...)

Moreover, the Court disagrees with Shinyei’s assertion that 19

U.S.C. § 1516a injunction provisions apply only in a 19 U.S.C. §

1516a/28 U.S.C. § 1581(c) case, and cannot be engrafted by

implication onto a 28 U.S.C. § 1581(i) case. See Wear Me Apparel

Corp. v. United States, 1 CIT 194, 196, 511 F. Supp. 814 (1981).19
Court No. 01-00759 Page 21

19(...continued)

administrative remedies, i.e., the filing and denial of

a protest, may thereby be dispensed with.

1 CIT at 196, 511 F. Supp. at 817.

20 The Court does not reach the issue of “deemed liquidations”

of the entries at issue since both Defendant and Shinyei agree that

the entries at issue were in fact liquidated. Pl.’s Resp. at 5;

Def.’s Mot. at 2, 6 (emphasis supplied). 

To hold otherwise would create a floodgate of litigation by

allowing parties, such as Shinyei, who sleep on their rights and

permit liquidation to occur, to use 28 U.S.C. § 1581(i)

jurisdiction to subsequently revive claims that are otherwise moot.

Accordingly, Defendant’s motion to dismiss this action

pursuant to USCIT R. 12(b)(1) for lack of subject matter

jurisdiction is granted.20

IV. Conclusion

Based on the foregoing, Defendant’s motion to dismiss is

granted.

______________________________

NICHOLAS TSOUCALAS

 SENIOR JUDGE

DATED: February 14, 2003

New York, New York