886 F.3d 1215
Fed. Cir.2018Background
- ThyssenKrupp imported corrosion-resistant carbon steel (CORE) from Germany; entries took place Feb 14–July 14, 2012, after the statutory revocation date Commerce later set (Feb 14, 2012).
- Commerce completed a sunset review in March 2013 and published revocation effective Feb 14, 2012, then issued April 4, 2013 instructions directing Customs to liquidate all "unliquidated" CORE entries on or after Feb 14, 2012 without antidumping duties.
- Prior to the revocation instructions, Commerce had issued automatic liquidation instructions (Oct 17, 2012) and Customs liquidated ThyssenKrupp’s eight entries in Nov–Dec 2012 at the prevailing antidumping rate (10.02%).
- ThyssenKrupp timely filed protests with Customs (spring 2013) seeking refunds under the April 4 revocation instructions; Customs denied the protests in Dec 2014, treating the entries as not "unliquidated."
- ThyssenKrupp sued in the Court of International Trade asserting jurisdiction under 28 U.S.C. § 1581(a) (challenge to denial of protest) and, in the alternative, § 1581(i) (residual jurisdiction). The trial court dismissed § 1581(a) and granted judgment for the government on § 1581(i).
- The Federal Circuit reversed dismissal of the § 1581(a) claim, held Customs’ interpretation raised a non-ministerial decision and that the entries were "unliquidated" for purposes of the revocation instructions, vacated the § 1581(i) judgment, and remanded for merits consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1581(a) provides jurisdiction to review Customs’ denial of ThyssenKrupp’s protest | ThyssenKrupp: timely protest challenged Customs’ decision not to apply Commerce’s April 4 revocation instructions to its entries; § 1581(a) applies to denial of protest | U.S.: Customs’ liquidation was ministerial; no reviewable "decision" under § 1514(a), so § 1581(a) jurisdiction is unavailable | Court: § 1581(a) applies; Customs made a non-ministerial decision about the meaning of "unliquidated" and denial of protest is reviewable |
| Whether entries liquidated in Nov–Dec 2012 were "unliquidated" for application of the revocation | ThyssenKrupp: "unliquidated" includes entries whose liquidations remain subject to alteration through timely protest/direct review, so revocation applies to entries on/after Feb 14, 2012 | U.S.: "Unliquidated" does not cover entries already liquidated even if those liquidations were protested; revocation did not require reliquidation here | Court: Better reading favors ThyssenKrupp; entries subject to timely protest/direct-review are "unliquidated" and revocation applies |
| Whether Customs’ December 2014 action was a “denial” of protest under 19 U.S.C. § 1514(a) | ThyssenKrupp: Customs rejected the protests in full — functionally a denial permitting § 1581(a) suit | U.S.: Characterized Customs’ action as non-protestable/ministerial and not a § 1514(a) denial | Court: Customs’ rejection was a statutory denial (regardless of label) and triggered § 1581(a) jurisdiction |
| Whether Mitsubishi ministerial-rule forecloses review where Customs followed Commerce liquidation instructions | U.S.: Mitsubishi limits § 1514(a) to non-ministerial Customs decisions; here Customs merely implemented Commerce instructions | ThyssenKrupp: Customs made interpretive judgments about the April 4 instructions; Mitsubishi does not bar review | Court: Mitsubishi inapplicable—Customs exercised non-ministerial judgment; review is permitted |
Key Cases Cited
- United States v. Schooner Peggy, 5 U.S. (1 Cranch 103) (1801) (changed law on direct review should apply to pending events)
- Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (reaffirms Schooner Peggy principle on retroactive application of changed law in direct review)
- Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) (ministerial Customs collection actions are not "decisions" under § 1514(a))
- Koyo Corp. of U.S.A. v. United States, 497 F.3d 1231 (Fed. Cir. 2007) (liquidation decisions can be protested when Customs fails to execute instructions)
- Cemex, S.A. v. United States, 384 F.3d 1314 (Fed. Cir. 2004) (Customs made a reviewable decision regarding liquidation)
- Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002) (protest appropriate where Customs misapplies Commerce orders)
- Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347 (Fed. Cir. 2006) (standard of review for jurisdictional dismissal)