865 F. Supp. 2d 1348
Ct. Intl. Trade2012Background
- Celta Agencies, Inc. imported Latvia-origin re-bar subject to an antidumping duty order and disputed Commerce liquidation instructions transmitted to CBP after the fourth administrative review.
- Final results of the fourth review set a 5.94% rate for Liepajas and 17.21% for all others; Celta did not participate in the review and did not receive a separate rate.
- Commerce notified it would issue assessment instructions to CBP and liquidate unreviewed entries at the all-others rate if no specific rate applied.
- Customs assessed duties for Celta at the all-others rate (17.21%), and Celta paid additional duties after protesting that liquidation instructions were unlawful.
- Celta filed suit alleging five challenges to Commerce’s liquidation instructions issued after the review; defendant moved to dismiss for lack of jurisdiction and timeliness.
- The court dismissed, holding lack of jurisdiction under 28 U.S.C. § 1581(a) and untimeliness under § 1581(i), with accrual dating no later than June 29, 2007.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1581(a) provides jurisdiction. | Celta argues protest denial is a challenge to Customs. | Mitsubishi and related authority prevent protestability of ministerial Customs actions; jurisdiction lies under § 1581(i). | No jurisdiction under § 1581(a). |
| Whether § 1581(i) governs and if timeliness is satisfied. | Jurisdiction under § 1581(i) exists for challenges to Commerce liquidation instructions. | Actions must be timely filed within two years from accrual; not timely here. | Lacks jurisdiction under § 1581(i) due to untimeliness. |
| Whether the action accrues when protest is filed. | Accrual occurred when protest was filed in 2007 after liquidation. | Accrual arises earlier; protest itself did not render Commerce liquidation instructions reviewable under § 1581(i). | Accrual occurred no later than June 29, 2007; suit filed in 2010–2011 was untimely. |
Key Cases Cited
- Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) (Customs protest rights do not allow challenging Commerce liquidation decisions)
- Consol. Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir. 2003) (jurisdiction under § 1581(i) to review Commerce liquidation instructions)
- Shinyei Corp. of Am. v. United States, 355 F.3d 1297 (Fed. Cir. 2004) (§ 1581(i) review for liquidation instructions following protest)
- Shinyei Corp. of Am. v. United States, 524 F.3d 1274 (Fed. Cir. 2008) (Shinyei II clarifies protest remedies after Customs liquidation)
- Koyo Corp. of USA v. United States, 403 F. Supp. 2d 1305 (Fed. Cir. 2007) (distinguishes between Customs and Commerce decisions in protests)
- Parkdale Int'l, Ltd. v. United States, 491 F. Supp. 2d 1262 (2007) (interpretation of protestability and jurisdiction under the antidumping regime)
- J.S. Stone, Inc. v. United States, 297 F. Supp. 2d 1333 (2003) (protest remedies and review framework under antidumping laws)