Arbed Americas, LLC v. United States, Slip Op. 18 - 177

ARBED AMERICAS, LLC, Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 18 - 177 Court No. 15-00095

UNITED STATES COURT OF INTERNATIONAL TRADE

December 21, 2018

Before: R. Kenton Musgrave, Senior Judge

OPINION

[On cross-motions for judgment on challenge to denial of protest over rate of antidumping duties assessed by U.S. Customs and Border Protection, judgment for the plaintiff.]

Robert S. LaRussa, Lisa S. Raisner, and Neil H. Koslowe, Sherman & Sterling LLP, of Washington, DC, for the plaintiff.

Hardeep K. Josan, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for the defendant. Also on the brief were Chad A. Readler, Acting Assistant Attorney General and Amy M. Rubin, Assistant Director. Of counsel on the brief was Beth C. Brotman, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection.

Musgrave, Senior Judge: The parties cross-move for summary judgment pursuant to USCIT R. 56.3 on whether six entries of stainless steel plate in coils ("SSPC") from Belgium were deemed liquidated by operation of law. Also before the court is the plaintiff's motion for oral argument, but in view of the quality of the briefing on the matter, oral presentation is unnecessary. That motion can therefore be, and hereby is, denied, and for the following reasons, judgment will enter in favor of the plaintiff.

I. Background

The entries at issue are among numerous other SSPC entries subject to antidumping("AD") duty and countervailing ("CVD") duty orders. The SSPC was produced by ALZ, N.V. and was imported from Belgium by the plaintiff Arbed Americas LLC ("Arbed") in the latter half of 1999. In 2001, the U.S. Department of Commerce, International Trade Administration ("Commerce") published the final results of the administrative reviews of the AD and CVD duty orders for the periods of review ("PORs") that cover the entries in this case. See Stainless Steel Plate in Coils from Belgium, 66 Fed. Reg. 45007 (Aug. 27, 2001) (final admin. results of CVD order); 66 Fed. Reg. 56272 (Nov. 7, 2001) (final admin. results of AD order). Those results were challenged here, and preliminary injunctions ("PIs") were issued to enjoin, pending litigation, liquidation of SSPC from Belgium that had been produced or exported by ALZ, N.V. and entered during PORs relevant to those proceedings. See Compl. ¶7; Ans. ¶7; see also Allegheny Ludlum Corp. v. United States, Court No. 01-01091; ALZ, N.V. v. United States, Court No. 01-00834. Thus, pursuant to those PIs, in 2002 and 2003 Commerce issued blanket instructions to U.S. Customs and Border Protection ("Customs") not to liquidate any SSPC from Belgium that had been produced or exported by ALZ, N.V. and entered during the PORs until further liquidation instructions were provided. See Message Nos. 2178204 (June 27, 2002), 2283201 (Oct. 10, 2002), 3351206 (Dec. 17, 2003), attached to Def's Br. as Ex. A. Those instructions encompassed the entries at bar.

In 2004 and 2005, Commerce issued further liquidation instructions to Customs pertaining to such entries of SSPC. See Message Nos. 4083201 (Mar. 23, 2004), 5189204 (July 8, 2005), 5199201 (July 18, 2005), attached to Def's Br. in Ex. B. Regarding the AD order, Commerceinstructed Customs, in relevant part, to liquidate entries of SSPC from Belgium exported by ALZ, N.V. at a rate of 24.43%. See Message Nos. 4083201 (Mar. 23, 2004) and 5199201 (July 18, 2005), attached to Def's Br. in Ex. B. Regarding the CVD order, Commerce instructed Customs, in relevant part, to liquidate entries of SSPC from Belgium exported by ALZ, N.V. at a rate of 0.97%. See Message No. 5189204 (July 8, 2005), attached to Def's Br. in Ex. B.

In 2005, those liquidation instructions, of message numbers 5189204 and 5199201, were challenged here. Compl. ¶7; Ans. ¶7. See Ugine and ALZ Belgium, N.V., Arcelor Stainless USA, LLC, and Arcelor Trading USA, LLC v. United States, Court No. 05-00444 ("the Arcelor case"). The plaintiffs of the Areclor case requested entry of a PI against liquidation of 211 entries relevant to their case, see Court No. 05-00444, ECF No. 5 (July 22, 2005). Because Arbed was not a party thereto, the list of entries attached to the PI request did not encompass Arbed's entries.

This court initially denied the Arcelor case PI request. See Compl. ¶9; Ans. ¶9; Court No. 05-00444, ECF No. 20 (Aug. 17, 2005). On appeal thereof, the U.S. Court of Appeals for the Federal Circuit penultimately granted the PI requested at that level, pursuant to which Commerce instructed Customs "until further notice" not to implement the liquidation instructions issued in the above-mentioned message numbers 5189204 and 5199201. See Message Nos. 05252201 (Sep. 9, 2005) and 5300205 (Oct. 27, 2005), attached to Def's Br. as Ex. C. The Federal Circuit ultimately, on June 15, 2006, reversed the denial of the PI requested in Court No. 05-00444, the case was remanded for entry of a PI here, and on August 29, 2006, this court issued a PI enjoining The United States, Commerce, and Customs "from making or permitting liquidation of any of the unliquidated entries listed herein, and from taking any actions on any of the protests of entries listed herein"("Order"). Court No. 05-00444, ECF No. 44 (Aug. 29, 2006). The Order listed the 211 entries of SSPC that were at issue in the Arcelor case and to which the Order applied. None of Arbed's six entries (at issue in the matter at hand) was included in the list of entries subject to the Order.

On August 31, 2006, Commerce sent Customs message number 6243201 implementing the Order. In this message, Commerce noted that the court had issued a PI in connection with the Arcelor case; that it had been "served with the above referenced injunction on 08/30/2006;" and that it and Customs had been enjoined "from taking any actions on any of the protests on entries listed in the injunction" and from "liquidation of the entries listed below", further instructing Customs that it should "not make or permit liquidation of any of the unliquidated entries listed herein" and "not take any actions on any protests of entries listed herein" and specifically listing the 211 entries of SSPC that were at issue in the Arcelor case and to which the Order and Commerce's instructions applied. In other words, message number 6243201 mirrored the Order. Again: none of Arbed's six entries was included among the 211 entries listed therein.

Customs did not, at that or any other previous time, affirmatively proceed to liquidate Arbed's six entries.

On October 1, 2007, the Arcelor case decided that Commerce's challenged liquidation instructions, which limited Commerce's relevant determination (that SSPC hot rolled in Germany and not further cold rolled in Belgium was not subject to the AD or CVD Order for SSPC from Belgium) to post-May 1, 2002 entries of SSPC from Belgium, were arbitrary and capricious, which the Federal Circuit affirmed on January 7, 2009.

As a result, in 2010 Commerce issued liquidation instructions to Customs for the AD and CVD duty orders. See Message Nos. 0291310 (Oct. 18, 2010) and 0309303 (Nov. 05, 2010), attached to Def's Br. as Ex. E. Regarding the AD order, Commerce instructed Customs to implement the instructions in message number 5199201 dated 07/18/2005 (which were a correction to Message No. 4083201 dated 3/23/2004) and to liquidate all entries of SSPC from Belgium exported by ALZ, N.V. at an AD rate of 24.43 percent. See Message No. 0291310 (Oct. 18, 2010), attached to Def's Br. in Ex. E. Regarding the CVD order, Commerce instructed Customs to implement the instructions in message number 5183804 dated 07/08/2005, and to liquidate all entries of SSPC from Belgium exported by ALZ, N.V. at a CVD rate of 0.97 percent. See Message No. 0309303 (Nov. 05, 2010), attached to Def's Br. in Ex. E.

Pursuant thereto, Customs liquidated the entries at issue on January 21, 2011 at an AD rate of 24.43% and a CVD rate of 0.97%. See Pl. Br. at Attach. 18. Arbed protested, arguing that the duty rates paid at entry were the proper rates, and that under 19 U.S.C. § 1504(d) its six entries were deemed liquidated six months after August 31, 2006 when Customs received Commerce's message number 6243201 concerning this court's Order in the Arcelor case, which applied only to the 211 SSPC entries listed in that Order and not to Arbed's entries. See Protest No. 1401-11-100205 (April 19, 2011). Arbed requested reliquidation of its six entries at the appropriate AD rate and reversal of the billing and interest associated with the liquidation of the entries on January 21, 2011. See id.

Customs denied the protest in accordance with Headquarters Ruling H169018 (Sep. 09, 2014). See id.

II. Jurisdiction and Standard of Review

Jurisdiction is properly invoked here pursuant to 28 U.S.C. §1581(a) on the claim of a denial of a customs duty protest under section 515 of the Tariff Act of 1930, 19 U.S.C. §1515. See Compl. ¶¶ 1,3.

The material facts are not in dispute: suspension of liquidation was removed in 2006 but the parties disagree as to whether Customs received notice that suspension had been removed in 2006 or in 2010. The question being one of law, disposition via summary judgment is appropriate. See USCIT Rule 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. Discussion

A. Legal Context

The Customs Courts Act of 1970 merged all decisions regarding an entry, e.g., value, quantity, classification, amount of customs duties, et cetera, into a single action: the "liquidation." See 19 U.S.C. §1500. Liquidation is treated as the "final" decision(s) of Customs on a particular entry and forms the basis of a protest thereof. See 19 U.S.C. §1514(a) (all administrative decisions will become "final and conclusive upon all persons" -- including the United States and any officer thereof -- unless a protest against "liquidation" is filed or a civil action commenced here to contest the denial of a protest)...