Thyssenkrupp Steel v. United States , 886 F.3d 1215 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
THYSSENKRUPP STEEL NORTH AMERICA, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1407
______________________
Appeal 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, Wash-
ington, DC, argued for plaintiff-appellant. Also repre-
sented 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
2 THYSSENKRUPP STEEL v. UNITED STATES
Protection, United States Department of Homeland
Security, New York, NY.
______________________
Before LOURIE, DYK, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
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 imports. The imports entered the United
States after the date as of which, the government later
determined, antidumping duties were no longer warrant-
ed. 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 chal-
lenges were denied, ThyssenKrupp invoked the Court of
International Trade’s jurisdiction to obtain relief, stating
two claims, one under 28 U.S.C. § 1581(a) and one under
§ 1581(i). The court dismissed the § 1581(a) claim for lack
of jurisdiction and granted judgment on the pleadings in
favor of the government on the § 1581(i) claim, thus
leaving the entries at issue subject to the antidumping
duty, even though the entries were made when duties
were no longer legally warranted.
We reverse the dismissal of the § 1581(a) claim. We
conclude that § 1581(a) is available for the relief
ThyssenKrupp seeks. ThyssenKrupp invokes § 1581(i)
only as an alternative, conditioned on the court holding
§ 1581(a) unavailable. Because we hold that § 1581(a) is
available, we vacate the Court of International Trade’s
ruling on the § 1581(i) claim. The case is remanded.
THYSSENKRUPP STEEL v. UNITED STATES 3
I
A
An antidumping duty is imposed on imports in certain
defined circumstances, including if (1) the U.S. Depart-
ment of Commerce determines that the foreign merchan-
dise is, or is likely to be, sold in the United States at less
than its fair value, and (2) the International Trade Com-
mission (ITC) determines that a domestic industry is, or
is threatened with, material injury by reason of the
imports. 19 U.S.C. § 1673. If, for particular merchandise,
Commerce and the ITC make those affirmative determi-
nations, Commerce publishes an antidumping duty order
that directs the U.S. Customs and Border Protection
(Customs) to assess an antidumping duty on imports of
such merchandise. 19 U.S.C. § 1673e(a). Subsequently,
annual “administrative reviews,” if requested, are con-
ducted to consider application of the order to entries made
during discrete periods of time. 19 U.S.C. § 1675(a); see
19 C.F.R. § 351.213. Every five years, what is called here
a “sunset review” is conducted to consider revocation of
the order, based on whether revocation would likely lead
to further dumping and material injury. 19 U.S.C.
§ 1675(c), (d)(2); see 19 C.F.R. § 351.218.
The actual collection of an antidumping duty by Cus-
toms occurs in stages under various statutes and imple-
menting regulations. An importer becomes liable for any
antidumping duty as soon as the foreign merchandise
arrives in the United States. See 19 C.F.R. § 141.1(a).
But liability is not conclusively assessed at that time.
Within 15 days of arrival in the United States, foreign
merchandise is “entered,” meaning that documentation of
the importation is filed with Customs. See 19 U.S.C.
§ 1484(a); 19 C.F.R. §§ 141.0a(a), 141.4(a), 141.5,
141.11(b). Generally, the importer deposits the estimated
duty at the time of entry and the merchandise is released
into the country. See 19 U.S.C. §§ 1505(a), 1673e(a)(3),
4 THYSSENKRUPP STEEL v. UNITED STATES
1673g(a); 19 C.F.R. §§ 141.101, 141.103. Final determina-
tion of the amount of liability for antidumping duties
typically occurs later. “[T]he United States uses a ‘retro-
spective’ assessment system” to determine the “final
liability” for antidumping duties. 19 C.F.R. § 351.212(a).
“Generally, the amount of the duties to be assessed is
determined” in a § 1675(a) administrative review covering
the period of time encompassing the entry. Id. “If a
review is not requested, duties are assessed at the rate
established in the completed review covering the most
recent prior period or, if no review has been completed,
the cash deposit rate applicable at the time merchandise
was entered.” Id.
Once the antidumping duty is determined, Customs
will “liquidate” the entries. See 19 U.S.C. §§ 1500(d),
1505(b); 19 C.F.R. § 159.2. Although “liquidate” is not
defined by statute, a regulation declares that liquidation
is “the final computation or ascertainment of duties on
entries.” 19 C.F.R. § 159.1. An initial Customs “final
computation or ascertainment,” however, is not entirely
“final”: it is, for example, subject under defined circum-
stances to internal agency alteration through a “protest”
mechanism, see 19 U.S.C. § 1514, and thereafter to judi-
cial review, 28 U.S.C. § 1581. See also 19 U.S.C. § 1501(addressing reliquidation); 19 C.F.R. § 159.6(b) (same).
After liquidation, Customs generally refunds to the im-
porter the difference between the entry deposit and a
smaller liquidation amount or bills the importer for the
difference between the entry deposit and a larger liquida-
tion amount. 19 U.S.C. § 1505(b); 19 C.F.R. § 159.6(c).
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
THYSSENKRUPP STEEL v. UNITED STATES 5
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 Germa-
ny. 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 ThyssenKrupp’s entries,
under Message No. 2291302. J.A. 318; see 19 C.F.R.
§ 351.212(c)(1)(i) (Commerce will instruct Customs to
assess antidumping duties if no timely request for admin-
istrative review is received). Customs subsequently
announced its liquidation calculation as to six of
ThyssenKrupp’s eight entries on November 16, 2012, and
as to the remaining two entries on December 21, 2012.
Customs assessed the antidumping duties at the prevail-
ing rate: 10.02%.
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 Com-
merce, that revocation of the antidumping duty order
would not likely lead to material injury to a domestic
6 THYSSENKRUPP STEEL v. UNITED STATES
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 19
U.S.C. § 1675(d)(2), Commerce published notice of the
revocation of the antidumping duty order for CORE from
Germany. Corrosion-Resistant Carbon Steel Flat Prod-
ucts from Germany and the Republic of Korea, 78 Fed.
Reg. 16,832 (Dep’t Commerce Mar. 19, 2013).
In that notice, Commerce stated that, “[p]ursuant to
[19 U.S.C. § 1675(d)(2)] and 19 CFR § 351.222(i)(2)(i), the
effective date of revocation is February 14, 2012.” Id. at
16,833. That date was “the fifth anniversary of the effec-
tive date of publication in the Federal Register of the
previous continuation of” the antidumping order in the
earlier sunset review. Id. (emphasis omitted). All of the
ThyssenKrupp entries at issue here were made after
February 14, 2012.
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 depos-
its 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 admin-
istrative 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 coun-
tervailing duty deposit requirements and assessments.”
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-
THYSSENKRUPP STEEL v. UNITED STATES 7
der on [CORE] from Germany. . . . The effective
date of the revocation is 02/14/2012.
2. [Customs] is directed to terminate the suspen-
sion 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 du-
ties (i.e., release all bonds and refund all cash de-
posits with interest).
3. Liquidation instructions covering certain en-
tries of CORE from Germany during the 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. Ac-
cordingly, 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 in-
structions, 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 oc-
curred 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-
8 THYSSENKRUPP STEEL v. UNITED STATES
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 revoca-
tion instructions “pertain[] to unliquidated entries.”
J.A. 145. A few weeks later, the Port of Mobile, in con-
trast, forwarded ThyssenKrupp’s protests 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 instruc-
tions, 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 ‘unliqui-
dated’ 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
1 ThyssenKrupp also filed protests regarding six
additional CORE entries at the Port of Detroit. Customs
approved those protests and issued refunds. Those pro-
tests are not at issue here.
THYSSENKRUPP STEEL v. UNITED STATES 9
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 reliq-
uidate [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 28 U.S.C. § 1581(a),
ThyssenKrupp contended that Customs erred in failing to
interpret and apply the April 4 instructions to liquidate
ThyssenKrupp’s eight entries without the antidumping
duty—and therefore failing to refund the duty deposited
upon entry. Asserting jurisdiction under § 1581(i) in the
alternative if § 1581(a) jurisdiction were held unavailable,
ThyssenKrupp challenged Commerce’s April 4 instruc-
tions as contrary to law as written and as enforced, again
contending that its eight entries at issue, which occurred
after February 14, 2012, were to be free from the anti-
dumping duty found unwarranted as of that date.
The government moved to dismiss for lack of jurisdic-
tion under § 1581(a) and for judgment on the pleadings
under § 1581(i). The court granted the motion.
ThyssenKrupp Steel N. Am., Inc. v. United States, 190 F.
Supp. 3d 1205, 1212 (Ct. Int’l Trade 2016).
ThyssenKrupp timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(5).
II
A
We review the dismissal for lack of jurisdiction de no-
vo. Norsk Hydro Canada, Inc. v. United States, 472 F.3d
1347, 1354 (Fed. Cir. 2006). Under 28 U.S.C. § 1581(a),
the Court of International Trade has exclusive jurisdic-
tion “of any civil action commenced to contest the denial
10 THYSSENKRUPP STEEL v. UNITED STATES
of a protest, in whole or in part, under [19 U.S.C. § 1515].”
The referred-to section 1515 addresses Customs determi-
nations regarding protests filed with Customs under 19
U.S.C. § 1514 (titled “Protest against decisions of Customs
Service”).
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 protest:
Except as provided in subsection (b) of this sec-
tion, section 1501 of this title (relating to volun-
tary reliquidations), section 1516 of this title
(relating to petitions by domestic interested par-
ties), section 1520 of this title (relating to re-
funds), 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, ad-
verse to the importer, in any entry, liquidation, or
reliquidation, and, decisions of the Customs Ser-
vice, including the legality of all orders and find-
ings 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 charac-
ter within the jurisdiction of the Secretary of
the Treasury;
(4) the exclusion of merchandise from entry or
delivery or a demand for redelivery to cus-
toms custody under any provision of the cus-
toms laws, except a determination
appealable under section 1337 of this title;
THYSSENKRUPP STEEL v. UNITED STATES 11
(5) the liquidation or reliquidation of an entry,
or reconciliation as to the issues contained
therein, or any modification thereof, includ-
ing 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 (in-
cluding the United States and any officer thereof)
unless a protest is filed in accordance with this
section, or unless a civil action contesting the de-
nial 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.
19 U.S.C. § 1514(a) (emphases added; final sentence
omitted). Section 1514(c) prescribes how to file “[a] pro-
test of a decision made under subsection (a).” Id.§ 1514(c). Implementing regulations state that “[t]he
following decisions of [Customs], including the legality of
all orders and findings entering into those decisions, may
be protested under [19 U.S.C. § 1514],” 19 C.F.R. § 174.11,
and include among the listed decisions “administrative
decisions involving . . . [t]he liquidation or reliquidation of
an entry, or any modification of an entry,” id.§ 174.11(b)(5).
A protest regarding a liquidation under § 1514(a)
must be filed within 180 days of the date of liquidation.
19 U.S.C. § 1514(c)(3)(A); 19 C.F.R. § 174.12(e). A pro-
tester under 19 U.S.C. § 1514 has 180 days from specified
dates to sue in the Court of International Trade to contest
the denial of a protest in whole or in part. 28 U.S.C.
§§ 2631(a), 2636(a).
12 THYSSENKRUPP STEEL v. UNITED STATES
The Court of International Trade concluded that
28 U.S.C. § 1581(a) does not provide for jurisdiction here
because (1) ThyssenKrupp’s spring 2013 protests were
untimely under 19 U.S.C. § 1514(c), (2) the disposition of
the protests by Customs in December 2014 were not
“denial[s]” as required by 19 U.S.C. § 1514(a), and (3) the
liquidation actions taken by Customs in Novem-
ber/December 2012 were purely ministerial and therefore
not “decisions of the Customs Service” subject to protest
under § 1514(a). ThyssenKrupp Steel, 190 F. Supp. 3d at
1209–11. We reverse on all grounds.
1
Section 1514(c)(3) requires that “[a] protest of a deci-
sion, 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 inappli-
cable, the date of the decision as to which protest is
made.” As further explained by regulation, “[p]rotests
must be filed, in accordance with [§ 1514], . . . within 180
days of a decision relating to an entry made on or after
December 18, 2004, after any of the following: (1) The
date of notice of liquidation or reliquidation, or the date of
liquidation or reliquidation . . . (2) The date of the deci-
sion, involving neither a liquidation nor reliquidation, as
to which protest is made . . . .” 19 C.F.R. § 174.12(e); see
also id. § 174.13(a)(4) (contents of protest should include
“[t]he date of liquidation of the entry, or the date of a
decision not involving a liquidation or reliquidation.”).
Because ThyssenKrupp requested relief relating to the
2012 liquidation determinations by Customs,
ThyssenKrupp was required to file protests within 180
days of those determinations. ThyssenKrupp undisputed-
ly did so. The protests therefore were timely, as the
government appears to agree.
THYSSENKRUPP STEEL v. UNITED STATES 13
2
We also conclude that Customs’s actions on
ThyssenKrupp’s protests constitute “denial[s]” under
19 U.S.C. § 1514(a). Customs, using a form to respond to
ThyssenKrupp’s protests, “rejected” the protests “as non-
protestable.” 2 But that label is of no statutory signifi-
cance. By statute, Customs “shall review the protest and
shall allow or deny such protest in whole or in part.”
19 U.S.C. § 1515(a). Here, by rejecting the protests in
their entirety, Customs denied the protests. The govern-
ment does not argue to the contrary.
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 Octo-
ber 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 instruc-
tions 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 (quot-
ing Williams v. Sec’y of the Navy, 787 F.2d 552, 557 (Fed.
2 Customs provided its response to ThyssenKrupp’s
protest by form OMB No. 1651-0017, which lists several
options for “Protest Explanation” by Customs: “Ap-
proved,” “Rejected as non-protestable,” “Denied in full for
the reason checked,” “Denied in part for the reason
checked,” “Untimely filed,” “See attached protest review
decision,” and “Other.” J.A. 209.
14 THYSSENKRUPP STEEL v. UNITED STATES
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 liquida-
tion 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
(same); 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, recog-
nized 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 Rich-
mond, 416 U.S. 696, 716 (1974) (noting “the general rule
that a court is to apply a law in effect at the time it ren-
ders its decision”). 3
3 Plaut, which reaffirmed the Schooner Peggy prin-
ciple, relied on the standard concept of direct-review
“finality”—which generally does not occur, for this pur-
pose, until all the steps in the direct review process are
completed or the time has passed for taking further steps
in the process. Plaut, 514 U.S. at 214 (citing Griffith v.
THYSSENKRUPP STEEL v. UNITED STATES 15
Customs proceeded to interpret the April 4 instruc-
tions. It decided that those instructions as properly
interpreted did not actually require any change in the
November/December 2012 liquidations. And on that basis
Customs left those liquidations in place.
The December 2014 decision, in stating the basis on
which Customs would continue to give effect to the No-
vember/December 2012 liquidations, is fairly character-
ized as having “enter[ed] into” the liquidation
determinations challenged in the protest. 19 U.S.C.
§ 1514(a) (“decisions of the Customs Service, including the
legality of all orders and findings entering into the same,
as to . . . the liquidation or reliquidation of an entry, . . . or
any modification thereof”). In any event, regardless of
Kentucky, 479 U.S. 314, 321 n.6 (1987)); Fresenius USA,
Inc. v. Baxter Int’l, Inc., 721 F.3d 1330, 1345–46 (Fed. Cir.
2013); see also, e.g., Clay v. United States, 537 U.S. 522,
527 (2003) (discussing finality that triggers time for filing
motions under 28 U.S.C. § 2255); Agostini v. Felton, 521
U.S. 203, 239 (1997) (“Intervening developments in the
law by themselves rarely constitute the extraordinary
circumstances required for relief under Rule 60(b)(6), the
only remaining avenue for relief on this basis from judg-
ments lacking any prospective component.”). See general-
ly Aaron-Andrew P. Bruhl, When Is Finality . . . Final –
Rehearing and Resurrection in the Supreme Court, 12 J.
App. Prac. & Process 1, 1–2 (2011) (noting that, although
“finality is a word of many meanings,” “the finality that
attaches when the direct appellate process has run its
course . . . marks the point at which a case outcome is no
longer routinely subject to revision based on changes in
governing law”; before that point, “an appellate court can
reverse a trial court decision that was perfectly correct
when rendered but that has become incorrect by the time
of the appeal”).
16 THYSSENKRUPP STEEL v. UNITED STATES
such a characterization, we think that the statute must be
read as permitting a liquidation determination to be
protested (in a timely fashion, as it was here) on the
ground that its soundness, including its continued sound-
ness, depends on resolution of an issue that requires a
“decision” by Customs. That understanding serves the
purpose of the protest mechanism—to allow agency
consideration of issues after an initial liquidation deter-
mination—and respects the longstanding principle, noted
above, that newly governing law, if retroactive to particu-
lar events, is to be applied to those events in ordinary,
timely initiated direct-review proceedings. We see no
basis for reading the statute to preclude a timely protest
to bring the agency’s final duty calculation into line with a
change of applicable law if one has occurred.
The government does not dispute that, when Customs
received the protests in April and May 2013, it was re-
quired to act in accordance with the April 4, 2013 instruc-
tions. Nor does the government dispute that 19 U.S.C.
§ 1514(a) applies, and the Court of International Trade
has jurisdiction under 28 U.S.C. § 1581(a), if the task of
applying the April 4 instructions presented a genuine
“decision” for Customs to make. The government argues,
however, that Customs did not really make a “decision[],”
19 U.S.C. § 1514(a), or have a “decision[]” to make, when
Customs concluded that the April 4, 2013 instructions
required no change in the November/December 2012
liquidation determinations. Only on that basis does the
government argue that 19 U.S.C. § 1514(a) and 28 U.S.C.
§ 1581(a) do not apply here.
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 § 1514(a). 44
THYSSENKRUPP STEEL v. UNITED STATES 17
F.3d 973, 976–77 (Fed. Cir. 1994). The “ministerial”
standard, in its ordinary meaning, excludes actions re-
quiring genuine interpretive or comparable judgments as
to what is to be done. See, e.g., Panama Canal Co. v.
Grace Line, Inc., 356 U.S. 309, 318 (1958); Noble v. Union
River Logging R. Co., 147 U.S. 165, 171 (1893); U.S. ex rel.
Dunlap v. Black, 128 U.S. 40, 45–46 (1888); Black’s Law
Dictionary (10th ed. 2014) (“ministerial”). The court has
thus recognized that a range of Customs rulings are
within the statutory authorization to review “decisions,”
including those underlying liquidation determinations.
See, e.g., Koyo Corp. of U.S.A. v. United States, 497 F.3d
1231, 1239 (Fed. Cir. 2007) (ruling that liquidation is
subject to protest when Customs fails to execute liquida-
tion instructions and instead, by delay, leaves the entry to
automatic liquidation by operation of statute); Cemex,
S.A. v. United States, 384 F.3d 1314, 1324 (Fed. Cir. 2004)
(ruling that Customs made a particular “decision” regard-
ing how to effect liquidation); Xerox Corp. v. United
States, 289 F.3d 792, 795 (Fed. Cir. 2002) (where Customs
misapplied clear Commerce order, protest was properly
filed under § 1581(a); “correcting such a ministerial,
factual error of Customs is not the province of Commerce”
but is instead properly the subject of a protest under 19
U.S.C. § 1514(a)(2).”).
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 “unliqui-
dated” 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 meaning of the April 4 in-
structions, our analysis and conclusion necessarily ad-
dress both the jurisdictional issue and the merits of
18 THYSSENKRUPP STEEL v. UNITED STATES
ThyssenKrupp’s contention concerning the proper mean-
ing 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 anti-
dumping 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 implemen-
tation by Customs. We reject that contention.
What Customs did when presented with the issue un-
dermines that contention. Customs issued a six-page
opinion letter interpreting the language of the April 4
instructions in light of the statutory framework, regula-
tions, 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 No-
vember/December 2012 liquidation determinations in
place. J.A. 202. Customs made a determination that
embodied meaningful judgments about what was re-
quired, hardly a ministerial act.
In any event, the “unliquidated entries” language does
not have the plain, unambiguous meaning that the gov-
ernment urges. To the contrary, the better view of that
language is ThyssenKrupp’s position.
The April 4 instructions directed that “all unliquidat-
ed entries of CORE from Germany entered, or withdrawn
from warehouse, for consumption on or after
02/14/2012”—the revocation date for the antidumping
duty order on such CORE from Germany—“should be
liquidated without regard to antidumping duties.”
J.A. 323. As the government notes, the instructions track
THYSSENKRUPP STEEL v. UNITED STATES 19
the language of the statutory provision regarding sunset
review revocation orders, 19 U.S.C. § 1675(d)(3) (“A
determination under this section to revoke an [antidump-
ing duty] order . . . shall apply with respect to unliquidat-
ed entries of the subject merchandise which are entered,
or withdrawn from warehouse, for consumption on or
after the date determined by [Commerce].”). We therefore
consider the question one of statutory interpretation
within the scheme established by the statute and the
implementing regulations authorized by the statute.
The better reading of the statute is that entries cov-
ered by liquidation determinations that are still subject to
alteration through ordinary direct review mechanisms are
“unliquidated entries” entitled to the benefit of the revo-
cation order. The regulations provide a general definition
of “[l]iquidation” as “the final computation or ascertain-
ment of duties on entries for consumption or drawback
entries.” 19 C.F.R. § 159.1. An agency action initially
termed a “liquidation,” however, may not in fact be a
“final computation or assessment.” By statute, an initial
liquidation in which an underlying Customs decision is
under protest is not “final and conclusive.” 19 U.S.C.
§ 1514(a); see also 19 U.S.C. § 1504(a)(2)(B) (in subsection
titled “unliquidated imports,” providing for immediate
liquidation by waiver of “[a]n entry . . . whose designated
or identified import entries have not been liquidated and
become final . . . .”); id. § 1503 (providing that the assess-
ment of duties “shall be the appraised value determined
upon liquidation, in accordance with section 1500 of this
title or any adjustment thereof made pursuant to section
1501 of this title [reliquidation]. Provided, however, [t]hat
if reliquidation is required pursuant to a final judgment
or order of the [Court of International Trade] . . . , the
basis for such assessment shall be the final appraised
value determined by such court.”) (second emphasis
added). Entries that have been liquidated may also be
reliquidated in certain circumstances under a different
20 THYSSENKRUPP STEEL v. UNITED STATES
duty computation, see 19 U.S.C. § 1501; even reliquida-
tions may be reliquidated, id. Regulations apply the term
“liquidated duties” to those assessed both “in original
liquidation[s]” and “in reliquidation[s].” 19 C.F.R.
§ 159.6(a)–(b).
ThyssenKrupp’s interpretation of “unliquidated” is al-
so 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 investiga-
tion—here, February 14, 2012. Thus, the sunset review
looks at information gathered before the initiation of the
investigation. 19 U.S.C. § 1675(c)(2) (requiring that
interested parties submit statements and other infor-
mation relevant to the sunset review investigation 30
days before the investigation begins). And although the
investigation may take a year or more, id. § 1675(c)(5),
the statute allows Commerce to set the effective date of
any resulting revocation order, id. § 1675(d)(3). Com-
merce has provided, by regulation, that the date is “the
fifth anniversary of the date of publication in the Federal
Register of the order or suspended investigation,”
19 C.F.R. § 351.222(i)(2)(i)—i.e., the date that the sunset
review investigation is initiated, 19 U.S.C. § 1675(c)(1). 4
4 We have previously noted that the annual admin-
istrative review procedure is, in the same sense, retrospec-
tive in encompassing the period of review. Ambassador
Div. of Florsheim Shoe v. United States, 748 F.2d 1560,
1563 (Fed. Cir. 1984) (“It is absurd to say that the [Inter-
national Trade Administration] must investigate annually
the subsidies in effect in India or anywhere else, yet to
say it cannot act on its factual findings with respect to the
very year to which they apply.”); see also 19 C.F.R.
THYSSENKRUPP STEEL v. UNITED STATES 21
The government cites nothing in the statute or legis-
lative 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: Commerce has determined that
entries made on or after the revocation date do not war-
rant 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 28 U.S.C. §1581(a). Oral Argument at 15:48–16:10;
accord Def.’s Reply Mem. in Support of Its Mot. to Dis-
miss at 4, ThyssenKrupp Steel N. Am., Inc. v. United
States, No. 15-72 (Ct. Int’l Trade July 27, 2016) (“We
agree with ThyssenKrupp that . . . if [Customs] adopted a
novel interpretation of the term ‘unliquidated,’ i.e., one
that went beyond the plain meaning of the terms, then
ThyssenKrupp may be permitted to protest such actions
§ 351.213(a) (explaining that the administrative review
procedure under § 1675 is a “‘retrospective’ assessment
system” to determine duty liability).
22 THYSSENKRUPP STEEL v. UNITED STATES
and obtain judicial review under section 1581(a).”), Dkt.
No. 45. For the reasons we have set out, we reject the
government’s view of the April 4 instructions. We there-
fore hold that the Court of International Trade had juris-
diction in this matter under 28 U.S.C. § 1581(a).
We remand the case 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 implement-
ing 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 28 U.S.C.
§ 1581(i)(2) and (4) and contended that Commerce’s
April 4 instructions are contrary to law as written and
enforced. ThyssenKrupp pled this claim as an alternative
only, conditioned on the court’s finding lack of jurisdiction
to adjudicate its first claim under § 1581(a). Complaint at
10, ThyssenKrupp Steel N. Am., Inc. v. United States, No.
15-72 (Ct. Int’l Trade Mar. 19, 2015), Dkt. No. 5; see also
Mem. of Law in Support of Pl.’s Mot. for Summ. J. at 24,
ThyssenKrupp Steel N. Am., Inc. v. United States, No. 15-
72 (Ct. Int’l Trade July 22, 2016) (“[S]hould the Court
determine that it lacks jurisdiction to review [Customs]’s
actions under section 1581(a), [ThyssenKrupp] asserts in
the alternative that the Court has ‘residual’ jurisdiction
under section 1581(i) to review the lawfulness of Com-
merce’s actions in issuing the liquidation instructions.”),
Dkt. No. 44-1. We have concluded that ThyssenKrupp
has established jurisdiction over its first claim. It follows
that there is nothing to decide on the second claim.
Accordingly, we vacate the merits judgment on that claim.
THYSSENKRUPP STEEL v. UNITED STATES 23
III
For the foregoing reasons, we reverse the judgment
dismissing the claim under § 1581(a). We vacate the
judgment on the pleadings as to the claim under § 1581(i).
We remand for further proceedings consistent with this
opinion.
Costs awarded to appellant.
REVERSED IN PART, VACATED IN PART, AND
REMANDED