Consolidated Fibers, Inc. v. United States
2017 CIT 157
| Ct. Intl. Trade | 2017Background
- Consolidated Fibers imported polyester staple fiber (PSF) from Korea and made Entry No. 315-4707817-5 on Dec. 7, 2005, depositing antidumping duties at 7.91%.
- Commerce’s 2007 administrative review assigned Dongwoo Industry a 48.14% rate; Commerce issued liquidation instructions Jan. 14, 2008, but CBP failed to liquidate within six months.
- By operation of law the entry deemed liquidated in June 2008 at the 7.91% deposit rate; CBP posted a bulletin notice of the deemed liquidation on May 6, 2011 (≈3 years later), then issued a rate advance and reliquidated at 48.14% on July 22, 2011.
- Consolidated Fibers protested the reliquidation (arguing the deemed liquidation was final); CBP denied the protest after a CBP ruling relying on the 2004 amendment to 19 U.S.C. § 1501 authorizing reliquidation within 90 days of notice of the original liquidation.
- Plaintiff sued in 2014; before merits briefing, the government moved for confession of judgment and judgment was entered ordering reliquidation at 7.91% and refunds with interest.
- Plaintiff sought EAJA fees ($30,980.18). The Court denied the EAJA application, concluding the government’s position was substantially justified and no bad-faith conduct warranted fee shifting under common law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff is entitled to EAJA fees under 28 U.S.C. § 2412(d) because the government’s position was not substantially justified | CBF argued CBP’s reliquidation was invalid because the entry had deemed liquidated six months after Commerce’s notice and CBP’s later reliquidation exceeded any allowable statutory authority | Gov’t argued its agency-level position denying the protest was substantially justified based on the 2004 amendment to § 1501 allowing reliquidation within 90 days after notice of the original liquidation (the bulletin) | Denied — court found the government’s position substantially justified because CBP properly addressed the protest ground actually raised and acted within § 1501 after the bulletin notice |
| Whether CBP’s multi-year delay in posting the bulletin rendered the reliquidation invalid | Plaintiff argued the bulletin was not issued within a “reasonable period” under 19 C.F.R. § 159.9(c)(2)(ii), so § 1501’s 90-day reliquidation window never began | Gov’t relied on CBP’s determination that the 2004 amendment permitted reliquidation within 90 days after notice and that CBP properly denied the protest based on the protest’s asserted ground | Held — court reasoned Consolidated Fibers failed to raise this regulatory ground to CBP in its protest; CBP was not required to decide issues not presented; court did not find government position unjustified |
| Whether plaintiff may recover under EAJA § 2412(b) (common-law fee shifting) | Plaintiff contended delays and protracted litigation justified fee shifting under bad-faith or oppressive-conduct exception to American Rule | Gov’t contended there was no bad faith or oppressive conduct; litigation schedule advanced with plaintiff’s consent and government moved for confession of judgment promptly | Denied — no evidence of bad faith, vexatious or oppressive conduct sufficient to overcome American Rule |
| Whether plaintiff satisfied EAJA eligibility and procedural requirements | Plaintiff was prevailing party and filed a timely, supported EAJA application | Gov’t contested substantial justification and invoked alternate defenses; court did not need to decide other EAJA conditions after finding substantial justification | Court found prevailing-party status but denied fees because government position was substantially justified and no special circumstances warranted an award |
Key Cases Cited
- Libas, Ltd. v. United States, 314 F.3d 1362 (Fed. Cir. 2003) (elements required for EAJA award)
- INS v. Jean, 496 U.S. 154 (1990) (EAJA standards; prevailing party principles)
- Pierce v. Underwood, 487 U.S. 552 (1988) (definition of "substantially justified")
- Gavette v. Office of Pers. Mgmt., 808 F.2d 1456 (Fed. Cir. 1986) (government must show reasonableness of agency and litigation positions for EAJA)
- Int’l Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. 2002) (publication of Commerce final results constitutes notice that suspension of liquidation ended)
- Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465 (Fed. Cir. 1988) (prevailing on merits does not create presumption government’s position was not substantially justified)
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (bad-faith standard for fee-shifting under inherent powers)
- Delphi Petroleum, Inc. v. United States, 717 F. Supp. 2d 1340 (2010) (discussing high threshold for common-law fee-shifting for government misconduct)