Appeal from the United States Court of International Trade in case No. 09-CV-0476, Judge Richard K. Eaton
The opinion of the court was delivered by: O'malley, Circuit Judge.
NOTE: This disposition is nonprecedential.
Before LINN, PROST, and O'MALLEY, Circuit Judges.
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.
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 of Antidumping 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, "Aragonesas") 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 Anti-dumping 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 Aragonesas. 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."*fn1 Joint Appendix ("J.A.")
167 (Message No.
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).*fn2 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 Anti-dumping 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 imported from 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 ...