                                          Slip Op. 17-97

                  UNITED STATES COURT OF INTERNATIONAL TRADE


    MICRO SYSTEMS ENGINEERING,
    INC.,

          Plaintiff,
                                                    Before: Jennifer Choe-Groves, Judge
    v.
                                                    Court No. 13-00317
    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, Aug. 28, 2013, ECF No. 1; Compl. ¶ 5, Aug. 9, 2016, ECF No. 13.

Plaintiff imported forty entries of the merchandise between January 2011 and June 2011.1 See

Summons. U.S. Customs and Border Protection (“Customs”) classified and liquidated the




1
 This case initially concerned forty-two entries, but Entry Nos. UPS-1492397-9 and UPS-
2641343-1 were severed and dismissed from this case on March 2, 2017. See Order, Mar. 2,
2017, ECF No. 23 (granting Plaintiff’s consent motion to sever and dismiss).
Court No. 13-00317                                                                            Page 2


merchandise under various provisions of the Harmonized Tariff Schedule of the United States

(“HTSUS”). See Compl. ¶ 5; Answer ¶ 5, Feb. 15, 2017, ECF No. 21. 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. 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 n.1, ¶ 7.

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

USCIT Rule 12(c). See Mot. J. Pleadings, Mar. 22, 2017, ECF No. 24. 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

(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
Court No. 13-00317                                                                             Page 3


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

as follows:

       Micro Systems is correct that the Government admits that the imported substrates,
       cap sensors, and coils contained in the entries covered by this action are properly
       afforded secondary classification under subheading 9817.00.96, HTSUS. See
       Answer ¶ 7. However, the Government does not agree that Micro Systems has
       established that it is entitled to refunds on “TANT Caps” contained in Entry Nos.
       UPS-1590276-6 and UPS-2470970-7, “Tabs” contained in Entry Nos. UPS-
       1283211-5 and UPS-2539341-0, and “AOTs” contained in Entry Nos. UPS-
       1272304-1 and UPS-1384281-6. “TANT Caps,” “Tabs,” and “AOTs” are not the
       subject of the Complaint, and “TANT Caps” and “Tabs” are not the subject of the
       protests covering the entries in which they are contained. See Compl. ¶ 7; see
       also Entry Papers and Protests.

Def.’s Resp. Pl.’s Mot. J. Pleadings 2, Apr. 17, 2017, ECF No. 27. Plaintiff agrees that “TANT

Caps” and “Tabs” are not classifiable under the Nairobi Protocol. See Reply in Supp. Pl.’s Mot.

J. Pleadings 1, May 26, 2017, ECF No. 33. Plaintiff maintains, however, that the “AOTs” should

be afforded duty-free treatment under the Nairobi Protocol. See id. Plaintiff represents that,

after providing Defendant with documents and technical specifications, Defendant agrees that the

“AOTs” qualify for duty-free treatment under the Nairobi Protocol. See id. The Parties are in

agreement that the imported substrates, cap sensors, coils, and AOTs contained in the entries at

issue in this action are classifiable under the Nairobi Protocol. The Parties are also in agreement

that “TANT Caps” and “Tabs” are not 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, cap sensors, coils, and AOTs.

       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
Court No. 13-00317                                                                          Page 4


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

        ORDERED that the imported substrates, cap sensors, coils, and AOTs 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

        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, cap sensors, coils, and AOTs; it is further

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

interest as provided by law; it is further

        ORDERED that all claims with respect to “TANT Caps” contained in Entry Nos.

UPS-1590276-6 and UPS-2470970-7 are dismissed; and it is further

        ORDERED that all claims with respect to “Tabs” contained in Entry Nos.

UPS-1283211-5 and UPS-2539341-0 are dismissed.



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

Dated: August 7, 2017
      New York, New York
Court No. 13-00317                                                               Page 5


                                         SCHEDULE

Court No. 13-00317
Port: Cleveland, OH (4101)

Protest No.                  Entry No.              Description of Merchandise

4101-12-100417               UPS-1439875-0          Substrate Nos. 358018, 362539
                             UPS-1455049-1          Substrate No. 380143
                             UPS-1467605-6          Substrate No. 358018
                             UPS-1494247-4          Substrate No. 358018

4101-12-100430               UPS-1765499-3          Substrate Nos. 355686, 369164
                             UPS-1782685-6          Substrate Nos. 355686, 358018
                             UPS-1829299-1          Substrate Nos. 358018, 362539

4101-12-100775               UPS-2622837-5          Substrate Nos. 375850, 358018
                             UPS-2648611-4          Substrate No. 358018
                             UPS-2695243-8          Substrate No. 375851
                             UPS-2726160-7          Substrate
                             UPS-2748481-1          Substrate Nos. 375851, 375850
                             UPS-2812258-4          Substrate No. 375850

4101-12-100416               UPS-1547077-2          Substrate No. 362539
                             UPS-1547087-1          Substrate Nos. 358018, 355686
                             UPS-1590276-6          Substrate No. 371594
                             UPS-1685871-0          Substrate No. 355686
                             UPS-1702034-4          Substrate No. 355686
                             UPS-1717033-9          Substrate Nos. 369164, 362539
                             UPS-1733939-7          Substrate No. 362539

4101-12-100415               UPS-1209282-7          Substrate Nos. 358018, 355686
                             UPS-1202813-6          Substrate No. 362539
                             UPS-1184562-1          Substrate Nos. 358018, 362539
                             UPS-1178068-7          Substrate Nos. 358018, 380143
                             UPS-1154883-7          Substrate Nos. 362539
                             UPS-1286564-4          Substrate No. 358018
                             UPS-1272304-1          Cap Sensor, AOTs
                             UPS-1270044-5          Substrate No. 369164
                             UPS-1255860-3          Substrate Nos. 362539, 355686
                             UPS-1314435-3          Substrate Nos. 355686, 380695
                             UPS-1283211-5          Coil
                             UPS-1384281-6          Cap Sensor, AOTs
Court No. 13-00317                                                Page 6


Protest No.          Entry No.       Description of Merchandise

4101-12-100728       UPS-2461979-9   Substrate Nos. 358018, 362539
                     UPS-2470970-7   Cap Sensor
                     UPS-2476717-6   Substrate
                     UPS-2506937-4   Substrate Nos. 375850, 375851
                     UPS-2507255-0   Substrate No. 369164
                     UPS-2521936-7   Substrate No. 380143
                     UPS-2539341-0   Coil
                     UPS-2541579-1   Substrate No. 375851
