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United States Court of Appeals for the Federal Circuit
04-1085, -1109
NEC SOLUTIONS (AMERICA), INC.,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
Robert P. Parker, Paul, Weiss, Rifkind, Wharton & Garrison LLP, of Washington,
DC, argued for plaintiff-cross appellant. With him on the brief was Petra A. Vorwig.
James A. Curley, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of New York, New York, argued for defendant-appellant.
With him on the brief were Peter D. Keisler, Assistant Attorney General and David M.
Cohen, Director, of Washington, DC; and, Barbara S. Williams, Attorney in Charge,
International Trade Field Office, United States Department of Justice, of New York, New
York. Of counsel on the brief were Chi S. Choy, Attorney, Office of Assistant Chief
Counsel, United States Customs and Border Protection, of New York, New York, and
William J. Kovatch, Jr., Attorney, Office of Chief Counsel for Import Administration,
United States Department of Commerce, of Washington, DC.
Lewis E. Leibowitz, Hogan & Hartson L.L.P., of Washington, DC, for amicus
curiae. With him on the brief was Lorane F. Hebert. Of counsel on the brief was
Kathleen F. McGuigan, JCPenney Purchasing Corporation, Inc., of Plano, Texas.
Appealed from: United States Court of International Trade
Chief Judge Jane A. Restani
United States Court of Appeals for the Federal Circuit
04-1085, -1109
NEC SOLUTIONS (AMERICA), INC.,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
DECIDED: June 10, 2005
__________________________
Before MICHEL, Chief Judge, NEWMAN, and PROST, Circuit Judges.
PROST, Circuit Judge.
The United States appeals from a decision of the United States Court of
International Trade granting summary judgment in favor of NEC Solutions (America),
Inc. (“NEC”).1 NEC Solutions (Am.), Inc. v. United States, No. 01-00147 (Ct. Int’l Trade
July 9, 2003) (“NEC”). The Court of International Trade found that the United States
Customs Service (“Customs”) failed to liquidate entries of television sets manufactured
in Japan within the statutory six-month period after receiving an electronic notice of the
removal of a court-ordered suspension of liquidation and therefore, the entries should
be deemed liquidated at the rate asserted at entry pursuant to 19 U.S.C. § 1504(d).
The government asserts that the Court of International Trade erred in finding that the
e-mail constituted notice because it was ambiguous as to its purpose and silent as to
the applicable duty rate. We disagree and hold that the e-mail was sufficient to
constitute notice under 19 U.S.C. § 1504(d).
NEC cross-appeals the grant of summary judgment by the Court of International
Trade in favor of the government with respect to later entries of television sets. NEC
argues that court opinions received by attorneys with the Department of Justice
(“Justice”) gave sufficient notice to Customs that the suspension had been lifted. We
disagree and find that service on attorneys at Justice is insufficient notice to inform
Customs of the removal of the suspension of liquidation. We affirm.
I. BACKGROUND
From April 1, 1982 until February 28, 1989, NEC manufactured color television
sets in Japan and imported the sets into the United States. At the time of their entry into
the United States, all television sets imported from Japan were subject to a 1971
antidumping order. The Department of Commerce (“Commerce”) conducted several
administrative reviews of the antidumping order over this period.2 For the television sets
imported by NEC through 1987 (the fifth through eighth administrative periods),
1
NEC Solutions (America), Inc., previously known as NEC Technologies,
Inc., is the successor-in-interest to NEC Home Electronics (USA), Inc.
2
The entries at issue were imported by NEC during the following
administrative review periods:
Administrative Review Period
4th (moot) April 1, 1982 to March 31, 1983
5th April 1, 1983 to March 31, 1984
6th April 1, 1984 to February 28, 1985
7th March 1, 1985 to February 28, 1986
8th March 1, 1986 to February 28, 1987
9th March 1, 1987 to February 29, 1988
10th March 1, 1988 to February 28, 1989
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Commerce consolidated these entries into a single administrative review where NEC
subsequently challenged Commerce’s calculation of the dumping margin. NEC Home
Elecs., Ltd. v. United States, 18 Ct. Int’l Trade 336 (1994), aff’d in part, rev’d in part, 54
F.3d 736 (Fed. Cir. 1995). On July 21, 1999, the Court of International Trade sustained
the revised antidumping margin as redetermined by Commerce. On September 19,
1999, sixty days after issuance, that court order became final when the time to appeal
expired without the filing of an appeal, and consequently, the injunction suspending
liquidation of these television sets (the fifth through eighth administrative periods) was
lifted. Commerce failed to publish notice of that court order within ten days as required
by 19 U.S.C. § 1516a(e).
On June 23, 2000, Commerce sent an e-mail to Customs stating:
1. Records at the Department of Commerce indicate that there should
be no unliquidated entries of television receivers monochrome and color,
from Japan (A-588-015) held by Customs for antidumping purposes during
the period 03/10/1971 through 02/28/1999, with the exception of the
period noted below.
2. With respect to unliquidated entries of television receivers
monochrome and color, from Japan that are the subject of court ordered
injunction, the Commerce Department continues to be enjoined from
ordering the liquidation of these entries until the court disposes of the
litigation or dissolves the injunctions. In the case of the antidumping duty
order of the television receivers monochrome and color, from Japan (A-
588-015) this litigation covers subject merchandise produced or exported
by Sanyo Electric (A-588-015-010) which was entered, or withdrawn from
warehouse, for consumption during the period 04/01/1982 through
03/31/1983.
3. Therefore, with the exception of subject merchandise produced or
exported by Sanyo Electric (A-588-015-010) from Japan entered, or
withdrawn from warehouse, for consumption during the period 04/01/1982
through 03/31/1983, if any Customs import office is suspending liquidation
of entries of this merchandise for antidumping purposes for period
03/10/1971 through 02/28/1999, Customs officers should, within 20 days
of receipt of this message, report the following information on an entry-
specific basis to HQ OAB via ACS e-mail: e-mail message number,
AD/CVD case number, entry number(s), date of entry, manufacturer,
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shipper/seller and, importer. Also identify the port where the entry is held,
and provide the name and telephone number of the product specialist at
the port that will be responsible for finalizing reported entries. HQ OAB
will forward this information to the appropriate office at the U.S.
Department of Commerce. Negative reports are not required.
4. If there are any questions regarding this matter by Customs
officers, please contact via e-mail, through the appropriate supervisory
channels, other government agency liaison, using the attribute “HQ OAB.”
Importing public and interested parties should contact Jack Dulberger or
Sheila Forbes at 202-482-5505 or 202-482-4697, AD/CVD Enforcement
Group II, Office 4, Import Administration, International Trade
Administration, Department of Commerce.
5. There are no restrictions on the release of this information.
(emphases added). On the same day, Customs also posted this e-mail message on the
Customs Electronic Bulletin Board, which is publicly accessible. Customs responded to
the e-mail, indicating that there were entries of NEC that were unliquidated, but
Customs did not liquidate the entries at that time. On January 10 and 11, and March
26, 2001, Commerce sent e-mail messages to Customs designated “not to be disclosed
to the public,” stating that the suspension of liquidation was lifted and that the entries
should be liquidated at specified antidumping duty rates. Between February and June
2001, Customs liquidated the entries of NEC.
For the television sets imported between March 1, 1987 and February 28, 1989
(the ninth and tenth administrative periods), the suspensions of liquidation were lifted by
agreement of the parties as part of separate proceedings in 1993 and 1996. There was
no formal publication regarding the removal of the suspensions of liquidation. On April
28, 2000 and May 15, 2000, several years after the removal of the suspensions of
liquidation, Commerce notified Customs of the removal of suspensions in an e-mail with
specific liquidation instructions. Between June and September 2000, Customs
liquidated the entries.
04-1085, -1109 4
Thereafter, NEC filed twenty protests in regards to the liquidation of entries for
the fifth through eighth administrative periods, and an additional nine protests in regards
to the liquidation of entries for the ninth and tenth administrative periods. Customs
denied NEC’s protests, and, on April 26, 2001, NEC filed this action in the Court of
International Trade. NEC and the government filed cross-motions for summary
judgment. On July 9, 2003, the Court of International Trade granted summary judgment
to NEC as to entries during the fifth through eighth review periods and to the
government as to entries during the ninth and tenth review periods. It found that the
June 23, 2000 e-mail sent from Commerce to Customs “provided notice, for the
purposes of § 1504(d), that the court order suspending liquidations of entries during the
fifth through eighth review periods has been lifted.” NEC, slip op. at 17. Thus, the
Court of International Trade concluded that “[b]ecause Customs did not liquidate within
six months, the entries should have been deemed liquidated. NEC is entitled to a
refund of any additional duties imposed.” Id.
The Court of International Trade, however, rejected NEC’s argument on its cross
motion for summary judgment that notification to attorneys at Justice created
constructive notice to the government for the television sets imported in the ninth and
tenth administrative periods, noting that this court “squarely rejected this argument,
finding that service of an opinion on the Justice Department was not service on
Customs because ‘[t]he Justice Department represented Commerce.’” NEC, slip op. at
16-17 (citing Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1379 (Fed. Cir.
2002)). This appeal ensued.
04-1085, -1109 5
We have jurisdiction to hear an appeal from a final decision of the United States
Court of International Trade under 28 U.S.C. § 1295(a)(5).
II. DISCUSSION
A. Standard of Review
We review decisions of summary judgment de novo. Rheem Metalurgica S/A v.
United States, 160 F.3d 1357, 1358 (Fed. Cir. 1998) (“We review de novo a grant of
summary judgment by the Court of International Trade.”); Guess? Inc. v. United States,
944 F.2d 855, 857 (Fed. Cir. 1991) (“deciding de novo the proper interpretation of the
governing statute and regulations as well as whether genuine issues of material fact
exist”).
B. Fifth through Eighth Reviews
Section 1504(d) of Title 19 of the United States Code requires Customs to
liquidate entries within six months of receiving “notice” that a suspension of liquidation of
such entries has been removed. To be sufficient for purposes of § 1504(d), the “notice”
must be “unambiguous” that the suspension of liquidation has been lifted, but does not
need to include specific liquidation instructions from Commerce to Customs. Fujitsu,
283 F.3d 1364; Int’l Trading Co. v. United States, 281 F.3d 1268, 1276 (Fed. Cir. 2002)
(finding that publication of the final results of the administrative review in the Federal
Register provided the requisite notice to Customs despite the fact that it did not include
specific liquidation instructions). If Customs fails to timely liquidate the entries under the
statute, the entries are deemed liquidated at the rate asserted at the time of entry.
Fujitsu, 283 F.3d at 1376.
04-1085, -1109 6
On appeal, the government raises three points in support of its argument that the
June 23, 2000 e-mail was ambiguous and insufficient notice for purposes of 19 U.S.C. §
1504(d): (1) The e-mail did not explicitly state that the suspension was lifted and
appeared to be instead a request for information; (2) The e-mail did not contain the
applicable duty rate; and (3) Commerce did not intend the e-mail to be a notice of
removal of suspension.
With regard to the first point, the government argues that the Court of
International Trade erred in finding that the June 23, 2000 e-mail constituted sufficient
notice to begin the six-month statutory period because it was ambiguous. Namely, the
government contends that because the e-mail sought information about unliquidated
entries, it could have been referring to entries that Customs had liquidated erroneously
while the suspension was in force. NEC disagrees, pointing out that there is no
evidence to show that Commerce was concerned about improperly liquidated entries
and that nowhere in the e-mail did Commerce request information about liquidated
entries, only unliquidated ones. Accordingly, NEC argues that, far from making the
e-mail ambiguous, the instruction to ignore liquidated entries confirmed that suspension
of liquidation had been removed.
The Court of International Trade considered these same arguments in its
decision and found the June 23, 2000 e-mail to be unambiguous. It held that “the
juxtaposition [in the June 23, 2000 e-mail] of the mandate ‘there should be no
unliquidated entries’ with the exception for certain goods for which a Commerce
liquidation order ‘continues to be enjoined’ could only mean that there are no remaining
suspensions, court-ordered or otherwise, on subject entries, except for those identified.”
04-1085, -1109 7
NEC, slip op. at 15. Thus, the e-mail “provide[d] unambiguously that any suspension of
liquidation of NEC’s entries had been removed.” Id. at 15-16. Additionally, “Customs
then posted the message to its Electronic Bulletin Board, which is apparently ‘a familiar
manner’ for Customs to disseminate Commerce’s liquidation information to Customs
officials.” Id. at 16.
We agree that the June 23, 2000 e-mail unambiguously provided notice to
Customs that the suspension of liquidation on NEC’s entries had been lifted. The first
sentence of the first paragraph of the June 23, 2000 e-mail stated that “there should be
no unliquidated entries of television receivers monochrome and color, from Japan . . .
held by Customs for antidumping purposes during the period 03/10/1971 through
02/28/1999.” The second sentence of the second paragraph of the e-mail identified the
exception for televisions from another manufacturer, not NEC. Next, the first sentence
of the third paragraph provided that, with the exception of the entries discussed in the
second paragraph, if any Customs office was suspending liquidation on any of the
entries, Customs officers should report the details of such entries to Commerce.
We read these provisions of the e-mail and the e-mail as a whole as giving notice
to Customs that there was nothing preventing the entries of NEC from being liquidated,
and thus, that the suspension of liquidation had been removed. The first line makes this
clear and this reading is reinforced by the second provision that explicitly makes an
exception only for certain entries other than NEC’s that remain the subject of a court-
ordered injunction. Further, while the third provision directs Customs to report
unliquidated entries rather than to liquidate such entries, neither the statute nor our
precedent requires that the notice give explicit instructions to liquidate or use particular
04-1085, -1109 8
language in order to provide notice that the removal of suspension has occurred. See
Fujitsu, 283 F.3d at 1383. We thus hold that the June 23, 2000 e-mail was sufficiently
unambiguous to satisfy the requirements under 19 U.S.C. § 1504(d).
Second, in a related argument, the government states that the June 23, 2000
e-mail was insufficient under 19 U.S.C. § 1504(d), which requires a more specific and
detailed form of notice, including the applicable duty rate. NEC responds that neither
the statute nor this court’s precedent supports the government’s position. We agree.
As correctly noted by the Court of International Trade, this court has never held that
“informing Customs of the applicable duty rate was the exclusive alternative method of
providing § 1504(d) notice or that is [sic] was a strict requirement.” NEC, slip op. at 13.
While this court held in International Trading that notice of the duty rate provides
sufficient notice to Customs that the suspension had been lifted and in Cemex, S.A. v.
United States that Customs cannot liquidate the entries without receiving the proper
antidumping duty rate, neither the statute nor our precedent requires that the duty rate
be included in the notice in order to satisfy the requirements of 19 U.S.C. § 1504(d).
Cemex, 384 F.3d 1314, 1321 (Fed. Cir. 2004) (finding that Customs must liquidate the
entries after the removal of suspension of liquidation when it receives, separately or
otherwise, “notice of such removal and the proper antidumping duty rate”); Int’l Trading,
281 F.3d at 1276 (finding that “‘notice’ of the duty to be paid is, in effect, notice of the
removal of suspension”).
Finally, the government argues that the court must consider Commerce’s
purpose in sending the June 23, 2000 e-mail when determining whether the e-mail
constitutes notice. NEC responds that the Court of International Trade properly
04-1085, -1109 9
addressed this issue when it found that 19 U.S.C. § 1504(d) is directed toward the
content of the message conveyed to Customs and not the intent of Commerce in
delivering the message.
According to the Court of International Trade, “Commerce’s purpose in issuing
the e-mail . . . is irrelevant” and “[t]he only question is whether this message notified
Customs that suspension had been lifted.” NEC, slip op. at 15. Furthermore, the Court
of International Trade squarely rejected the argument that the large bureaucratic nature
of the government excuses the government’s delay. “Commerce’s self-imposed
bureaucracy, however, is no excuse for delay. Commerce is aware of its statutory
obligations and should have crafted its procedures accordingly.” Id. at 12 n.15. The
Court of International Trade flatly stated that administrative difficulties do not justify
Commerce’s undermining of “both the antidumping duty laws and Congress’ intent to
settle importers’ liabilities promptly.” Id.
We agree that Commerce’s intent and the bureaucratic difficulty of conveying
Commerce’s intent is irrelevant. Rather, the relevant inquiry is whether Customs would
or could have reasonably comprehended the e-mail as being unambiguous, a matter to
which the government offered no direct evidence to support its position. Without any
corroboration for the government’s position, this court finds that a reasonable Customs
official would have read the message to provide notification that any suspension of
liquidation on the NEC entries had been removed. The e-mail did not merely inquire
into the status of the unliquidated entries but unambiguously informed Customs that
“there should be no unliquidated entries.” (emphasis added). Therefore, whether or not
Customs knew Commerce’s intent was otherwise, the e-mail still gave Customs notice
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that suspension had been lifted. Accordingly, we conclude that the June 23, 2000 e-
mail constitutes notice for purposes of 19 U.S.C. § 1504(d).
C. Ninth and Tenth Reviews
On cross-appeal, NEC argues that service of an opinion to attorneys at Justice
created constructive notice to Customs that suspension of liquidation had been lifted as
to the television sets imported in the ninth and tenth administrative periods. Although
acknowledging that this court has previously held that service of an opinion on Justice
was not service on Customs because “[t]he Justice Department represented
Commerce,” Fujitsu, 283 F.3d at 1379, NEC attempts to distinguish this case from
Fujitsu. NEC emphasizes that in Fujitsu Justice was notified of a Federal Circuit
decision determining the dumping margin, whereas in this case, Justice was notified of
a Court of International Trade’s decision ordering the lifting of suspension of liquidation.
NEC therefore argues that Customs had an interest in this case whereas it did not in
Fujitsu. NEC further attempts to distinguish Fujitsu by emphasizing an interrogatory
response in this case by a Justice representative that he represented the “United
States” and pointing out that Customs is an agency of the United States.
The Court of International Trade rejected NEC’s argument. According to the
Court of International Trade, the Fujitsu holding that “service of an opinion on Justice
was not service on Customs” is controlling precedent despite NEC’s attempt to
distinguish it. NEC, slip op. at 17. We agree. We deny NEC’s cross-appeal and hold
that service of an opinion to attorneys at Justice does not constitute constructive notice
to Customs.
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III. CONCLUSION
We affirm the decision of the Court of International Trade and hold that the June
23, 2000 e-mail constituted notice for purposes of 19 U.S.C. § 1504(d). We further hold
that service on Justice did not constitute notice for purposes of 19 U.S.C. § 1504(d).
AFFIRMED
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