                                            Slip Op. 12- 50

                  UNITED STATES COURT OF INTERNATIONAL TRADE


UNITED STATES,
                                                        Before: Judith M. Barzilay, Senior Judge
                    Plaintiff,
                                                        Court No. 11-00078
                    v.

NITEK ELECTRONICS, INC.,

                   Defendant.


[Motion to dismiss for lack of subject matter jurisdiction denied; motion to dismiss for failure to
state a claim granted in part and denied in part.]

                                                                              April 13, 2012

Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M.
McCarthy, Assistant Director; Delisa M. Sanchez, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice; and Eric P. Delmar, U.S. Customs and Border Protection,
Of Counsel, for Plaintiff United States.

Baker & McKenzie, LLP (William D. Outman, II, Michael E. Murphy, Kevin J. Sullivan) for
Defendant Nitek Electronics, Inc.

                                  MEMORANDUM & ORDER

       BARZILAY, Senior Judge: Plaintiff United States brings this action pursuant to section

592 of the Tariff Act of 1930, 19 U.S.C. § 1592, seeking recovery of lost duties (Count I), lost

antidumping duties (Count II), and penalties based upon negligence (Count III). Compl. ¶¶ 33-

39. Currently before the court is Defendant Nitek Electronics, Inc.’s (“Defendant” or “Nitek”)

motion to dismiss this action pursuant to USCIT Rule 12(b)(1) for lack of subject matter

jurisdiction or, in the alternative, USCIT Rule 12(b)(5) for failure to state a claim. For the

reasons below, the court denies Defendant’s Rule 12(b)(1) motion, denies Defendant’s Rule
Court No. 11-00078                                                                             Page 2

12(b)(5) motion with respect to Counts I and II, and grants Defendant’s Rule 12(b)(5) motion

with respect to Count III.

                                          I. Background

       On April 1, 2004, U.S. Customs and Border Protection (“Customs”) issued a letter to

Nitek, pursuant to § 1592(d), demanding payment of duties allegedly owed on certain entries of

gas meter swivels and gas meter nuts from the People’s Republic of China. Compl. ¶¶ 5, 20, Ex.

B. Customs claimed that the merchandise – entered between June 14, 2001, and March 22, 2004

– was misclassified under the U.S. Harmonized Tariff Schedule (“HTSUS”), resulting in lost

duties. Compl. ¶¶ 6, 7, 8, Ex. B. Further, Customs alleged that Nitek failed to classify its

merchandise as subject to the antidumping duty order Certain Malleable Iron Pipe Fittings From

the People’s Republic of China, 68 Fed. Reg. 69,376 (Dep’t of Commerce Dec. 12, 2003) (notice

of antidumping duty). Compl. ¶¶ 9, 20, Ex. B.

       On March 21, 2005, Customs issued a pre-penalty notice alleging that Nitek “entered or

attempted to enter pipe fittings into the commerce of the United States by means of material false

statements and documents, and/or omissions.” Compl. Ex. E. Customs alleged a “tentative

culpability” of gross negligence and appended a list of the 38 pertinent entries. Compl. Ex. E.

Included with the pre-penalty notice was a statute of limitations waiver form, which Nitek

subsequently executed. Compl. ¶ 23, Exs. E, F.

       Concurrently with these ongoing penalty proceedings, other importers of gas meter

swivels and gas meter nuts brought an action in this Court challenging the antidumping duty

order. See Sango Int’l L.P. v. United States, 30 CIT 602, 429 F. Supp. 2d 1356 (2006) (“Sango

International”). In a letter dated April 1, 2005, Nitek requested that Customs suspend the

penalty proceedings pending resolution of Sango International. Compl. ¶ 24, Ex. G. Customs
Court No. 11-00078                                                                             Page 3

agreed to stay the proceedings in exchange for two subsequent waivers of the statute of

limitations. Compl. ¶¶ 25, 29, Exs. H, I, K, L. After a series of remands, the U.S. Court of

Appeals for the Federal Circuit (“Federal Circuit”) issued a final decision in Sango International

on June 4, 2009, sustaining the order. See Sango Int’l L.P. v. United States, 567 F.3d 1356 (Fed.

Cir. 2009).

         Customs issued a final penalty claim against Nitek on February 24, 2011. Compl. ¶ 30,

Ex. M. Customs again alleged a “tentative culpability” of gross negligence, but omitted from the

appendix of subject entries six entries previously listed in the pre-penalty notice. Compl. Ex. M.

Customs also informed Nitek that, absent agreement to an additional waiver of the statute of

limitations, Nitek had seven days “to file a petition for relief from the penalty issued.” Compl.

Ex. M.

         On March 3, 2011, counsel for Defendant filed a letter with Customs stating that Nitek

had acted with reasonable care in classifying its merchandise and, in an effort to resolve the

claim, offered to pay all duties owed. Def.’s Reply Ex. 1.1 Plaintiff thereafter filed this action.

                                      II. Standard of Review

         A fundamental question in any action before the Court is whether subject matter

jurisdiction exists over the claims presented. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94-95 (1998). “[W]hen a federal court concludes that it lacks subject-matter

jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546

U.S. 500, 514 (2006); see 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 3522 (3d ed. 2011) (“A federal court’s entertaining a case that is not within its
1
  Defendant first brought this letter to the court’s attention in its reply brief. Def.’s Reply Ex. 1.
Normally, the court will rely only on the complaint and attachments thereto when deciding a
Rule 12(b)(5) motion to dismiss. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). Because this exhibit does not impact the court’s ultimate disposition, the court notes
this letter solely for context.
Court No. 11-00078                                                                                 Page 4

subject matter jurisdiction is no mere technical violation . . . .”). The plaintiff bears the burden

of establishing jurisdiction, see Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355

(Fed. Cir. 2006), but, in deciding a Rule 12(b)(1) motion to dismiss, the Court accepts as true all

uncontroverted factual allegations in the complaint, Engage Learning, Inc. v. Salazaar, 660 F.3d

1346, 1355 (Fed. Cir. 2011).

        To survive a Rule 12(b)(5) motion to dismiss, “a complaint must contain sufficient

factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). The plaintiff bears the burden of pleading the requisite facts, USCIT R. 8(a)(2)

(“A pleading that states a claim for relief must contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief.”), but the Court accepts as true all well-pled

factual allegations and draws all reasonable inferences in favor of the plaintiff, Cedars-Sinai

Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 n.13 (Fed. Cir. 1993).

                                             III. Discussion

A. Subject Matter Jurisdiction

        This Court has exclusive jurisdiction over any action by the United States to recover a

penalty imposed for a violation of 19 U.S.C. § 1592.2 28 U.S.C. § 1582(1). In a § 1592 recovery

2
 Section 1592(a) provides that no person, “by fraud, gross negligence, or negligence,”
       (A) may enter, introduce, or attempt to enter or introduce any merchandise into the
       commerce of the United States by means of--
             (i) any document or electronically transmitted data or information, written or oral
             statement, or act which is material and false, or
             (ii) any omission which is material, or
       (B) may aid or abet any other person to violate subparagraph (A).
§ 1592(A).
Court No. 11-00078                                                                            Page 5

action, however, the Court “shall, where appropriate, require the exhaustion of administrative

remedies,” 28 U.S.C. § 2637(d); United States v. Rotek, Inc., 22 CIT 503, 508 (1998) (not

reported in F. Supp.) (“Rotek”), the detailed procedures for which Congress enacted in § 1592(b),

see § 1592(b). It is also well established that § 2637(d) grants the court the discretion to waive

§ 1592(b) exhaustion in appropriate circumstances. See, e.g., Agro Dutch Indus. Ltd. v. United

States, 508 F.3d 1024, 1029 (Fed. Cir. 2007); Rotek, 22 CIT at 508.

       Defendant argues that Customs failed to perfect its penalty claim via the administrative

process in § 1592(b) and that, as a result, the court lacks jurisdiction over this action. Def.’s Br.

8; Def.’s Reply 4-8. Defendant concedes (as it must) that exhaustion in this case is discretionary

but argues that Plaintiff has failed to demonstrate that a waiver of exhaustion is appropriate and

that jurisdiction therefore cannot attach. Def.’s Reply 6.

       Dismissal based upon a lack of subject matter jurisdiction concerns the court’s power to

hear a case rather than the parties’ ability to seek relief. Landgraf v. USI Film Prods., 511 U.S.

244, 274 (1994). Thus, the court is guided by the Supreme Court’s recent admonitions that

courts be mindful of the “important distinctions between jurisdictional prescriptions and claim-

processing rules . . . .” Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010) (“Reed

Elsevier”); Arbaugh, 546 U.S. at 511 (“On the subject-matter jurisdiction/ingredient-of-claim-

for-relief dichotomy, this Court and others have been less than meticulous.”). In particular, these

holdings have emphasized the precept that “when Congress does not rank a statutory limitation

on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”

Arbaugh, 546 U.S. at 516; see United States v. Robert E. Landweer & Co., 36 CIT __, ___, 816

F. Supp. 2d 1364, 1368-69 (2012) (“Landweer”) (“[T]he court presumes that exhaustion is non-

jurisdictional unless Congress has stated in sweeping and direct language (i.e., in clear and
Court No. 11-00078                                                                              Page 6

unequivocal terms) that there is no subject matter jurisdiction prior to exhaustion.” (citing

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004)). In Reed Elsevier, the

Court found nonjurisdictional a statutory precondition that “is not clearly labeled jurisdictional,

is not located in a jurisdiction-granting provision, and admits of congressionally authorized

exceptions.” Reed Elsevier, 130 S. Ct. at 1247; accord Ford Motor Co. v. United States, 635

F.3d 550, 556 (Fed. Cir. 2011).

       As an initial matter, § 1592(b) is neither clearly labeled jurisdictional nor located in the

provision granting the Court jurisdiction over these penalty claims, § 1582(1). Applying the

guidance in Reed Elsevier, the court finds that these considerations strongly counsel against

treating § 1592(b) as jurisdictional.

       Further undermining Defendant’s argument, § 1592(b) is subject to a congressionally

authorized exception. “[S]ubject-matter jurisdiction, because it involves a court’s power to hear

a case, can never be forfeited or waived.” Arbaugh, 546 U.S. at 514 (citation and internal

quotation marks omitted). As noted, the court is empowered to waive § 1592(b) exhaustion

pursuant to § 2637(d), which precludes a finding that these administrative penalty procedures are

jurisdictional prerequisites to suit.3 The court therefore agrees with previous decisions by this

Court holding that § 1592(b) exhaustion is nonjurisdictional, Rotek, 22 CIT at 508-09; cf.

Landweer, 36 CIT at ___, 816 F. Supp. 2d at 1372 (examining exhaustion pursuant to 19 U.S.C.

3
  Indeed, the Federal Circuit and this Court have repeatedly found that administrative processes
subject to § 2637(d) are nonjurisdictional inasmuch as the statute renders exhaustion
discretionary. See, e.g., United States v. Priority Prods., Inc., 793 F.2d 296, 300 (Fed. Cir.
1986); Wuxi Seamless Oil Pipe Co. v. United States, 35 CIT __, ___, 780 F. Supp. 2d 1337, 1341
n.5 (2011); Hartford Fire Ins. Co. v. United States, 31 CIT 1281, 1284 n.8, 507 F. Supp. 2d
1331, 1334 n.8 (2007) (“It is somewhat unclear why the government is relying on 28 U.S.C.
§ 2637(d) in support of its USCIT R. 12(b)(1) motion, as section 2637(d) is discretionary, not
jurisdictional.”); San Vicente Camalu SPR de RI v. United States, 31 CIT 599, 609, 491 F. Supp.
2d 1186, 1197 (2007).
Court No. 11-00078                                                                               Page 7

§ 1641), denies Defendant’s Rule 12(b)(1) motion, and exercises jurisdiction pursuant to

§ 1582(1).

B. Plaintiff’s Penalty Claim

        It remains, therefore, for the court to decide whether Plaintiff has exhausted the

administrative remedies required for its penalty claim and, if not, whether a waiver of exhaustion

is appropriate. This entails a close examination of the Congressional statute setting up the

administrative process which may lead to the filing of a penalty action in this Court. Section

1592(b) provides that “[i]f [Customs] has reasonable cause to believe there has been a violation

of subsection (a),” it first must issue a pre-penalty notice that, inter alia, “specif[ies] all laws and

regulations allegedly violated” and “state[s] whether the alleged violation occurred as a result of

fraud, gross negligence, or negligence.” § 1592(b)(1)(A)(iii), (v). In addition, the pre-penalty

notice must “inform [the subject of the notice] that he shall have a reasonable opportunity to

make representations, both oral and written, as to why a claim for a monetary penalty should not

be issued in the amount stated.” § 1592(b)(1)(A)(vii). “After considering representations, if any,

made by the person concerned,” Customs must then issue a penalty claim if it determines a

violation has occurred. § 1592(b)(2). The penalty claim must “specify all changes in the

information” Customs provided in the pre-penalty notice. Id. Following the penalty claim, the

liable party may seek remission or mitigation of the penalty by filing a petition with Customs

pursuant to 19 U.S.C. § 1618. Id. “At the conclusion of any proceeding under such section

1618, [Customs] shall provide to the person concerned a written statement which sets forth the

final determination and the findings of fact and conclusions of law on which such determination

is based.”4 Id.

4
 The parties contest whether the statute requires Customs to issue a written statement if the
importer does not file a § 1618 petition and, if not, whether Nitek’s letter dated March 3, 2011,
Court No. 11-00078                                                                              Page 8

       Notably, applicable regulations instruct that prior to receipt of a § 1618 petition “the

appropriate Customs field officer will cancel any such formal [§ 1592] claim whenever it is

determined that an essential element of the alleged violation is not established by the agency

record, including pre-penalty and penalty responses provided by the alleged violator.” 19 C.F.R.

§ 171, App. B(F)(2)(d). Once a party files a § 1618 petition, however, “jurisdiction over the

action rests with Customs Headquarters including the authority to cancel the claim.” Id.

       Properly framed, § 1592 creates a cause of action for the United States to recover a

penalty claim. See § 1592(e) (outlining parameters of “any proceeding commenced by the

United States in [this Court] for the recovery of any monetary penalty claimed under this

section”); § 1582(1) (granting the Court jurisdiction to hear an action by the United States “to

recover a civil penalty” (emphasis added)). It follows that the “Court’s statutory role is not to

impose penalties . . . but rather to decide whether to permit recovery of penalties the government

has already imposed.” United States v. UPS Customhouse Brokerage, Inc., 34 CIT __, ___, 686

F. Supp. 2d 1337, 1346 (2010) (emphasis in original) (discussing recovery pursuant to § 1641).

       Defendant argues that Plaintiff failed to perfect its penalty claim prior to instituting this

action. Def.’s Br. 4-5. Defendant avers that Count III of Plaintiff’s complaint constitutes a

newly raised, non-exhausted claim inasmuch as Plaintiff is seeking to recover a penalty based

upon a degree of culpability (negligence) that differs from that alleged at the administrative level

(gross negligence). Def.’s Br. 4-5. Plaintiff responds that it adequately perfected the penalty

claim below by alleging that Nitek introduced the subject merchandise into the United States by

means of a material false statement or omission. Pl.’s Resp. 14. Plaintiff further suggests that


constitutes such a petition. Def.’s Br. 6-7; Pl.’s Resp. 16-18; Def.’s Reply 10-13. Defendant
also argues that Plaintiff’s failure to list six covered entries in the penalty notice bars recovery of
any penalty based upon importation of those entries. Def.’s Br. 5-6. As the court finds that
Plaintiff did not otherwise perfect its penalty claim, the court will not address these issues.
Court No. 11-00078                                                                            Page 9

the level of culpability alleged below is immaterial to whether Customs perfected the claim.

Pl.’s Resp. 13.

       This court addressed a similar issue in United States v. Optrex, 29 CIT 1494 (2005) (not

reported in F. Supp.) (“Optrex”). There, the court rejected the government’s USCIT Rule 15(a)

motion to add to its complaint penalty claims for fraud and gross negligence where Customs

alleged only negligence in the underlying administrative proceedings. The court reasoned as

follows:

       The language of section 1592 evidences that the level of culpability forms the core
       around which the government must construct each penalty claim it wishes to bring: Each
       level of culpability generates a new separate claim. Subsection 1592(b) makes the level
       of culpability an essential element of the “violation” for which a “penalty” is claimed.

Optrex, 29 CIT at 1498-99; see id. at 1502 (“The level of culpability is an inextricable part of a

particular penalty claim issued pursuant to section 1592(b)(2) . . . .”). In so holding, the court

highlighted that § 1592(b) requires the pre-penalty notice and penalty claim to “state whether the

alleged violation occurred as a result of fraud, gross negligence, or negligence.” Id. at 1498

(quoting § 1592(b)(1)(A)(v)); see § 1592(b)(2) (mandating that the penalty notice “specify all

changes in the information provided under clauses (i) through (vi)” of § 1592(b)(1)(A)). While

§ 1592(e) subjects these penalty claims to de novo review, the court found that this “standard

refers to the issues in the context of a specific claim based on one of three types of section 1592

violations and does not allow the court to review entirely new penalty claims.” Optrex, 29 CIT

at 1500; accord United States v. Ford Motor Co., 463 F.3d 1286, 1298 (Fed. Cir. 2006) (citing

with favor the holding in Optrex that “effectively limited the de novo review provided for in

§ 1592(e) to those issues considered in the proceedings before Customs”).

       The court sees no reason to apply the statute differently in this case. Section 1592

mandates that Customs perfect a penalty claim prior to seeking recovery in this Court and a
Court No. 11-00078                                                                            Page 10

distinct level of culpability creates the nucleus around which that claim forms. Customs did not

seek to impose a penalty on Nitek for negligence at the administrative level and, as a result, the

administrative claim for which Customs is seeking recovery simply does not exist.

       Plaintiff attempts to distinguish Optrex by noting that in that case the government sought

to add claims for higher levels of culpability than what Customs asserted at the administrative

level, rather than lowering the level of culpability in its complaint, as the government does here.5

Pl.’s Resp. 15. In support of its position, Plaintiff argues that

       [t]he only difference between a negligent violation and a violation deemed to be grossly
       negligent is that a grossly negligent violation results from an act or acts (of commission
       or omission) done with actual knowledge of, or wanton disregard for, the relevant facts
       and with indifference to or disregard for the offender’s obligations under the statute.

       Thus, the threshold for alleging negligence is embedded within the threshold for alleging
       gross negligence. Accordingly, when Customs issued the pre-penalty notice and
       disclosed to Nitek that it was contemplating a penalty grounded in gross negligence,
       Customs placed Nitek on notice of the elements for a penalty grounded in negligence.
       ....
       In short, in giving notice of the claim for a penalty grounded in gross negligence through
       the administrative process, the Government also gave notice of the elements upon a claim
       grounded in negligence.

Pl.’s Resp. 14-16 (internal citation omitted). The court will not endorse this argument.

       “Proper exhaustion demands compliance with . . . critical procedural rules because no

adjudicative system can function effectively without imposing some orderly structure on the

course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Plaintiff relies heavily

on its contention that Customs placed Nitek on notice of the elements of a negligence claim by

alleging a higher level of culpability, but fails to demonstrate that such constructive notice is all
5
  As Plaintiff notes, Optrex also differs from the instant action in that the government there
sought to add additional claims, pursuant to Rule 15(a), rather than changing the level of
culpability of a claim imposed below. Pl.’s Resp. 15 (citing Optrex, 29 CIT at 1496). In light of
the applicable statutory regime, however, this proves to be a distinction without a difference. By
alleging a level of culpability different from that alleged below, the government here (as in
Optrex) is asserting an entirely new claim.
Court No. 11-00078                                                                           Page 11

§ 1592 requires for successful exhaustion. Conspicuously absent from Plaintiff’s argument is

any reference to § 1592(b) and the applicable requirements therein, and Plaintiff cites no other

statute, regulation, or precedent (nor any authority from what it might consider comparable areas

of law) that support this interpretation.6 Moreover, the statute clearly requires more: Customs is

to articulate a level of culpability in the pre-penalty notice and thereafter indicate any change in

that culpability in the final penalty claim. See § 1592(b)(1)-(2). The court will not ignore these

explicit statutory instructions. Even assuming that Customs had placed Nitek on notice of the

elements necessary to establish negligence (a charitable posit), the statute would still not be

satisfied. At a minimum, before seeking recovery of a penalty imposed at a different (even

lower) level of culpability than that alleged in the pre-penalty phase, Customs is to notify a

potential defendant of that change in the penalty claim. Customs did not do so in this case.7




6
  Most strikingly, Plaintiff does not discuss § 1592(b)(1)(A)(v), which requires the pre-penalty
notice to “state whether the alleged violation occurred as a result of fraud, gross negligence, or
negligence.” Instead, Plaintiff relies solely on United States v. Jean Roberts of Cal., Inc., 30 CIT
2027 (2006) (not reported in F. Supp.) (“Jean Roberts”), which is inapposite. The court in Jean
Roberts addressed a penalty claim in which Customs specifically stated that the importer would
be subject to a penalty in the amount of two times the lost revenue, but, apparently in error, listed
a dollar amount equal to the lost revenue. Id. The court found that despite this error the
government could seek recovery for a penalty two times the lost revenue. Id. Though Plaintiff
truncates its explanatory parenthetical to omit this fact, the court in Jean Roberts characterized
Optrex as relying not only on “the necessity of adequate notice” but also on the § 1592’s purpose
of affording importers the opportunity to resolve penalty claims at the administrative level, id. at
2035, and distinguished the two holdings accordingly. The error addressed in Jean Roberts is
thus a far cry from the question at hand: whether Customs can seek recovery on a level of
culpability it did not allege below.
7
  The court does not ascribe any significance to the fact that Customs describes the level of
culpability alleged in the pre-penalty notice and penalty claim as “tentative.” Compl. Exs. E, M.
Nitek received notice only of a claim for gross negligence – in fact, the record is devoid of any
reference by Customs to a level of culpability other than gross negligence – and Customs’ mere
use of the term “tentative” does not act to mitigate its statutory responsibilities under § 1592(b).
Indeed, as the court notes infra, Customs has alleged in the alternative culpability levels of both
gross negligence and negligence in other proceedings and could have done so here.
Court No. 11-00078                                                                             Page 12

       It follows that the court finds exhaustion appropriate under the circumstances. Section

2637(d) “indicates a congressional intent that, absent a strong contrary reason, the court should

insist that parties exhaust their remedies before the pertinent administrative agencies.” Corus

Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007). The Court has identified

certain limited exceptions in which waiver is appropriate, see Jiang Brother Fastener Co. v.

United States, 34 CIT __,___, 751 F. Supp. 2d 1345, 1356 (2010), and a plaintiff must “show

that it exhausted its administrative remedies, or that it qualifies for an exception to the exhaustion

doctrine.” Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir. 2003). Here as

well, Plaintiff fails to identify any applicable exception to the exhaustion requirement, nor even

request a waiver, despite recognizing that § 1592(b) exhaustion is discretionary. Pl.’s Resp. 13.

Because Plaintiff has made no effort to persuade the court to abandon a presumption favoring

exhaustion, the court deems the issue waived.

       Regardless, the court believes that § 1592 precludes a waiver of exhaustion in this case.

Contrary to Plaintiff’s position, Congress designed § 1592 not merely to articulate the elements

of the importer’s potential liability at trial, but also “to give an importer an opportunity to fully

resolve a penalty proceeding before Customs, before any action in this Court.” Optrex, 29 CIT

at 1500 (citing S. Rep. No. 95-778, at 19-20 (1978)). Even a cursory reading of the statute indeed

reveals that § 1592(b) twice grants importers “a reasonable opportunity” to address Customs’

allegations (following the pre-penalty notice and in a § 1618 petition) and demands that Customs

impose a penalty only after considering (and, in the case of a § 1618 petition, addressing) the

importer’s representations. See § 1592(b)(1)-(2). Moreover, applicable regulations mandate that
Court No. 11-00078                                                                            Page 13

Customs cancel a penalty claim if the agency record, including the importers’ submissions,

demonstrates the absence of a crucial element of the claim.8 19 C.F.R. § 171, App. B(F)(2)(d).

       To waive exhaustion in this context would force importers either to abandon the

administrative opportunities for resolution that § 1592 affords or, in composing their

administrative responses, to guess at whether Customs will choose to allege a lesser culpability

before the Court or indeed alter any of the statutorily prescribed factors that must be included in

the pre-penalty notice and penalty claim.

       True, an importer could – as Nitek did, Def.’s Reply Ex. 1 – respond to a claim of gross

negligence by alleging that it exercised reasonable care, an assertion (if true) that would

sufficiently rebut an allegation of negligence as well. (Notably, Plaintiff did not take any action

in response to Nitek’s assertion.) Even in this seemingly innocuous circumstance, though, the

court cannot sanction the administration of a penalty scheme in which statutory prescriptions are

ignored and importers are left with uncertainty regarding the level of culpability the government

will allege before the Court.9 This approach would frustrate the back-and-forth between

8
  Indeed, this regulation presumably requires Customs to cancel a claim for gross negligence if
the importer demonstrates in its submissions an absence of the requisite scienter (willful or
wanton disregard), a crucial element of that claim. See Ford Motor Co., 463 F.3d at 1292 (“[A]
determination of gross negligence involves a determination of intent . . . .” (citation omitted));
see also 19 C.F.R. § 171, App. B(C)(2). That same showing, however, would not be sufficient to
extinguish a claim for negligence, a level of culpability that does not require scienter. See, e.g.,
United States v. Optrex Am., Inc., 30 CIT 650, 661 (2006) (not reported in F. Supp.). In light of
this regulatory scheme, Plaintiff’s position (that alleging only gross negligence below
automatically perfects a claim for negligence as well) seems, at best, counterintuitive.
9
  In a rather puzzling mischaracterization of the law, counsel for Plaintiff asserts the following:
“In an action brought for gross negligence or negligence, the Government must show that a
material omission occurred, after which the burden shifts to the alleged violator to prove by a
preponderance of evidence that reasonable care was exercised.” Pl.’s Resp. 14 (citing 19 U.S.C.
§ 1592(e)(4); United States v. Menard, Inc., 16 CIT 410, 795 F. Supp. 1182 (1992)). This is not
true. Section 1592(e)(3) provides that “if the monetary penalty is based on gross negligence, the
United States shall have the burden of proof to establish all the elements of the alleged
violation.” § 1592(e)(3) (emphasis added). By contrast, § 1592(e)(4) provides that “if the
Court No. 11-00078                                                                            Page 14

Customs and importers at the administrative level thereby inhibiting the resolution of penalty

claims prior to suit, as § 1592(b) encourages. Conversely, nothing prevented Customs from

bringing penalty claims for both negligence and gross negligence in the alternative, as it has done

in the past, see, e.g., United States v. Inn Foods, Inc., 31 CIT 1474, 515 F. Supp. 2d 1347 (2007),

and the court is doubtful that it would have burdened Customs (in any significant sense) to do so.

The court therefore finds that Plaintiff’s penalty claim is barred.

C. Plaintiff’s § 1592(d) Claims

       Finally, the court must address whether Customs’ failure to exhaust administrative

remedies bars its § 1592(d) claims as well. Defendant argues that Customs’ failure to issue a

written statement pursuant to § 1592(b)(2) prevents recovery of lost duties on the subject

merchandise and, further, that Customs’ failure to list six entries in the penalty claim (previously

listed in the pre-penalty notice) prevents recovery on those entries. Def.’s Br. 5-6; Def.’s Reply

2-4. Plaintiff responds that lost duties claims are not predicated on § 1592(b) exhaustion. Pl.’s

Resp. 23-24; Pl.’s Surreply 8. Accordingly, Plaintiff also argues that its failure to list the six

entries in the penalty notice does not prevent recovery on those entries. Pl.’s Resp. 23-24.

       Section 1592(d) provides that “if the United States has been deprived of lawful duties,

taxes, or fees as a result of a violation of subsection (a) of this section, [Customs] shall require

that such lawful duties, taxes, and fees be restored, whether or not a monetary penalty is

assessed.” § 1592(d) (emphasis added). This subsection creates an independent cause of action,

United States v. Blum, 858 F.2d 1566, 1568-69 (Fed. Cir. 1988), and the “government’s right to

recover unpaid duties under section 1592(d) does not depend on its right to obtain penalties


monetary penalty is based on negligence, the United States shall have the burden of proof to
establish the act or omission constituting the violation, and the alleged violator shall have the
burden of proof that the act or omission did not occur as a result of negligence.” § 1592(e)(4).
Court No. 11-00078                                                                           Page 15

pursuant to section 1592(c).” United States v. Jac Natori Co., 108 F.3d 295, 299 (Fed. Cir.

1997) (citation omitted); see United States v. Inn Foods, Inc., 560 F.3d 1338, 1348 (Fed. Cir.

2009) (noting that § 1592(d) action exists even if Customs chooses not to assess penalty (citing

H.R. Rep. No. 95-621 at 16 (1977)). Relying on the above, the Court has previously held that

the government need not exhaust administrative remedies prior to seeking recovery of lost duties.

See United States v. Aegis Sec. Ins. Co., 29 CIT 1263, 398 F. Supp. 2d 1354 (2005).

        Section 1592 does not provide any administrative process for imposing lost duty claims,

see generally § 1592, and Defendant cites no authority (statutory or otherwise) that indicates

§ 1592(d) claims are subject to an exhaustion requirement. Plaintiff has alleged a violation of

§ 1592(a) that deprived the United States of lawful duties and antidumping duties, the payment

for which Nitek is responsible. Compl. ¶¶ 6-19. These are “the essential elements of § 1592(d)

liability.” Aegis Sec. Ins. Co., 29 CIT at 1265, 398 F. Supp. 2d at 1356. Plaintiff thus states a

plausible claim for recovery of duties lost on the entries listed in its complaint, see Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 570), and the court will not dismiss this portion of the

government’s case.

                                           IV. Conclusion

        For the reasons stated, it is hereby

        ORDERED that Defendant’s motion to dismiss pursuant to USCIT R. 12(b)(1) is denied;

it is further

        ORDERED that Defendant’s motion to dismiss Counts I and II pursuant to USCIT R.

12(b)(5) is denied; it is further

        ORDERED that Defendant’s motion to dismiss Count III pursuant to USCIT R. 12(b)(5)

is granted; and it is further
Court No. 11-00078                                                                        Page 16

       ORDERED that counsel for the parties shall confer and inform the court by May 14,

2012, how they intend to proceed in this matter by filing a proposed joint scheduling order.



Dated: April 13, 2012                                        /s/ Judith M. Barzilay
       New York, NY                                         Judith M. Barzilay, Senior Judge
