United States v. Great Am. Ins. Co. of N.Y.

738 F.3d 1320

UNITED STATES, Plaintiff–Appellant,

v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK (also known as American National Fire Insurance Company), Defendant–Cross Appellant,andWashington International Insurance Company, Defendant–Appellee.

Nos. 2012–1462, 2012–1473.

United States Court of Appeals, Federal Circuit.

Dec. 27, 2013.

Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for plaintiff-appellant. With her on the brief was Stuart F. Delery, Acting Assistant Attorney General. of counsel on the brief were Barbara S. Williams, Attorney in Charge, International Trade Field Office, of New York, NY; Amy M. Rubin, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, NY; and Andrew G. Jones, Joseph M. Barbato and Brandon T. Rogers, Attorneys, Office of Assistant Chief Counsel, United States Customs and Border Protection, of Indianapolis, IN.

Carter G. Phillips, Sidley Austin, LLP, of Washington, DC, argued for defendant-cross appellant. With him on the brief were Mark D. Plevin and Alexander M. Schaefer, Crowell & Moring, LLP, of Washington, DC, and Theodore R. Posner, Weil Gothshal & Manges, LLP, of Washington, DC.

Herbert C. Shelley, Steptoe & Johnson, LLP, of Washington, DC, for amicus curiae. With him on the brief was Mark F. Horning.

Before PROST, PLAGER, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.

The United States sued Great American Insurance Company of New York (also known as American National Fire Insurance Company) and Washington International Insurance Company in the Court of International Trade, seeking payment of antidumping duties covered by surety bonds the two companies had issued. The trial court granted summary judgment in favor of the government on the bonds now at issue, but denied the government's motion to amend the judgment to include post- and pre-judgment interest. The government appeals the denial of its motion to amend. Great American cross-appeals the grant of summary judgment of liability for the bonded amounts. For the reasons set forth below, we affirm except with regard to postjudgment interest.

Background

On March 26, 1997, the United States Department of Commerce made a preliminary determination, pursuant to 19 U.S.C. § 1673b, that freshwater crawfish tail meat from the People's Republic of China (PRC) was being sold in the United States at less than fair value. Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed.Reg. 14392–01 (Dep't Commerce Mar. 26, 1997) (prelim. determination). As required by 19 U.S.C. § 1673b(d)(2), Commerce directed the United States Customs and Border Protection, until further notice, to suspend liquidation of ( i.e., the final computation of duties on, 19 C.F.R. § 159.1) all entries of freshwater crawfish tail meat from the PRC and to require a cash deposit or bond to cover the antidumping duties estimated upon entry. 62 Fed.Reg. at 14397. On August 1, 1997, Commerce issued a final determination upholding its preliminary determination and directing Customs, until further notice, to suspend liquidation and to require cash deposits. Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed.Reg. 41347–02, 41358 (Dep't Commerce Aug. 1, 1997), amended by 62 Fed.Reg. 48,218 (Dep't Commerce Sep. 15, 1997) (final determination).

On seven occasions between October 5, 2000, and May 17, 2001, an importer named New Phoenix International Trade Corporation made entries of freshwater crawfish tail meat from the PRC by completing the required paperwork. See19 U.S.C. § 1484. The exporters that provided the meat to New Phoenix were subject to a “new shipper” review being conducted by Commerce, see19 U.S.C. § 1675(a)(2)(B), which examined whether they were entitled to antidumping-duty rates distinct from the rate that applied as a default to exporters from the PRC. As a result, Commerce permitted New Phoenix to post a bond to cover its anticipated antidumping duties. Freshwater Crawfish Tail Meat From the People's Republic of China, 64 Fed.Reg. 61833–01, 61834 (Dep't Commerce Nov. 15, 1999) (new shipper review).

To meet the bonding requirements of 19 U.S.C. § 1675(a)(2)(B)(iii) and 19 C.F.R. § 351.214(e), New Phoenix posted eight single-transaction bonds issued by Great American and one continuous-transaction bond issued by Washington International to cover the seven entries. Each of the five Great American bonds relevant to this appeal was for $1,219,458 and was signed by James C. Davis, an agent of Great American. Mr. Davis signed the bonds, and the government accepted them, even though at least one copy of the power-of-attorney form that Great American filed with Customs for Mr. Davis—Customs Form 5297, dated May 21, 1996, filed pursuant to 19 C.F.R. § 113.37(g)—indicated a limit of $1 million on Mr. Davis's authority. On November 2, 2001, several months after New Phoenix obtained its last bond from Mr. Davis and made the associated entry, Great American filed a new Form 5297 revoking Mr. Davis's power of attorney.

On October 26, 2001, Commerce issued a notice that it was initiating an administrative review of the antidumping-duty order relating to freshwater crawfish tail meat from the PRC for the period September 1, 2000, to August 31, 2001—the period in which New Phoenix made each of the entries at issue here. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 66 Fed.Reg. 54195–02, 54196 (Dep't Commerce Oct. 26, 2001). Liquidation of those entries continued to be suspended pending the outcome of the administrative review. 19 U.S.C. §§ 1504(a), 1675(a); Wolff Shoe Co. v. United States, 141 F.3d 1116, 1118 (Fed.Cir.1998) (“During an annual review by Commerce, ‘liquidation’ of all entries of merchandise subject to the outstanding countervailing duty order is suspended ... because the annual review scheme established in 19 U.S.C. § 1675(a) would be frustrated unless the final results of the review applied to the entries covered by the review.”). Customs gave notice of the suspension to New Phoenix and Washington International, pursuant to 19 U.S.C. § 1504(c), but Customs did not notify Great American.

On April 21, 2003, Commerce published the final results of its administrative review for the entries relevant to this appeal, finding that the exporter for the relevant entries was not entitled to a rate different from the default rate for PRC exporters. Freshwater Crawfish Tail Meat from the People's Republic of China, 68 Fed.Reg. 19504–01 (Dep't Commerce Apr. 21, 2003) (final admin. review). Customs made its final determination of the duties applicable to ( i.e., it liquidated) the entries relevant to this appeal between July 25, 2003, and August 15, 2003, and then sought payment of the duties from New Phoenix, Washington International, and Great American, without success.

On May 8, 2009, the government sued Great American and Washington International in the Court of International Trade, pursuant to 28 U.S.C. § 1582(2), seeking to recover the value of the bonds along with pre- and postjudgment interest. Complaint, United States v. Great Am. Ins. Co. of N.Y., Case No. 09–CV–0187 (Ct.Int'l Trade May 8, 2009), ECF No. 2. It is undisputed that the amount of duties owed for the entries at issue is greater than the amounts of the bonds. Id. ¶¶ 11, 15. Each party moved for summary judgment in September 2010. Of significance to the present appeal, the government's briefing on its motion did not include any heading on, textual discussion of, evidence relating to, or argument for prejudgment interest (or, for that matter, postjudgment interest). The government ended its motion by asking for “the relief requested in the Complaint,” and it attached a proposed order awarding it the value of the bonds “plus interest in accordance with 19 U.S.C. § 580.” Pl.'s Mot. Summ. J., United States v. Great Am. Ins. Co. of N.Y., Case No. 09–CV–0187 (Ct.Int'l Trade Sep. 17, 2010), ECF No. 64.

On August 31, 2011, the trial court granted the government's motion for summary judgment with respect to five of the Great American bonds and the Washington International bond, but the court was silent about pre- and postjudgment interest. United States v. Great Am. Ins. Co. of N.Y., 791 F.Supp.2d 1337, 1368 (Ct.Int'l Trade 2011). The court entered judgment in the amount of the face value of the bonds, without interest. Judgment, United States v. Great Am. Ins. Co. of N.Y., Case No. 09–CV–0187 (Ct.Int'l Trade Aug. 31, 2011), ECF No. 101.

The government moved to amend the judgment under USCIT Rule 59(e) to include postjudgment interest, as well as both prejudgment interest under 19 U.S.C. § 580 and equitable prejudgment interest. Mot. Am. J., United States v. Great Am. Ins. Co. of N.Y., Case No. 09–CV–0187 (Ct.Int'l Trade Sep. 21, 2011), ECF No. 102. On April 11, 2012, the court declined to award postjudgment interest “because the Government did not address this issue in its motion [to amend].” United States v. Great Am. Ins. Co. of N.Y., Case No. 09–CV–0187, 34 ITRD 1408, at *3 n. 4 (Ct.Int'l Trade Apr. 11, 2012). The court denied prejudgment interest on the ground that the government had not timely developed the issue before judgment. Id. at *2–3.

The government appeals the denial of its motion to amend, and Great American cross-appeals the grant of summary judgment in favor of the government. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

Discussion

A

The government seeks postjudgment interest as well as both statutory and equitable prejudgment interest in its appeal from the denial of its motion to amend the judgment. We review the trial court's denial of the government's motion to amend for any abuse of discretion. Hohenberg Bros. Co. v. United States, 301 F.3d 1299, 1303 (Fed.Cir.2002).

With respect to...