                            Slip Op. 12- 93

             UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge
___________________________________
ACME FURNITURE INDUSTRY, INC.,      :
                                    :
                                    :
          Plaintiff,                :
                                    :
     v.                             :         Court No.: 11-00318
                                    :
UNITED STATES,                      :
                                    :
          Defendant.                :
                                    :
                                    :

                          MEMORANDUM ORDER

Held: Defendant’s Motion to Dismiss is granted.

                                              Dated: July 18, 2012


     Hume & Associates, LLC, (Robert T. Hume) for Acme Furniture
Industry, Inc., Plaintiff.

     Stuart F. Delery, Acting Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice, (Aimee Lee); Edward N. Maurer, Of Counsel,
Deputy Assistant Chief Counsel, International Trade Litigation, U.S.
Customs and Border Protection, for the United States, Defendant.


     TSOUCALAS, Senior Judge: This matter comes before the Court upon

the Motion to Dismiss filed herein by Defendant, United States.

Plaintiff, Acme Furniture Industry, Inc. (“Acme”) initiated this

action invoking the Court’s jurisdiction under 28 U.S.C. § 1581(a).

The Government moves to dismiss arguing that the Court is without

jurisdiction to hear the claims set forth in Acme’s two-count

Complaint.   Alternatively, the Government asserts that Acme has
 Court No. 11-00318                                                          Page 2

failed to state a claim upon which relief can be granted.                       Acme

responds    by     asserting     that    it     is    challenging     an   erroneous

reliquidation by the United States Customs and Border Protection

(“CBP”), and that its challenge therefore falls squarely within

section 1581(a).         Because Acme has failed to carry its burden of

establishing the Court’s jurisdiction over this matter, or has failed

to state a claim upon which relief can be granted where jurisdiction

exists, the Court grants the Government’s Motion to Dismiss.

                                      BACKGROUND

       In 2005, the United States Department of Commerce (“Commerce”)

issued an antidumping duty order on wooden bedroom furniture from the

People’s Republic of China (“PRC”).                  See Notice of Amended Final

Determination of Sales at Less Than Fair Value and Antidumping Duty

Order: Wooden Bedroom Furniture from the People’s Republic of China,

70   Fed.   Reg.   329   (Jan.   4,     2005)   (“Antidumping       Duty   Order”   or

“Order”).    Commerce subsequently conducted an administrative review

of the Order for the period of review from January 1, 2008 through

December 31, 2008.        See Wooden Bedroom Furniture From the People’s

Republic of China: Final Results and Final Rescission in Part, 75

Fed. Reg 50,992 (Aug. 19, 2010).           Per the 2008 review, Commerce set

a China-wide rate of 216.01% and issued liquidation instructions to

CBP.    See Def.’s Mot. to Dismiss, Ex. B.                Acme is an importer of

wooden bedroom furniture from the PRC.                 At issue in this case are

entries of daybeds Acme made in 2008, which were liquidated by CBP at

the China-wide rate on November 5, 2010, and November 12, 2010.
 Court No. 11-00318                                                Page 3

      On January 20, 2011, Acme filed a scope ruling request with

Commerce asking for a determination that the daybeds it imported were

outside the scope of the Antidumping Duty Order.         Commerce issued a

scope ruling on April 15, 2011 (“Scope Ruling”), concluding that

daybeds with a trundle were subject to the Antidumping Duty Order

while daybeds without a trundle were outside the Order’s scope.         On

April 29, 2011, Commerce issued liquidation instructions based on the

Scope Ruling which, in relevant part, directed CBP to “liquidate all

unliquidated entries . . . of Acme’s daybed without a trundle” as

non-subject goods effective June 24, 2004.         See Def.’s Mot. to

Dismiss, Ex. B at 2.

      In addition to the scope proceedings before Commerce, Acme also

took steps before CBP to dispute whether its daybeds were subject to

the Antidumping Duty Order. On February 10, 2011, Acme filed Protest

No. 2704-11-100435 (“Protest 435") contesting liquidation of the

daybeds at the China-wide rate based on its position that the daybeds

were not subject to the Antidumping Duty Order.            After Commerce

issued its Scope Ruling, Acme filed Protest No. 2704-11-100784

(“Protest 784") again contesting the imposition of antidumping duties

on daybeds from the PRC.    Protest 435 was denied in its entirety, and

Protest 784 was denied in part and granted in part in an attempt by

CBP   to   comply   with   Commerce’s   Scope   Ruling    and   subsequent

instructions.   See Amended Summons, Protest, Attachment 1.       CBP then

reliquidated some of Acme’s entries of daybeds without trundles, and

issued to Acme a bill for certain of those entries in the amount of
 Court No. 11-00318                                                    Page 4

$27,641.01.

     Acme subsequently initiated this action and filed a two-count

Complaint.     In Count 1 of the Complaint, Acme challenges “the

liquidation and assessment of antidumping duties on the parts of

plaintiff’s daybed without trundle.”        Complaint at ¶ 31 (emphasis

added). It alleges specifically that “[b]ased on the [Scope Ruling],

plaintiff’s daybed without trundle was outside the scope of the

[Antidumping Duty Order],” id. at ¶ 32, and further alleges that CBP

did not provide notice of any findings it made apart from the Scope

Ruling.   Id. at ¶ 34.    In essence, Acme alleges that CBP’s leveling

of $27,641.01 in antidumping duties was erroneous in light of

Commerce’s Scope Ruling and subsequent instructions, and that there

was no other basis for imposing antidumping duties on any of its

entries of daybeds without trundles. In Count 2, Acme challenges the

“liquidation and assessment of antidumping duties on the parts of

plaintiff’s daybed with trundle.”          Complaint at ¶ 39 (emphasis

added).

     As clarified in its response to the Government’s Motion, Acme

seeks a second reliquidation of the daybed entries, and a refund of

the $27,641.01 it paid upon the first reliquidation.         In moving for

dismissal,    the   Government   argues   that   because   CBP   was   simply

following instructions from Commerce, Acme may not challenge the

imposition of antidumping duties under § 1581(a).          According to the

Government, to the extent Acme challenges the inclusion of its

daybeds in the scope of the Antidumping Duty Order, Acme’s recourse
 Court No. 11-00318                                          Page 5

was to challenge the results of the scope proceedings under 28 U.S.C.

§ 1581(c).   Alternatively, the Government argues that even if Acme’s

claims are construed to be challenging CBP’s reliquidation of the

daybed entries, CBP correctly followed the instructions of Commerce

and Acme has not stated claims upon which relief can be granted.

                   JURISDICTION and LEGAL STANDARD

     In its Complaint, Acme invokes the Court’s jurisdiction under 28

§ U.S.C. 1581(a), which provides jurisdiction over actions commenced

pursuant to section 515 of the Tariff Act of 1930, as amended, 19

U.S.C. § 1514.1   Section 1514 states that the following decisions by

CBP may be protested, and are thereafter subject to review before

this court pursuant to § U.S.C. 1581(a):

      (1) the appraised value of merchandise;
      (2) the classification and rate and amount of duties
      chargeable;
      (3) all charges or exactions of whatever character within
      the jurisdiction of the Secretary of the Treasury;
      (4) the exclusion of merchandise from entry or delivery
      or a demand for redelivery to customs custody under any
      provision of the customs laws, except a determination
      appealable under section 1337 of this title;
      (5) the liquidation or reliquidation of an entry, or
      reconciliation as to the issues contained therein, or any
      modification thereof, including the liquidation of an
      entry, pursuant to either section 1500 or section 1504 of
      this title;
      (6) the refusal to pay a claim for drawback; or
      (7) the refusal to reliquidate an entry under subsection
      (d) of section 1520 of this title . . . .

 19 U.S.C. § 1514(a).   Jurisdiction under 28 U.S.C. § 1581(a) does



      1
        All further citations to the Tariff Act of 1930 are to the
 relevant provisions of Title 19 of the United States Code, 2006
 edition.
Court No. 11-00318                                                 Page 6

not exist except for cases brought to challenge the denial of one

of these categories of protests. See Mitsubishi Elec. Am., Inc. v.

United States, 44 F.3d 973, 976 (Fed. Cir. 1994).

     The Court of International Trade “is a court of limited

jurisdiction,   possessing   ‘only    that   power   authorized   by     the

Constitution and federal statutes . . . .’”          Almond Bros. Lumber

Co. v. United States, 651 F.3d 1343, 1350 (Fed. Cir. 2011) (quoting

Sakar Int’l, Inc. v. United States, 516 F.3d 1340, 1349 (Fed. Cir.

2008)).    The party invoking federal jurisdiction - in this case,

Acme - has the burden of establishing such jurisdiction once it has

been challenged, see Canadian Lumber Trade Alliance v. United

States, 517 F.3d 1319, 1331 (Fed. Cir. 2008), but if jurisdiction

is established, federal courts are without authority to decline to

exercise it.     See Ad Hoc Shrimp Trade Action Comm. v. United

States, 618 F.3d 1316, 1321 (Fed. Cir. 2010).

                                 ANALYSIS

     The Court begins with the simpler question of whether it may

exercise   jurisdiction   over   Count   2   of   Acme’s   Complaint,    and

concludes that it may not.         In Count 2, Acme challenges the

imposition of antidumping duties on daybeds with trundles.              Acme

sought a ruling from Commerce that both daybeds with trundles and

daybeds without trundles were outside the scope of the Antidumping

Duty Order. Commerce, however, determined only the daybeds without

trundles were outside the scope of the Order.         See Def.’s Mot. to

Dismiss, Ex. B.      It is well-established that CBP’s role in the
Court No. 11-00318                                                  Page 7

collection of anti-dumping duties is ministerial; in other words,

it   merely   carries   out   the   instructions   of   Commerce.     See

Mitsubishi, 44 F.3d at 976.     If a party believes that the goods it

imports are not subject to an antidumping order, it must make that

argument to Commerce by initiating scope proceedings pursuant to 19

C.F.R. § 351.225. If the party disagrees with Commerce’s resulting

determination, its recourse is to appeal that decision to this

court under 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(§)(2)(B)(vi).

The Court is without jurisdiction to consider scope disputes,

including that set forth in Count 2 of Acme’s Complaint, under 28

U.S.C. § 1581(a).

      Turning to Count 1, the Court notes that the Government reads

this claim similarly to Count 2, namely, as a challenge to whether

the daybeds without trundles are subject to the Antidumping Duty

Order.   This is an overly narrow reading of Acme’s claim.          It is

true that Acme’s Complaint does contain an allegation that its

“daybed without trundle was outside the scope of the [Antidumping

Duty Order].”    Complaint at ¶ 32.     However, the true gravamen of

Count 1 comes further on when Acme alleges, in essence, that CBP

either misinterpreted Commerce’s instructions, or relied on an

unspecified source other than Commerce’s instructions, in not

refunding to Acme all of the antidumping duties it had paid for the

daybeds without trundles.     Complaint at ¶¶ 34-37.

      Contrary to Acme’s allegations, however, the instructions

issued by Commerce after the Scope Ruling are consistent with CBP’s
Court No. 11-00318                                           Page 8

collection of antidumping duties from Acme for its 2008 entries of

daybeds without trundles.   As noted above, Acme’s 2008 entries of

daybeds, including daybeds without trundles, were liquidated on

November 5, 2010, and November 12, 2010.       Commerce issued the

instructions based on the Scope Ruling on April 29, 2011 directing

CBP to “liquidate all unliquidated entries . . . of Acme’s daybed

without a trundle” as non-subject goods.       See Def.’s Mot. to

Dismiss, Ex. B at 2 (emphasis added).   Acme has not alleged that it

had any unliquidated entries of daybeds without trundles as of

April 29, 2011; indeed, the parties appear to agree that all of the

entries in question were liquidated by November 2010.    Therefore,

the instructions issued to CBP by Commerce following the Scope

Ruling do not give support Acme’s claim that it was injured by an

erroneous liquidation.

     In its Reply filed in support of the instant Motion, the

Government does concede that CBP erred in the reliquidation that

followed the April 29, 2011 instructions, but asserts that the

error was that a reliquidation occurred at all.         Because the

instructions only applied to “unliquidated” entries of daybeds

without trundles, the reliquidation which occurred, and which

resulted in a lower duty burden for Acme, was actually a windfall

for Acme, and does not form the basis for a claim for relief here.

The Court agrees.    Acme has cited no authority, and the Court is

aware of none, holding that CBP’s erroneous reliquidation mandates

another reliquidation of entries that was not provided for in the
Court No. 11-00318                                              Page 9

instructions   from   Commerce.   Acme   was   not   entitled   to   the

reliquidation of any of its 2008 entries of daybeds without

trundles per the instructions from Commerce.         The fact that CBP

erroneously reliquidated some of those entries to Acme’s benefit

does not entitle Acme to further relief here.

     Based on the foregoing, and upon the Government’s Motion, the

response filed by Acme, and all other pleadings and papers filed

herein, it is hereby

     ORDERED that the Government’s Motion to Dismiss is granted.




                                          /s/ NICHOLAS TSOUCALAS
                                              Nicholas Tsoucalas
                                                 Senior Judge



Dated: July 18, 2012
       New York, New York
