Carbon Activated Corporation v. United States , 791 F.3d 1312 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
CARBON ACTIVATED CORPORATION,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-1112
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00366-GWC, Judge Gregory W.
Carman.
______________________
Decided: June 26, 2015
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NANCY NOONAN, Arent Fox, LLP, Washington, DC, for
plaintiff-appellant.
ANTONIA RAMOS SOARES, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON,
CLAUDIA BURKE; EDWARD N. MAURER, United States
Bureau of Customs and Border Protection, United States
Department of Homeland Security, New York, NY.
2 CARBON ACTIVATED CORPORATION v. US
______________________
Before DYK, SCHALL, and TARANTO, Circuit Judges.
DYK, Circuit Judge.
Carbon Activated Corp. (“Carbon”) appeals a decision
of the United States Court of International Trade (“Trade
Court”) dismissing for lack of subject matter jurisdiction
Carbon’s challenge to the U.S. Customs and Border
Protection’s (“Customs”) liquidation of three entries of
activated carbon. Because Carbon could have availed
itself of the jurisdictional provision in 28 U.S.C. § 1581(a)
by filing a timely protest under 19 U.S.C. § 1514, there is
no jurisdiction under § 1581(i). We affirm.
BACKGROUND
Carbon imported from the People’s Republic of China
(“China”) three entries of activated carbon between June
5, 2007, and July 10, 2007. The entries were subject to an
antidumping duty order from the Department of Com-
merce (“Commerce”) covering activated carbon from
China. 1 Pursuant to that order, Carbon deposited esti-
mated antidumping duties for the entries at a rate of
67.14%.
An administrative review of the antidumping duty or-
der for the period from October 11, 2006, to March 31,
2008, was commenced on June 4, 2008. 2 In that connec-
1 See Certain Activated Carbon From China, 72
Fed. Reg. 19,723 (USITC Apr. 19, 2007); Notice of Anti-
dumping Duty Order: Certain Activated Carbon From the
People’s Republic of China, 72 Fed. Reg. 20,988 (Dep’t of
Commerce Apr. 27, 2007).
2 See Initiation of Antidumping and Countervailing
Duty Administrative Reviews and Requests for Revoca-
CARBON ACTIVATED CORPORATION v. US 3
tion, Commerce instructed Customs to suspend liquida-
tion of the entries imported during the period under
review. Despite the suspension instruction, Customs
liquidated Carbon’s three entries between April and May
2008 at the cash deposit rate of 67.14%. The parties
appear to agree that in light of Commerce’s instructions
Customs should not have liquidated the entries. Carbon
allegedly was not aware of the liquidation and did not at
that time protest the liquidations pursuant to 19 U.S.C.
§ 1514.
On November 10, 2009, Commerce published the final
results of the administrative review. See First Adminis-
trative Review of Certain Activated Carbon from the
People’s Republic of China: Final Results of Antidumping
Duty Administrative Review, 74 Fed. Reg. 57,995 (Dep’t
of Commerce Nov. 10, 2009). Several parties, including
the exporter of Carbon’s entries, Hebei Foreign Trade and
Advertising Corp. (“Hebei”), challenged the results at the
Trade Court and obtained a preliminary injunction sus-
pending liquidation on unliquidated entries. As the par-
ties agree, because the injunction was obtained after
Carbon’s three entries were already liquidated, the in-
junction did not cover the erroneously liquidated entries.
Ultimately, Commerce adopted, and the Trade Court
sustained, a final liquidation rate of 16.35% for the en-
tries exported by Hebei. See Hebei Foreign Trade &
Advert. Corp. v. United States, 807 F. Supp. 2d 1317,
1319, 1323 (Ct. Int’l Trade 2011). On January 11, 2012,
Commerce accordingly provided liquidation instructions
to Customs to liquidate the remaining unliquidated
entries at the 16.35% rate. That instruction would have
applied to the three entries in question had they not
tion in Part, 73 Fed. Reg. 31,813 (Dep’t of Commerce June
4, 2008).
4 CARBON ACTIVATED CORPORATION v. US
already been liquidated at the higher 67.14% rate.
In June 2012, Carbon allegedly first became aware
that the three entries had been erroneously liquidated in
2008 at the 67.14% rate. On September 11, 2012, Carbon
filed a protest, which has not been acted upon by Cus-
toms. 3 On October 24, 2013, Carbon filed a complaint in
the Trade Court under 28 U.S.C. § 1581(i), seeking a
refund in accordance with the final 16.35% rate, and
arguing that any other jurisdictional provision was mani-
festly inadequate. The Trade Court found that Carbon’s
protest of the alleged erroneous liquidation three years
after the entries were liquidated was well after the 180-
day statutory deadline following liquidation. See 19
U.S.C. § 1514(c)(3). Because the Trade Court determined
that filing a timely protest in 2008 would not have been a
manifestly inadequate remedy, it held that § 1581(i) was
not available and dismissed the case. See Carbon Activat-
ed Corp. v. United States, 6 F. Supp. 3d 1378, 1380–81
(Ct. Int’l Trade 2014). Carbon timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
I
This court reviews de novo the Trade Court’s dismis-
sal for lack of subject matter jurisdiction. See Chemsol,
LLC v. United States, 755 F.3d 1345, 1348 (Fed. Cir.
2014).
II
The Trade Court’s limited jurisdiction is enumerated
3 According to the government, Customs has sus-
pended action on the protest because it involves the
entries at issue in this case.
CARBON ACTIVATED CORPORATION v. US 5
in 28 U.S.C. § 1581(a)–(j). Subsection (i), 4 the provision
Carbon seeks to invoke here, is a “residual” jurisdictional
provision available where the other jurisdictional provi-
sions are not available, but “may not be invoked when
jurisdiction under another subsection of § 1581 is or could
have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.”
Ford Motor Co. v. United States, 688 F.3d 1319, 1323
4 Subsection (i) provides:
(i) In addition to the jurisdiction conferred upon
the Court of International Trade by subsections
(a)–(h) of this section and subject to the exception
set forth in subsection (j) of this section, the
Court of International Trade shall have exclusive
jurisdiction of any civil action commenced
against the United States, its agencies, or its of-
ficers, that arises out of any law of the United
States providing for—
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the im-
portation of merchandise for reasons other than
the raising of revenue;
(3) embargoes or other quantitative restrictions
on the importation of merchandise for reasons
other than the protection of the public health or
safety; or
(4) administration and enforcement with respect
to the matters referred to in paragraphs (1)–(3)
of this subsection and subsections (a)–(h) of this
section.
28 U.S.C. § 1581(i).
6 CARBON ACTIVATED CORPORATION v. US
(Fed. Cir. 2012) (quoting Miller & Co. v. United States,
824 F.2d 961, 963 (Fed. Cir. 1987)).
Upon request, Commerce will conduct periodic admin-
istrative reviews of antidumping orders. See 19 U.S.C.
§§ 1675 et seq. During the period of review, Commerce
suspends liquidation of entries. Publication of the final
result of an administrative review lifts the suspension of
liquidation for that period. See Int’l Trading Co. v. United
States, 281 F.3d 1268, 1271 (Fed. Cir. 2002). Commerce
then issues liquidation instructions to Customs with
respect to these goods at the dumping rate determined by
Commerce. See 19 U.S.C. § 1675(a)(3)(B); 19 C.F.R.
§ 351.212(b). However, interested parties may appeal to
the Trade Court a final result of an administrative re-
view, see 19 U.S.C. § 1516a, 5 and if judicial review is
requested, the Trade Court may enjoin the liquidation of
entries to prevent liquidation until judicial review is
completed, see 19 U.S.C. § 1516a(c)(2). In fact, as we
explained in Zenith Radio Corp. v. United States, 710
5 Section § 1516a provides that, with respect to fi-
nal determinations by Commerce in administrative re-
views of antidumping duties:
[w]ithin thirty days . . . an interested party who is
a party to the proceeding in connection with
which the matter arises may commence an action
in the United States Court of International Trade
by filing a summons, and within thirty days
thereafter a complaint, each with the content and
in the form, manner, and style prescribed by the
rules of that court, contesting any factual findings
or legal conclusions upon which the determina-
tion is based.
19 U.S.C. § 1516a(a)(2).
CARBON ACTIVATED CORPORATION v. US 7
F.2d 806 (Fed. Cir. 1983), a party must secure a prelimi-
nary injunction barring liquidation. If no such injunction
is entered and the entries are liquidated, the challenge to
Commerce’s antidumping order becomes moot. See id. at
810 (holding that liquidation would cause irreparable
harm because it would render court powerless to grant an
effective remedy); see also Agro Dutch Indus. Ltd. v.
United States, 589 F.3d 1187, 1190 (Fed. Cir. 2009) (“Sub-
sequent case law has interpreted Zenith to establish a
general rule that, at least in the context of judicial review
under 19 U.S.C. § 1516a, liquidation moots a party’s
claims pertaining to the liquidated entries.”). Once a final
court decision is published, the enjoined entries “shall be
liquidated in accordance with the final court decision in
the action.” 19 U.S.C. § 1516a(e).
If, however, Customs disregards Commerce’s suspen-
sion instructions and liquidates the entries, an importer
may protest the liquidation pursuant to 19 U.S.C. § 1514.
Under § 1514, liquidation “shall be final and conclusive
upon all persons . . . unless a protest is filed,” 19 U.S.C.
§ 1514(a), and protests have to be filed within 180 days
after the date of liquidation, see 19 U.S.C. § 1514(c)(3)(A).
If Customs denies the protest, see 19 U.S.C. § 1515, the
importer may seek review in the Trade Court. See 28
U.S.C. § 1581(a) (vesting the Trade Court with “exclusive
jurisdiction of any civil action commenced to contest the
denial of a protest”). The Trade Court can in that case
provide the appropriate remedy. In such circumstances,
the Zenith rule would not apply, that is, a remedy would
be available even though the entries have been liquidated.
For instance, in Koyo Corp. v. United States, 497 F.3d
1231 (Fed. Cir. 2007), we held that where Customs had
deemed some entries liquidated at the rate of entry in-
stead of at a final duty rate determined by Commerce,
despite Commerce’s instructions to liquidate at the final
rate, the importer could still protest the deemed liquida-
8 CARBON ACTIVATED CORPORATION v. US
tion and the final duty rate would apply. See id. at 1237,
1241. We affirmed the Trade Court’s order that Customs
“reliquidate . . . at the rate of duty determined in the
administrative and judicial reviews as published in the
Federal Register.” Id. at 1243; see also Shinyei Corp. of
Am. v. United States, 524 F.3d 1274, 1284 (Fed. Cir. 2008)
(noting that “[i]f there was an error in the instruction
process, then [an importer] is entitled to a judgment
ordering reliquidation pursuant to new, correct instruc-
tions . . . , regardless of whether the . . . entries are . . .
deemed liquidated or actually liquidated” (emphasis
added)); Shinyei Corp. of Am. v. United States, 355 F.3d
1297, 1309–10 (Fed. Cir. 2004) (importer is not “somehow
required to seek an injunction to preserve its rights”
where “its suit [is] not brought under [§ 1516a], and the
injunction provisions of that statue [are] not available to
it”).
III
Here, Commerce suspended liquidation pending the
result of the administrative review of the antidumping
duty order. Unfortunately, Customs liquidated the entries
despite Commerce’s instructions, so by the time the final
results of the administrative results were published and
interested parties challenged them, Carbon’s three entries
were already liquidated. Carbon could have pursued a
remedy under § 1514 by protesting those erroneous liqui-
dations. However, Carbon failed to pursue its § 1514
remedy because it failed to timely protest in 2008.
Carbon argues that protesting under § 1514 would not
have been an adequate remedy because it could not have
known the final rate until the Trade Court issued its final
judgment. But the government argues, and the Trade
Court agreed, that the protest could have been filed and
action on the protest delayed until the final rate was
available. We need not decide whether a remedy would
CARBON ACTIVATED CORPORATION v. US 9
have been immediately available to Carbon to reverse the
erroneous liquidations upon protest. Even if the imple-
mentation of a remedy for the erroneous liquidations had
to await a final decision by the Trade Court in the anti-
dumping proceeding (as the government contends), the
protest remedy would have been adequate because it
would have ultimately resulted in reliquidation at the
proper rate.
Under our decision in Juice Farms, Inc. v. United
States, 68 F.3d 1344 (Fed. Cir. 1995), Carbon’s ability to
protest the liquidation pursuant to § 1514 bars resort to
§ 1581(i). In Juice Farms, Commerce had suspended
liquidation of Juice Farms Inc.’s (“Juice Farms”) orange
juice entries pending investigation and administrative
reviews of an antidumping duty order. Id. at 1345. While
the orders were in effect, Customs erroneously liquidated
some of Juice Farms’ entries. Id. Juice Farms only
learned of the liquidations after the administrative review
concluded, and so failed to timely protest the liquidations.
Id. Noting that § 1514 “contemplates that both the legali-
ty and correctness of a liquidation be determined, at least
initially, via the protest procedure,” id. at 1346 (quoting
United States v. A.N. Deringer, Inc., 593 F.2d 1015, 1020
(CCPA 1979)), we held that “the importer[] bears the
burden to check for posted notices of liquidation and to
protest timely,” and because Juice Farms did not, it
“[could not] circumvent the timely protest requirement by
claiming that its own lack of diligence requires equitable
relief under 28 U.S.C. § 1581(i),” id. at 1346. 6
6 See also Alden Leeds Inc. v. United States, 476 F.
App’x 393, 395–96, 401 (Fed. Cir. 2012) (non-precedential)
(holding that § 1581(i) was not available where importer
did not file a protest of Customs’ deemed liquidation of
certain entries despite a suspension order from Commerce
10 CARBON ACTIVATED CORPORATION v. US
Shinyei is not to the contrary. In Shinyei, Commerce
had issued erroneous instructions that did not match the
final results of an administrative review, and Customs
liquidated some entries pursuant to the instructions. See
355 F.3d at 1300–03. Shinyei Corp. of America (“Shinyei”)
challenged the erroneous instructions, and we held juris-
diction under § 1581(i) was proper. Id. at 1305. There
Shinyei’s challenge was to Commerce’s erroneous instruc-
tions to Customs, rather than an erroneous action by
Customs pursuant to correct instructions by Commerce.
See id. at 1309–10 (“Shinyei’s challenge was aimed at
Commerce instructions, not determinations reviewable
under [§ 1516a].”). Because Shinyei had no alternative
remedy, it could invoke § 1581(i) jurisdiction. See id. at
1305, 1311–12.
until Commerce published final results of an administra-
tive review, well after the deadline in § 1514); Fujitsu
Gen. Am., Inc. v. United States, 283 F.3d 1364, 1369,
1373–76 (Fed. Cir. 2002) (holding that protests to liquida-
tions on the basis that they should have been liquidated
at a deemed liquidation rate rather than a final rate could
have been timely made under § 1514, but that since the
protests were untimely, there was no jurisdiction under
§ 1581(i)); US JVC Corp. v. United States, 184 F.3d 1362,
1365 (Fed. Cir. 1999) (applying Juice Farms to “closely
parallel” facts); Omni U.S.A., Inc. v. United States, 840
F.2d 912, 912–13, 915 (Fed. Cir. 1988) (holding that,
where Customs failed to hold liquidation in suspense, and
where importer failed to realize this had occurred, only
requesting reliquidation later, the liquidation was final
under § 1514 and a statutory deadline could not be tolled
via § 1581(i)).
Carbon does not argue that bulletin notices of the liq-
uidations were not posted, as is required by regulation.
See 19 U.S.C. § 1500(e); 19 C.F.R. § 159.9.
CARBON ACTIVATED CORPORATION v. US 11
Since Carbon is challenging Customs’ allegedly erro-
neous liquidation rather than Commerce’s allegedly
erroneous instructions, Shinyei is inapplicable. As we
explained in Shinyei itself: If “the error was in Customs’
liquidation of the subject entries despite correct instruc-
tions . . . Shinyei’s appropriate avenue for relief would be
under 19 U.S.C. § 1514.” Id. at 1302 n.2.
CONCLUSION
Because § 1581(a) was an available avenue of jurisdic-
tion had Carbon timely protested Customs’ alleged erro-
neous liquidation, Carbon cannot rely on § 1581(i) to
secure Trade Court jurisdiction.
AFFIRMED
COSTS
Costs to the United States.