Ugine and ALZ BELGIUM, Arcelor Stainless USA, LLC, and Arcelor Trading USA, LLC, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant, and Allegheny Ludlum and North American Stainless, Defendant-Appellants, and AK Steel Corp., Butler Armco Independent Union, United Auto Workers Local 3303, United Steelworkers of America, AFL-CIO/CLC, and Zanesville Armco Independent Organization, Defendants.
Nos. 2008-1213, 2008-1214.
United States Court of Appeals, Federal Circuit.
Jan. 7, 2009.
553 F.3d 1339
It is clear that Mr. Emenaker‘s later argument is not the same as his prior one. While Mr. Emenaker‘s argument in his opening brief raised a question of whether Dr. Kilhenny‘s medical opinion was sufficiently unqualified to satisfy the “clear and unequivocal evidence” standard, the argument in his reply brief was that no medical opinion can be sufficient to overcome the presumption of aggravation, which is a distinctly different claim. The different character of the two arguments is underscored by the fact that we would have jurisdiction over the second claim, but not the first. While the claim Mr. Emenaker now presents to this court is purely legal, the claim he presented to the Veterans Court in his opening brief would be beyond our jurisdictional reach on appeal as “a challenge to a factual determination” or “a challenge to a law or regulation as applied to the facts of a particular case.”
As we noted in Carbino v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999), the Veterans Court is not required to consider an appellant‘s argument that is made for the first time in a reply brief in that court. In this case, the Veterans Court did not address the “medical judgment” argument made by Mr. Emenaker for the first time in his reply brief, and for those reasons, we consider that argument waived.
In light of the somewhat confusing language used in the regulation, the issue that Mr. Emenaker seeks to present to us is a potentially significant one; it appears, moreover, to be one that neither the Veterans Court nor this court has squarely addressed.2 It certainly was not addressed by the Veterans Court in this case, for the reasons we have explained. And because it would be imprudent for us to address the issue without the benefit of its having been properly presented to, and decided by, the Veterans Court, we decline to address the issue in the first instance.
No costs.
AFFIRMED.
Thomas B. Wilner, Shearman & Sterling LLP, of Washington, DC, argued for plaintiffs-appellees. With him on the brief were Ryan A.T. Trapani and Robert S. LaRussa.
R. Alan Luberda, Kelley Drye & Warren LLP, of Washington, DC, for defendants-appellants, Allegheny Ludlum, et al. With him were David A. Hartquist and Adam H. Gordon.
Before BRYSON, DYK, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge PROST.
DYK, Circuit Judge.
The Department of Commerce (“Commerce“) issued liquidation instructions requiring that certain steel imported by Plaintiff-Appellees Ugine and ALZ Belgium, Arcelor Stainless USA, LLC and Arcelor Trading USA, LLC (together “Arcelor“), be treated as Belgian instead of German in origin and subject to antidumping and countervailing duties. The Court of International Trade held that the liquidation instructions issued by Commerce were contrary to law. After Commerce adopted new instructions, the Court of International Trade affirmed, upholding the revised liquidation instructions. We hold that the Court of International Trade had jurisdiction under
BACKGROUND
I
This case involves both antidumping and countervailing duty determinations, but the processes are similar for both types of determinations. Responsibility for such determinations is shared between Commerce and the International Trade Commission (“ITC“).
Antidumping duty determinations usually start when petitions are filed with Commerce and the ITC “by or on behalf of” a domestic industry.1
Entries of imported goods before the publication date of Commerce‘s preliminary determination are generally not sub-
Entries that have been liquidated cannot be subjected to additional duties. In order to preserve the opportunity to impose duties on goods entered after the date of the preliminary determination, Commerce suspends liquidation as to these entries in the preliminary determination. See
After further proceedings, if Commerce makes a final determination that dumping has occurred and if the International Trade Commission makes a final determination of material injury, Commerce issues a final antidumping order that determines which goods are subject to antidumping duties and their duty rate. Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1089-90 (Fed.Cir.2002) (citing
The administering agencies periodically review whether dumping has in fact occurred, the amount of the duty, and the question of material injury.
The first review period, if review is requested, begins on the date of the prelimi-
We have held that publication of the final results of an administrative review automatically lifts the suspension of liquidation for goods covered by that period. Int‘l Trading Co. v. United States, 281 F.3d 1268, 1271 (Fed. Cir. 2002). After publication of the final results, Commerce issues liquidation instructions to Customs with respect to these goods, and Customs liquidates them at the rate determined by the final administrative review order.
If judicial review of a final administrative review order is requested, the Court of International Trade may enjoin the liquidation of entries to prevent liquidation until judicial review is completed.
The entries at issue in this case were made between the preliminary order and the end of the period for the first administrative review. The question is whether they were subject to duties under the first administrative review order.
II
Arcelor imports stainless steel plate in coils (“SSPC“). In 1998 Commerce initiated antidumping and countervailing duty investigations of SSPC from Belgium. On September 4, 1998, Commerce published its preliminary countervailing duty determination. Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination: Stainless Steel Plate in Coils from Belgium, 63 Fed.Reg. 47,239 (Sept. 4, 1998). On November 4, 1998, Commerce published its preliminary antidumping duty determination. Notice of Preliminary Determination of Sales at Less than Fair Value: Stainless Steel Plate in Coils grom Belgium, 63 Fed.Reg. 59,532 (Nov. 4, 1998). In 1999, Commerce issued the final countervailing duty order and the final antidumping duty order on Belgian SSPC. Notice of Amended Final Determinations: Stainless Steel Plate in Coils from Belgium and South Africa; and Notice of Countervailing Duty Orders: Stainless Steel Plate in Coils from Belgium, Italy and South Africa, 64 Fed.Reg. 25,288 (May 11, 1999); Antidumping Duty Orders; Certain Stainless Steel Plate in Coils from Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999).
On April 11, 2005, pursuant to the final court decision from the first administrative review, Commerce published its “Amended Final Results” for the first period of review, assessing the countervailing duties with respect to certain Belgian steel. Stainless Steel Plate in Coils from Belgium: Notice of Amended Final Results of Countervailing Duty Administrative Review, 70 Fed.Reg. 18,374. During the course of the administrative determination and court review, neither party nor Commerce addressed the question of whether steel hot rolled in Germany and not further cold rolled in Belgium was Belgian in origin.
While the judicial review of the first administrative review was pending, the second administrative review for May 1, 2000 through April 31, 2001, was completed (determining that certain Belgian steel had been dumped) and its entries were liquidated or deemed liquidated on April 13, 2003.4 Arcelor IV, 517 F.Supp.2d at 1336 n. 4. There was no administrative review for the third period, and the entries were liquidated or deemed liquidated on April 23, 2003. Id.
Sometime before the fourth administrative review, in approximately April 2004, Arcelor recognized for the first time that the company had mis-designated certain products as Belgian in origin that should have been designated as German in origin with respect to entries subject to the first period of administrative review. See Arcelor I, 391 F.Supp.2d at 1287. As a result of its mis-designations, Arcelor had mistakenly made cash deposits of antidumping and countervailing duties as if its merchandise were Belgian. Id. In Arcelor‘s view, the merchandise was German in origin because the steel was hot rolled in Germany and not further cold rolled in Belgium
Meanwhile, an administrative review of the antidumping duty order was requested and initiated for the fourth period of review (i.e., May 1, 2002 through April 30, 2003). Id. at 1336-38. The Commerce review questionnaire asked for specific details about SSPC imported from Belgium. As part of that review, Arcelor did not include in its questionnaire answers the entries which it had determined to be German. In response, Commerce requested and received a supplemental questionnaire from Arcelor which addressed these entries. Then, during the review, Arcelor argued that under Commerce‘s “substantial transformation” doctrine the SSPC was of German origin, not of Belgian origin, because it was hot rolled in Germany and then subjected only to minor finishing in Belgium (it was pickled, annealed, packaged, and shipped in Belgium). Id. at 1337. Arcelor argued that the final administrative review order should reflect the fact that SSPC from Germany was not subject to the antidumping order. Commerce accepted this argument over the protests of the domestic industry, finding the location of substantial transformation, i.e. hot rolling, “dispositive.” Issues and Decision Memorandum for the Final Results of the Fourth Administrative Review of the Antidumping Duty Order on Stainless Steel Plate in Coils (SSPC) from Belgium, 69 Fed. Reg. 74,495, 74,497 (Dec. 14, 2004), available at http://ia.ita.doc.gov/frn/summary/belgium/E4-3641-1.pdf at 15. Accordingly, Commerce held that the steel hot rolled in Germany and not further cold rolled in Belgium was not subject to the antidumping order. Id. (“[T]he statute requires the Department to limit its review to merchandise whose country-of-origin is Belgium.“). No party appealed.
On July 1, 2005, Commerce issued final antidumping liquidation instructions from the fourth administrative review. “Liquidation Instructions for Stainless Steel Plate in Coils from Belgium Produced by Ugine & ALZ, N.V. Belgium,” Message No. 5,182,203 (July 1, 2005). With regard to SSPC from Germany, the liquidation instructions stated that “[t]he Department has determined that imports of SSPC hot rolled in Germany and not further cold rolled in Belgium are not subject to the antidumping duty order on SSPC from Belgium. Entries of this merchandise made on or after 05/01/02 should be liquidated without regard to antidumping duties.” Id. at ¶ 12.
Neither the fourth administrative review nor the July 1, 2005, liquidation instructions resolved the treatment of the remaining unliquidated entries from the first period of review. Commerce addressed this question on July 8, 2005, by issuing liquidation instructions. In contrast to the July 1st liquidation instructions covering the period of the fourth administrative review, Commerce‘s July 8, 2005, instructions determined that entries covered by the first administrative review were subject to duties. Commerce‘s instructions stated that “[e]ntries of SSPC hot rolled in Germany and not further cold rolled in Belgium [i.e., German SSPC] should be liquidated at the countervailing duty rate
On July 22, 2005, Arcelor initiated these proceedings by filing suit in the Court of International Trade challenging Commerce‘s liquidation instructions and seeking to enjoin their enforcement. The Court of International Trade denied the parties’ consent motion for a preliminary injunction, based on a finding that Arcelor had not shown a likelihood of success on the merits and that sufficient irreparable harm would result from the failure to issue an injunction. See Arcelor I, 391 F.Supp.2d at 1294. This court reversed and ordered that a preliminary injunction be entered upon remand, finding that the issue of likelihood of success was not “clear-cut” and that there was a strong showing of irreparable harm because the denial of a preliminary injunction could result in denying Arcelor the opportunity for a decision on the merits of its claim. Arcelor III, 452 F.3d at 1295-97.
Upon remand, the Court of International Trade held that Commerce‘s instructions were contrary to law. Arcelor could not be expected to raise the issue before the liquidation instructions were issued because “[p]laintiffs can not be expected to raise a challenge on an issue before it ripens or is revealed.” Arcelor IV, 517 F.Supp.2d at 1343. The court reasoned that Commerce may not impose duties on goods that are outside the scope of an antidumping or countervailing duty order. Id. at 1345; (citing
DISCUSSION
On this appeal the government does not challenge the Court of International Trade‘s holding that steel hot rolled in
Unfortunately, under the statutes and regulations, there is no single judicial review method for challenging the imposition of antidumping duties. If the challenge is to the final order of an administrative review, the determination can be reviewed by the Court of International Trade under
However, § 1581(i) jurisdiction “may not be invoked when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that subsection would be manifestly inadequate.” Int‘l Custom Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006) (quoting Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992) (quoting Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987))). Thus, jurisdiction over the challenge to the liquidation instructions pursuant to subsection (i) is not available if there is another administrative remedy, which would lead to review under another subsection of
Commerce does not contend that Arcelor should have raised the issue presented here in the fourth review, nor could it. We have recently sustained Commerce‘s interpretation that “only entries received during the one-year period under review may be considered.” Norsk Hydro, 472 F.3d at 1361. Instead, Commerce argues that Arcelor is in fact challenging the determination made in the first administrative review order and failed to exhaust administrative remedies to that order, a failure that is assertedly fatal to its claim.5
The premise of the government‘s exhaustion argument is that the first administrative review order determined that the entries in question were subject to antidumping and countervailing duties as Belgian SSPC. There was in fact no such determination. The orders in question determined that certain SSPC “from Belgium” was both being dumped and subject to a foreign countervailable subsidy and established the final antidumping and countervailing duties for SSPC “from Belgium.” Stainless Steel Plate in Coils from Belgium: Notice of Amended Final Results of Countervailing Duty Administrative Review, 70 Fed.Reg. 18,374 (Apr. 11, 2005); Stainless Steel Plate in Coils from Belgium: Final Results of Antidumping Duty Administrative Review, 66 Fed.Reg. 56,272 (Nov. 7, 2001). It did not define what criteria should be applied to determine whether particular steel was Belgian in origin nor did it state which entries were subject to antidumping or countervailing duties. Arcelor had no legitimate objection to the order. Thus, there was nothing to correct in the first administrative review order, and no administrative remedy to exhaust. As we said in Consolidated Bearings:
[A]n action challenging Commerce‘s liquidation instructions is not a challenge to the final results, but a challenge to the “administration and enforcement” of those final results. [It] challenges the manner in which Commerce administered the final results. Section 1581(i)(4) grants jurisdiction to such an action.
Commerce argues that liquidation of the remaining entries from the first administrative review with a correction to the country-of-origin will create “absurd results,” because the duties were calculated in the first administrative order assuming that the entries were Belgian. Arcelor‘s responses to Commerce‘s first administrative review questionnaire, which asked for specific details about SSPC imported from Belgium, included the unliquidated entries at issue here. Commerce relied upon the questionnaire responses in its dumping determination and duty calculation. But, the fact that the duties may have been incorrectly calculated during the first administrative review is no basis for rewriting the terms of the order, which applied only to SSPC “from Belgium“. We have made clear that Commerce‘s order must be enforced based on what the order actually says, not on what Commerce wished the order had said. See Duferco Steel, 296 F.3d at 1097-98.
Commerce‘s real complaint appears to be that Arcelor should not belatedly be able to correct the country-of-origin designation on its entries. However, the government does not suggest that there were any statutory or regulatory procedures for correcting Arcelor‘s error in the entries that Arcelor failed to exhaust. Moreover, neither the statute nor the regulations impose a time limit on the correction of errors such as those made here by Arcelor. Indeed, the existence of a time limit to
In short, there was nothing wrong with the first administrative review order. Arcelor‘s objection was to the application of that order reflected in the liquidation instructions. Arcelor brought the challenge at the first opportunity. Under the circumstances there was no failure to exhaust available administrative remedies. See Consol. Bearings Co., 348 F.3d at 1004 (holding that the exhaustion doctrine does not apply where there is no procedure to exhaust). Thus, the trial court properly exercised jurisdiction, and Arcelor‘s claim on the merits is also not barred by the exhaustion doctrine.
The remaining question is whether Commerce‘s liquidation instructions were erroneous when it treated the entries in question as Belgian. As we held in Shinyei Corp. of America v. United States, 355 F.3d 1297, 1306 (Fed. Cir. 2004) (quoting
Commerce now speculates that the entries in question may have been correct in the first instance because the steel covered by the entries was in fact cold rolled in Belgium. In issuing liquidation instructions Commerce was, of course, free to question the corrected designation to show a German origin for the steel.7 But in the proceeding in the Court of International Trade, Commerce never suggested that the German origin designation was incorrect if the court applied its traditional sub-
AFFIRMED
COSTS
No costs.
PROST, Circuit Judge dissenting.
It is my view that jurisdiction is unavailable under
The majority states that “Arcelor had no legitimate objection” to the final results of the first administrative review because “[t]here was in fact no ... determination” that the entries in the first review period were Belgian. Majority Op. at 1348. I disagree. During an administrative review, Commerce must determine the “normal value,” “export price,” and “dumping margin” for “each entry of the subject merchandise.” See
If Arcelor had challenged the country of origin in the first administrative review,