Cemex, S.A., Plaintiff-Cross v. United States, and the Ad Hoc Committee of Az-Nm-Tx-Fl Producers of Gray Portland Cement and National Cement Company of California
Docket: 04-1058
Court: Court of Appeals for the Federal Circuit; September 28, 2004; Federal Appellate Court
CEMEX, S.A. appealed a ruling from the U.S. Court of International Trade regarding the enforcement of a judgment related to antidumping duties on gray portland cement imports. The Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and National Cement Company of California (collectively "Ad Hoc") had previously succeeded in increasing the antidumping duty from 42.74% to 106.846% for the period of August 1, 1991, to July 31, 1992. Despite this increase, approximately 140 entries were liquidated at a lower rate of 56.94% at the Port of Nogales, Arizona, leading Ad Hoc to seek enforcement of the higher duty.
The Court of International Trade found that while these entries were not properly liquidated under the relevant statute (19 U.S.C. 1504(d)), the U.S. Customs Service's later decision to recognize the deemed liquidations was final under another statute (19 U.S.C. 1514(a)), thereby blocking Ad Hoc's claims. Ad Hoc accepted the court's finding that the entries were improperly liquidated but challenged the finality ruling that prevented them from contesting Customs' later decision. CEMEX cross-appealed, arguing that deemed liquidation had occurred.
The Federal Circuit affirmed the lower court's decision, agreeing that the acknowledgment of the deemed liquidations by Customs was indeed final and conclusive, thus upholding the denial of Ad Hoc's motion. The case involved cement imports by Sunbelt Cement, Inc. during the specified period, which were subject to an existing antidumping duty order.
Commerce set a final dumping margin of 42.74 percent ad valorem for entries from August 1, 1991, to July 31, 1992, leading Ad Hoc to challenge the results. The Court of International Trade consolidated Ad Hoc's action with a similar suit from Cemex and enjoined liquidation of the Second Review Entries on October 6, 1993. After two remands, the Court sustained a 109.43 percent ad valorem margin on October 24, 1996. The court again enjoined liquidation pending appeal, with the final judgment affirmed on January 8, 1998. The deadline for filing a certiorari petition expired on April 8, 1998, lifting the liquidation suspension.
On March 23, 1998, Commerce instructed Customs to liquidate the Second Review Entries at 106.846 percent ad valorem, reflecting the earlier calculated margin. This instruction was communicated via e-mail and posted on a non-public bulletin board. Between May and September 1998, approximately two hundred entries at various ports were liquidated at this rate. However, entries at the Port of Nogales were not liquidated as the responsible import specialist, Gloria Zapata Quihuis, missed the e-mail.
On January 10, 2001, Quihuis inquired about the Nogales entries, leading to Commerce confirming that liquidation instructions had not been issued. Later, on March 16, 2001, Commerce sent the instructions to Quihuis, who learned on March 19 that the entries were deemed liquidated by law in September 1998. Consequently, on March 20, 2001, Quihuis reported that the instructions had not been posted, but the entries were to be liquidated as entered.
On April 6, 2001, Customs issued a bulletin declaring that 121 entries at the Port of Nogales had been liquidated as of September 23, 1998, with 19 others liquidated at 'no change,' all at a duty rate of 56.94 percent ad valorem. Ad Hoc discovered, via a FOIA request on February 15, 2002, that some Second Review Entries had been liquidated 'as entered' instead of at the final assessment rate. This request was made to obtain information related to the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA). Customs responded with the bulletin notice on September 24, 2002. Following this, on December 12, 2002, domestic producers requested reliquidation of the entries, consistent with a prior court judgment. Ad Hoc subsequently moved the Court of International Trade on April 4, 2003, to enforce this judgment, seeking liquidation at a 106.846 percent ad valorem rate.
In an August 12, 2003 order, the Court of International Trade found that proper deemed liquidation had not been established for the Nogales Entries, concluding that the March 23, 1998 instructions to Customs were not public or unambiguous, thus failing to trigger the six-month deemed liquidation period under 19 U.S.C. 1504(d). The court emphasized that section 1504(d) is intended to provide importers with finality regarding their duty obligations, allowing deemed liquidation unless actual liquidation occurs within specific time frames. The court noted that while section 1504(d) benefits importers, domestic parties lack a specific remedy for improper liquidation, despite the Byrd Amendment's introduction of new provisions. Ultimately, the trial court ruled that Ad Hoc's claim was barred by 19 U.S.C. 1514(a) because the liquidation became final after 90 days.
Section 1514(b) suspends the finality of liquidation when a party contests an antidumping duty determination but does not alter the finality established by section 1514(a). The Court of International Trade emphasized that the intent of section 1514 is to prevent parties from having to litigate on multiple fronts and that, in the absence of pending proceedings, 1514(b) does not hinder Customs' determinations from achieving finality after court proceedings conclude. The court noted that Customs' decision to recognize deemed liquidations is solely within its purview, and if Ad Hoc had the right to contest the finality, it needed to act within 90 days of the liquidation notice. Delaying action beyond the 2001 collection year precludes Ad Hoc from challenging an erroneous liquidation for that year, as seeking enforcement now would disrupt the finality and the distribution of Byrd Amendment funds. Consequently, the court declined to liquidate the Nogales Entries at the final assessment rate and instead ordered the liquidation of a separate Los Angeles entry at the specified rate and declared the El Paso entry's liquidation final. Following these decisions, Ad Hoc and Cemex appealed, and jurisdiction was established under 28 U.S.C. 1295(a)(5). The statutory interpretation by the Court of International Trade is subject to de novo review, with relevant provisions from 19 U.S.C. 1504(d) and 1514(a) highlighted, indicating the finality of Customs' decisions unless a protest is duly filed.
Section 1516a(e)(2) stipulates that if a cause of action is upheld by the U.S. Court of International Trade or the U.S. Court of Appeals for the Federal Circuit, certain merchandise entries must be liquidated according to the final court decision. Specifically, this applies to entries made after the publication of the court decision and those whose liquidation was previously enjoined. The notice of the court decision must be published within ten days.
Cemex argues that the Court of International Trade incorrectly ruled that the Nogales Entries did not liquidate by operation of law under 19 U.S.C. 1504(d). Cemex claims that a March 23, 1998, e-mail from Commerce to Customs was clear enough to effectuate deemed liquidation, asserting that the statute does not require public notice as long as the notice is unambiguous. Cemex believes that the e-mail led Customs to liquidate most entries at a 106.846 percent duty rate and contends that the Nogales Entries should have liquidated by October 9, 1998, and become final by January 7, 1999.
The court, however, disagrees with Cemex's position, referencing the Fujitsu case, which holds that liquidation suspension cannot be lifted until the certiorari petition period expires. The court states that the March 23 e-mail came before the expiration of this period, thus failing to initiate the six-month deemed liquidation timeframe under section 1504(d). Consequently, the court affirms that the March 23 notice was not unambiguous since the suspension was still in effect. Furthermore, the court emphasizes that a public notice is required, as outlined in section 1516a(e), and notes that the e-mail explicitly instructed non-disclosure to the public.
Customs posted an internal email regarding the lifting of the suspension of liquidation, which the Court of International Trade determined was not public and therefore did not trigger the six-month statutory period for deemed liquidation under 19 U.S.C. 1504(d). The court affirmed that the instructions to Customs did not constitute proper notice to begin this period. Ad Hoc contested the trial court's conclusion that the finality provisions of 19 U.S.C. 1514(a) barred judicial review of Customs' actions. Ad Hoc argued that Customs was required to liquidate the Nogales Entries at a specified assessment rate based on a final court decision.
Ad Hoc posited several reasons why 19 U.S.C. 1514(a) should not bar its claim, including the assertion that Congress intended for judicial review of Customs' liquidation decisions affecting domestic industries, that the Bulletin Notice posting by Customs could not effectuate liquidation, and that the posting did not qualify as a 'decision of the Customs Service.'
The trial court indicated that importers have protest remedies and judicial review options under 19 U.S.C. 1514 and 28 U.S.C. 1581(a) for adverse liquidations, while domestic parties lack specific remedies for improper liquidations, being limited to prospective challenges. Ad Hoc maintained that judicial review should still be available despite the language in 19 U.S.C. 1514(a).
The court noted that section 1514(a) has exceptions, particularly subsection (b), which preserves finality unless a civil action under section 1516a is initiated. However, since Ad Hoc's challenge to antidumping duty determinations had concluded without further appeal, section 1514(b) did not prevent the finality of Customs’ determinations. Furthermore, section 1516 does not provide retrospective remedies for improper liquidation decisions, as it is designed for prospective challenges only.
Section 1516 of the Customs Court Act of 1980 allows American manufacturers to protest administrative determinations on imported merchandise, but any relief from such protests is limited to prospective outcomes. Section 1514 extends the right to judicial review for domestic producers, but Ad Hoc lacks recourse to contest Customs' decision to liquidate the Nogales Entries at the 'as entered' rate, as neither exception applies.
Regarding whether Customs' posting of Bulletin Notices constituted a deemed liquidation under Section 1504(d), Ad Hoc argues that such a determination occurs strictly by operation of law. However, the Court of International Trade affirmed that Customs' acknowledgment of liquidation, deemed or otherwise, falls under Section 1514(a) and is final for all parties, including Ad Hoc.
In March 2001, Customs communicated that the Second Review entries were deemed liquidated and proceeded to post this liquidation. The Court characterized Customs' actions as a decision to recognize and implement the deemed liquidation, asserting that this authority resides with Customs alone. Customs acknowledged the deemed liquidation based on a mistaken belief regarding a March 1998 email from Commerce, opting to liquidate at the 'as entered' rate instead of applying Section 1516a(e)(2) for a final rate of 106.846 percent ad valorem.
Ad Hoc's reliance on Mitsubishi Electronics America v. United States to argue that Customs' actions did not constitute a 'decision' under Section 1514(a) is unfounded. In Mitsubishi, the challenge was deemed improper because the contested actions fell under Commerce's jurisdiction, not Customs. However, in this instance, Customs did make a decision regarding liquidation, distinguishing it from the ministerial role typically associated with its duties in antidumping matters.
Customs liquidated the Second Review Entries by issuing Bulletin Notices, which, despite being based on an erroneous decision, constituted a 'decision' under section 1514(a) that is immune to challenge regardless of legality. Referencing the case Juice Farms, Inc. v. United States, the court emphasized that the importer’s failure to timely protest Customs' illegal liquidations—due to not monitoring posted notices—resulted in a lack of legal recourse. The court clarified that under section 1514(a), all liquidations, legal or illegal, require timely protests, and the burden of monitoring lies with the importers, not the domestic producers. Ad Hoc, similarly, failed to act on warning signs regarding the absence of required notices and did not seek enforcement of the judgment in a timely manner, which the court deemed necessary. The court concluded that since Congress did not grant protest rights to domestic producers, any remedy for perceived unfairness should be sought from Congress, not the court. The decision of the Court of International Trade denying Ad Hoc's motion to enforce the judgment was affirmed.
The United States Customs Service is now known as the Bureau of Customs and Border Patrol within the Department of Homeland Security. A previously overlooked entry at Los Angeles, along with a liquidated entry at El Paso, was addressed in a later order from the Court of International Trade. This order denied Ad Hoc's motion for reconsideration, affirmed the finality of the El Paso entry's liquidation under 19 U.S.C. § 1514(a), and mandated the Los Angeles entry to be liquidated at a specified rate. Commerce failed to publish a required notice in the Federal Register, but Ad Hoc did not dispute the liquidation rates despite the premature notice. The court interpreted statutory language and legislative history to require public and unambiguous notice, even though the statute itself does not explicitly impose consequences for failure to publish.
Ad Hoc's challenges were directed at Customs rather than Commerce, thus section 1516 did not apply. The court ruled that Ad Hoc lacked avenues under section 1514 to contest Customs' liquidation of Nogales entries, making it unnecessary to address whether Ad Hoc should have acted within the ninety-day protest period. The court clarified that sections 1504(d) and 1516a(e) are distinct, with no statutory consequences tied to Commerce's failure to meet the publication requirement. The court distinguished prior cases, noting that decisions related to liquidation fall under section 1514(a), which asserts that Customs' orders regarding liquidation are final and conclusive. Protests can be filed by various parties, including importers, consignees, and authorized agents, as specified in 19 U.S.C. § 1514(c)(2).
