THYSSENKRUPP STEEL NORTH AMERICA, INC. v. UNITED STATES
2017-1407
United States Court of Appeals for the Federal Circuit
March 30, 2018
Aрpeal from the United States Court of International Trade in No. 1:15-cv-00072-RWG, Senior Judge Richard W. Goldberg.
Decided: March 30, 2018
ROBERT L. LAFRANKIE, Crowell & Moring, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by ALEXANDER SCHAEFER.
JUSTIN REINHART MILLER, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee. Also represented by CHAD A. READLER, JEANNE E. DAVIDSON, CLAUDIA BURKE, AMY RUBIN; BETH BROTMAN, Office of the Assistant Chief Counsel, United States Bureau of Customs and Border Protection, United States Department of Homeland Security, New York, NY.
Before LOURIE, DYK, and TARANTO, Circuit Judges.
ThyssenKrupp Steel North America, Inc., sued the United States in the Court of International Trade to challenge the imposition of an antidumping duty on several of its imрorts. The imports entered the United States after the date as of which, the government later determined, antidumping duties were no longer warranted. The prescribed direct review routes for administrative and judicial challenges to such impositions remained open at the time of that determination, and ThyssenKrupp timely filed administrative challenges. After those challenges were denied, ThyssenKrupp invoked the Court of International Trade‘s jurisdiction to obtain relief, stating two claims, one under
We reverse the dismissal of the
I
A
An antidumping duty is imposed on imports in certain defined circumstances, including if (1) the U.S. Department of Commerce determines that the foreign merchandise is, or is likely to be, sold in the United States at less than its fair value, and (2) the International Trade Commission (ITC) determines that a domestic industry is, or is threatened with, material injury by reason of the imports.
The actual collection of an antidumping duty by Customs occurs in stages under various statutes and implementing regulations. An importer becomes liable for any antidumping duty as soon as the foreign merchandise arrives in the United States. See
Once the antidumping duty is determined, Customs will “liquidate” the entries. See
B
ThyssenKrupp imports corrosion resistant carbon steel flat products (CORE) from Germany. In 1993, Commerce issued an order that imposed an antidumping duty on such imports. Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from Germany, 58 Fed. Reg. 44,170 (Dep‘t of Commerce Aug. 19, 1993). Until 2012, CORE from Germany was subject to that antidumping duty order. See Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 77 Fed. Reg. 301, at 301 (Int‘l Trade Comm‘n Jan. 4, 2012).
Between February 14, 2012, and July 14, 2012, ThyssenKrupp made eight entries of CORE from Germany. Commerce solicited requests for an administrative review of the antidumping duty for CORE from Germany for the period August 1, 2011, through July 31, 2012, but no interested party submitted such a request. For that reason, on October 17, 2012, Commerce issued “automatic liquidation instructions” that directed Customs to “[l]iquidate all [CORE] entries for all firms” for that time period, including all eight of ThyssenKrupр‘s
Meanwhile, on January 3, 2012, the ITC instituted its required sunset review of the original 1993 antidumping duty order. See Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 78 Fed. Reg. 15,376, at 15,376 (Int‘l Trade Comm‘n Mar. 11, 2013); Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 77 Fed. Reg. at 301. More than a year later, on March 11, 2013, the ITC concluded, and informed Commerce, that revocation of the antidumping duty order would not likely lead to material injury to a domestic industry. Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 78 Fed. Reg. at 15,376. Eight days later, on March 19, 2013, acting under
In that notice, Commerce stated that, “[p]ursuant to [
In the same notice, Commerce added that it would (1) instruct Customs “to terminate the suspension of liquidation and to discontinue the collection of cash deposits on entries of the subject merchandise, entered or withdrawn from warehouse, on or after February 14, 2012,” (2) “instruct [Customs] to refund with interest all cash deposits on entries made on or after February 14, 2012,” and (3) “complete any pending or requested administrative reviews of these orders covering entries prior to February 14, 2012,” which “will continue to be subject to suspension of liquidation and antidumping and/or countervailing duty deposit requirements and аssessments.” Id.
On April 4, 2013, Commerce issued such instructions to Customs. Those instructions provided, in pertinent part:
1. As a result of a five-year (“sunset“) review, Commerce has revoked the antidumping duty or-der on [CORE] from Germany. . . . The effective date of the revocation is 02/14/2012.
2. [Customs] is directed to terminate the suspension of liquidation for all shipments of CORE from Germany which were entered, or withdrawn from warehouse, for consumption on or after 02/14/2012. All entries of CORE from Germany that were suspended on or after 02/14/2012 should be liquidated without regard to antidumping duties (i.e., release all bonds and refund all cash deposits with interest).
3. Liquidation instructions covering certain entries of CORE from Germany during thе period 08/01/2011 through 07/31/2012 were issued under message number 2291302, dated 10/17/2012. However, as noted [sic] paragraph 1 above, this order has been revoked, effective
02/14/2012. Accordingly, all unliquidated entries of CORE from Germany entered, or withdrawn from warehouse, for consumption on or after 02/14/2012 should be liquidated without regard to antidumping duties.
J.A. 323 (internal citation omitted; emphasis added).
In the weeks following transmittal of the April 4 instructions, ThyssenKrupp filed administrative protests with Customs at the Ports of Mobile and Philadelphia regarding the November/December 2012 liquidations of its eight CORE entries. As Customs later noted, each of those protests was “timely filed,” i.e., filed within the 180-day period allowed for filing a protest of the liquidation involved. J.A. 202. The protests asserted that ThyssenKrupp‘s eight CORE entries were subject to the April 4 instructions, which, properly read, eliminated the antidumping duty on those entries—because they occurred after the February 14, 2012 effective date of the revocation of the antidumping duty order and were the subject of timely filed protests, rendering the Novem-ber/December 2012 liquidation calculations not final. ThyssenKrupp sought refunds of the antidumping duties deposited for those entries.1
In June 2013, the Port of Philadelphia denied ThyssenKrupp‘s protest, stating that Commerce‘s revocation instructions “pertain[] to unliquidated entries.” J.A. 145. A few weeks later, the Port of Mobile, in contrast, forwarded ThyssenKrupp‘s рrotests to Customs headquarters because that Port believed that ThyssenKrupp‘s “arguments regarding liquidation finality raise questions of interpretive application that require more than a ‘ministerial reaction’ to Commerce‘s instructions, and this protest.” J.A. 359. Customs headquarters decided to review the protests from both Ports.
In December 2014, after more than a year, Customs denied ThyssenKrupp‘s protests. J.A. 199–205. Customs did not deny that it was required to apply the April 4, 2013 instructions, properly understood. Rather, the entire Customs opinion was a rejection of ThyssenKrupp‘s contention regarding the proper understanding of those instructions. Based on its analysis of various judicial decisions, Customs reasoned that those instructions were properly understood not to eliminate duties for the eight entries at issue which Customs concluded were not “unliquidated entries” under those instructions. J.A. 201–04; see J.A. 203 (“the entries at issue were not ‘unliquidated’ as of the revocation of the antidumping duty order and the issue of the revocation instructions“). Having thus interpreted the April 4 instructions’ “unliquidated entries” phrase as not covering the eight entries here at issue, Customs declared that, in fact, the phrase “is not ambiguous.” J.A. 204. And based on that declaration, Customs concluded that Customs had only a “ministerial” action to perform, which meant that its “refusal to rеliquidate [ThyssenKrupp‘s] entries pursuant to the [April 4] revocation instructions is not protestable.” J.A. 204. The Ports then issued follow-up decisions rejecting ThyssenKrupp‘s protests as non-protestable.
On March 19, 2016, ThyssenKrupp brought this suit against the United States in the Court of International Trade. Asserting jurisdiction under
The government moved to dismiss for lack of jurisdiction under
ThyssenKrupp timely appealed. We have jurisdiction under
II
A
We review the dismissal for lack of jurisdiction de novo. Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1354 (Fed. Cir. 2006). Under
Section 1514(a) identifies agency actions subject to protest through its statement that certain actions of Customs are “final and conclusive” unless protested or suit is filed on the denial of a рrotest:
Except as provided in subsection (b) of this section, section 1501 of this title (relating to voluntary reliquidations), section 1516 of this title (relating to petitions by domestic interested parties), section 1520 of this title (relating to refunds), and section 6501 of Title 26 (but only with respect to taxes imposed under chapters 51 and 52 of such title), any clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in an electronic transmission, adverse to the importer, in any entry, liquidation, or reliquidation, and, decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to—
(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable;
(3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;
(4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title;
(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof, including the liquidation of an entry, pursuant to either section 1500 of this title or section 1504 of this title;
(6) the refusal to pay a claim for drawback; or
(7) the refusal to reliquidate an entry under subsection (d) of section 1520 of this title; shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28 within the time prescribed by section 2636 of that title.
A protest regarding a liquidation under
The Court of International Trade concluded that
1
Section 1514(c)(3) requires that “[a] protest of a decision, order, or finding described in subsection (a) shall be filed with the Customs Service within 180 days after but not before—(A) date of liquidation or reliquidation, or (B) in circumstances where subparagraph (A) is inapplicable, the date of the decision as to which protest is made.” As further explained by regulation, “[p]rotests must be filed, in accordance with [
2
We also conclude that Customs‘s actions on ThyssenKrupp‘s protests constitute “denial[s]” under
3
The Court of International Trade construed ThyssenKrupp‘s protests as challenges limited to the execution by Customs, in November/December 2012, of the liquidation instructions issued by Commerce in October 2012. ThyssenKrupp Steel, 190 F. Supp. 3d at 1210. The court concluded that the execution was ministerial, as Customs simply carried out Commerce‘s clear October 2012 liquidation instructions. Id. ThyssenKrupp‘s claim, however, does not focus on the execution of those instructions in November/December 2012, viewed alone, but rather on how the April 4, 2013 instructions apply to the entries at issue.
In assessing jurisdiction, we identify “the ‘true nature’ of the action.” Norsk Hydro Can., 472 F.3d at 1355 (quoting Williams v. Sec‘y of the Navy, 787 F.2d 552, 557 (Fed. Cir. 1986)). ThyssenKrupp timely filed protests of the 2012 liquidation determinations, but what the protests sought was for Customs to update those determinations to comply with the intervening April 4, 2013 instructions issued by Commerce. See J.A. 80 (“superseding liquidation instructions for the sunset review were issued on message #3094301 reflecting the intention for all entries entered or withdrawn on or after 2/14/2012 . . . to be liquidated without regard to antidumping duties“); J.A. 83 (samе); J.A. 87 (same). ThyssenKrupp argued, in other words, that the law applicable to the eight entries at issue had changed since November/December 2012 and that Customs was obligated to apply the newly governing law to its entries.
When Customs ultimately responded in December 2014, it did not question that it was obligated to apply the new law, i.e., to determine how the results of the sunset review applied to the entries at issue. Nor does the government in this court question that Customs had to conduct that inquiry. The longstanding principle, recognized in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 109 (1801), is that, as to events still subject to consideration on direct review, when the law applicable to those events changes, the changed law is to be applied in the direct review. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226–27 (1995); Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 716 (1974) (noting “the general rule that a court is to apply a law in effect at the time it renders its decision“).3
The December 2014 decision, in stating the basis on which Customs would continue to give effect to the November/December 2012 liquidations, is fairly characterized as having “enter[ed] into” the liquidation determinations challenged in the protest.
The government does not dispute that, when Customs received the protests in April and May 2013, it was required to act in accordance with the April 4, 2013 instructions. Nor does the government dispute that
In so arguing, the government invokes this court‘s holding in Mitsubishi Electronics America, Inc. v. United States that, in light of the legislative history regarding the determination and calculation of antidumping duties, which were specifically assigned to Commerce and meant to be carried out by Customs, a “ministerial” collection action by Customs is not a “decision” under
In the present matter, we conclude, Customs had a non-ministerial task to perform. It had to resolve a genuine dispute about the meaning of the term “unliquidated” in the April 4, 2013 instructions and whether, based on that term, those instructions required alteration of the November/December 2012 execution of the earlier Commerce instructions. Contrary to the government‘s contention, non-ministerial judgment was required. As both parties recognize in their presentations in this court, which properly focus on the meаning of the April 4 instructions, our analysis and conclusion necessarily address both the jurisdictional issue and the merits of ThyssenKrupp‘s contention concerning the proper meaning of those instructions.
Commerce‘s April 4 instructions state that “all unliquidated entries of CORE from Germany entered, or withdrawn from warehouse, for consumption on or after 02/14/2012 should be liquidated without regard to antidumping duties.” J.A. 323. But those instructions do not define the term “unliquidated entries.” The government nevertheless contends that the April 4 instructions are unambiguous, plainly covering ThyssenKrupp‘s entries, and therefore required nothing but ministerial implementation by Customs. We reject that contention.
What Custоms did when presented with the issue undermines that contention. Customs issued a six-page opinion letter interpreting the language of the April 4 instructions in light of the statutory framework, regulations, and relevant case law. Customs interpreted the term “unliquidated” to “not include entries that have been liquidated but whose liquidations are not yet final due to the filing of a protest,” and it applied that interpretation to ThyssenKrupp‘s protest and accordingly left the November/December 2012 liquidation determinations in place. J.A. 202. Customs made a determination that embodied meaningful judgments about what was required, hardly a ministerial act.
In any event, the “unliquidated entries” lаnguage does not have the plain, unambiguous meaning that the government urges. To the contrary, the better view of that language is ThyssenKrupp‘s position.
The April 4 instructions directed that “all unliquidated entries of CORE from Germany entered, or withdrawn from warehouse, for consumption on or after
The better reading of the statute is that entries covered by liquidation determinations that are still subject to alteration through ordinary direct review mechanisms are “unliquidated entries” entitled to the benefit of the revocation order. The regulations provide a general definition of “[l]iquidation” as “the final computation or аscertainment of duties on entries for consumption or drawback entries.”
ThyssenKrupp‘s interpretation of “unliquidated” is also supported by the policy most naturally understood as embodied in the statutory and regulatory framework. The parties agree that the purpose of a sunset review is to provide prospective relief, and the scheme makes clear, as does the specific Commerce order here, that prospective relief is to start the date of the initiation of the investigation—here, February 14, 2012. Thus, the sunset review looks at information gathered before the initiation of the investigation.
The government cites nothing in the statute or legislative history that supports its view that the revoked antidumping duties continue to apply to entries that occurred after the revocation date, just because there was an initial liquidation determination as to those entries, even when that determination is subject to a timely filed protest. Nor does the government‘s view make sense in terms of the basic policy: Commеrce has determined that entries made on or after the revocation date do not warrant antidumping duties, yet the government‘s view would apply such duties to those entries. We do not question such a result where ordinary direct review mechanisms are no longer open. Cf. supra n.3. But such mechanisms were open here. In these circumstances, the government has not identified any reason to think that Congress intended entries like ThyssenKrupp‘s to be subjected to duties that have been determined to be no longer justified at the time the entries occurred, or that Congress intended to require that result by departing from the Schooner Peggy principle.
As the government concedes, to the extent that the April 4, 2013 instructions do not plainly exclude ThyssenKrupp‘s entries, Customs‘s interpretation and application of the term “unliquidated” are reviewable under
We remand the cаse for consideration of the merits of ThyssenKrupp‘s claim in accordance with our decision that the entries in question were “unliquidated” within the meaning of the April 4, 2013 instructions implementing the results of the sunset review.
B
ThyssenKrupp also appeals the grant of judgment on the pleadings in favor of the United States on ThyssenKrupp‘s second claim, which invoked
III
For the foregoing reasons, we reverse the judgment dismissing the claim under
Costs awarded to appellant.
REVERSED IN PART, VACATED IN PART, AND REMANDED