                                            Slip Op. 11 - 153

 UNITED STATES COURT OF INTERNATIONAL TRADE

                                                     :
OPTIMUS, INC., d/b/a MARKYS CAVIAR,                  :
                                                     :
                               Plaintiff,            :
                                                     :
                     v.                              :   Before: R. Kenton Musgrave, Senior Judge
                                                     :   Court No. 11-00152
UNITED STATES,                                       :
                                                     :
                               Defendant.            :
                                                     :

                                               OPINION

[On challenge for refund of retaliatory import duties, after settlement in part, motion to dismiss
remainder of action construed as partial and granted as to time-barred entries.]

                                                                        Decided: December 9, 2011

               Peter S. Herrick, P.A. (Peter S. Herrick), for the plaintiff.

               Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Michael D. Panzera), and Office of the Assistant Chief Counsel, International Trade
Litigation, U.S. Customs and Border Protection (Yelena Slepak), of counsel, for the defendant.


               Musgrave, Senior Judge: This action pursuant to 28 U.S.C. § 1581(i) seeks refunds

of retaliatory duties assessed on imports subject to Implementation of WTO Recommendations

Concerning EC-Measures Concerning Meat and Meat Products, 64 Fed. Reg. 40638, 40639 (USTR

July 27, 1999) (“EC-Measures”). Optimus, Inc. filed its summons and complaint against U.S.

Customs and Border Protection (“Customs”) on May 17, 2011, one hundred and sixty-two days after

issuance of the appellate mandate on Gilda Industries, Inc. v. United States, 622 F.3d 1358 (Fed. Cir.

2010) affirming that the existing retaliatory action terminated by operation of law on July 29, 2007.
Court No. 11-00152                                                                             Page 2


               Thereafter, pursuant to 19 U.S.C. § 1520(a)(1), the parties stipulated to entry of

judgment for refunds of retaliatory duties on entries of merchandise made after July 29, 2007 and

liquidated (or remaining unliquidated) after May 20, 2009 (a Wednesday).

               The government now moves to dismiss for lack of jurisdiction over the entries that

remain herein, i.e., those liquidated prior to May 20, 2009 (“remaining entries”),1 arguing that they

are time-barred.

               Optimus avers it was unaware it could challenge the retaliatory duty payments until

it was so advised by its customs brokers and argues its claim did not “finally” accrue until the

mandate in Gilda. Pl.’s Resp. at 3-4 (referencing United States v. Commodities Export Co., 972 F.2d

1266, 1270 (Fed. Cir. 1992 (noting that a cause of action accrues only when “all events” necessary

to state the claim or fix the alleged liability of the government have occurred). Collection of

retaliatory duties is merely ministerial, contends Optimus, and therefore there is no basis for denying

the remaining retaliatory duty refunds.

               In other words, Optimus essentially argues the dates of liquidation are irrelevant for

purposes of this claim. The dates of liquidation, however, are relevant to this matter.

               Optimus invokes jurisdiction pursuant to 28 U.S.C. § 1581(i),2 and “[a] civil action

of which the Court of International Trade has jurisdiction under section 1581 of this title, other than


       1
          The correct date should have been May 17, 2009, but the court is informed no liquidations
are affected by the partial settlement agreement oversight. Judgment is therefore on the papers
presented.
       2
          Judicial review pursuant section 15881(i) is governed by 5 U.S.C. § 706. See 28 U.S.C.
§ 2640(e). “Agency action” under section 706 review will be “h[e]ld unlawful and set aside” if the
findings and conclusions are found to be, inter alia, “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A).
Court No. 11-00152                                                                               Page 3


an action specified in subsections (a)-(h) of this section, is barred unless commenced in accordance

with the rules of the court within two years after the cause of action first accrues.” 28 U.S.C. §

2636(i). Further, “[t]he basic rule is that the clock of a statute of limitations begins to run from the

date the plaintiff’s cause of action ‘accrues’ . . . [and] stops on the date that the plaintiff files his

complaint in a court of proper jurisdiction.” Hair v. United States, 350 F.3d 1253, 1260 (Fed. Cir.

2003) (citation omitted). For purposes of 28 U.S.C. § 1581(i) and U.S.C. § 2636(i), thus, a cause

of action begins to accrue when a claimant has, or should have had, notice of the final agency act or

decision being challenged. See, e.g., Pat Huval Restaurant & Oyster Bar, Inc. v. United States, 32

CIT __, 547 F. Supp. 2d 1352 (2008).

                Given that Optimus is challenging pursuant to 28 U.S.C. § 1581(i) the authority of

Customs to assess retaliatory duties in accordance with the then-current annex to EC-Measures, the

event that triggered the accrual of Optimus’s claim was not issuance of the mandate in Gilda but

Customs’ liquidation. See 19 U.S.C. § 1514; 19 C.F.R. § 159.1 (liquidation means “the final

computation or ascertainment of the duties (not including vessel repair duties) or drawback accruing

on an entry”). Cf., e.g., Volkswagen of America, Inc. v. United States, 532 F.3d 1365, 1370 (Fed. Cir.

2008) (liquidation as “a final challengeable event in Customs’ appraisal process”); Juice Farms, Inc.

v. United States, 18 CIT 1037, 1040 (1994) (importers bear burden of checking for posted notices

of liquidation and protesting in timely manner). Even prior to final assessment of retaliatory duties,

Optimus was on notice that those duties were being imposed; yet Optimus did not challenge such

imposition or seek injunction to prevent the entries’ liquidations.
Court No. 11-00152                                                                              Page 4


                 Further, Optimus provides no support for the argument that judicial review of another

party’s challenge somehow “tolls” or “suspends” the accrual of its own cause of action, and it did

not file this action within two years of the relevant date(s) of liquidation of the remaining entries in

accordance with 28 U.S.C. § 1581(i). Gilda, as the controlling legal precedent, may effect the

outcome as to particular entries of this case, but the accrual of Optimus’s cause of action did not

depend upon issuance of Gilda’s mandate because the accrual of a claim is not affected by a judicial

interpretation of a statute. See, e.g., Catawba Indian Tribe of South Carolina v. United States, 982

F.2d 1564, 1570 (Fed. Cir. 1993) (“it is fundamental jurisprudence that the statute’s objective

meaning and effect were fixed when the statute was adopted[; a]ny later judicial pronouncements

simply explain, but do not create, the operative effect”) (italics in original).

                 Optimus argues that Customs is acting in a merely ministerial role in the collection

of retaliatory duties. But, if Optimus is not challenging Customs’ liquidation of its entries, the only

other agency determination possibly at issue would be the decision of the Office of the United States

Trade Representative to impose retaliatory duties. That decision occurred before final liquidation

in this case, so even under such a conception of the nature of Optimus’s claim, jurisdiction is still

lacking as to the remaining entries in dispute. The only plausible agency action or decision Optimus

contests, thus, is Customs’ liquidation of its entries that included the retaliatory duties. At

liquidation, Customs decided the imposition of those duties was “final,” and at that point Optimus’s

cause of action (to challenge that agency action and/or decision) accrued. Optimus has not presented

any valid basis for the relief it is essentially requesting, which is to “undo” liquidation or order

reliquidation.
Court No. 11-00152                                                                              Page 5


                Accordingly, because Optimus did not file its complaint within two years of the date

of accrual of its cause of action as required by 28 U.S.C. § 2636(i), the Court cannot grant Optimus’s

prayer for relief with respect to the remaining entries. These were all apparently liquidated prior

May 17, 2009.

                On the other hand, the government’s position has been that the statute of limitations

operates as a jurisdictional bar to Optimus’s claims beyond the two-year window. Such a stance

must be rejected as conflicting with the plain language of 28 U.S.C. 2636(i), i.e., “[a] civil action of

which the Court of International Trade has jurisdiction under section 1581[.]” See Parkdale Intern.,

Ltd. v. United States, 31 CIT 1229, 1238 n.6, 508 F. Supp. 2d 1338, 1349 n.6 (2007). The

government’s motion to dismiss will therefore be granted pursuant to USCIT Rule 12(b)(5).

                Judgment will enter accordingly.




                                                  /s/ R. Kenton Musgrave
                                                  R. Kenton Musgrave, Senior Judge


Dated: December 9, 2011
       New York, New York
