                         Slip Op. 11 - 156

           UNITED STATES COURT OF INTERNATIONAL TRADE

C.B. IMPORTS TRANSAMERICA
CORP.,
                                        Before: Donald C. Pogue,
                 Plaintiff,             Chief Judge

          v.
                                        Court No. 11-00036
UNITED STATES,

                 Defendant.




                              OPINION

[Granting Defendant’s motion to dismiss]

                                             Dated: December 14, 2011

     Peter S. Herrick of Miami, FL, for Plaintiff.

     Jason M. Kenner, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of New York,
NY, for Defendant. With him on the brief were Tony West,
Assistant Attorney General and Barbara S. Williams, Attorney in
Charge, International Trade Field Office. Of counsel on the
brief was Beth Brotman, Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border
Protection, of New York, NY.

     Pogue, Chief Judge: In this matter, Plaintiff, C.B. Imports

Transamerica Corporation (“C.B. Imports”), seeks review of the

liquidation, by the Defendant, United States Customs and Border

Protection (“Customs”), of an entry of automotive safety glass

from the People’s Republic of China (“China”). Am. Compl. ¶¶

23–39, ECF No. 8.   Customs moves to dismiss for lack of subject
Court No. 11-00036                                          Page 2

matter jurisdiction.1 Mem. Supp. Def.’s Mot. Dismiss 3–4, ECF No.

16.

      The court finds that Plaintiff’s alleged claim under 28

U.S.C. § 1581(i) (2006) is time-barred.   Accordingly, this case

will be dismissed.

                            BACKGROUND

      C.B. Imports is an importer located in Puerto Rico. Am.

Compl. ¶ 1.   On September 20, 2002, C.B. Imports made entry2

number 261-0419198-1, consisting of automotive safety glass from

China. Am. Compl. ¶ 5; Mem. Supp. Def.’s Mot. Dismiss 1.   Customs

entered the goods on October 31, 2002, subject to an antidumping

duty under case number A-570-867-000. Am. Compl. ¶ 9.   The goods

were entered at a duty rate of 124.50%, requiring C.B. Imports to

make a $51,250.43 cash deposit. Id. ¶¶ 5–9.   Customs liquidated3

the entry on February 6, 2004 with a doubling of antidumping

duties and then reliquidated the entry on February 27, 2004 to



      1
       Customs, in the alternative, seeks dismissal for failure
to state a claim. Mem. Supp. Def.’s Mot. Dismiss 3–4. However,
because the court concludes that the Plaintiff’s claim is time-
barred, it does not reach the question of whether Plaintiff has
stated a claim upon which relief can be granted.
      2
       “‘Entry’ means that documentation required . . . to be
filed with the appropriate Customs officer to secure the release
of imported merchandise from Customs custody, or the act of
filing that documentation.” 19 C.F.R. § 141.0a(a) (2011).
      3
       “Liquidation means the final computation or ascertainment
of duties on entries for consumption or drawback entries.” 19
C.F.R. § 159.1 (2011).
Court No. 11-00036                                             Page 3

correct the erroneous doubling of duties. Id. ¶ 13; Mem. Supp.

Def.’s Mot. Dismiss 2.

      C.B. Imports claims that its entry was actually subject to

antidumping duty case number A-570-867-009, for which

liquidations were suspended on July 31, 2003. Am. Compl. ¶¶ 11,

14.   In addition, the antidumping duty order for automotive

safety glass from China was revoked on June 5, 2007. Automotive

Replacement Glass Windshields from the People’s Republic of

China, 72 Fed. Reg. 31,052, 31,052 (Dep’t Commerce June 5, 2007)

(final results of sunset review and revocation of antidumping

duty order) (“Revocation Order”).   On August 24, 2009, C.B.

Imports requested that, in light of the revocation, Customs

refund its cash deposit. Am. Compl. ¶ 19.   Customs responded on

August 26, 2009, informing C.B. Imports that it would not refund

the deposit because the entry had already been liquidated. Id. ¶

20.

      C.B. Imports initiated this action on February 17, 2011,

asserting that the court has jurisdiction to hear its claim under

§ 1581(i). Am. Compl. ¶ 4.   Customs contends that C.B. Imports

cannot assert § 1581(i) jurisdiction because it should have filed

a protest of the liquidation and subsequently sought review of

any denial of its protest under 28 U.S.C. § 1581(a)(2006). Mem.

Supp. Def.’s Mot. Dismiss 3.   Customs also contends that C.B.

Imports’ claim under § 1581(i) is time-barred by the two year
Court No. 11-00036                                             Page 4

statute of limitations for such claims.4 Id.; see also 28 U.S.C.

§ 2636(i) (2006).

                       STANDARD OF REVIEW

     Whether jurisdiction exists is a question of law. See Sky

Tech. LLC v. SAP AG, 576 F.3d 1374, 1378 (Fed. Cir. 2009).

Because the Defendant has moved to dismiss for lack of

jurisdiction, the court accepts as true the factual allegations

in the Plaintiff’s Amended Complaint. Scheuer v. Rhodes, 416 U.S.

232, 236 (1974), overruled on other grounds, Davis v. Scherer,

468 U.S. 183, 191 (1984).   However, the Plaintiff bears the

burden of establishing jurisdiction. Rocovich v. United States,

933 F.2d 991, 993 (Fed. Cir. 1991) (“A party seeking the exercise

of jurisdiction in its favor has the burden of establishing that


     4
       Because the court concludes that Plaintiff’s alleged
§ 1581(i) claim is time-barred, it need not address the
Defendant’s other claimed basis for dismissal, that a § 1581(i)
claim is barred because § 1581(a) provided an adequate, available
remedy. See Volkswagen of Am., Inc. v. United States, 31 CIT 233,
236, 475 F. Supp. 2d 1385, 1389 (2007) (“Jurisdiction is not
appropriate under § 1581(i) when ‘another subsection of § 1581 is
or could have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.’” (quoting
Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir.
1987))). Section 1581(a) gives the court jurisdiction over “any
civil action commenced to contest the denial of a protest, in
whole or in part, under [19 U.S.C. § 1515].” 19 U.S.C. § 1581(a).
When a plaintiff fails to protest a Customs duty and seeks review
under § 1581(a), that plaintiff cannot then seek recourse under
§ 1581(i). Hartford Fire Ins. Co. v. United States, 544 F.3d
1289, 1292 (Fed. Cir. 2008) (“[A plaintiff] cannot circumvent the
prerequisites of 1581(a) by invoking jurisdiction under 1581(i)
unless such traditional means are manifestly inadequate.”
(internal quotation marks ommitted)); Shah Bros. v. United
States,    CIT   , 770 F. Supp. 2d 1367, 1369–70 (2011).
Court No. 11-00036                                            Page 5

such jurisdiction exists.” (citing KVOS, Inc. v. Associated

Press, 299 U.S. 269, 278 (1936))).

                             DISCUSSION

I.   Plaintiff’s alleged claim under 28 U.S.C. § 1581(i) is
     statutorily time-barred

     The court has broad residual jurisdiction under § 1581(i)

over actions challenging Customs’ administration and enforcement

of antidumping duty orders.5    However, C.B. Imports’ alleged

§ 1581(i) claim is statutorily time-barred.

     Actions brought pursuant to § 1581(i) must be brought

“within two years after the cause of action first accrues.” 28

U.S.C. § 2636(i).    C.B. Imports filed suit on February 17, 2011



     5
         Section 1581(i) states in relevant part:

     In addition to the jurisdiction conferred upon the
     Court of International Trade by subsections (a)–(h) of
     this section . . . 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––
          (1) revenue from imports or tonnage;
          (2) tariffs, duties, fees, or other taxes on
          importation of merchandise for reasons other than
          the raising of revenue;
          (3) embargoes or other quantitative restrictions
          on the importation of merchandise for reasons
          other than the protection of the public health or
          safety; or
          (4) administration and enforcement with respect to
          the matters referred to in paragraphs (1)–(3) of
          this subsection and subsections (a)–(h) of this
          section.

28 U.S.C. § 1581(i).
Court No. 11-00036                                            Page 6

to challenge what it believes was the improper liquidation of its

entry by Customs on February 27, 2004.   Giving C.B. Imports the

benefit of the doubt, the court will assume, arguendo, that the

cause of action accrued when the antidumping duty order was

revoked and C.B. Imports became eligible for the refund of its

cash deposit.   However, the notice of that revocation was

published in the Federal Register on June 5, 2007.6 Revocation

Order, 72 Fed. Reg. at 31,052.   Thus, C.B. Imports’ alleged claim

under § 1581(i) was time-barred as of June 6, 2009. See 28 U.S.C.

§ 2636(i).

II. The Administrative Procedures Act does not offer an
alternative basis for jurisdiction

     C.B. Imports argues that it is not subject to the statute of

limitations applicable to § 1581(i) claims because it has an

independent cause of action under section 10 of the

Administrative Procedures Act (“APA”), 5 U.S.C. § 702 (2006).

Mem. Supp. Pl.’s Opp’n Def.’s Mot. Dismiss 5, ECF No. 18.

However, it is well established that the APA is not a

jurisdictional statute. See Volkswagen of Am., 31 CIT at 235, 475

F. Supp. 2d at 1388.   To hear an APA claim, the court must “have

an independent basis for jurisdiction under 28 U.S.C. § 1581.”



     6
       Because a Federal Register publication is always
constructive notice, see Isaac Indus. v. United States,    CIT
  , 780 F. Supp. 2d 1372, 1375 & 1375 n.8 (2011), C.B. Imports
cannot toll the statute of limitations based on lack of notice of
the revocation.
Court No. 11-00036                                              Page 7

Id.   As C.B. Imports cannot assert a timely claim under

§ 1581(i), as explained above, it also cannot assert a cause of

action under the APA. See Royal United Corp. v. United States,

CIT    , 714 F. Supp. 2d 1307, 1314 (2010) (“It is, of course,

axiomatic that this Court exercises jurisdiction pursuant to

Subsection 1581(i) to adjudicate a cause of action under the

APA.”).

                             CONCLUSION

      For the foregoing reasons, the court concludes that

Plaintiff’s alleged claim is time-barred.      The case must

therefore be DISMISSED.     Judgment will be entered accordingly.


                                             /s/ Donald C. Pogue
                                          Donald C. Pogue, Chief Judge


Dated: December 14, 2011
       New York, New York
