Carbon Activated Corporation v. United States
2015 U.S. App. LEXIS 10837
| Fed. Cir. | 2015Background
- Carbon Activated Corp. imported three entries of activated carbon from China in mid‑2007 subject to an antidumping duty order; estimated cash deposits were 67.14%.
- Commerce initiated an administrative review for the period covering those entries and instructed Customs to suspend liquidation pending the review, but Customs liquidated the three entries in 2008 at the 67.14% rate.
- Carbon did not discover the erroneous liquidations until 2012 and filed a protest under 19 U.S.C. § 1514 in September 2012 (outside the 180‑day deadline); Customs has not acted on that protest.
- Commerce’s final administrative review (published 2009) and subsequent litigation produced a final duty rate of 16.35% for entries by the same exporter; that lower rate would have applied had the three entries remained unliquidated.
- Carbon sued in the Court of International Trade under 28 U.S.C. § 1581(i) in 2013 seeking reliquidation at 16.35%; the Trade Court dismissed for lack of jurisdiction because a timely § 1514 protest would have provided an adequate remedy.
- Carbon appealed; the Federal Circuit affirmed, holding § 1581(i) unavailable because § 1581(a) jurisdiction (via a timely protest under § 1514) could have been used.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1581(i) jurisdiction is available for Carbon’s challenge to Customs’ alleged erroneous liquidations | Carbon: § 1514/protest remedy would have been manifestly inadequate because the final rate wouldn’t be known until judicial review | U.S.: Carbon could have timely filed a § 1514 protest and awaited final rate; § 1514 would ultimately provide reliquidation relief | Held: § 1581(i) unavailable because § 1581(a) via § 1514 would have been an adequate remedy if timely pursued |
| Whether failure to timely protest can be excused to invoke § 1581(i) equitable jurisdiction | Carbon: late discovery and lack of immediate remedy justify § 1581(i) | U.S.: importer bears duty to monitor liquidation notices; Juice Farms bars circumventing timely protest requirement | Held: failure to timely protest is not excused; importer must timely protest; § 1581(i) cannot be used to evade § 1514 deadlines |
Key Cases Cited
- Ford Motor Co. v. United States, 688 F.3d 1319 (Fed. Cir.) (residual § 1581(i) unavailable when another subsection could have provided an adequate remedy)
- Juice Farms, Inc. v. United States, 68 F.3d 1344 (Fed. Cir.) (importer must monitor liquidations and timely protest; cannot use § 1581(i) to avoid protest deadline)
- Koyo Corp. v. United States, 497 F.3d 1231 (Fed. Cir.) (timely protest can entitle importer to reliquidation at final administrative/judicial rate)
- Shinyei Corp. of Am. v. United States, 355 F.3d 1297 (Fed. Cir.) (distinguishing challenges to Commerce instructions from challenges to Customs’ liquidation; § 1581(i) available when no alternative remedy exists)
- Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir.) (if entries are liquidated, § 1516a review may be moot absent a prior injunction)
- Int’l Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir.) (publication of final administrative results lifts suspension of liquidation)