BRAL Corporation v. United States

Slip Op. 21-80
UNITED STATES COURT OF INTERNATIONAL TRADE
BRAL CORPORATION,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Jennifer Choe-Groves, Judge
Court No. 20-00154
OPINION AND ORDER
[Granting Defendant’s Partial Motion to Dismiss.]
Dated: June 29, 2021
Robert Kevin Williams, Clark Hill PLC, of Chicago, IL, for Plaintiff BRAL
Corporation.
Justin R. Miller, Attorney-in-Charge, and Alexander J. Vanderweide, Senior Trial
Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of New York, N.Y., for Defendant United States. With them on the brief
were Brian M. Boynton, Acting Assistant Attorney General, and Jeanne E.
Davidson, Director. Of counsel on the brief was Sabahat Chaudhary, Office of
Chief Counsel, U.S. Customs and Border Protection.
Choe-Groves, Judge: Plaintiff BRAL Corporation (“Plaintiff”) filed this
action pursuant to 28 U.S.C. § 1581(a) contesting the denial of its protests by U.S.
Customs and Border Protection (“Customs”) concerning the assessment of duties
on twelve entries of plywood imported from the People’s Republic of China
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(“China”). See Compl. at 1, ECF No. 7. Defendant United States (“Defendant”)
filed Defendant’s Partial Motion to Dismiss, ECF No. 11 (“Defendant’s Motion”),
on May 3, 2021. Defendant requests that the court dismiss one of the twelve
entries, Entry No. 949-0008813-2, for lack of subject matter jurisdiction under
USCIT Rule 12(b)(1) and 28 U.S.C. § 1581(a). See Def.’s Mem. Supp. Partial
Mot. Dismiss at 1, ECF No. 11 (“Def. Mem.”). Plaintiff did not file a response to
Defendant’s Motion. For the following reasons, the court grants Defendant’s
Motion to dismiss Entry No. 949-0008813-2.
BACKGROUND
This action concerns twelve entries of plywood imported from China by
Plaintiff between 2017 and 2018. See Summons at 1–3, ECF No. 1. Customs
liquidated three of Plaintiff’s entries on May 3, 2019. Def. Mem. at 2. Plaintiff
filed Protest No. 4101-19-100494 on October 25, 2019. See Summons at 3.
Customs denied the protest on March 5, 2020. Id.
The remaining nine entries, including Entry No. 949-0008813-2, were
deemed liquidated by operation of law. See Def. Mem. at 2; Entries, ECF No. 6.
Customs reliquidated these nine entries on December 20, 2019 (“December 20
Reliquidation”). Id.; see Summons at 3. Plaintiff filed Protest No. 4101-19-
100808 against these reliquidations on December 23, 2019. See Summons at 1–3.
Customs denied the protest on March 5, 2020. Id. Customs reliquidated one entry,
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Entry No. 949-0008813-2, again on March 13, 2020 (“March 13 Reliquidation”).
See Def. Mem. at 2; Summons at 1. Plaintiff did not protest the March 13
Reliquidation of Entry No. 949-0008813-2. See Summons at 1; Def. Mem. at 5.
JURISDICTION
The U.S. Court of International Trade, like all federal courts, is one of
limited jurisdiction and is “presumed to be ‘without jurisdiction’ unless ‘the
contrary appears affirmatively from the record.’” DaimlerChrysler Corp. v. United
States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (quoting King Iron Bridge & Mfg.
Co. v. Otoe Cnty., 120 U.S. 225, 226 (1887)). The party invoking jurisdiction
must allege sufficient facts to establish the court's jurisdiction independently for
each claim asserted. Id. at 1318–19 (citing McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936)); see also Norsk Hydro Can., Inc. v.
United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). If the court determines at any
time that it lacks subject matter jurisdiction, it must dismiss the action. See USCIT
R. 12(h)(3).
DISCUSSION
Plaintiff filed this action asserting jurisdiction under 28 U.S.C. § 1581(a).
See Compl. at 1. Defendant asserts that the court lacks subject matter jurisdiction
over Entry No. 949-0008813-2 because Plaintiff did not protest the March 13
Reliquidation of the entry. Def. Mem. at 1. Defendant requests that the court
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sever and dismiss Entry No. 949-0008813-2 from this action under USCIT R.
12(b)(1). Id.
Pursuant to 28 U.S.C. § 1581(a), the U.S. Court of International Trade has
“exclusive jurisdiction of any civil action commenced to contest the denial of a
protest, in whole or in part, under section 515 of the Tariff Act of 1930.” 28
U.S.C. § 1581(a). A party may protest a decision made by Customs within 180
days after the date of liquidation or reliquidation of the entry. 19 U.S.C.
§ 1514(c)(3)(A). The statute directs Customs to assess the protest in a timely
manner. See 19 U.S.C. § 1515. Jurisdiction under § 1581(a) is conditioned upon
the denial of a protest challenging a decision made by Customs that is filed in
accordance with 19 U.S.C. § 1514. If an importer does not avail itself of the
protest process, the decision made by Customs “shall be final and conclusive upon
all persons,” 19 U.S.C. § 1514(a), and judicial review is statutorily precluded. See
28 U.S.C. § 1581(a); see also Hartford Fire Ins. Co. v. United States, 544 F.3d
1289, 1292 (Fed. Cir. 2008).
When Customs reliquidates entries, the reliquidation vacates and is
substituted for the original liquidation. Sparks Belting Co. v. United States, 34
CIT 662, 667 (2010); see also United States v. Great Am. Ins. Co., 41 CIT __, __,
229 F. Supp. 3d 1306, 1319 (2017); AutoAlliance Int'l, Inc. v. United States, 357
F.3d 1290, 1294 (Fed. Cir. 2004) (stating that “the original liquidation is nullified
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only as to the question with which the reliquidation dealt”) (internal quotation
marks and citation omitted). A party must protest Customs’ reliquidation of entries
as a prerequisite to seeking judicial review of the reliquidation. See Sparks
Belting, 34 CIT at 667; SSk Indus. v. United States, 24 CIT 319, 323 (2000).
Failure to protest reliquidation renders the reliquidation final and conclusive and
unreviewable by this Court. See Sparks Belting, 34 CIT at 667–68 (citing
Mitsubishi Elecs. Am., Inc. v. United States, 18 CIT 929, 931 (1994)); see also
United States v. Am. Home Assurance Co., 789 F.3d 1313, 1323 (Fed. Cir. 2015)
(stating that the importer was required to challenge reliquidations to prevent them
from becoming final and conclusive regardless of whether the reliquidations were
legal).
In this case, Customs denied Plaintiff’s protest of the December 20
Reliquidation of Entry No. 949-0008813-2. See Summons at 1. Entry No. 949-
0008813-2 was reliquidated again on March 13, 2020. See id. When Customs
reliquidated Entry No. 949-0008813-2, the March 13 Reliquidation vacated and
was substituted for the original liquidation (i.e. the December 20 Reliquidation).
Plaintiff did not protest the March 13 Reliquidation. Plaintiff seeks judicial review
of the March 13 Reliquidation of Entry No. 949-0008813-2. See id. Because
Plaintiff did not protest the March 13 Reliquidation, Plaintiff has not met the
prerequisite to obtain judicial review before this court. The unprotested March 13
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Reliquidation of Entry No. 949-0008813-2 is final and conclusive and is
unreviewable by this court.
CONCLUSION
For the foregoing reasons, the court concludes that it lacks subject matter
jurisdiction under 28 U.S.C. § 1581(a) over Entry No. 949-0008813-2 because
there was no protest, and no protest denial, of the March 13 Reliquidation of the
entry. Accordingly, it is hereby
ORDERED that Defendant’s Partial Motion to Dismiss, ECF No. 11, is
granted; and it is further
ORDERED that Entry No. 949-0008813-2 is severed and dismissed from
this action.
/s/ 	Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	June 29, 2021
New York, New York
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