
    MICRO SYSTEMS ENGINEERING, INC., Plaintiff, v. UNITED STATES, Defendant.
    Slip Op. 17-97
    Court No. 13-00317
    United States Court of International Trade.
    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. Readier, Acting Assistant Attorney General, Amy M. Rubin, Assistant Director.
   JUDGMENT

Choe-Groves, Judge:

This case involves the classification of certain parts used to manufacture subas-semblies 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. See Summons. U.S. Customs and Border Protection (“Customs”) classified and liquidated the 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. Plaintiffs complaint alleges that Customs miselassified 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)®. Defendant agrees that the imported pacemaker components contained in the entries at issue are classifiable under HTSUS subheading 9817.00.96. See Answer n.l, ¶ 7.

Before the court is Plaintiffs 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, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990)). Plaintiff asserts that there are no factual or legal disputes for the court to review and the court should enter judgment in Plaintiffs favor because Defendant admits that the imported 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-1288211-5 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

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.

SCHEDULE

Court No. 13-00317

Port: Cleveland, OH (4101)

Protest No. Entrv No. Descritrtion 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-1 178068-7 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

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 
      
      . 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 Plaintiffs consent motion to sever and dismiss).
     