Slip Op. 07-59
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
SHINYEI CORPORATION OF AMERICA, :
:
Plaintiff, :
: Consolidated
v. : Court No. 00-00130
:
UNITED STATES, :
:
Defendant. :
___________________________________:
Held: Plaintiff’s motion for partial summary judgment denied.
Defendant’s cross-motion for summary judgment granted. Final
judgment entered for Defendant.
April 20, 2007
Charles H. Bayar, for Shinyei Corporation of America,
plaintiff.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (James A. Curley), for the United States,
defendant.
OPINION
TSOUCALAS, Senior Judge: This matter comes before the Court
pursuant to the decision of the Court of Appeals for the Federal
Circuit (“CAFC”) in Shinyei Corp. of Am. v. United States,
(“Shinyei CAFC”) 355 F.3d 1297 (Fed. Cir. 2004), and the CAFC
Court No. 00-00130 Page 2
mandate of March 12, 2004, reversing and remanding the judgment of
this Court in Shinyei Corp. of Am. v. United States, (“Shinyei
CIT”) 27 CIT 305, 248 F. Supp. 2d 1350 (2003). The CAFC held that
this Court erred in granting Defendant’s motion to dismiss the
action pursuant to USCIT R. 12(b)(1). Accordingly, the parties
proceeded on the merits of the case consistent with the CAFC
decision.
JURISDICTION
Shinyei is pleading an Administrative Procedure Act, 5 U.S.C.
§§ 701-706 (2000) (“APA”), cause of action and this Court has
jurisdiction over the matter pursuant to 28 U.S.C. § 1581(i)(4)
(2000).1 See Shinyei CAFC, 355 F.3d at 1304-05.
STANDARD OF REVIEW
On a motion for summary judgment, the Court must determine
whether there are any genuine issues of fact that are material to
the resolution of the action. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A factual dispute is genuine if it might
1
“The APA is not a jurisdictional statute and ‘does not
give an independent basis for finding jurisdiction in the Court
of International Trade.’” Shinyei CAFC, 355 F.3d at 1304; citing
to Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546,
1552 (Fed.Cir. 1983). The CAFC has ruled that the Plaintiff in
the case at bar has jurisdiction under 28 U.S.C. § 1581(i)(4).
See Shinyei CAFC, 355 F.3d at 1304-05.
Court No. 00-00130 Page 3
affect the outcome of the suit under the governing law. See id.
Accordingly, the Court may not decide or try factual issues upon a
motion for summary judgment. See Phone-Mate, Inc. v. United
States, 12 CIT 575, 577, 690 F. Supp. 1048, 1050 (1988). When
genuine issues of material fact are not in dispute, summary
judgment is appropriate if a moving party is entitled to judgment
as a matter of law. See USCIT R. 56; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
DISCUSSION
I. Background
A. Procedural History
Plaintiff, Shinyei Corporation of America (“Shinyei”), a
United States corporation wholly owned by Shinyei Kaisha Company
(“Kaisha”), a Japanese trading company, filed a complaint with this
Court on March 23, 2000. On September 25, 2002, this Court granted
Shinyei’s motion for leave to amend its complaint, in which Shinyei
sought to declare certain instructions issued by the United States
Department of Commerce (“Commerce”) in violation of 19 U.S.C. §
1675(a)(2) (1988 & Supp. 1993). As such, Shinyei moved to remand
this case to Commerce for the purpose of issuing corrected
instructions with regard to liquidation of the forty-two Shinyei
entries of certain bearings. See Shinyei CIT, 27 CIT at 306, 248
Court No. 00-00130 Page 4
F. Supp. 2d at 1351. Subsequently, on October 8, 2002, Defendant
moved to dismiss this case pursuant to USCIT R. 12(b)(1) for lack
of subject matter jurisdiction and USCIT R. 12(b)(5) for failure to
state a claim on which relief can be granted. See Shinyei CIT, 27
CIT at 306, 248 F. Supp. 2d at 1352. On February 14, 2003, this
Court granted Defendant’s motion to dismiss under USCIT R.
12(b)(1). See Shinyei CIT, 27 CIT at 328, 248 F. Supp. 2d at 1360.
On January 20, 2004, the CAFC reversed, and remanded the action for
further proceedings on the merits. See Shinyei CAFC, 355 F.3d at
1312. On March 22, 2004, this Court ordered that Shinyei proceed
with the merits of the case consistent with the CAFC’s opinion.
See Shinyei Corp. of Am. v. United States, 28 CIT, ___, ___, Slip
Op. 04-26, 2004 Ct. Intl. Trade LEXIS 26 (2004).
B. Factual Background
The full factual and procedural background of this case has
been set forth in the prior decisions of the CAFC and this Court.
See Shinyei CAFC, 355 F.3d 1297; Shinyei CIT, 27 CIT 305, 248 F.
Supp. 2d 1350. The facts relevant to the instant inquiry are as
follows. Between the May 1, 1990 and April 30, 1991 period of
review (“POR”), Shinyei imported certain merchandise into the
United States. The merchandise at issue (“Merchandise” or “Subject
Entries” or “Disputed Entries”) was purchased by Shinyei from
Kaisha which, in turn, purchased the Merchandise from six Japanese
Court No. 00-00130 Page 5
manufacturers (collectively “Six Manufacturers”), namely, Fujino
Iron Works Co., Ltd. (“Fujino”), Nakai Bearing Co., Ltd. (“Nakai”),
Nankai Seiko Co., Ltd. (“Nankai”), Inoue Jikuuke Kogyo Co.
(“Inoue”), Showa Pillow Block Mfg., Ltd. (“Showa”) and Wada Seiko
Co., Ltd. (“Wada”). See Final Results of Antidumping Duty
Administrative Reviews of Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof From France; et. al., (“Final
Results”) 57 Fed. Reg. 28,360 (ITA June 24, 1992); Shinyei CIT, 27
CIT at 306-07, 248 F. Supp. 2d at 1352.
The Disputed Entries were subject to an antidumping
investigation. See Initiation of Antidumping Duty Investigation;
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From Japan, 53 Fed. Reg. 15,076 (ITA Apr. 27, 1988);
Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at 1352. On November
9, 1988, Commerce published its preliminary determination with
regard to this investigation instructing the United States Customs
Service (“Customs”) that: (1) liquidations of the Merchandise
should be suspended; and (2) deposits or bonds should be required
at a certain rate for future entries from all non-investigated
manufacturers, producers, and exporters, including the Six
Manufacturers. See Preliminary Determinations of Sales at Less
Than Fair Value: Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof From Japan, 53 Fed. Reg. 45,343;
Court No. 00-00130 Page 6
Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at 1351. This deposit
and bond rate was corrected by Commerce in the final determination.
See Final Determinations of Sales at Less Than Fair Value;
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From Japan (“Determination”), 54 Fed. Reg. 19,101
(May 3, 1989); see also Shinyei CIT, 27 CIT at 307, 248 F. Supp.
2d at 1352. On the basis of this Determination, Commerce published
an antidumping duty order. See Antidumping Duty Orders: Ball
Bearings, Cylindrical Roller Bearings, and Spherical Plain
Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904 (ITA
May 15, 1989); Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at
1352.
During the second administrative review, Shinyei deposited
estimated antidumping duties on the entries at issue. See Shinyei
CIT, 27 CIT at 307, 248 F. Supp. 2d at 1352-53. On June 24, 1992,
Commerce published the final results of the second review in which
Commerce established specific antidumping duty deposit rates for
the merchandise manufactured by the Six Manufacturers. See Final
Results, 57 Fed. Reg. 28,360; Shinyei CIT, 27 CIT at 307, 248 F.
Supp. 2d at 1353. Consequently, Commerce issued instructions
ordering Customs to liquidate all merchandise of the type at issue
that was imported from Japan during the POR (except for the
products of certain manufacturers) at the rate designated in the
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Determination. Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at
1353. The list of manufacturers exempted from the instructions
included the Six Manufacturers. See id. Moreover, on February 23,
1998, Commerce summarized the rulings of this Court over the course
of the antifriction bearing litigation when it published its
amended final results. See Amended Final Results of Antidumping
Duty Administrative Reviews of Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof From France, et. al.
(“Amended Final Results”), 63 Fed. Reg. 8908 (ITA Feb. 23, 1998);
Shinyei CIT, 27 CIT at 307-08, 248 F. Supp. 2d at 1353.
On October 22, 1998, Commerce issued final amended
instructions to Customs regarding the liquidation of all second
review entries of the merchandise at issue from Japan produced by
Nankai. See Shinyei CIT, 27 CIT at 308, 248 F. Supp. 2d at 1353.
On June 26, 1998, Commerce issued instructions to Customs regarding
the liquidation of all second review entries of [the merchandise at
issue] from Japan produced by Fujino. See id.
Shinyei commenced this action on March 23, 2000, in order to
enforce the second review results and contest Commerce’s
instructions with respect to Nankai and Fujino. See Shinyei CIT,
27 CIT at 308-312, 248 F. Supp. 2d at 1353-56. Shinyei argued that
the Court had jurisdiction under both the Administrative Procedure
Act (“APA”)and 28 U.S.C. § 1581(i)(4). See id. Shinyei did not
Court No. 00-00130 Page 8
seek, and the Court did not issue, any injunction to suspend
liquidation of the entries at issue pending its final decision.
See Shinyei CIT, 27 CIT at 308, 248 F. Supp. 2d at 1353. On August
1, 2000, Commerce issued a clean-up instruction to Customs to
liquidate, as entered, all second review period entries of the
merchandise at issue from Japan that had not been liquidated under
previously-issued instructions. See id. The liquidation of these
entries, occurred between September 8, 2000, and February 9, 2001.
On November 1, 2000, Shinyei protested the no-change liquidation to
entry 032-0153132-8 (“032 Entries”), and Customs granted the
protest in part. See Def.’s Statement of Material Facts Not in
Dispute at 3. Customs proceeded to reliquidate the entry and
issued Shinyei a refund. See id. All but two of the entries were
liquidated before December 15, 2000. See Shinyei CIT, 27 CIT at
308, 248 F. Supp. 2d at 1353.
On September 25, 2002, this Court granted Shinyei’s motion for
leave of the Court to amend its complaint filed on March 23, 2000.
Shinyei limited its claim to Commerce’s error stating that Commerce
issued certain liquidation instructions to Customs to implement the
results of an antidumping administrative review and in violation
of 19 U.S.C. § 1675(a)(2), the instructions did not permit the
review results to be the basis for assessments of antidumping duty
on entries for which Shinyei was the importer of record. As a
Court No. 00-00130 Page 9
consequence, Shinyei argued, Customs liquidated the entries at
issue under other, inapplicable instructions resulting in a
substantial and erroneous assessments of excessive antidumping
duties on the entries at issue, as well as the attendant denial of
interest on excess deposits of antidumping duty that should have
been refunded. See Shinyei CIT, 27 CIT at 308-09, 248 F. Supp. 2d
at 1353-54.
Shinyei specifically contested the Nankai and Fujino
instructions. With respect to the Nankai instructions, Shinyei
argued that Commerce did not advise Customs that Shinyei was the
importer of the entries at issue or that Kaisha acted as an
intermediary. With respect to the Fujino instructions Shinyei
argued that Commerce incorrectly omitted specific assesment rates
that were calculated in the second review for five other United
States customers. Shinyei further argued the Commerce failed to
advise Customs that Shinyei was the importer of the entries at
issue, or that Kaisha had once again acted as an intermediary. See
Shinyei CAFC, 355 F.3d at 1303-04.
Subsequently, Defendant, on October 8, 2002, moved to dismiss
this case pursuant to USCIT R. 12(b)(1) for lack of subject matter
jurisdiction and USCIT R. 12(b)(5) for failure to state a claim
upon which relief can be granted. See Shinyei CIT, 27 CIT at 309,
248 F. Supp. 2d at 1354. This Court granted Defendant’s motion to
Court No. 00-00130 Page 10
dismiss under USCIT R. 12(b)(1) for lack of jurisdiction on
February 14, 2003. Shinyei CIT, 27 CIT at 328, 248 F. Supp. 2d at
1361. On January 20, 2004, the CAFC reversed and remanded the case
for further proceedings on the merits. See Shinyei CAFC, 355 F.3d
at 1312.
In a letter from the Defendant dated May 27, 2004, this Court
was advised that both parties were discussing proposals to resolve
the case at bar. See Letter to the Hon. Nicholas Tsoucalas from
Mr. James A. Curley, May 27, 2004. A follow up letter, dated July
29, 2004, advised this Court that resolution was likely. However,
no resolution between the parties was achieved. See Letter to the
Hon. Nicholas Tsoucalas from Mr. James A. Curley, July 29, 2004.
On December 29, 2005 Shinyei filed its Motion for
Consolidation and for Leave to File Consolidated Complaint
(“Consolidation Motion”) along with a Consolidated Complaint. The
Government filed papers in opposition to Shinyei’s Consolidation
Motion on January 13, 2006. On January 26, 2006, the Court ordered
that Court Numbers 00-00130, 01-00707, 03-00688 and 04-00252 be
consolidated under Court Number 00-00130.
II. Contentions of the Parties
A. Shinyei’s Contentions
Shinyei contends that the main issue is whether the deemed
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liquidation of the Merchandise is valid. See Mem. Of Law in
Support of Pl.’s Mot. for Partial Summary Judg. (“Shinyei Mem.”) at
1. Shinyei states that it agrees “with the Government that
publication of the Commerce Notice removed the suspension of
liquidation of the Subject Entries and constituted notice to
Customs of such removal[.]” Shinyei Mem. at 8. Shinyei “further
agree[s] that Customs did not actually liquidate any of the Subject
Entries under 19 U.S.C. § 1500 within six months [of] February 23,
1998[.]” Id. at 9.
Shinyei, however, contends that Koyo Corp. v. United States,
(“Koyo”), 30 CIT ___, 407 F. Supp. 2d 1305 (2005) holds that 19
U.S.C. § 1504(d) cannot be read or applied so that entries are
deemed liquidated with antidumping duty assessed at the deposit
rate required at the time of entry, when that result is adverse to
the importer and contrary to lower antidumping duty assessment
rates determined in final court decisions and/or specified in
Commerce antidumping duty assessment instructions as such an
application of § 1504(d) would create an absurd, and therefore
impermissible, result. See Shinyei Mem. at 9. Shinyei clarifies
that it does not rely completely on Koyo “because its absurdity
holding assumes the Government’s [incorrect] position that an
importer has no post-liquidation remedies against an adverse deemed
liquidation[.] See Shinyei Mem. at 10-11. As such, Shinyei
Court No. 00-00130 Page 12
concludes that it accepts arguendo the Government’s contention that
the Subject Entries were deemed liquidated at the cash deposit rate
(“no-change”) on August 23, 1998, by operation of 19 U.S.C. §
1504(d). See id. at 11.
Shinyei further contends that the language of 19 U.S.C. § 1504
is procedural and not substantive in nature. See id. at 12-21.
Shinyei explains that deemed liquidation is affected by operation
of 19 U.S.C. § 1504, based on the pretense that Customs has decided
upon a no-change result by not acting within the prescribed time
period. See id. at 14. Shinyei contends that 19 U.S.C. § 1675
requires Commerce “to conduct a periodic review to determine, among
other things, antidumping duty assessment rates for the subject
goods.” Id. at 17. Shinyei further contends that under 19 U.S.C.
§ 1675(a)(2)(c) the final review results become the basis for the
liquidation of the suspended entries. See id. at 17. As such,
Shinyei argues that Customs has no decision-making authority
related to 19 U.S.C. § 1675 periodic reviews. See id. at 17.
Shinyei contends that Customs’ role is purely ministerial, as they
are merely required to liquidate entries in accordances with a
final review result or final court decision based on Commerce’s
instructions. See id. at 17-18.
Shinyei stresses that they disagree with the Government’s
interpretation of 19 U.S.C. § 1504(d), which requires prescribed
Court No. 00-00130 Page 13
no-change results to become the basis for liquidation instead of
Commerce’s final review results and/or a courts’ final decision.
See id. at 18. Shinyei contends that such an interpretation would:
1) impliedly nullify statutes and statutory determinations; 2)allow
an agency charged with implementing a party’s rights to destroy
those same rights by not implementing them properly; 3)undercut
Commerce’s authority in the assessment of antidumping duties;
4)allow Customs to vitiate its ministerial duty by refusing to take
any action. See Shinyei Mem. at 18-20.
Shinyei further contends that importers are entitled to the
same remedies under 19 U.S.C. § 1500 as under 19 U.S.C. § 1504(d).
See id. at 21. Shinyei specifies that although reliquidation under
19 U.S.C. § 1501 is limited to liquidations made pursuant to 19
U.S.C. § 1500, an importer’s right to protest under § 1514(a) is
not conditioned upon § 1500. See id. at 21-22. Shinyei contends
that the legislative history of § 1504(d) indicates that deemed
liquidation was created for the benefit of importers. See id. at
24. Congress did not intend the statute to curtail importers
remedies. See id. Shinyei asserts that Congress enacted § 1504(d)
in order to prevent Customs from imposing additional duties after
a prolonged period of time and to facilitate returns on deposits
made at the time of entry. See id. Referencing the legislative
history of 19 U.S.C. § 1504(d), Shinyei argues that “[i]nstead of
Court No. 00-00130 Page 14
being able merely to delay duty refunds indefinitely by delaying
actual liquidation under the prior law, [if a deemed liquidation is
not protestable] Customs could . . . deny duty refunds forever by
delaying actual liquidation for the specified time periods,
resulting in no-change deemed liquidations that cannot be reviewed
or reliquidated” Id. Shinyei further contends that the Customs
regulations themselves explicitly provide for the protesting of a
deemed liquidation. See id. at 25 (citing to 19 C.F.R. §§
159.9(c)(2)(i)-(iii)). Shinyei states that as Customs never
published bulletin notices of the deemed liquidations under 19
C.F.R. § 159.9(c)(2)(ii), Shinyei’s time to file a protest as
provided for in 19 C.F.R. § 159.9(c)(2)(iii), has not expired. See
id. at 33-34.
Shinyei further contends “that the Government’s position that
an importer has no post-liquidation remedy against an adverse
deemed liquidation suffers from two constitutional infirmities, and
so should be rejected.” Id. at 27. Shinyei proceeds to list those
“constitutional infirmities” as involving (1) due process and (2)
equal protection. Id. at 25-32. Under the due process claim,
Shinyei argues that barring an importer from contesting a deemed
liquidation amounts to a deprivation of property without due
process. See id. at 25-32 (citing to Logan v. Zimmerman Brush Co.
(“Logan”), 455 U.S. 422 (1982)). Shinyei interprets the majority
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opinion in Logan as holding that a state agency’s inaction does not
bar an employee’s claim or property interests. See Shinyei Mem. at
29 (citing to Logan, 455 U.S. at 424-38.) Under the equal
protection claim, Shinyei relies on the concurring opinion in Logan
which it interprets as stating that agency inaction is not
rationally related to any legitimate government purpose. See
Shinyei Mem. at 30-31 (citing to Logan, 455 U.S. at 438-42).
Finally, Shinyei asserts that to the extent that the
assessments were caused by Commerce Decisions, it has a cause of
action for direct judicial review of the assessments in this Court
under the APA and additionally has exclusive jurisdiction under 28
U.S.C. § 1581(i). See Shinyei Mem. at 30-31; citing to Shinyei
CAFC, 355 F.3d at 1304-10. Shinyei further argues that to the
extent that the assessments were caused by Customs Decisions, it
has a cause of action for judicial review of the assessment under
19 U.S.C. § 1514(a), over which the CIT has exclusive jurisdiction
pursuant to 28 U.S.C. § 1581(a). Shinyei claims that the Court has
exclusive jurisdiction because Shinyei timely filed protests with
Customs against the assessments made in the actual liquidations;
timely commenced civil actions in this court seeking judicial
review after Customs denied the protest; and timely paid all
duties, charges and fees assessed on the Subject Entries by the
actual liquidations. See Shinyei Mem. at 33-34.
Court No. 00-00130 Page 16
During Oral Argument held on October 26, 2006, Shinyei argued
that an Order signed by the Court on July 14, 1992 (“the Order”),
which the government had referred to as being a preliminary
injunction, was in fact not a preliminary injunction at all. See
Trans. Oral Arg of October 26, 2006 at 45-49. Shinyei specifically
refers to paragraph 3 of the Order, and claims that the language
indicates a mandatory injunction or a permanent mandatory
injunction. See id. at 45-49. Shinyei reaffirmed this point in a
letter to the Court dated November 3, 2006, in which Shinyei
attached the aforementioned Order. See Letter to the Hon. Nicholas
Tsoucalas from Mr. Charles H. Bayer, November 3, 2006 (“Nov.
Letter”). Paragraph 3 of the Order reads:
ORDERED that the entries shall be liquidated in
accordance with the final court decision as provided in
19 U.S.C. § 1516a(e), notwithstanding the provisions of
19 U.S.C. § 1504(d).
See Order, Federal-Mogul Corp. v. United States, Court No. 92-06-
00422, July 14, 1992. Shinyei argues that Paragraph 3 of the Order
“requires that all of the [Disputed Entries] be actually liquidated
at the final review rate notwithstanding any deemed liquidation,
whether they merit additional assessments or refunds.” Pl.’s Mem.
Law Reply Def’s Resp. Pl.’s Mot. Partial Summary Judgment (“Pl’s
Reply”) at 10.
Court No. 00-00130 Page 17
On December 15, 2006, Shinyei once again contacted this Court
via letter, this time advising the Court of the December 14, 2006
CAFC decision, Norsk Hydro Canada, Inc. v. United States (“Norsk”),
472 F.3d 1347 (Fed.Cir. 2006). See Letter to the Hon. Nicholas
Tsoucalas from Mr. Charles H. Bayer, December 15, 2006. (“Dec.
Letter”). In the Dec. Letter, Shinyei contends that the recent
CAFC decision supports its position that a deemed liquidation
adverse to an importer is protestable under 19 U.S.C. § 1514.
Shinyei further contends that the Norsk decision further holds that
Customs is required to give proper notice of liquidation whether
the liquidation is actual or deemed and that the publication of the
bulletin notice of liquidation is the actual trigger for deciding
the start of the protest period. See Dec. Letter at 2.
B. Defendant’s Contentions
The Government asserts that as Customs failed to liquidate the
Disputed Entries within the six month period as required by 19
U.S.C. § 1504(d), the entries were deemed liquidated by operation
of law on August 23, 1998, “at the rate and amount of duty
deposited by Shinyei at the time of entry.” Def’s Brief Opp’n Pl’s
Mot. Partial Sum. J. and in Support of Cross-Motion for Sum. J.
(“Gov’t Brief”) at 9. Accordingly, the Government argues that
Commerce’s publication of the amended final results in the Federal
Register on February 23, 1998, removed the suspension on the
Court No. 00-00130 Page 18
liquidation of the Disputed Entries. See id. at 8-9; (citing to
Fujitsu Gen. America, Inc. v. United States, 283 F.3d 1364, 1381-82
(Fed. Cir. 2002)). The Government’s main argument is that as the
Disputed Entries “were actually liquidated at the deemed liquidated
rate and amount of duties, Shinyei has failed to state a claim on
which relief can be granted. This action, therefore should be
dismissed.” Id. at 9-10.
The Government further asserts that the deemed liquidation of
the Disputed Entries was final. See id. at 11 (citing to United
States v. Cherry Hill Textiles, Inc. (“Cherry Hill”), 112 F.3d
1550, 1560 (Fed.Cir. 1997)). The Government contends that
“whenever the courts have determined that an entry was deemed
liquidated under § 1504(d), they have set aside Customs’ actual
liquidation and have treated the deemed liquidation as final.” Id.
at 12-13 (citing to NEC Solutions (Am.), Inc. v. United States, 411
F.3d 1340, 1343, 1346 (Fed. Cir. 2005)); Int’l Trading Co. v.
United States, 281 F.3d at 1270-71, 1276 (Fed. Cir. 2002); American
Int’l Chem., Inc. v. United States, 29 CIT ___, ___, 387 F. Supp 2d
1269-70 (2005).
The Government further argues that as the Disputed Entries
were deemed liquidated by operation of law, Customs did not make a
decision to liquidate, and as such, Shinyei has no right to protest
under 19 U.S.C. § 1514(a). See Gov’t Brief at 14. However, the
Court No. 00-00130 Page 19
Government then argues that “even if it is assumed, arguendo, that
a protest against the deemed liquidation could have been filed,
Shinyei did not file a timely protest or request for
reliquidation.” Id. at 15. The Government elaborates that as “the
Federal Circuit noted, ‘publication in the Federal Register is a
familiar manner of providing notice to parties in antidumping
proceedings.’” Id. at 15 (citing to Int’l Trading, 281 F.3d at
1275). According to the Government, “Commerce’s publication of the
amended final results and final court decision in the Federal
register on February 28, 1998,” was notice to both Customs and
Shinyei that suspension of liquidation was removed. Id. at 15.
Thus, the Government continues, Shinyei was on notice “that its
entries would be deemed liquidated if not actually liquidated by
Customs within six months, i.e., by August 28 1998.” Id. at 15-16.
The Government continues:
Shinyei did not request Customs, before August 28, 1998,
to liquidate its entries, nor did it bring an action in
the Court for writ of mandamus or for relief under the
[APA]. Instead Shinyei waited until March 2000 to
commence this action in which it sought a writ of
mandamus against Customs directing it to liquidate the
entries.
Id. at 16.
The Government then counters Shinyei’s absurdity claim by
asserting that 19 U.S.C. § 1504(d), as enacted in 1993, precludes
such an interpretation. See id. at 17. The Government asserts
Court No. 00-00130 Page 20
that 19 U.S.C. § 1504(d) “covers all entries, which necessarily
includes entries for which the rate asserted by Shinyei at the time
of entry (the deposit rate) was higher than the administrative
review rate[.]” Id. at 19. The Government further asserts that
Congress enacted 19 U.S.C. § 1504 “in an effort to increase
certainty and to bring finality to the liquidation process.” Id.
at 21 (citing to Int’l Trading, 281 F.3d at 1272; Cherry Hill, 112
F.3d at 1559). The Government further argues that its
interpretation of 19 U.S.C. § 1504(d) could not be deemed absurd,
as the CAFC has applied a previous version of the statute “to
entries that were deemed liquidated although the administrative
review rate was lower than the rate asserted by the importer at the
time of entry.” Id. at 23; citing to Rheem Metalurgica S/A v.
United States, 160 F.3d 1357, 1359 (Fed. Cir. 1998).
The Government further contends that despite Shinyei’s claim,
Customs is not required to give notice of deemed liquidation. See
id. at 26 (citing 19 U.S.C. § 1504(a)). Nonetheless, the
Government argues, Shinyei received notice that suspension of
liquidation was removed through Commerce’s publication in the
Federal Register of February 23, 1998. See id. at 26. The
Government further clarifies that “if Customs had actually
liquidated the [Disputed Entries] before August 23, 1998, it would
have posted bulletin notices of deemed liquidation. Because
Court No. 00-00130 Page 21
Customs did not post such a notice, Shinyei knew, or should have
known, that the entries were deemed liquidated on that date.” Id.
at 26. Consequently, the Government concludes, Shinyei had
reasonable notice, but simply failed to exercise its right to
protest the deemed liquidation. Id. Furthermore, the government
argues that the legislative history of § 1504 indicates Congress’
intent that notice of deemed liquidation was unnecessary as it
states that if an importer has not received notice of liquidation
before the six month notice period expires, then the statute itself
serves as notice of liquidation, and notification by Customs is
therefore not necessary. See id. at 27-28. Additionally, the
Government argues that as Shinyei had adequate remedies against
deemed liquidation, Customs had not acted arbitrarily or
capriciously in the case at bar, and as such, there has been no
denial of Shinyei’s equal protection rights. See id. at 28.
The Government then turns to its interpretation of Koyo.
Initially the Government distinguishes the case at bar from Koyo by
stating that in Koyo:
the importer’s entries were included in Commerce’s
instructions for liquidation at the lower administrative
review rate. However, Customs determined that the
importers’ entries were deemed liquidated, and then
actually liquidated the entries “no change” to reflect
the deemed liquidation rate. Here, Customs did not
determine that Shinyei’s entries were deemed liquidated,
and applied Commerce’s instructions to liquidate the
entries at the deposit rate.
Court No. 00-00130 Page 22
See Gov’t Brief at 29 (citing Koyo, 403 F. Supp. 2d at 1307). The
Government, however, further argues that the Koyo court ruled
contrary to the plain meaning of 19 U.S.C. § 1504(d), and
incorrectly assessed the remedies available to importers. See id.
at 29-30.
The Government concludes by arguing that it is entitled to
recover payment on a refund erroneously paid to Shinyei on Entry
No. 032-0153132-8. See id. at 31. Due to a protest filed by
Shinyei, Customs reliquidated the 032 Entries and paid Shinyei a
refund of $676.75, and interest of $827.50. See id. at 31. The
Government argues that as the 032 Entries were deemed liquidated by
operation of law at the amount of duty deposited by Shinyei at the
time of entry, no refund was thus necessary, and Customs therefore
erred in granting the refund. See id. at 31-32.
III. Analysis
The CAFC remanded the case at bar, ruling that the CIT did
have jurisdiction to determine whether Shinyei is entitled to
relief based on the merits of Shinyei’s case. See Shinyei CAFC,
355 F.3d at 1312. The CAFC stated:
The question for the [CIT] is whether Commerce’s
instructions with regard to Fujino and Nankai were not in
accordance with the Amended [Final] Results (as required
by sections 1675(a)(2)), or whether the error was in
Customs’ liquidation of the subject entries despite
Court No. 00-00130 Page 23
correct instructions. If it is the later, despite both
parties’ arguments to the contrary, Shinyei’s appropriate
avenue for relief would be under 19 U.S.C. § 1514.
Shinyei CAFC, 355 F.3d at 1302 n.2.
The CAFC found that the manufacturers in question were
indisputably within the scope of the Amended Final Results. See
Shinyei CAFC, 355 F.3d at 1302. Additionally, the CAFC reconfirms
that “both parties agree that section 1514 is inapplicable because
the alleged agency error was on the part of Commerce, not Customs.”
Shinyei CAFC, 355 F.3d at 1311.
A. Deemed Liquidation
The CAFC has already ruled that this Court has subject matter
jurisdiction over the case at bar under 28 U.S.C. § 1581(i)(4)and
through Shinyei’s filing of an APA cause of action. See Shinyei
CAFC, 355 F.3d at 1304-05. The introduction to the APA states:
[t]his chapter applies, according to the provisions thereof, except
to the extent that– 1) statutes preclude judicial review; or 2)
agency action is committed to agency discretion by law.” 5 U.S.C.
§ 701(a). Thus, a cause of action under the APA can be terminated
if a statute preclude[s] judicial review.
The CAFC has already stated that as “the parties concede that
the [S]ubject [E]ntries were actually liquidated, [the CAFC] do[es]
Court No. 00-00130 Page 24
not address Shinyei’s arguments concerning the effect of deemed
liquidation on the [CIT’s] subject matter jurisdiction, an issue
the trial court did not decide.”2 Shinyei CAFC, 355 F.3d at 1308
n.5. As both parties have raised the issue of deemed liquidation
in their briefs to this Court, and as this Court recognizes that
APA review can be statutorily precluded, the issue of deemed
liquidation is of primary concern in the case at bar. See 5 U.S.C.
§ 701(a).3 19 U.S.C. § 1504(d) the statutory provision related to
deemed liquidation, states:
[W]hen a suspension required by a statute or court order
is removed, [Customs] shall liquidate the entry within 6
months after receiving notice of the removal from
[Commerce], other agency or a court with jurisdiction
over the entry. Any entry not liquidated by [Customs]
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.
2
Though the CAFC references “Shinyei’s arguments
concerning the effect of deemed liquidation on the [CIT’s]
subject matter jurisdiction” this Court shall reference both
Shinyei’s and the Government’s arguments as they relate to deemed
liquidation and the motions filed. Shinyei CAFC, 355 F.3d at 1308
n.5.
3
Shinyei additionally argues that this Court should reject
the Government’s deemed liquidation argument based on the
principles of judicial estoppel. See Pl.’s Reply at 31-33. The
CAFC, however, never decided the deemed liquidation issue. See
Shinyei CAFC, 355 F.3d at 1308 n.5.. As such, the deemed
liquidation issue is before this Court for decision and there is
no judicial estoppel.
Court No. 00-00130 Page 25
19 U.S.C. § 1504(d) (1988 as amended 1993).4
In order for entries to be deemed liquidated, three conditions
must be satisfied: “(1) the suspension of liquidation that was in
place must have been removed; (2) Customs must have received notice
of the removal of the suspension; and (3) Customs must not
liquidate the entry at issue within six months of receiving such
notice.” Koyo Corp. of U.S.A. v. United States, 29 CIT __, __, 403
F. Supp. 2d 1305, 1308 (2005) (citing Fujitsu v. United States, 283
F.3d 1364, 1376 (Fed. Cir. 2002)).
The suspension of liquidation on the disputed entries was
removed once the judgment in Torrington Co. v. United States, 127
F.3d 1077 (Fed.Cir 1997) became final on January 13, 1998.5 Though
the CAFC issued its decision on Torrington Co. on October 15, 1997,
the judgment did not become final until the 90-day period to
petition the United States Supreme Court for a writ of certiorari
expired. See Torrington Co., 127 F.3d 1077; Sup.Ct. R. 13.
4
Though 19 U.S.C. § 1504(d) was amended in 1994, the
amendment does not apply to administrative reviews commenced
before January 1, 1995. See NEC Solutions (Am.). Inc. v. United
States, 27 CIT 1459, 277 F. Supp. 1340 n.11 (2003), aff’d, 411
F.3d 1340 (Fed.Cir 2005).
5
Torrington Co. reviewed the challenges to the Disputed
Entries and to the Final Results published in the Federal
Register. See Torrington Co., 127 F.3d 1077; Final Results, 57
Fed. Reg. 28,360 (IA June 24, 1992).
Court No. 00-00130 Page 26
On February 23, 1998, Customs received notice of the
suspension’s removal, when Commerce published the Amended Final
Results of the 1990-91 administrative review and notice of final
court decision in the Federal Register. See Fujitsu Gen. America,
Inc. v. United States, 283 F.3d at 1381-82; Amended Final Results,
63 Fed. Reg. 8908. Commerce therein stated that it would issue
appraisement instructions to Customs. See Amended Final Results,
63 Fed. Reg. at 8909.
In the six months following February 23, 1998, Customs did not
liquidate the disputed entries. Def. Statement of Material Facts
Not in Dispute at 2. As such, the disputed entries became deemed
liquidated on August 23, 1998. See 19 U.S.C. §1504(d). As the
disputed entries were deemed liquidated by operation of law, the
final duty asserted 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. See
Wolff Shoe Co. v. United States, 141 F.3d 1116, 1123-24 (Fed. Cir.
1998). When 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. See Cherry Hill, 112 F.3d at 1560; NEC Solutions
(Am.), Inc., 411 F.3d at 1343-46; Int’l Trading Co., 281 F.3d at
1270-71, 1276-77; American Int’l Chem., Inc., 29 CIT ___, ___, 387
Court No. 00-00130 Page 27
F.Supp 2d at 1269-70.
B. Notification and Timing of Shinyei’s Possible Remedies
Though courts, as stated supra, have viewed deemed liquidation
as being final in nature, this Court is particularly troubled by
Shinyei’s delay in seeking relief. Though not given notice by
Custom’s directly on the deemed liquidation, Shinyei was given
notice, and Shinyei should have been aware of the inevitability of
deemed liquidation under the conditions set forth in 19 U.S.C. §
1504(d). Publication in the Federal Register “is sufficient to
give notice . . . to a person subject to or affected by it.” 44
U.S.C. § 1507 (1994). 44 U.S.C. § 1501 defines “person” as “an
individual, partnership, association, or corporation[.]” 44 U.S.C.
§ 1501 (1994); See International Trading Co. v. United States, 412
F.3d 1303, 1309-10 (Fed.Cir. 2005). Shinyei is a “person” that
would be “affected” by the notice published in the Federal
Register.6 Accordingly, publication in the Federal Register
provided Shinyei with notice.
Shinyei contends that Custom’s regulations as set forth in 19
6
Though Shinyei was not a party to the administrative
review, it is nonetheless a person whose entries were affected by
the notice published in the Federal Register.
Court No. 00-00130 Page 28
C.F.R. § 159.9(c)(2) and the recent Norsk7 decision hold that
Customs is required to give proper notice of liquidation regardless
of whether the liquidation is actual or deemed and as such, the
posting of the bulletin notice of liquidation is the actual trigger
for deciding the start of the protest period. See Dec. Letter at
2; 19 C.F.R. § 159.9(c)(2). The purpose behind the deemed
liquidation statute is to “increase certainty in the customs
process[.]” Int’l Trading, 281 F.3d at 1272. In the instant
matter, Customs was not aware of the Deemed Liquidation, and
thereby could not post notice in the Bulletin. Certainty,
therefore could never be guaranteed in a situation in which Customs
was not aware of the deemed liquidation. As 19 U.S.C. § 1504 is
meant to “bring finality to the duty assessment process,” and as
allowing the notification regulations set forth in 19 C.F.R. §
159.9(c)(2) to supercede such a finality would run counter to the
statute, this Court rules that Customs is not bound by 19 C.F.R. §
159.9(c)(2) when it is not aware of the deemed liquidation at the
time of its occurrence. Cherry Hill, 112 F.3d at 1559; see 19
U.S.C. § 1504.
Although the Disputed Entries were deemed liquidated, and
Deemed Liquidation is final, Shinyei could have still taken action
7
In Norsk, Customs was aware of the deemed liquidation, and
thereby published notice. This differs significantly from the
case at bar. See Norsk, 472 F.3d at 1353.
Court No. 00-00130 Page 29
to protest the higher rate imposed on the Disputed Entries by the
deemed liquidation. Shinyei could have requested that Customs
liquidate the entries prior to the August 23, 1998 deemed
liquidation date, but it did not. Shinyei, however argues that it
“had no mandamus remedy to compel Customs to actually liquidate the
[Disputed Entries] before August 23, 1998.” Pl.’s Reply at 37.
Shinyei is incorrect. Indeed, Shinyei could have sought mandamus
to compel liquidation of the Disputed Entries. See Peer Chain Co.
v. United States, 28 CIT ___, ___,; 316 F. Supp.2d 1357, 1368
(2004). For example, in NSK Corp v. United States (“NSK”), Court
No. 05-00670, the importer sought a preliminary injunction that
would restrain Customs from liquidating its entries by operation of
law.8
C. Status of the Preliminary Injunction
Shinyei asserts that the injunction in Paragraph 3 of the
Order issued in Federal-Mogul is not a preliminary injunction, and
as it is still in place, it continues to prevent the deemed
liquidation of the Disputed Entries. See Shinyei’s Reply at 6-10;
8
In NSK, the plaintiff imported antifriction bearings
between May 1994 and February 1995 that were subject to an
antidumping order. Though the plaintiff attempted to gain
mandamus relief, the case was dismissed as a result of Customs’
actual liquidation of the plaintiff’s entries prior to the
mandatory deemed liquidation date. See Order, NSK Corp. v.
United States, Court No. 05-00670, December 28, 2005.
Court No. 00-00130 Page 30
Trans. Oral Arg of October 26, 2006 at 45-49; Order, Federal-Mogul
Corp. v. United States, Court No. 92-06-00422, July 14, 1992. The
Order, however, is clearly introduced with the language, “[u]pon
consideration of plaintiff’s motion for a preliminary injunction .
. .” and continues, “ORDERED that plaintiff’s motion for a
preliminary injunction . . . is granted.” See Order, Federal-Mogul
Corp. v. United States, Court No. 92-06-00422, July 14, 1992. As
the language of the Order is viewed holistically, taking into
consideration the actual introduction of the Order, as well as the
language in paragraph 3 of the Order, this Court finds that
paragraph 3 of the Order is merely qualifying the preliminary
injunction in a manner that is usual in the issuance of such
injunctions. See Order, Federal-Mogul Corp. v. United States,
Court No. 92-06-00422, July 14, 1992. The Order restrained the
Government from liquidating the Disputed Entries “during the
pendency of this litigation.” Id. This Court entered its final
judgment in Federal-Mogul Corp. v. United States, Court No. 92-06-
00422, on October 25, 1996. See 20 CIT 1274 (October 25, 1996).
The judgment contained no continued injunctive provisions. See id.
Preliminary injunctions dissolve when a case becomes final. See
Cypress Barn, Inc. v. Wester Elec. Co., 812 F.2d 1363, 1364 (11th
Cir. 1987); Volume Footwear Retailers of America, 10 CIT 12,14
(1986). The preliminary injunction from the Order therefore
dissolved on October 25, 1996. As such, deemed liquidation was not
Court No. 00-00130 Page 31
suspended, and the Disputed Entries were liquidated by operation of
law.
D. Defendant’s Counterclaim
The Government filed an answer and counterclaim in the 01-
00707 case on February 26, 2003, “in which it sought repayment of
a refund erroneously paid to Shinyei on Entry No. 032-0153132-8.”
Def’s Brief at 31. As mentioned supra, the 01-00707 case has been
consolidated into the case at bar.
The 032 Entries are included within the Disputed Entries that
were deemed liquidated on August 23, 1998. See Decl’n of Edward N.
Maurer (“Maurer Dec.”) at ¶¶ 7-8; Entry Summary for Entry No. 032-
0153132-8 (Oct. 30, 1990). On October 13, 2000, Customs “actually”
liquidated the 032 Entries as a “no change” liquidation, though it
had already been deemed liquidated on August 23, 1998. See Maurer
Dec. at ¶ 8. Shinyei filed a protest on November 1, 2000, which
was allowed in part on June 22, 2001. See id. As a result,
Customs reliquidated the entry and paid a refund of $676.75, plus
interest of $827.50 on July 6, 2001. See id. As the 032 Entries
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 032 Entries on October 13,
2000, Customs had erred in granting the refund to Shinyei. As
Court No. 00-00130 Page 32
such, the Government is entitled to recover the $676.75 erroneously
refunded to Shinyei, as well as the $827.50 paid in interest, for
a total of $1,504.25. Additional interest, if any, shall be added
to the total.
IV. Conclusion
Based on the foregoing, the Disputed Entries were deemed
liquidated on August 23, 1998. Shinyei failed to seek mandamus
relief prior to the deemed liquidation of the Disputed Entries. As
such, the deemed liquidation of the Disputed Entries is final.
Furthermore, the CAFC did not consider the effects of deemed
liquidation when they reversed and remanded this Court’s previous
decision. Accordingly, Shinyei’s motion for partial summary
judgement is denied and the Government’s motion for summary
judgement is granted. Judgment will be entered accordingly.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
DATED: April 20, 2007
New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
SHINYEI CORPORATION OF AMERICA, :
:
Plaintiff, :
: Consolidated
v. : Court No. 00-00130
:
UNITED STATES, :
:
Defendant. :
___________________________________:
JUDGMENT
This case having been duly submitted for decision and the
Court, after due deliberation, having rendered a decision herein;
now, in accordance with said decision, it is hereby
ORDERED that Plaintiff’s motion for partial summary judgment
is denied; and it is further
ORDERED that Defendant’s cross-motion for summary judgment is
granted; and it is further
ORDERED that Shinyei Corporation of America return the
erroneously refunded $676.75, as well as the $827.50 paid in
interest, along with any additional interest, if any; and it is
further
ORDERED that this case is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
DATED: April 20, 2007
New York, New York