                                          Slip Op. 17-98

                  UNITED STATES COURT OF INTERNATIONAL TRADE


    MICRO SYSTEMS ENGINEERING,
    INC.,

          Plaintiff,
                                                    Before: Jennifer Choe-Groves, Judge
    v.
                                                    Court No. 13-00376
    UNITED STATES,

          Defendant.


                                           JUDGMENT

[Granting Plaintiff’s USCIT Rule 12(c) motion for judgment on the pleadings.]

                                                                     Dated: August 7, 2017

Elon A. Pollack, Stein Shostak Shostak Pollack & O’Hara, LLP, of Los Angeles, CA, for
plaintiff.

Alexander Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Dept. of Justice, of New York, NY, for defendant. With him on brief were Chad A. Readler,
Acting Assistant Attorney General, Amy M. Rubin, Assistant Director.


         Choe-Groves, Judge: This case involves the classification of certain parts used to

manufacture subassemblies for pacemakers imported by Micro Systems Engineering, Inc.

(“Plaintiff”). See Summons, Nov. 8, 2013, ECF No. 1; Compl. ¶ 5, Feb. 13, 2017, ECF No. 15.

Plaintiff imported twenty-four entries of the merchandise between June 2011 and February

2012.1 See Summons. U.S. Customs and Border Protection (“Customs”) classified and


1
  This case initially concerned forty-three entries. See Summons. The nineteen entries covered
in Protest Nos. 4196-13-100098, 4196-13-100058, 4196-13-100210, 4196-13-100065, 4196-13-
100059, 4196-13-100140, and 4101-13-100192 were severed and dismissed from this case on
                                                                            (footnote continued)
Court No. 13-00376                                                                         Page 2


liquidated the merchandise under various provisions of the Harmonized Tariff Schedule of the

United States (“HTSUS”). See Compl. ¶ 5; Answer ¶ 5, Mar. 23, 2017, ECF No. 16. Plaintiff’s

complaint alleges that Customs misclassified the imported merchandise because the parts are

specially designed or adapted for use in heart pacemakers and are classifiable under the Nairobi

Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural

Materials (“Nairobi Protocol”). See Compl. ¶¶ 7–9. The HTSUS implemented the Nairobi

Protocol under subheading 9817.00.96, which is a duty free provision that exempts payment of

certain merchandise processing fees. See 19 C.F.R. § 24.23(c)(1)(i). Defendant agrees that the

imported pacemaker components contained in the entries at issue are classifiable under HTSUS

subheading 9817.00.96. See Answer ¶¶ 7–9.

       Before the court is Plaintiff’s Motion for Judgment on the Pleadings filed pursuant to

USCIT Rule 12(c). See Mot. J. Pleadings, May 9, 2017, ECF No. 23. USCIT Rule 12(c)

permits a party to move for judgment on the pleadings “after the pleadings are closed and if it

would not delay trial.” Forest Labs., Inc. v. United States, 29 CIT 1401, 1402, 403 F. Supp. 2d

1348, 1349 (2005), aff’d, 476 F.3d 877 (Fed. Cir. 2007). A judgment on the pleadings is

appropriate where there are no material facts in dispute and the moving party is entitled to

judgment as a matter of law. See New Zealand Lamb Co., Inc. v. United States, 40 F.3d 377,

380 (Fed. Cir. 1994) (citing Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day

Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079




May 10, 2017 and August 1, 2017. See Order, May 10, 2017, ECF No. 25 (granting Plaintiff’s
consent motion to sever and dismiss); Order, Aug. 1, 2017, ECF No. 29 (granting Plaintiff’s
consent motion to sever and dismiss).
Court No. 13-00376                                                                            Page 3


(1990)). Plaintiff asserts that there are no factual or legal disputes for the court to review and the

court should enter judgment in Plaintiff’s favor because Defendant admits that the imported

goods are classifiable under the Nairobi Protocol. See Mot. J. Pleadings 3. Defendant responds

as follows:

        [W]e agree with Micro Systems that the substrates, coils, diodes and integrated
        circuits in the remaining . . . entries before the Court “are properly classified
        under HTSUS 9817.00.96 (Nairobi Protocol), which carries 0% duties ad valorem
        and are excepted from payment of merchandise processing fees.” Pl. Motion at
        2–3.

Def.’s Resp. Pl.’s Mot. J. Pleadings 2, May 15, 2017, ECF No. 26. The Parties are in agreement

that the imported substrates, coils, diodes, and integrated circuits contained in the entries at issue

in this action are classifiable under the Nairobi Protocol. Judgment on the pleadings is

appropriate here because the pleadings do not raise any triable material issue of fact and Plaintiff

is entitled to judgment as a matter of law regarding the classification of the imported substrates,

coils, diodes, and integrated circuits.

        Therefore, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings, and

all other papers and proceedings in this action, and upon due deliberation, it is hereby

        ORDERED that judgment is granted in favor of Plaintiff; it is further

        ORDERED that the imported substrates, coils, diodes, and integrated circuits contained

in the entries set forth on the attached Schedule are classifiable under HTSUS subheading

9817.00.96, which is a duty free provision that exempts payment of merchandise processing fees;

it is further
Court No. 13-00376                                                                             Page 4


        ORDERED that, in accordance with this judgment, U.S. Customs and Border Protection

shall reliquidate and issue refunds for those entries on the attached Schedule containing

substrates, coils, diodes, and integrated circuits; and it is further

        ORDERED that any refunds payable by reason of this judgment shall be paid with any

interest as provided by law.



                                                                /s/ Jennifer Choe-Groves
                                                                 Jennifer Choe-Groves, Judge

Dated: August 7, 2017
      New York, New York
Court No. 13-00376                                                                 Page 5


                                         SCHEDULE

Court No. 13-00376

Port: Cleveland, OH (4101)

Protest No.                  Entry No.           Description of Merchandise

4101-12-100774               UPS-2820507-4       Substrate No. 382159
                             UPS-2853368-1       Substrate No. 375851
                             UPS-2935425-1       Substrate Nos. 358018, 375850
                             UPS-2974236-4       Substrate No. 369164
                             UPS-2983617-4       Substrate Nos. 380143, 375850

4101-13-100366               UPS-5249407-3       Substrate No. 369164
                             UPS-5322143-4       Substrate No. 381978
                             UPS-5216520-2       Substrate No. 358018
                             UPS-5295260-9       Substrate No. 358018
                             UPS-5181551-8       Integrated Circuits

4101-13-100397               UPS-5267472-4       Substrate Nos. 375850, 375851, 388143
                             UPS-5558872-3       Substrate Nos. 375850, 380143
                             UPS-5322139-2       Substrate No. 380143
                             UPS-5399461-8       Substrate No. 375851
                             UPS-5434839-2       Substrate No. 365754

4101-13-100398               UPS-5251974-7       Diodes
                             UPS-5481026-8       Diodes

Port: Los Angeles International Airport (2720)

Protest No.                  Entry No.           Description of Merchandise

2720-13-100071               UPS-3938534-5       Coil (Frame, Shield)

2720-13-100147               UPS-4502677-6       Coil Circuit
                             UPS-4542473-2       Coil Frame

2720-13-100170               UPS-4632367-7       Coil Frame, Shield
                             UPS-4696268-0       Coil Frame
                             UPS-4764926-0       Coil Shield
                             UPS-4953780-2       Coil (Frame, Circuit, Shield)
