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 claimon which rel ief can be granted. For the reasons stated herein, Defendant’s motion to dismiss is granted under USCI T 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 Coun sel, United States Customs Service, for the United States, defendant.Court No. 01-00759 Page 2

1 In its original complaint, Shinyei sought: (a) a w ri t 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, Internati on al Trade Administration (“Commerce”), in violation of 19 U.S.C. § 1675(a)(2) (1 988 & Supp. 1993) and remand this case to Commerce for the purpose of issuin g an a ppropriate set of instructions to Customs with regard to liquidation of the merchandise at issue. See id. ¶¶ 3(b), 15-20; accordPl.’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 purs uant t o USCIT R. 12(b)(1) for lack of subject matter jurisdiction a nd USC IT 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 Corpora tion of America (“Shinyei”), a New Yorkcorporation wholly owned by Shinyei USA Corp., a Delaware corporation which in turn is wholly owned by Shinyei Kaisha Company (“Kai sha ”), a Japanese company, filed a complaint on August 24, 2001. 1 On September 25, 2002, this Court granted Shinyei’s motionCourt 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, theCourt must accept as true all facts alleged in the nonmovi ng p arty’s pleadings. In the second instance, the Court accepts as true only those facts whic h are uncontroverted. A ll o ther facts are subject to fact finding by the Court. SSKIndus., 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 bythe United States Dep artment of Commerce, International Trade Administration (“Commerce”), in violation of 19 U.S.C. § 1675(a)(2) (1988 & Supp. 1993) and remand t his case to Commerce for the purpose of iss u ing corrected instructions with regard to liquidation of the Shinyei entries 2 of certain bearings. See Pl.’s First Am. Compl. ¶¶ 3-4, 8-13; accordPl.’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 pu rsuan t to USCIT R. 12( b)(1) for lack of subject matter jurisdiction 3 and USCI T R . 12(b)(5) for failure to state a c laim 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 impor tedcertain 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 manuf act urers, 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 Bearin gs) a nd Parts Thereof From Japan , 53 Fed. Reg. 15,076 (Apr. 27, 1988). On November 9, 1988, Commerce published its preliminarydetermination wit h regards to this investigation instructing the United State s 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 fut ure 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). investigatedmanufacturers, 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 bondrate was corrected by Commerce in the final determination. See Final Determinations of Sales at Less Than Fair Value; Antifriction Bearin gs (Other Than Tapere dRoller 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 specificCourt No. 01-00759 Page 6

antidumping duty deposit rate for the merchandise manufactured by Nankai. Final Results of Antidumping DutyAdministrative Reviews, Partial Termination of A dministrative Reviews, and Revocation in Part of Antidumping Duty Orders of Antifriction Bearings (Other Than T apered 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 PORat specified per-unit assessment rates. See Pl.’s First Am. Compl. ¶ 8 Shinyei commenced this ca se 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-issuedinstructions[.]” Id. at 5. The entries at issue

were liquidated as follows: (1) “[t]he New York/JFK[e]ntries were liquidated on Apr il 26, 2002”; (2) “[t]he [e]ntries made through the port of Boston . . . were liquidated on June 21, 2002”; and (3) “those made t hrough 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 theyr eflect ed a different form of Customs Error, i.e. , Customs’ failure to liquidate the [e]ntries [at issue] und er the [Nankai] Instructions.” Pl.’s Resp. at 5. Shinyei states that “[Shinyei] is pursuing these protests strictly to preserve its rights in case it s hould ultimately be decided that the . . . liquidati ons [a t issue] reflect Customs Error rather than Commerce Error.” Id. at 5 n.8.

7 In its civil action, Shinyei contests t he Nankai Instructions and argues that [o]n August 26, 1999, . . . Commerce [issued the Nankai Instructions] i nst ruct[ing] . . . Customs . . . to liquidate all [fourth] [r]eviewentries of ball bearings fr omJapan produced by [Nankai] and ‘exported b y , imported by, or sold to’ certain parties, including the [UnitedStates] [c]ustomers, with assessments of antidumping duty at specified per-unit rates, an d wi th interest as provided by law. . . . The [Nankai] Instructions did not direct[ly] mention [Kaish a] a s an exporter or purchaser o r [S hinyei] as an importer or purchaser, nor did they inform Customs that [Shinyei] was the importer of record in sales to the [Uni ted St ates] [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 limi ted its claim to Commerce error 6 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 unlaw ful instructions, Customs has [liquidatedthe entries at issue] with incorrect assessments of antidumping duty. 7Court 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, andthat 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 byfiling 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 andextend 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. 8Court No. 01-00759 Page 9

8 (...continued) andthe Court did not grant, an injunction that would have continuedsuspension of liquidation by directing Customs not to liquidate the entries in issue.” D ef.’s Rep ly at 3; see also Def.’s Reply at 2 (quoting 19 U.S.C. § 1516a(c)(1) (1988 & Supp . 19 93) (“‘Unl ess such liquidation is enjoined by the court . . . entries of merchandise of the character covered bya 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. Bjel land , 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 mainta in ing 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’don other grounds , 44 F.3d 973 (Fed. Cir. 1994) , the CourtCourt 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 therebyensure 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 partyobtains judicial review because “[ t]he statutory scheme has no provision permitting re-liquidation” and, therefore, renders the court “powerless to grant the only effective remedyresponse” to the party's challenge.). Yet, as the Zenith court notedwith respect to liquidations following administrative reviews, “[t]he statutory scheme has no provision permitting re-liquidation” and “once liquidation occurs, a s ubsequent 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 nowseeks. Accordingly, the Court concludes it is unable to exercise jurisdicti on 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 co rrec ted [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 orCourt No. 01-00759 Page 11

9 The correctedversion 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 noti ce of the removal from [Commerce] . . . or a court with jurisdiction over the entr y. An y entry not liquidated by [Customs] within 6 mon ths after receiving such notice shall be treated as having been liquidated at the ra te o f 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 deemedliquidated and as a result, Shinyei’s “claim and relief

re questedare moot, and Shinyei . . ., moreover, has failedt o 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 informedCustoms 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 liquidatedwithin s ix m onths after the instruction was sent on August 26, 1999, i.e. , byFebruary 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 toCourt No. 01-00759 Page 12

10 The Court notes that [t]he Supre me Cou rt has held that “the APA does not aff ordan implied grant of subject matter jurisdicti o n 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 wh ile 5 U.S.C. § 702 sets forth that affected persons have a right to review of agency action, “[5 U.S.C.] § 703 sug gest that this language was not intended as an independent jurisdictional foundation, since such judicial review is to proceed ‘in a court sp ecifie d by statute’ or ‘in a court of competent jurisdiction.’” Id. at 106, n.6. . . . See al so 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 R esp. at 13 . In particular, Shinyei argues that: (1) the

case at bar is distinct fro m Ch r. 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, w here as, in this case, Shinyei “has brought an [Administrative Procedure Act] AP A 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 jur i sdiction on a court not already possessing it.”). UnitedStates 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 (quo tin g 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 agencyaction . . . 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]ntr ies [a t issue], and thereby did not inform Customs that suspension of their liquidation was lifted under Commerce’s and Custo ms’ view of the law at the time.” Pl.’s Resp. at 17 n.2 8 (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 (e mphasis omitted); and (2) “§ 1516a injunction pr ovisions apply only in a 1516a/1581(c) case, and cannot b e engraftedbyimplication 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, ShinyeiCourt 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, andone that i s 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 UnitedStates v. Cherry Hill Textiles, Inc. , 112 F.3d 1550, 1559 (Fed. Cir. 1997)). Moreover, Defendant maintains that “Shinyei’s argument is misplacedbecause 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 liqu idatio n. While 19 U.S.C. § 1500(e) [(1988 & Supp. 199 3)] 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 substantivelyfinal andconclusive against the importer, but may be contestedon the merits[,]” 13 id. (citing Detroit Zoological Soc’y

v. United States , 10 CIT 133, 630 F. Sup p. 1350 (1986)); (2) Customs has not posted “bulletin notices [of the deemed liquidations] . . . and so [S hinyei’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 aCourt 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 Trad e 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 rev iew 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 State s , 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 unde r 28 U.S.C. § 1581(i), the Court’s residual jurisdictionCourt 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 cas e beca use 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 independentlyassess 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 juri sdiction authority. And, “[i]t is well establishedthat the residual jurisdiction of the court under

s ubse ction 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 othe r s ubsection 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 [UnitedStates] Constitution, leaving federal courts organized thereunder with no authority to act in regard thereto); 3V, Inc. v. UnitedStates , 23 CIT 1047, 1049, 83 F. Supp. 2d 1351, 1353 (1999) (citations omitted) (“[i]f a claimfails the Article III criteria, the Court must dismiss the claim as non-justiciable regardless of a statutory grant of jurisdiction”). Shinyei co mmence d 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 issu ed “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 hadnot been liquidatedunder 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, 200 2”; 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 forCourt 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 i nstr uctions, Customs has [liquidatedthe 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 liquidatedin accordance with either an outstanding AD or CVD order, or the final results of an administrative reviewof such order. [ See ] Zenith Radio Corp. , . . . 710 F.2dat 810; Ce ramica 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 t he l iquidated entries because such entries are no longer amenable to the reach of this court. Furthermor e, i f the final results of an administrative reviewof an AD or CVD orde r a re 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 estim atedd uties are to be assessed on such entries in accordance with the final results of the administrative reviewand 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 liqui d ation is enjoined by the court under [19 U.S.C. § 1516a(c)] (2) . . . , entri es o f merchandise of the character covered by a determination of th e . . . a dministering authority . . . shall be liquidated in accordance with the determination . . . . Section 1516a(c)(2) of Title 19 provides: In the c ase 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. Bjellandcase was a 19 U.S.C. § 1516a 16 /28 U.S.C. § 1581(c) 17 case, the Court finds that on ce entri es 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. 18Court No. 01-00759 Page 20

18 (...continued) prevent Customs from liquidating plaintiff’s entries and therebyensure 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.2dat 810 ( Aparty who wishes to challenge a [19 U.S.C. § 1675] determination will suffer irrep a rable harm if Customs liquidates their entries before the party obtains judicial review becaus e “[ t]he statutory scheme has no provision permitting re-liquidation” and, therefore, renders the court “powerless to grant the only effective remedyresponse” 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 occ urs, 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 nowseeks. Accordingly, the Court concludes it is unable to exerci se 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 d oes not mean, however, that by invoking the juri sd iction of the court under section 1581(i) the mandate of section 1581(a) requiring the e xhau stion 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 ca nnot 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). 19Court 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