Thyssenkrupp Steel North America, Inc. v. United States
190 F. Supp. 3d 1205
| Ct. Intl. Trade | 2016Background
- Commerce had an antidumping order on CORROSION-RESISTANT CARBON STEEL (CORE) from Germany; a third sunset review began in Jan 2012 and Commerce lifted suspension of liquidation in Oct 2012 instructing CBP to liquidate at the deposit rate (10.02%).
- ThyssenKrupp entered eight CORE shipments between Feb 14 and Jul 14, 2012, and CBP liquidated six Mobile entries on Nov 16, 2012 and two Philadelphia entries on Dec 21, 2012 at the then-applicable rate.
- The ITC determined on Mar 11, 2013 that revocation was warranted; Commerce revoked the order effective retroactively to Feb 14, 2012 and on Apr 4, 2013 instructed CBP to liquidate all "unliquidated entries" without regard to antidumping duties.
- ThyssenKrupp filed protests (Apr–May 2013) claiming its entries remained "unliquidated" because of its protests and sought reliquidation without duties; ports rejected or denied further review and CBP HQ concluded the entries were not "unliquidated" under Commerce's instruction.
- ThyssenKrupp sued under 28 U.S.C. § 1581(a) (challenge to denial of protest) and alternatively under § 1581(i)/APA (challenge to Commerce’s liquidation instructions). The government moved to dismiss § 1581(a) claim and for judgment on the pleadings on the § 1581(i) claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court has § 1581(a) jurisdiction to review CBP’s refusal to reliquidate | ThyssenKrupp: protests preserved entries as "unliquidated" and CBP’s refusal to reliquidate is a protestable decision | U.S./CBP: protests were untimely or not protestable; CBP merely followed Commerce instructions and did not make a protestable decision | Dismissed for lack of § 1581(a) jurisdiction — protests untimely or non-protestable and not denied |
| Whether ThyssenKrupp’s April–May 2013 protests were timely | ThyssenKrupp: protests were timely to preserve rights to reliquidation under Commerce’s Apr 4 instructions | U.S.: protests were anticipatory/untimely under 19 U.S.C. § 1514(c)(3) and thus invalid | Protest filings were untimely/anticipatory and invalid |
| Whether CBP’s initial liquidations (Nov/Dec 2012) were protestable decisions | ThyssenKrupp: those liquidations could be challenged because reliquidation was required after revocation | U.S.: CBP simply followed Commerce’s Oct 2012 instructions to liquidate at deposit rate; following Commerce is not a protestable CBP decision | Liquidations were not protestable CBP decisions |
| Whether Commerce’s Apr 4, 2013 instruction (liquidate all "unliquidated entries" without duties) was unlawful under the APA | ThyssenKrupp: entries with pending protests remained "unliquidated," so instructions should have applied to its previously-liquidated-but-protested entries | U.S.: "unliquidated" means not previously liquidated; instructions comport with statute and purpose of sunset reviews | Judgment for defendant — instructions lawful; "unliquidated" excludes previously-liquidated entries |
Key Cases Cited
- Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) (following Commerce instructions is not a protestable CBP decision)
- Canadian Reynolds Metals Co. v. United States, 350 F. Supp. 2d 1302 (Ct. Int’l Trade 2004) (protest must challenge a decision that occurred prior to filing to be timely)
- Carbon Activated Corp. v. United States, 791 F.3d 1312 (Fed. Cir. 2015) (§ 1581(i) jurisdiction may lie for challenges to Commerce instructions to Customs)
- Canadian Wheat Bd. v. United States, 641 F.3d 1344 (Fed. Cir. 2011) (directions to liquidate "unliquidated entries" are prospective and contrast with invalidating already-liquidated duties)
- Koyo Seiko Co. v. United States, 155 F.3d 574 (Fed. Cir. 1998) (distinguishing previously-liquidated entries from unliquidated entries)
- Pentax Corp. v. Robison, 125 F.3d 1457 (Fed. Cir. 1997) (plaintiff bears burden to establish jurisdiction when challenged)