Alden Leeds Inc. v. United States

ALDEN LEEDS INC., Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant

2011-1280

United States Court of Appeals for the Federal Circuit

Decided: March 8, 2012

NOTE: This disposition is nonprecedential.

Appeal from the United States Court of International Trade in case No. 09-CV-0476, Judge Richard K. Eaton

JOSEPH B. FIORENZO, Sokol, Behot & Fiorenzo, of Hackensack, New Jersey, argued for plaintiff-appellee.

ARLENE PIANKO GRONER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant appellant. With her on the brief were TONY WEST, Assistant Attorney General,JEANNE E. DAVIDSON, Director, and BARBARA S. WILLIAMS, Attorney in Charge, United States Department of Justice, International Trade Field Office, of New York, New York. Of counsel on the brief was EDWARD N. MAURER, Deputy Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of New York, New York.

Before LINN, PROST, and O'MALLEY, Circuit Judges.

O'MALLEY, Circuit Judge.

The government appeals from the United States Court of International Trade's final judgment which: (1) denied the government's motion to dismiss for lack of subject matter jurisdiction; (2) ordered the United States Customs and Border Protection ("Customs") to reliquidate the twelve entries of chlorinated isocyanurates at issue at the final duty rate of 4.07%; and (3) ordered the government, through Customs, to provide Alden Leeds Inc. ("Alden Leeds") with a refund of the difference between the deposited amount and the final duty rate, plus interest. See Alden Leeds Inc. v. United States, 721 F. Supp. 2d 1322 (Ct. Int'l Trade 2010) (denying motion to dismiss); Judgment, Alden Leeds Inc. v. United States, No. 09-00476 (Ct. Int'l Trade Feb. 2, 2011), ECF No. 55 (final judgment on appeal). Because we conclude that the Court of International Trade lacked subject matter jurisdiction, we reverse its jurisdictional holding, vacate its judgment on the merits, and remand for dismissal of the complaint.

BACKGROUND

On June 25, 2005, the United States Department of Commerce ("Commerce") published an antidumping duty order for chlorinated isocyanurates ("isos") from Spain. The order provided that isos imported from Aragonesas Delsa, S.A. would receive an antidumping duty margin of 24.83%. Chlorinated Isocyanurates from Spain: Notice ofAntidumping Duty Order, 70 Fed. Reg. 36,562, 36,563 (Dep't of Commerce June 24, 2005). On July 2, 2007, Aragonesas Industrias y Energia S.A., the successor-in-interest to Aragonesas Delsa, S.A. (collectively, "Aragone-sas") filed a request for an administrative review of the antidumping order. Commerce subsequently issued notice that it was initiating administrative review of the antidumping and countervailing duty order for imports from Aragonesas for the period from June 1, 2006 through May 31, 2007 ("the period of review"). Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 72 Fed. Reg. 41,057 (Dep't of Commerce July 26, 2007).

Alden Leeds is an American importer of goods used in connection with its business of manufacturing swimming pool chemicals. Between June 1, 2006 and May 31, 2007, Alden Leeds imported twelve entries of isos from Ara-gonesas. Pursuant to the antidumping order, upon entry of its shipments, Alden Leeds made a cash deposit with Customs covering the estimated antidumping duty rate of 24.83% (roughly $400,000). Customs suspended liquidation of those entries pending the outcome of the administrative review.

On February 7, 2008, Commerce sent a message to Customs, instructing Customs to liquidate all entries of isos from Spain for the period of June 1, 2006 to May 31, 2007, except for entries from "Argonesas Industrias Y Energia S.A."¹ Joint Appendix ("J.A.") 167 (Message No.8038217). Although the suspension of liquidation on entries from Aragonesas remained in effect pending the outcome of the administrative review, Customs posted a Bulletin Notice of liquidation on April 25, 2008. In the Notice, Customs listed the twelve entries of isos that Alden Leeds imported during the relevant period along with a handwritten notation that those entries were deemed liquidated on January 26, 2008 under 19 U.S.C. § 1504(d).² J.A. 170 ("19 USC 1504(d) Deem Liq 1/26/08."). Alden Leeds did not protest either the posting of the Bulletin Notice or the deemed liquidation of the entries.

On December 30, 2008, Commerce published the final results of its administrative review, finding that the isos imported from Spain during the period of review was subject to an antidumping duty rate of 4.07% - a rate substantially lower than the estimated duty rate of 24.83% that Alden Leeds previously deposited. See Chlorinated Isocyanurates from Spain: Final Results of Antidumping Duty Administrative Review, 73 Fed. Reg. 79,789, 79,790 (Dep't of Commerce Dec. 30, 2008). Pursuant to the final results, on March 4, 2009, Commerce sent a message instructing Customs to liquidate isos importedfrom Aragonesas during the period of review at the final antidumping rate. J.A. 226-27 (Message No. 9063201).

Alden Leeds, through counsel, immediately sought a refund of the difference between the estimated deposit rate and the final rate determined in the review. It was at this point - in approximately February 2009 - that Alden Leeds first learned that its twelve entries had been deemed liquidated at the deposit rate on January 26, 2008. First Amended Complaint, Alden Leeds Inc. v. United States, No. 09-00476 (Ct. Int'l Trade Feb. 2, 2011), ECF No. 7 at 3.

In November 2009, Alden Leeds filed suit in the Court of International Trade contesting Customs' deemed liquidations and seeking to recover the difference between the deposit rate (24.83%) and the final assessment rate (4.07%). In its complaint, Alden Leeds asserted jurisdiction pursuant to 28 U.S.C. § 1581(i), and alleged that Customs wrongfully and prematurely liquidated Alden Leeds' entries of isos in violation of specific suspension of liquidation instructions from Commerce. Id. at 1, 5.

In response, the government filed a motion to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. In the motion, the government argued that jurisdiction under § 1581(i) was not available because Alden Leeds could have filed a protest to challenge Customs' deemed liquidation within 180 days of the date of the deemed liquidation or the date that Customs posted the Bulletin Notice. If Customs denied that protest, Alden Leeds then could have challenged the denial in the Court of International Trade pursuant to 28 U.S.C. § 1581(a). Because Alden Leeds failed to follow this statutory procedure, the government contended that the trial court could not exercise its residual jurisdiction under § 1581(i).

The trial court denied the government's motion to dismiss, finding that, because there was an order suspending liquidation, Customs' posting of the Bulletin Notice was a "legal nullity," and not a protestable event. Alden Leeds, 721 F. Supp. 2d at 1332. Because Alden Leeds was not required to protest Customs' "legally inconsequential" Bulletin Notice, judicial review under § 1581(a) was not available, and the court concluded that it possessed residual jurisdiction under 28 U.S.C. § 1581(i). Id.

On February 2, 2011, the trial court entered final judgment that: (1) there were "no merits issues remaining to be resolved" by the court; (2) the court possessed subject matter jurisdiction over the action; and (3) Customs was required to reliquidate the twelve entries of isos at the final duty rate of 4.07% and refund the difference between Alden Leeds' estimated deposits and the final duty rate, plus interest. Judgment, Alden Leeds, No. 0900476 (Ct. Int'l Trade Feb. 2, 2011), ECF No. 55. The government timely appealed.

DISCUSSION

The sole issue on appeal is whether the Court of International Trade correctly concluded that it had jurisdiction to consider Alden Leeds' claims. Because jurisdiction is an issue of law, we review the trial court's determination de novo. Int'l Custom Prods. v. United States, 467 F.3d 1324, 1326 (Fed. Cir. 2006).

The Court of International Trade's jurisdiction is set forth in 28 U.S.C. § 1581. While § 1581 subsections (a) -(h) identify specific actions over which the Court of International Trade has jurisdiction, subsection (i) provides a "catch-all" jurisdictional provision. See Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1291-92 (Fed. Cir. 2008). In subsection 1581(a), which governs the court'sjurisdiction to review Customs' treatment of protests, "Congress set an express scheme for administrative and judicial review of Customs' actions." Int'l Custom Prods., 467 F.3d at 1326. Under this statutory scheme, an aggrieved party must first file a protest with Customs under 19 U.S.C. § 1514, before it can file suit in the Court of International Trade under § 1581(a) to contest the denial of that protest. Id. at 1326-27; see also Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976 (Fed. Cir. 1994) (noting that "an aggrieved party [must] file a protest under section 1514, which Customs must either grant or deny, before the party may sue under section 1581(a)").

Here, Alden Leeds did not file a protest under § 1514(a), and did not assert jurisdiction under § 1581(a). Instead, Alden Leeds contended, and the trial court agreed, that jurisdiction existed under § 1581(i). In relevant part, § 1581(i) provides, that, in addition to the jurisdiction set forth in subsection (a):

the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States . . . that arises out of any law of the United States providing for . . . administration and enforcement with respect to the matters referred to in . . . subsection[] . . . (a) . . . of this section.

28 U.S.C. § 1581(i...