United States Court of Appeals for the Federal Circuit
2007-1291
SHINYEI CORPORATION OF AMERICA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Charles H. Bayar, of Scarsdale, New York, argued for plaintiff-appellant.
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief was Jeanne E. Davidson, Director. Of counsel were
Michael J. Dierberg, Trial Attorney, of Washington, DC, and Barbara S. Williams, Attorney-
in-Charge, International Trade Field Office, of New York, New York. Of counsel on the
brief was Edward N. Maurer, Office of the Assistant Chief Counsel, International Trade
Litigation, United States Customs and Border Protection, of New York, New York.
Appealed from: United States Court of International Trade
Senior Judge Nicholas Tsoucalas
United States Court of Appeals for the Federal Circuit
2007-1291
SHINYEI CORPORATION OF AMERICA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of International Trade in consolidated case no.
1:00-cv-00130, Senior Judge Nicholas Tsoucalas.
__________________________
DECIDED: April 24, 2008
__________________________
Before MICHEL, Chief Judge, NEWMAN, and MOORE, Circuit Judges.
MICHEL, Chief Judge.
This is our second opinion in litigation over the amount of antidumping duties that
Shinyei Corporation of America (“Shinyei”) owes on certain ball bearings entered by
Shinyei in 1990-1991. In our first opinion, in 2004, we reversed the Court of
International Trade’s judgment of dismissal—grounded on the view that the actual
liquidation of Shinyei’s entries deprived that court of jurisdiction over Shinyei’s claim
under the Administrative Procedure Act that the Department of Commerce had issued
erroneous liquidation instructions, thus causing Shinyei to pay excessive duties—and
we remanded “for further proceedings on the merits of Shinyei’s claim.” Shinyei Corp.
of Am. v. United States, 355 F.3d 1297, 1299 (Fed. Cir. 2004) (“Shinyei-CAFC(I)”).
On remand, the Court of International Trade again dismissed before reaching the
merits, holding that Shinyei’s entries were deemed liquidated before they were actually
liquidated, and that the deemed liquidation barred Shinyei’s claim regarding erroneous
liquidation instructions and rendered Shinyei’s administrative protests to liquidation
untimely. Shinyei filed a second appeal, and we heard oral argument on February 5,
2008. We now reverse for the second time—holding that deemed liquidation did not bar
Shinyei’s Administrative Procedure Act claim any more than did actual liquidation, and
that Shinyei’s administrative protests were not untimely—and we again remand with
instructions to the Court of International Trade to reach the merits of Shinyei’s case.
BACKGROUND
A. Antidumping Duty Determinations, Liquidation Instructions, and Liquidation
This appeal requires careful distinction between the different challenges that an
importer may bring against the United States in connection with the determination and
assessment of antidumping duties. Accordingly, a brief review of the relevant legal
framework is useful before we approach Shinyei’s case.
“To protect domestic industries from unfair competition by imported products,
United States law imposes a duty on dumped goods, that is, goods sold in this country
at a price lower than they sell for in their home market.” Fed. Mogul Corp. v. United
States, 63 F.3d 1572, 1575 (Fed. Cir. 1995). If Commerce determines that a particular
good is being dumped, and if the International Trade Commission also determines that
the dumping has injured or threatens to injure a domestic industry, then Commerce
issues an antidumping order, imposing a duty on the good equal to the difference
2007-1291 2
between the foreign market value of the good and its United States price. Zenith Elecs.
Corp. v. United States, 988 F.2d 1573, 1576 (Fed. Cir. 1993).
When an importer enters goods covered by an antidumping order, the
importer generally must make a cash deposit of estimated antidumping duties. See 19
U.S.C. § 1673e(a)(3). The final amount owed by the importer is not fixed, however, until
the entry is liquidated. See 19 C.F.R § 159.1 (“Liquidation means the final computation
or ascertainment of the duties (not including vessel repair duties) or drawback accruing
on an entry.”). The final amount may vary from the amount deposited, because an
interested party may request an administrative review of Commerce’s antidumping
order before liquidation occurs. See 19 U.S.C § 1675; see also Consol. Bearings Co. v.
United States, 348 F.3d 997, 1000 (Fed. Cir. 2003). Certain interested parties may also
challenge Commerce’s antidumping duty determinations in the Court of International
Trade, and liquidation may be enjoined pending the outcome of an administrative review
and litigation. See 19 U.S.C. § 1516a; 28 U.S.C. § 1581(c).
Typically, once Commerce has finished its administrative review determination
(and once any litigation under section 1516a has concluded), Commerce will send
instructions to the United States Bureau of Customs and Border Protection (“Customs”)
to liquidate the entries made during the period of review covered by the determination.
Because the Tariff Act provides that the final determination “shall be the basis for the
assessment of . . . antidumping duties on entries of merchandise covered by the
determination,” 19 U.S.C. § 1675(a)(2)(C), Commerce’s liquidation instructions “must
correctly reflect the final administrative review determination so that the determination is
the basis for the assessment at liquidation; if Commerce instructions are inaccurate or
2007-1291 3
incorrect, Customs will liquidate the entries according to the improper instructions and
the determination will not be the basis for the assessment of duties.” Shinyei-CAFC(I),
355 F.3d at 1306. If an importer believes that the liquidation instructions issued by
Commerce to Customs do not correctly reflect the final determination, the importer may
challenge those instructions in the Court of International Trade under the Administrative
Procedure Act (“APA”). See id.; Consol. Bearings, 348 F.3d at 1002.
Once Customs receives liquidation instructions from Commerce—and unless
liquidation is enjoined—Customs will actually liquidate the entries made during the
review period covered by Commerce’s determination, “collect[ing] any increased duties
due or refund[ing] any excess of the estimated duties deposited on entry.” Wolff Shoe
Co. v. United States, 141 F.3d 1116, 1118 (Fed. Cir. 1998). “By statute, Customs must
complete liquidation of an entry within certain time limits. If Customs fails to do so, the
entry is ‘deemed liquidated’ (i.e., liquidated by operation of law),” at the amount of duties
deposited upon entry (i.e., without any increase or decrease from the estimated duties).
Id. (citing 19 U.S.C. § 1504). An importer who believes that Customs has erred in
liquidating the importer’s entries (for example, by collecting higher duties than were
actually due) may file an administrative protest with Customs after liquidation. See 19
U.S.C. §§ 1514, 1515. If Customs denies the protest, the importer may contest the
denial in the Court of International Trade. See 28 U.S.C. § 1581(a).
Keeping in mind this framework, and the distinctions between and among a
challenge to Commerce’s antidumping duty determination under 19 U.S.C. § 1516a, a
challenge to Commerce’s liquidation instructions under the APA, and a challenge to
2007-1291 4
Customs’ denial of a liquidation protest brought under 19 U.S.C §§ 1514 and 1515, we
now turn to Shinyei’s case.
B. Relevant Facts and Procedural History
A detailed discussion of the facts giving rise to this litigation and leading up to
Shinyei’s first appeal appears in our opinion in Shinyei-CAFC(I), 355 F.3d at 1299-304.
We presume familiarity with that opinion, but briefly review this earlier history before
turning to subsequent developments.
1. Shinyei Enters Ball Bearings from Japan
Commerce issued an antidumping order on ball bearings from Japan in 1989.
Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical
Plain Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904 (May 15, 1989).
During the second administrative review period, from May 1, 1990 to April 30, 1991,
Shinyei imported and entered ball bearings from Japan, making about 100 entries and
paying antidumping duty deposits at the rate of 45.83% ad valorem.
In 1992, Commerce published final results of the review for the second
administrative review period, which ordinarily would have been followed by liquidation of
the entries made during that period. Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof From France; et al.; Final Results of Antidumping Duty
Administrative Reviews, 57 Fed. Reg. 28,360 (June 24, 1992). But Commerce’s review
results were challenged by importers (not including Shinyei) in the Court of International
Trade, and that court preliminarily enjoined liquidation of entries made during the
second administrative review period (including Shinyei’s entries) pending a final court
2007-1291 5
decision. See Fed. Mogul Corp. v. United States, No. 92-06-00422 (Ct. Int’l Trade July
14, 1992) (issuing a preliminary injunction).
A final court decision did not come until 1997, when we affirmed Commerce’s
review results as they had been amended in the interim. See Torrington Co. v. United
States, 127 F.3d 1077, 1081 (Fed. Cir. 1997). On February 23, 1998, Commerce
published notice of the final Torrington decision and of the court-adjudicated review
results (“Amended Review Results”) in the Federal Register. Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From France, et al.; Amended
Final Results of Antidumping Duty Administrative Reviews, 63 Fed. Reg. 8908 (Feb. 23,
1998). Also in 1998, Commerce issued instructions to Customs to liquidate entries
made during the 1990-1991 review period at the final antidumping rates set by the
Amended Review Results (the “1998 Liquidation Instructions”).
Because these final antidumping duty rates were substantially lower than the
45.83% ad valorem rate at which Shinyei had deposited duties in 1990-1991, Shinyei
stood to receive a refund for each of its entries that Customs would liquidate pursuant to
Commerce’s 1998 Liquidation Instructions. But for reasons that are not clear—indeed,
exactly what happened and why are the very questions of the merits that the Court of
International Trade has twice declined to reach—the 1998 Liquidation Instructions
covered some but not all of Shinyei’s 1990-1991 entries of ball bearings, and Customs
actually liquidated only those entries covered by the 1998 Liquidation Instructions. As
discussed below, the remaining entries were deemed liquidated—i.e., were liquidated
by operation of law—in August of 1998, though at that time it may not have been clear
that deemed liquidation had occurred.
2007-1291 6
2. Shinyei Files Suit in the Court of International Trade
On March 23, 2000, Shinyei filed suit against the United States in the Court of
International Trade in case no. 1:00-cv-00130 (the “’130 case”), asserting two claims in
the alternative. In one claim, Shinyei challenged Commerce’s 1998 Liquidation
Instructions under the APA, alleging that by failing to include all of Shinyei’s entries in
those instructions, Commerce had acted contrary to the requirement of 19 U.S.C.
§ 1675(a)(2)(C) that Commerce’s antidumping duty determination “shall be the basis”
for the assessment of antidumping duties on entries of merchandise covered by the
determination. In the alternative claim, Shinyei challenged Customs’ failure to actually
liquidate, alleging that Commerce’s 1998 Liquidation Instructions had indeed covered all
of Shinyei’s entries from the 1990-1991 period, and seeking a writ of mandamus to
direct Customs to actually liquidate the disputed entries at the relatively low final
antidumping rates.
On August 1, 2000, while Shinyei’s ’130 case was pending, Commerce issued
“clean up” liquidation instructions to Customs, directing Customs to liquidate any
remaining unliquidated entries of ball bearings from the 1990-1991 review period “at the
deposit rate.” Customs then actually liquidated Shinyei’s remaining entries from that
period, at the 45.83% deposit rate, per the “clean up” instructions. In response, Shinyei
filed an amended complaint in the ’130 case, withdrawing its now-moot request for a
writ of mandamus to force liquidation, but maintaining its claim that Commerce had
erred, and seeking reliquidation at the final antidumping rates. Shinyei also filed
2007-1291 7
protests of the actual liquidations with Customs under 19 U.S.C. § 1514(a). 1 Customs
later denied many of those protests, and Shinyei sought judicial review in the Court of
International Trade in case nos. 1-01-cv-00707, 1:03-cv-00688, and 1:04-cv-00252
(collectively, the “Customs-Error cases”).
3. The Court of International Trade Dismisses Shinyei’s ’130 Case
In 2002, the United States moved to dismiss Shinyei’s complaint in the ’130 case.
The United States argued that because Customs had actually liquidated Shinyei’s
entries under the “clean up” instructions, the actual liquidation was final and conclusive,
and prevented the court from assuming or maintaining jurisdiction over Shinyei’s APA
claim. Alternatively, the United States argued, Shinyei’s entries were deemed
liquidated, pursuant to 19 U.S.C. § 1504(d), on August 23, 1998—six months after
Commerce published notice of the Amended Review Results—and the deemed
liquidation was final and conclusive, precluding judicial review of Shinyei’s APA claim.
On February 14, 2003, the Court of International Trade granted the United
States’ motion to dismiss. Shinyei Corp. of Am. v. United States, 248 F. Supp. 2d 1350
(Ct. Int’l Trade 2003) (“Shinyei-CIT(I)”). Relying on cases interpreting our holding in
Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983), the court held that
“Shinyei’s claim and the relief requested became moot as a result of Customs’ [actual]
liquidation of the entries at issue,” depriving the court of subject matter jurisdiction.
Shinyei-CIT(I), 248 F. Supp. 2d at 1358-59. Notably, the Court of International Trade
1
As Shinyei explained to the Court of International Trade, Shinyei filed the
§ 1514(a) protests “strictly to preserve its rights in case it should ultimately be decided
that the . . . liquidations [at issue] reflect Customs Error rather than Commerce Error.”
Shinyei Corp. of Am. v. United States, 248 F. Supp. 2d 1350, 1354 (Ct. Int’l Trade
2003).
2007-1291 8
did not consider the United States’ argument about deemed liquidations. See Shinyei-
CIT(I), 248 F. Supp. 2d at 1361 n.22 (“The Court does not reach the issue of ‘deemed
liquidations’ of the entries at issue since both Defendant and Shinyei agree that the
entries at issue were in fact liquidated.”).
4. We Reverse and Remand for Further Proceedings
Shinyei appealed the Court of International Trade’s dismissal of the ’130 case for
lack of jurisdiction, and on January 20, 2004, we reversed. See Shinyei-CAFC(I), 355
F.3d at 1297. We reviewed our earlier statement in Zenith Radio that “once liquidation
occurs, a subsequent decision by the trial court on the merits of Zenith’s challenge [to
Commerce’s determination of a duty rate under section 516A of the Tariff Act] can have
no effect on the dumping duties assessed on [Zenith’s entries],” 710 F.2d at 810, and
we explained that this holding was “explicitly based on the liquidation and injunction
provisions in section 516A.” Shinyei-CAFC(I), 355 F.3d at 1309. 2
Here, since Shinyei did not challenge Commerce’s duty determination under
section 516A of the Tariff Act, but rather challenged Commerce’s liquidation instructions
as inconsistent with an antidumping duty determination that Shinyei conceded to be
correct, we explained that our holding in Zenith Radio was simply inapplicable. See id.
(“a challenge to Commerce instructions on the ground that they do not correctly
implement the published, amended administrative review results, ‘is not an action
2
See, e.g., 19 U.S.C. § 1516a(c)(1) (“Unless such liquidation is enjoined by
the court under paragraph (2) of this subsection, entries of merchandise . . . shall be
liquidated in accordance with the determination of the Secretary . . . if they are entered,
or withdrawn from warehouse, for consumption on or before the date of publication in
the Federal Register by the Secretary or the administering authority of a notice of a
decision of the United States Court of International Trade, or of the United States Court
of Appeals for the Federal Circuit, not in harmony with that determination.”).
2007-1291 9
defined under section 516A of the Tariff Act’” (quoting Consol. Bearings, 348 F.3d at
1002)); see also Mukand Int’l, Ltd. v. United States, 502 F.3d 1366, 1369 (Fed. Cir.
2007) (“[O]ur recent decision in [Shinyei-CAFC(I)] makes clear that the effect of
liquidation under the injunction and liquidation provisions of section 516a does not
divest the Court of International Trade of section 1581(i)(4) jurisdiction over an
otherwise proper action for reliquidation.”).
We held in Shinyei-CAFC(I) that despite Customs’ actual liquidation of Shinyei’s
entries (pursuant to Commerce’s “clean-up” instructions), the Court of International
Trade retained jurisdiction over Shinyei’s ’130 case under 28 U.S.C § 1581(i)(4), the
court’s catch-all jurisdictional provision, covering challenges to Commerce’s
“administration and enforcement” of duty laws. 355 F.3d at 1305. We also held that
Shinyei had a cause of action under the APA and that nothing in the trade laws
precluded the relief requested by Shinyei for Commerce’s alleged error—new
instructions from Commerce to Customs to reliquidate Shinyei’s entries. Remanding
the case, we wrote that “[t]he Court of International Trade must reach the merits of
Shinyei’s case to determine if Shinyei is indeed entitled to the requested relief.” Id. at
1311.
Notably, we declined to reach the issue of deemed liquidation, because the trial
court had not decided the issue and because “the parties concede[d] that the subject
entries were actually liquidated.” Id. at 1308 n.5. Also of note, we explained that
because Shinyei filed the ’130 case before actual liquidation of its entries, the trial court
was incorrect to refer to Shinyei as a party who “sleep[s] on their rights and permit[s]
liquidation to occur.” Id. at 1309 (quoting Shinyei-CIT(I), 248 F. Supp. 2d at 1360).
2007-1291 10
5. The Court of International Trade Consolidates and Again Dismisses
On remand, the Court of International Trade consolidated Shinyei’s ’130 case
with Shinyei’s three Customs-Error cases. The United States defended against the
consolidated ’130 case on the ground—not previously adjudicated by either the trial
court or this court—that Shinyei’s entries were deemed liquidated on August 23, 1998,
and that this deemed liquidation was final and conclusive, precluding Shinyei from
thereafter claiming Commerce or Customs error in connection with the liquidated
entries. In May of 2006, Shinyei filed a motion for partial summary judgment to dispose
of this deemed-liquidation defense, agreeing that its entries were deemed liquidated (in
1998) before they were actually liquidated (beginning in 2000), but arguing that the
deemed liquidation was no more final or conclusive than an actual liquidation as against
Shinyei’s claims. The United States opposed Shinyei’s motion and filed a cross-motion
for summary judgment on the basis of the deemed-liquidation defense.
On April 20, 2007, the Court of International Trade ruled on the cross-motions for
summary judgment, denying Shinyei’s motion and granting summary judgment to the
United States. Shinyei Corp. of Am. v. United States, 491 F. Supp. 2d 1209, 1220 (Ct.
Int’l Trade 2007) (“Shinyei-CIT(II)”). Despite having previously declined to consider the
deemed-liquidation issue (and instead having held the actual liquidations effective), the
court now changed course, holding that because Shinyei’s entries “were deemed
liquidated by operation of law, the final duty [owed] by Shinyei was the rate and amount
of duty deposited at the time of entry or withdrawal from warehouse, not the rate of duty
determined by the administrative review.” Id. at 1220 (emphasis in original).
Concluding that the deemed liquidation was final, the court held that the deemed
2007-1291 11
liquidation statute thus precluded review of Shinyei’s APA claim regarding Commerce’s
liquidation instructions.
The court also dismissed Shinyei’s claims of Customs error, on the ground that
Shinyei failed to file a timely administrative protest of the August, 1998 deemed
liquidation. Over Shinyei’s objection that Customs was required to give Shinyei notice
of the deemed liquidation before the time to protest would commence, the court held
that no such notice was required because “[i]n the instant matter, Customs was not
aware of the Deemed Liquidation, and thereby could not post notice in the Bulletin.” Id.
Further, in contrast to our statement in Shinyei-CAFC(I) that Shinyei had not slept on its
rights, the Court of International Trade noted on remand that it was “particularly troubled
by Shinyei’s delay in seeking relief.” Shinyei-CIT(II), 491 F. Supp. 2d at 1220. The
court explained that in its view, Commerce’s February 23, 1998 announcement of the
Amended Review Results, published in the Federal Register, effectively put Shinyei on
notice that its entries would be deemed liquidated in six months at the deposit rate
unless Shinyei took action first. Therefore, the court wrote, Shinyei “could have sought
mandamus” before August 23, 1998 “to compel liquidation” at the Amended Final
Review rates. Id.
Finally, the Court of International Trade granted summary judgment to the United
States on a counterclaim, filed by the United States in one of the Customs-Error cases,
seeking recovery of a refund Customs had given Shinyei upon granting one of Shinyei’s
protests in part. The court explained that because the entries in question “had already
been liquidated by operation of law, and at the duty rate deposited at the time of entry,
over two years before Customs had mistakenly ‘actually’ liquidated the [entries] . . .
2007-1291 12
Customs had erred in granting the refund to Shinyei[, and a]s such, the Government is
entitled to recover” the refund plus interest. Id. at 1222.
Shinyei filed a timely appeal from the court’s April 20, 2007 judgment. We have
jurisdiction under 28 U.S.C. § 1295(a)(5).
DISCUSSION
A. Standard of Review
We review the Court of International Trade’s grant of summary judgment de
novo, including by deciding de novo the proper interpretation of governing statutes and
regulations. Orlando Food Corp. v. United States, 423 F.3d 1318, 1320 (Fed. Cir.
2005); NEC Solutions (Am.), Inc. v. United States, 411 F.3d 1340, 1344 (Fed. Cir.
2005). Here, the court’s summary judgment depended on its holdings that, where an
importer’s entry has been deemed liquidated under 19 U.S.C. § 1504(d), (1) this statute
precludes judicial review of the importer’s claim under the APA that Commerce’s earlier
liquidation instructions failed to comply with 19 U.S.C. § 1675(a)(2)(C), and (2) Customs
is not obligated to give the importer notice of the deemed liquidation if Customs is not
“aware of” the deemed liquidation. We review each of these holdings without
deference, and explain why each was incorrect.
B. Deemed Liquidation and Commerce Error
Judicial review under the APA is precluded if “any other statute that grants
consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702.
In Shinyei-CAFC(I), we held that the liquidation of Shinyei’s entries did not preclude
judicial review of Shinyei’s Commerce-error claim under the APA, because the Tariff Act
does not expressly or impliedly forbid the relief sought by Shinyei for erroneous
2007-1291 13
liquidation instructions—namely, “reliquidation of the subject entries at the lower rate so
[Shinyei] can receive a refund of the overpaid duties.” 355 F.3d at 1306, 1310 n.8
(explaining that “‘reliquidation’ is the re-calculation of the duties or drawback accruing
on an entry”). We acknowledged that the Tariff Act does not explicitly provide for this
relief, but wrote that “[w]e reject the [United States’] suggestion that the statute’s silence
as to reliquidation in the context of Commerce error can be construed as a prohibition of
reliquidation in such cases.” Shinyei-CAFC(I), 355 F.3d at 1312.
Although in Shinyei-CAFC(I) we assumed that Shinyei’s entries had been
actually liquidated pursuant to Commerce’s “clean-up” instructions, and we therefore did
not consider the section of the Tariff Act concerning deemed liquidation, we now hold
that nothing in the deemed-liquidation statute forbids the Court of International Trade
from ordering reliquidation as a remedy for Commerce’s failure to comply with 19 U.S.C.
§ 1675(a)(2)(C) in its liquidation instructions to Customs.
The deemed-liquidation statute, 19 U.S.C. § 1504, was enacted in 1978. See
Pub. L. No. 95-410, § 209(a), 92 Stat. 888, 902 (1978). “The prior law had been that
Customs might delay liquidation as long as it pleased, and with or without a formal
suspension notice.” Ambassador Div. of Florsheim Shoe v. United States, 748 F.2d
1560, 1562 (Fed. Cir. 1984). “In Ambassador, we noted that Congress enacted the
statute because of ‘the uncertainty importers were being kept in, often for years, as to
whether they might face further exactions, or when the refunds to which they might be
entitled would be paid.’” Wolff Shoe, 141 F.3d at 1118-19 (internal citations omitted).
Thus, as we have explained, “[t]he primary purpose of section 1504 was to ‘increase
certainty in the customs process for importers, surety companies, and other third parties
2007-1291 14
with a potential liability relating to a customs transaction.’” Int’l Trading Co. v. United
States, 281 F.3d 1268, 1272 (Fed. Cir. 2002) (quoting Dal-Tile Corp. v. United States,
829 F. Supp. 394, 399 (Ct. Int’l Trade 1993)).
Here, the parties agree that Shinyei’s entries were deemed liquidated in 1998
under subsection (d) of the deemed liquidation statute, which applies after liquidation
has been suspended pending litigation. In 1998 this subsection read as follows.
Except as provided in section 751(a)(3) [19 U.S.C. § 1675(a)(3)], when a
suspension required by statute or court order is removed, the Customs
Service shall liquidate the entry within 6 months after receiving notice of
the removal from the Department of Commerce, other agency, or a court
with jurisdiction over the entry. Any entry not liquidated by the Customs
Service within 6 months after receiving such notice shall be treated as
having been liquidated at the rate of duty, value, quantity, and amount of
duty asserted at the time of entry by the importer of record.
19 U.S.C. § 1504(d) (1994).
This statute does not discuss reliquidation of an entry deemed liquidated—
reliquidation is neither expressly provided for nor expressly prohibited. Yet the Court of
International Trade held that judicial review of Shinyei’s APA claim was precluded by
this section, reasoning that “[w]hen courts have determined that entries were deemed
liquidated under 19 U.S.C. 1504(d), they have previously set aside Customs’ actual
liquidation and have treated the deemed liquidation as being final,” and citing four cases
in support of this proposition. Shinyei-CIT(II), 491 F. Supp. at 1220.
The cases relied on by the Court of International Trade, however, do not hold or
suggest that entries deemed liquidated under section 1504(d) may never be
reliquidated, even where the deemed liquidation resulted from Commerce’s error in
issuing liquidation instructions. Rather, these cases hold only that when an entry is
deemed liquidated, the duty rate is the deposit rate, and Customs may not recover
2007-1291 15
additional duties from the importer thereafter. See NEC Solutions, 411 F.3d at 1343
(“[B]ecause Customs did not liquidate within six months, the entries should have been
deemed liquidated[, and thus] NEC is entitled to a refund of any additional duties
imposed. . . .”); Int’l Trading Co., 281 F.3d at 1271 (affirming holding of deemed
liquidation) (“ITC [the importer] . . . contend[s] that the entries should be deemed
liquidated at the deposit rate.”); United States v. Cherry Hill Textiles, 112 F.3d 1550,
1560 (Fed. Cir. 1997) (“In cases in which a liquidation has become final, the
government cannot seek to recover additional duties simply by making a new liquidation
of the original entry.”); Am. Int’l Chem., Inc. v. United States, 387 F. Supp. 2d 1258,
1269-1270 (Ct. Int’l Trade 2005) (“Because Customs did not liquidate the four entries . .
. at issue in this action within six months from the date Customs received notice of the
removal of the suspension of liquidation, the entries liquidated by operation of § 1504(d)
at the zero rate of antidumping duty asserted by plaintiff at the time of entry[, and]
Plaintiff, therefore, is entitled to a refund . . . .”); cf. SKF USA, Inc. v. United States, 512
F.3d 1326, 1331 (Fed. Cir. 2007) (“[S]ection 1504(d) mandates deemed liquidation at
the cash deposit rate regardless of whether the cash deposit rate is higher or lower than
the rate instructed by Commerce. . . .”).
Indeed, we recently confirmed that “[u]nder the statutory tariff scheme enacted by
Congress, the character of a deemed liquidation is procedural not substantive.” Koyo
Corp. of U.S.A. v. United States, 497 F.3d 1231, 1242 (Fed. Cir. 2007). “The deposit
rate is the correct rate of duty assessed for a deemed liquidation under the procedures
of 19 U.S.C. § 1504(d), but if it is adverse to the party being assessed the duties
2007-1291 16
because it is contrary to the final review results then it is unlawful and has no
substantive effect.” Id. at 1242-43. 3
Although the Koyo case concerned a claim of Customs error rather than
Commerce error, this core holding—that a deemed liquidation is unlawful and of no
substantive effect if it is contrary to final review results—is equally applicable in the
context of Shinyei’s APA claim. Assuming that Shinyei’s entries were covered by the
Amended Review Results, their deemed liquidation at the deposit rate was unlawful
because that liquidation was contrary to the Amended Review Results, which set forth
lower duty rates than the deposit rate. See Shinyei-CAFC(I), 355 F.3d at 1302 (“If
Shinyei’s entries were indeed covered by the Amended Review Results, as it claims,
there was presumably an error somewhere in the instruction/liquidation process.”). If
there was an error in the instruction process, then Shinyei is entitled to a judgment
ordering reliquidation pursuant to new, correct instructions. Nothing in the deemed-
liquidation statute forbids this relief on the facts as alleged. Thus, regardless of whether
the disputed entries are considered to have been deemed liquidated or actually
liquidated, the Court of International Trade must reach the merits of Shinyei’s
Commerce-error claim before the court can decide whether this claim supports the
remedy of reliquidation.
3
Our opinion in Koyo issued while Shinyei’s appeal was pending. The
United States urges us to remand this case without decision, so that the Court of
International Trade may reconsider its judgment in light of Koyo. But because the
issues on appeal are legal, not factual, we see no need to remand—we are fully
capable of evaluating the impact of Koyo on the proper interpretation of statutes and
regulations.
2007-1291 17
C. Deemed Liquidation and Customs Error
As an alternative to its Commerce-error claim, Shinyei alleges that Commerce’s
liquidation instructions did correctly reflect the Amended Review Results regarding the
disputed entries, and therefore the “error somewhere in the instruction/liquidation
process” was Customs’ error. To preserve this argument, Shinyei filed protests of
Custom’s actual liquidations under 19 U.S.C. §§ 1514 and 1515, and then filed suit
when many of those protests were denied. These Customs-Error cases were not
before us in Shinyei-CAFC(I), but were consolidated with Shinyei’s ’130 case on
remand and were dismissed in Shinyei-CIT(II).
On appeal, Shinyei argues that the Court of International Trade was wrong to
hold that the deemed liquidation of Shinyei’s entries was “final” in the sense that it
barred Shinyei from pursuing its Customs-error claim, and was wrong to hold that
Customs need not give an importer notice of a deemed liquidation of which Customs
itself is “not aware.” We agree with Shinyei, and hold that the Court of International
Trade must reach the merits of the Customs-error claim.
We recently explained in Koyo that a deemed liquidation may properly be
protested to obtain reliquidation in accordance with Commerce’s final review results.
“Like an unlawful actual liquidation, the deemed liquidation can be protested and the
final review results can have effect if the importer timely invokes its post-liquidation
protest remedy under 19 U.S.C. § 1514.” 497 F.3d at 1234, 1237 (“There is no
language in § 1514(a) that bars an importer from formally protesting the amount of
duties or the liquidation of entries that result by operation of § 1504(d).”).
2007-1291 18
Any protest of a deemed liquidation must be filed within a time limit, however. “If
the importer forgoes filing a timely protest, then the deemed liquidation stands and is
final against the importer.” Koyo, 497 F.3d at 1243. The time limit for filing is
prescribed by statute, and at the relevant time read as follows.
(3) A protest of a decision, order, or finding described in subsection (a)
shall be filed with the Customs Service within ninety days after but not
before—
(A) notice of liquidation or reliquidation, or
(B) in circumstances where subparagraph (A) is inapplicable, the date
of the decision as to which protest is made.
19 U.S.C. § 1514(c)(3) (1994) (emphases added).
In Koyo, we noted that the United States conceded that this statute provides two
time periods within which an importer may protest a liquidation. “The first 90-day
protest period,” under § 1514(c)(3)(B), “commences six months after Customs receives
notice of removal of the suspension of liquidation,” i.e., commences on “the date on
which the entry is automatically deemed liquidated by operation of law under 19 U.S.C.
§ 1504(d),” while “[t]he second protest period commences on the date that Customs
gives notice of the deemed liquidation or notice of a liquidation reflecting the deemed
liquidation” and expires ninety days thereafter. Koyo, 497 F.3d at 1241.
The notice from Customs to the importer which triggers this second ninety-day
protest period is not optional. As we explained in Norsk Hydro Canada, Inc. v. United
States, 472 F.3d 1347 (Fed. Cir. 2006), “[i]n the process of liquidating entries, Customs
must give parties proper notice, and this is so whether the liquidation is actual or
deemed.” Id. at 1351 (emphasis added). Indeed, Customs has adopted a regulation in
harmony with section 1514(c)(3)(A), providing that Customs shall give bulletin notice to
2007-1291 19
an importer when an entry is deemed liquidated, and that this notice starts the clock
running on the importer’s time to protest the liquidation.
(i) Entries liquidated by operation of law at the expiration of the time
limitations prescribed in section 504. Tariff Act of 1930, as amended (19
U.S.C. 1504), and set out in [19 C.F.R.] §§ 159.11 and 159.12, shall be
deemed liquidated as of the date of expiration of the appropriate statutory
period.
(ii) The bulletin notice of liquidation shall be posted or lodged in the
customhouse within a reasonable period after each liquidation by
operation of law and shall be dated as of the date of expiration of the
statutory period.
(iii) A protest under section 514, Tariff Act of 1930, as amended (19
U.S.C. 1514), and part 174 of this chapter shall be filed within 90 days
from the date the bulletin notice of liquidation of an entry by operation of
law is posted or lodged in the customhouse.
19 C.F.R § 159.9(c)(2) (emphasis added).
Here, Shinyei’s entries were deemed liquidated in August of 1998, six months
from the date Commerce published notice of the Amended Review Results in the
Federal Register. At that time, however, the fact of the deemed liquidation may not
have been clear to the parties, because we had not yet decided that publication in the
Federal Register was sufficient to start the deemed-liquidation clock running under 19
U.S.C. § 1504(d). See Int’l Trading Co., 281 F.3d at 1276-77 (Fed. Cir. 2002). Thus,
Shinyei apparently never filed protests directed at the deemed liquidation per se, and
Customs apparently never posted bulletin notice of the deemed liquidation. Instead,
Shinyei filed the original ’130 case in 2000, seeking a writ of mandamus to force actual
liquidation of its entries, and then filed protests directed to Customs’ actual liquidations
(pursuant to Commerce’s “clean up” instructions).
2007-1291 20
Shinyei now argues that because Customs never posted bulletin notice of the
deemed liquidation, Shinyei’s protest period under 19 U.S.C. § 1514(c)(3)(A) has not
yet expired. The United States responds that if this is so, then Shinyei’s second protest
period has not yet begun, and the Customs-error claim is not ripe, because the statute
allows for protest “within ninety days after but not before” notice is given. 19 U.S.C. §
1514(c)(3)(A) (emphasis added). The Court of International Trade held that there is no
second protest period at all in this case, because Customs was “not aware of the
deemed liquidation at the time of its occurrence” and thus was not required to post
notice of it. Shinyei-CIT(II), 491 F. Supp. 2d at 1220. The court reasoned that because
the deemed-liquidation statute’s purpose is to “bring finality to the duty assessment
process . . . allowing the notification regulations set forth in 19 C.F.R. § 159.9(c)(2) to
supercede such a finality” by prolonging an importer’s time to protest would “run counter
to the statute,” and thus Shinyei was not entitled to notice here. Id.
This holding turns the deemed-liquidation statute, meant to “increase certainty in
the customs process for importers,” Int’l Trading Co., 281 F.3d at 1272 (emphasis
added), on its head. Customs was required by regulation to give Shinyei notice of the
1998 deemed liquidation, and to the extent that Customs did not post notice because it
did not appreciate in 1998 that deemed liquidation had occurred (because we had yet to
issue International Trading Co.), it makes little sense to hold that therefore Shinyei may
not protest this allegedly unlawful deemed liquidation. Rather, Shinyei would be entitled
2007-1291 21
to protest once Customs were to become “aware” of the liquidation and were to post
notice. 4
However, we need not worry about such counterfactuals, because Customs
actually liquidated the disputed entries at the same duty rate at which the entries were
deemed liquidated—namely, the deposit rate—and thus the actual liquidations
accurately reflected the deemed liquidation (albeit serendipitously). Given this unique
circumstance, and given that Shinyei filed timely protests of the actual liquidations, we
may treat those protests—as a matter of law—as timely protests of the deemed
liquidation. Cf. Koyo, 497 F.3d at 1241 (Second protest period begins “on the date that
Customs gives notice of the deemed liquidation or notice of a liquidation reflecting the
deemed liquidation.”) (emphasis added); Fujitsu Gen. Am. v. United States, 283 F.3d
1364, 1379 (Fed. Cir. 2002) (deciding “as a matter of law, [when] . . . Customs
receive[d] notice of the removal of the suspension of liquidation”) (emphasis added).
Because Shinyei was entitled to protest the deemed liquidation and did so timely,
the Court of International Trade was wrong to dismiss Shinyei’s Customs-error claims
on summary judgment. Only by reaching the merits—i.e., by determining whether the
deemed liquidation was unlawful and thus whether Customs should have granted
Shinyei’s protests—can the court determine whether Shinyei is entitled to reliquidation.
4
Indeed, Customs is always “aware” of a deemed liquidation under
§ 1504(d), because liquidation does not happen under this statute until Customs has
first “receiv[ed] notice of the removal [of a suspension of liquidation] from the
Department of Commerce, other agency, or a court with jurisdiction over the entry,” and
has then failed to actually liquidate within a prescribed time “after receiving such notice.”
19 U.S.C. § 1504(d). The Court of International Trade recognized that publication of the
Amended Review Results served as notice of the removal of suspension in this case,
and held that therefore “Shinyei should have been aware of the inevitability of deemed
liquidation,” Shinyei-CIT(II), 491 F. Supp. 2d at 1220, but the court inexplicably did not
hold that Customs should similarly have been aware of this inevitability.
2007-1291 22
Likewise, the Court of International Trade was wrong to grant summary judgment
to the United States on its counterclaim for recovery of a refund granted in connection
with one of Shinyei’s protests. If the deemed liquidation was unlawful, then Customs
was likely correct to grant Shinyei’s protest and to refund duties. The counterclaim thus
requires resolution of the same issues as do Shinyei’s claims of Commerce- and
Customs-error, issues the court has not yet addressed.
CONCLUSION
For the foregoing reasons, we reverse the April 20, 2007 judgment of the Court
of International Trade and remand for further proceedings. That court has jurisdiction
over Shinyei’s claims, and those claims are not precluded or rendered moot by the
deemed or actual liquidation of the disputed entries. Thus, as we have repeatedly
stressed here, it is time for the Court of International Trade to reach the merits of
Shinyei’s case.
REVERSED AND REMANDED
2007-1291 23