                          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

                               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



     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.
Court No. 01-00759                                               Page 3

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.”).

     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 non-
     moving 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...)
Court No. 01-00759                                                   Page 4

     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-



     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)).
Court No. 01-00759                                              Page 5

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


     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).
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

¶ 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

     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...)
Court No. 01-00759                                               Page 8

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


      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...)
Court No. 01-00759                                          Page 9

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


     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.
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

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

     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).
Court No. 01-00759                                                 Page 12

     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]   APA10/


     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...)
Court No. 01-00759                                                         Page 13

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



      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).
Court No. 01-00759                                               Page 14

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

     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.
Court No. 01-00759                                            Page 15

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

     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].
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

      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

      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...)
Court No. 01-00759                                                 Page 20

     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

     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...)
Court No. 01-00759                                                              Page 21


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



       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).
