United States v. Great American Insurance Company of New York

Slip Op. 15-129
UNITED STATES COURT OF INTERNATIONAL TRADE
UNITED STATES OF AMERICA,
Plaintiff,
v.
GREAT AMERICAN INSURANCE
COMPANY OF NEW YORK,
Defendant.
Before: Mark A. Barnett, Judge
Court No. 15-00047
MEMORANDUM AND ORDER
[The court finds that Plaintiff has stated a claim upon which relief can be granted.
Accordingly, the court denies Defendant’s motion to dismiss.]
Dated: November 16, 2015
Monica P. Triana, Trial Attorney, International Trade Field Office, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of New York, NY for plaintiff. With
her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Joyce R. Branda, Acting Assistant Attorney General, and Amy M. Rubin, Assistant
Director. Of Counsel on the brief was Suzanna Hartzell-Ballard, Office of Assistant
Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection.
Barry M. Boren of Miami, FL, and Gerson M. Joseph of Weston, FL, for defendant.
Barnett, Judge: The United States of America (“United States” or “Plaintiff”)
brings this action against Great American Insurance Company of New York (“GAIC” or
“Defendant”) to recover $50,000 in unpaid antidumping duties and interest, the limit on a
continuous entry bond that GAIC issued, plus pre- and post- judgment interest,
including but not limited to statutory interest pursuant to 19 U.S.C. § 580, as well as
equitable interest. See generally Compl., ECF No. 2. Defendant moves to dismiss the
Complaint for failure to state a claim upon which relief can be granted, pursuant to
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USCIT Rule 12(b)(5) (hereafter, Rule 12(b)(6)). 1 See generally Mot. to Dismiss
(“MTD”), ECF No. 12. The Court has subject-matter jurisdiction pursuant to 28 U.S.C.
§ 1582. The parties have fully briefed the motion, and the court finds that no hearing is
necessary. For the reasons discussed herein, the court denies Defendant’s motion.
B ACKGROUND AND P ROCEDURAL HISTORY
In 2003, GAIC issued a continuous entry bond in the amount of $50,000 as the
surety for Orleans Furniture, Inc. (“Orleans Furniture”). The bond covered Orleans
Furniture’s entries of merchandise between August 22, 2003 and August 31, 2007.
Compl. ¶¶ 1, 4 & Ex. A (Bond).
On June 5, 2006, Orleans Furniture made one entry 2 of wooden bedroom
furniture from the People’s Republic of China at the customs port in Memphis,
Tennessee. Id. ¶ 6. The entry was subject to an antidumping duty order and Plaintiff
paid a cash deposit rate of 6.65% ad valorem which was the separate rate in effect at
that time. Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 2, ECF No. 20;
see Wooden Bedroom Furniture from the People’s Republic of China, 70 Fed. Reg. 329
(Dep’t Commerce Jan. 4, 2005) (notice of amended final determination of sales at less
than fair value and antidumping duty order). Accordingly, liquidation of this entry was
suspended pending the Department of Commerce’s (“Commerce”) administrative
review of the order. Compl. ¶ 7. Commerce published the final results of the
1 USCIT Rule 12(b)(5) was renumbered to 12(b)(6), effective July 1, 2015 and without
any substantive change to the rule. Hereafter, this Slip Opinion will refer to the rule in its
current numbering format, as Rule 12(b)(6).
2 Entry No. 322-5581818-2.
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administrative review on August 20, 2008, and the suspension of liquidation was lifted.
Id. ¶ 8. Pursuant to the final results of the administrative review, the antidumping duty
rate applicable to the entry was 216.01% (the PRC-wide rate). Wooden Bedroom
Furniture from the People’s Republic of China, 73 Fed. Reg. 49,162 (Dep’t Commerce
Aug. 20, 2008) (final results of antidumping duty administrative review and new shipper
review).
Customs took no action to liquidate the entry such that, on February 20, 2009,
the entry was deemed liquidated pursuant to 19 U.S.C. § 1504(d). Compl. ¶ 9.
Customs provided bulletin notice of the deemed liquidation on December 18, 2009, id.
¶ 10, and reliquidated the entry on January 8, 2010, at the rate determined in the final
results of the administrative review, with $60,336.14 owing from the importer, id. ¶ 11.
Orleans Furniture filed a protest of Customs’ reliquidation on February 4, 2010
and requested accelerated disposition of the protest. Id. The protest was deemed
denied thirty days later, on March 6, 2010. Id. ¶ 12. GAIC did not protest Customs’
reliquidation of the entry, and neither GAIC nor Orleans Furniture filed suit to contest the
deemed denial of Orleans Furniture’s protest. Id.
Customs mailed its first demand for payment to GAIC on April 27, 2010, and
made several other demands thereafter. Id. ¶ 13 & Ex. C (First Demand). GAIC has
not, to date, made payment to cover the unpaid antidumping duties and interest. Id.
¶ 15. Consequently, the United States filed this lawsuit on February 19, 2015. See
Summons, ECF No. 1. GAIC moved to dismiss the case on May 11, 2015, for failure to
state a claim upon which relief can be granted. See generally MTD. GAIC argues that
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the court should dismiss this case because Customs lacked authority to reliquidate the
entry and, alternatively, failed to reliquidate the entry within the timeframe prescribed by
the applicable statute and regulation. Id. The United States contends that GAIC’s
arguments contradict the plain language of the relevant statute and regulation. See
generally Pl.’s Opp’n.
S TANDARD OF REVIEW
When reviewing a motion to dismiss for failure to state a claim, “any factual
allegations in the complaint are assumed to be true and all inferences are drawn in
favor of the plaintiff.” Amoco Oil Co. v. United States, 234 F.3d 1374, 1376 (Fed. Cir.
2000); see generally USCIT R. 12(b)(6). A court may properly dismiss a case under
Rule 12(b)(6) only if the plaintiff's allegations of fact are not “enough to raise a right to
relief above the speculative level . . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007) (citations omitted). At the same time, a complaint’s “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[O]nly a complaint that
states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
DISCUSSION
I. 	Reliquidation of Deemed Liquidations
A. 	Parties’ Contentions
GAIC argues that Customs lacked the authority to reliquidate the entry at issue in
this case because the relevant statute, 19 U.S.C. § 1501, does not permit Customs to
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reliquidate entries that are liquidated by operation of law. MTD at 9-10, 13-17. Citing
Federal Circuit precedent, it contends that such deemed liquidations permanently fix the
liability of the importer and surety. Id. (citing United States v. Cherry Hill Textiles, 472
F.3d 1550 (Fed. Cir. 1997). The United States disputes GAIC’s contention. See
generally Pl.’s Opp’n. It avers that the case law GAIC relies upon is either
distinguishable or has been overturned by intervening revisions to the statute by
Congress. Id. at 6-7.
B. 	Legal Framework
19 U.S.C. § 1504 governs limitations on liquidation of entries of merchandise.
Generally, entries for consumption that are not otherwise extended (pursuant to
§ 1504(b)) or suspended through court order or statute, are deemed liquidated by
operation of law “at the rate of duty, value, quantity, and amount of duties asserted by
the importer of record” one year after the date of entry. 19 U.S.C. § 1504(a).
Suspension of liquidation of entries may be continued by court order or Commerce
administrative review. 19 U.S.C. §§ 1675(a)(1) and 1516a(c)(2). Upon conclusion,
Commerce publishes the final results of its administrative review in the Federal
Register, and provides notice to Customs that the suspended entries may now be
liquidated, along with the importer-specific liquidation rates. See Int’l Trading Co. v.
United States, 281 F.3d 1268, 1275 (Fed. Cir. 2002). 3 The statute provides for this
3 “For some of the same reasons that publication of the final results [of an administrative
review] removes the suspension of liquidation, publication also provides notice of the
removal to Customs. Publication in the Federal Register is a familiar manner of
providing notice to parties in antidumping proceedings.” Int’l Trading, 281 F.3d at 1275.
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liquidation to take place within six months of Customs “receiving notice of the removal
[of such suspension] from the Department of Commerce.” 19 U.S.C. § 1504(d).
Further, “any entry . . . not liquidated by the customs service within 6 months after
receiving such notice” is liquidated by operation of law “at the rate of duty, value,
quantity, and amount of duty asserted by the importer of record.” Id.
Section 1501 governs reliquidation of entries previously liquidated. Specifically,
[a] liquidation made in accordance with section 1500 or 1504 . . . or any
reliquidation thereof made in accordance with this section may be
reliquidated in any respect by the Customs Service . . . within ninety days
from the date on which notice of the original liquidation is given or
transmitted to the importer.
19 U.S.C. § 1501. On its face, the statute contemplates reliquidation of entries that are
deemed liquidated (or liquidated by operation of law), regardless of whether the deemed
liquidation occurred pursuant to § 1504(a) or (d). It is worthwhile to note that 19 U.S.C.
§ 1501 was amended in 2004 specifically to allow for reliquidation of entries initially
liquidated pursuant to § 1504, i.e. deemed liquidations. Prior to 2004, only entries
liquidated pursuant to §1500 could be reliquidated by Customs. Since the events of this
case all took place after 2004, it is the current version of the statute that governs
Customs ability to liquidate and reliquidate the entries in question. 4
4 The reference to §1504 was added to §1501 in the Miscellaneous Trade and
Technical Corrections Act of 2004 and the amendment was made effective as to
“merchandise entered, or withdrawn from warehouse for consumption, on or after the
15 th day after the date of the enactment of this Act.” Miscellaneous Trade and
Technical Corrections Act of 2004, Pub. L. No. 108-429, § 2108, 118 Stat. 2434, 2598
(2004).
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C. 	Analysis
GAIC contends that reading 19 U.S.C. § 1501 to allow for reliquidation of
deemed liquidations defeats the intent of § 1504 to provide finality for importers. MTD
at 15-17. GAIC suggests that the two provisions may be reconciled, however, if 19
U.S.C. § 1501 is read to permit reliquidation only of entries timely liquidated pursuant to
§ 1504. Id. at 17-18. Thus, the Court understands GAIC to suggest that § 1501 would
permit reliquidation of entries liquidated pursuant to the first sentence of § 1504(d), but
not the second sentence of § 1504(d). Otherwise, GAIC avers there is an “inherent
conflict” in applying § 1501 to deemed liquidations given Congress’ “express intent [in
adopting § 1504] . . . to place a limit on the period within which importers and sureties
would be subject to the prospect of liability for a CBP entry.” Id.
The Court finds GAIC’s argument unpersuasive. First, as a matter of statutory
interpretation, the Court starts with the language of the statute and when that language
is plain and unambiguous, the inquiry ends there. See Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253-54 (1992) (“We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute what it says
there . . . . When the words of a statute are unambiguous, then . . . judicial inquiry is
complete.”) (internal citations omitted); see also, Chevron, U.S.A., Inc. v. Nat’l
Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.”). GAIC, to the contrary, would
have legislative history limit, if not out-right contradict, the plain language of the statute.
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Moreover, if Congress had intended to permit reliquidation only of timely liquidations
pursuant to the first sentence of §1504(d), it could easily have so specified. Conn. Nat’l
Bank, 503 U.S. at 253-54. Since it did not, the court cannot read such a limitation into
the statute.
Furthermore, the legislative history to which GAIC refers relates to the pre-2004
version of the statute. Prior to the 2004 amendment, § 1501 only provided for
reliquidation of liquidations made pursuant to § 1500. In 2004, Congress specifically
added the reference to § 1504 into § 1501 of the statute, thus allowing Customs to
reliquidate so-called deemed liquidations. GAIC offers no support for its suggestion that
the legislative history relating to the pre-2004 version of the statute can or should be
used to defeat the express language of the 2004 amendment. Plainly, in amending the
statute expressly to permit reliquidation of entries deemed liquidated, Congress altered
the period prior to which it provided finality to importers. 5 And while finality may be
5 Although there is no legislative history explaining Congress’ reasoning for amending
§ 1501, the amendment had the effect of allowing Customs to address deemed
liquidations that occur at the cash deposit rate whether higher or lower than the results
of a Commerce administrative review. In 2002, not long before the amendment, the
Federal Circuit had decided two cases which held that the six month period for deemed
liquidation begins to run when Commerce publishes its notice pursuant to 19 U.S.C. §
1516a(c)(1), notwithstanding the fact that the notice contains insufficient information to
permit Customs to liquidate the covered entries. See Fujitsu Gen. Am., Inc., v. United
States, 283 F.3d 1364, 1382 (Fed. Cir. 2002); Int’l Trading at 1275. If the deemed
liquidation thus resulted in an under-collection of antidumping duties, domestic
interested parties in the antidumping case did not have a mechanism to protest the
liquidation. Cemex, S.A. v. United States, 384 F.3d 1314, 1322-23 (Fed. Cir. 2004). As
later confirmed by the Federal Circuit, the deemed liquidation provision did not,
however, constrain importers from protesting the liquidation to obtain the benefit of a
lower rate resulting from an administrative review and judicial review thereof despite a
deemed liquidation pursuant to § 1504. Koyo Corp. of U.S.A. v. United States, 497 F.3d
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delayed, the delay is not interminable. The statute allows Customs the same period of
time to reliquidate an entry that is deemed liquidated as any other entry – “ninety days
from the date on which notice of the original liquidation is given or transmitted to the
importer, his consignee or agent.” 19 U.S.C. § 1501. Once that timeframe has run,
importers enjoy the finality which GAIC seeks.
GAIC relies on the Federal Circuit decision Cherry Hill, for the proposition that
deemed liquidation permanently fixes a surety and importer’s liability. The Cherry Hill
decision, however, predates the 2004 statutory amendment. As the Federal Circuit
explained in a subsequent case, the Cherry Hill decision
construed an older version of § 1501 which provided only for reliquidation
of entries originally liquidated under § 1500, unlike the current statute,
which permits reliquidation of ‘a liquidation made in accordance with
section 1500 or 1504.’ Since § 1504(d) is the deemed liquidation
provision, it follows that deemed liquidations are subject to reliquidation by
Customs.
Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1362 n.26 (Fed. Cir. 2006)
(citations omitted). Given that the events in the case at bar took place after the
statutory changes went into effect, the court is bound by the language in Norsk Hydro
rather than Cherry Hill.6
GAIC also quotes Koyo Corp. v. United States, 497 F.3d 1231 (Fed. Cir. 2007),
to suggest that Customs may not reliquidate a deemed liquidation. The Koyo court
1231, 1242-43 (Fed. Cir. 2007). Regardless of congressional motivation, the Court is
bound by the clear language adopted by Congress.
6 Two other cases that GAIC cites also predate the revisions to 19 U.S.C. § 1501. See,
Wolff Shoe Co. v. United States, 141 F.3d 1116 (Fed. Cir. 1998); Dal-Tile Corp. v.
United States, 17 CIT 764, 829 F. Supp. 394 (1993).
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stated, “[a] deemed liquidation under 19 U.S.C. § 1504(d) is final only in so far as
Customs cannot liquidate the entries at any other rate than the rate provided under
§ 1504(d),” such that “Customs can only assess the duty rate that is assessed on the
entries at the time of entry.” Koyo, 497 F.3d at 1237. First, the court in Koyo was
examining entries that occurred in 1990 and 1991, long before the effective date of the
2004 amendment to § 1501. Second, GAIC misreads the context and import of this
language. Notwithstanding the quoted language, in its holding, the Federal Circuit
rejected the government’s argument that the deemed liquidation permanently fixed the
duty rate, finding that the importer’s statutory right to protest the deemed liquidation
within 90-days was not cut off by the deemed liquidation. 7 Similarly, here, Customs has
a statutory right to reliquidate a deemed liquidation within the 90 day period set in 19
U.S.C. § 1501 and nothing in the statute suggests that such a right is cut off by a
deemed liquidation. In fact, Congress’ amendment of § 1501 to add the reference to
§ 1504 serves to confirm a contrary intent. In the year following the Koyo decision, the
Federal Circuit further underlined Customs ability to reliquidate a deemed liquidation
sua sponte, stating that, while
7 The Koyo court explained, in relevant part:
[t]he government . . . contends that our case law supports its argument
that a deemed liquidation is inherently conclusive, final, and binding on all
parties in that it cannot be protested by an importer and that the rate of
duty asserted by the importer at entry is the only duty rate that can ever be
assessed to entries once the entry has been deemed liquidated by
operation of § 1504(d). The government is mistaken. None of the
holdings in the cases cited by the government decided or relied on
whether an importer can protest an adverse deemed liquidation.
Koyo, 497 F.3d at 1238.
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[a] liquidation decision itself is “final and conclusive” as to all parties,
including the United States, unless protested with Customs . . . even if the
liquidation contains a “clerical error, mistake of fact, or other
inadvertence.” . . . other remedies for liquidation errors exist. Customs
may sua sponte reliquidate an entry, including an entry “deemed
liquidated,” within 90 days of its giving notice of the original liquidation to
the importer.
Norsk Hydro, 472 F. 3d at 1352 (citing 19 U.S.C. § 1501). The court therefore rejects
GAIC’s argument that the deemed liquidation was inherently conclusive, final, and
binding as to the rate assessed on the entry at issue, and holds that Customs had
statutory authority to reliquidate the entry, pursuant to 19 U.S.C. § 1501.
II. 	Timing and Notice of Reliquidation
A. 	Parties’ Contentions
GAIC raises several arguments challenging the timeliness of Customs’
reliquidation of the entry. Assuming arguendo that Customs had the right, pursuant to
§ 1501, to reliquidate an entry that was deemed liquidated, GAIC contends that
Customs did not, in fact, reliquidate the entry in a timely manner (i.e. within 90 days).
MTD at 9-10. The essence of GAIC’s argument has to do with what it considers proper
notice of a deemed liquidation. According to GAIC, proper notice is not the bulletin
notice posted by Customs regarding the deemed liquidation, but rather the date of the
deemed liquidation itself, and that it is this date that starts the 90-day clock for
reliquidation. This is because, in GAIC’s reading of the relevant statute and regulations,
Customs is not required to provide notice of a deemed liquidation. Great Am. Ins. Co. of
N.Y.’s Reply in Supp. of its Mot. to Dismiss (“Def.’s Reply”), at 8, ECF No. 25. As such,
and because a deemed liquidation occurs by operation of law, GAIC argues that notice
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of a deemed liquidation is “constructive” and can be inferred by calculating six months
from the date the suspension is lifted. Relying on its theory of constructive notice, GAIC
then contends that Customs’ reliquidation was untimely because it took place on
January 8, 2010, nearly 11 months after the deemed liquidation pursuant to § 1504(d).
MTD at 9. The United States rejects GAIC’s argument. It avers that the plain language
of 19 U.S.C. § 1501 permits Customs to reliquidate a deemed liquidation within 90 days
of the notice being given or transmitted to the importer, not within 90 days of the
deemed liquidation, constructive notice, or any other triggering event. Pl.’s Opp’n. at 6-
8. Further, the United States argues that while the statute does not require Customs to
provide notice of a deemed liquidation, the agency is not precluded from providing such
notice. Id. 6-8.
B. 	Legal Framework
The plain language of § 1501 provides that Customs may reliquidate a deemed
liquidation “within ninety days from the date on which notice of the original liquidation is
given or transmitted to the importer” and that “[n]otice of such reliquidation shall be
given or transmitted in the manner prescribed with respect to original liquidations under
section 1500(e).” 19 U.S.C. § 1501. Notice may be provided “in such form and manner
as the Secretary shall by regulation prescribe.” 19 U.S.C. § 1500(e). The applicable
regulation indicates that a bulletin notice shall provide notice of entries liquidated by
operation of law. 19 C.F.R. § 159.11 (“Notice of liquidation will be given on a bulletin
notice of liquidation . . . as provided in §§ 159.9 and 159.10(c)(3).”). Further, the
regulation directs Customs to post the bulletin notice of liquidation “within a reasonable
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period after each liquidation by operation of law” and to date it “as of the date of
expiration of the statutory period.” 19 C.F.R. § 159.9(c)(2)(ii).
C. 	Analysis
GAIC argues that it is the date of deemed liquidation (and the date on the notice
of the deemed liquidation) that triggers the 90-day clock for reliquidation. MTD at 12-13.
According to GAIC, that date was February 20, 2009, 8 the date the entry was deemed
liquidated. Id. at 13. Running from that date, the 90-day reliquidation period would
have expired on May 21, 2009, 9 long before Customs reliquidated the entry on January
8, 2010. Id. at 13. However, the statute is clear that it is the date the notice was
transmitted that starts the clock on reliquidation and Customs has 90 days from the date
the notice of deemed liquidation is transmitted to reliquidate the entry. 19 U.S.C.
§ 1501; see also Norsk Hydro Can., 472 F.3d at 1352 (“Customs may sua sponte
reliquidate an entry, including an entry ‘deemed liquidated,’ within 90 days of its giving
notice of the original liquidation to the importer.”); LG Electronics, U.S.A., Inc. v. United
States, 21 CIT 1421, 1430, 991 F. Supp. 668, 676 (1997) (“Where a liquidation has
occurred by operation of law, notice starts the clock for the protest period, 19 C.F.R.
§ 159.9(c)(2)(iii).”). The date on the bulletin notice serves to inform the importer of the
8 GAIC misstates the date of deemed liquidation as February 10, 2009 in the relevant
sections of its Motion to Dismiss. As noted in the Complaint, ¶ 9, the date that deemed
liquidation took place is February 20, 2009.
9 GAIC also misstates the date the 90-day period of reliquidation would have expired if
counted from the deemed liquidation date. Ninety days from February 20, 2009 is May
21, 2009.
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date of deemed liquidation and is not the same as the date that Customs provides
bulletin notice. See LG Electronics, 21 CIT at 1430, 991 F. Supp. at 676-77.
GAIC avers that Customs did not post the bulletin notice “within a reasonable
period” after the deemed liquidation, as required by 19 C.F.R. § 159.9(c)(2)(ii), because
Customs posted the notice on December 18, 2009, ten months after the deemed
liquidation. MTD at 10, 12-13. Although it is unsettled how long a period between a
deemed liquidation and posting of bulletin notice would be unreasonable, the Court
cannot conclude, based on the facts before it for the purposes of this motion to dismiss,
that Customs unreasonably delayed posting the bulletin notice in this case. A ten-
month period may, in fact, be an abnormally or prejudicially long period to wait for the
posting of a bulletin notice, or it may be a typical and appropriate timeframe between a
deemed liquidation and posting of the bulletin notice. One of the cases GAIC cites, for
example, involved entries that were deemed liquidated more than twelve months before
Customs posted the relevant bulletin notices, and the court did not find this to be an
unreasonable period. See Koyo, 497 F.3d at 1240. Consequently, the Court cannot
conclude, as a matter of law, that the ten month period in this case is unreasonable.
Taking the facts in the Complaint to be true, as required on a motion to dismiss,
the entry was deemed liquidated on February 20, 2009; Customs provided bulletin
notice of this liquidation on December 18, 2009; and Customs reliquidated the entry on
January 8, 2010, well within 90 days of issuing the bulletin notice. The court therefore
denies Defendant’s motion to dismiss.
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CONCLUSION AND O RDER
For the foregoing reasons, the court hereby:
ORDERS that Defendant’s Motion to Dismiss (ECF No. 12) is DENIED.
The Court will contact parties to schedule a teleconference to discuss next steps.
/s/ 	Mark A. Barnett
Mark A. Barnett, Judge
Dated: November 16, 2015
New York, New York
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