348 F.3d 997 (Fed. Cir. 2003), 02-1634, Consolidated Bearings Co. v. U.S.

Docket Nº:02-1634
Citation:348 F.3d 997
Party Name:Consolidated Bearings Co. v. U.S.
Case Date:October 29, 2003
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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348 F.3d 997 (Fed. Cir. 2003)



UNITED STATES, Defendant-Appellant.

Nos. 02-1634, 02-1635.

United States Court of Appeals, Federal Circuit

October 29, 2003

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Christopher R. Wall, Pillsbury Winthrop LLP, of Washington, DC, argued for plaintiff-cross appellant.

David Silverbrand, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. On the brief was David M. Cohen, Director. Of counsel were John D. McInerney, Patrick V. Gallagher, and Berniece A. Browne, Attorneys, United States Department of Commerce, of Washington, DC.

Michael D. Esch, Hale and Dorr LLP, of Washington, DC, for amicus curiae Micron Technology, Inc. With him on the brief was Cris R. Revaz.

David J. Levine, McDermott, Will & Emery, of Washington, DC for amicus curiae Hitachi Semiconductor (America) Inc.; and Michael E. Roll, Katten Muchen Zavis Rosenman, of Los Angeles, California, for amicus curiae Hitachi High Technologies America, Inc.

Before CLEVENGER, RADER, and PROST, Circuit Judges.

RADER, Circuit Judge.

When the United States Court of International Trade reached a final decision in a complex case involving antidumping liquidation procedures for imports, both Defendant-Appellant United States and Plaintiff-Cross Appellant Consolidated Bearings Company (Consolidated) appealed. Consolidated Bearings Co. v. United States, 02-72 (CIT July 24, 2002) (Consolidated IV). After finding it possessed jurisdiction, Consolidated Bearings Company v. United States, 166 F.Supp.2d 580 (CIT 2001) (Consolidated I), the trial court's decision in Consolidated IV affirmed the United States Department of Commerce's (Commerce) April 1, 2002 Final Results of Redetermination Pursuant to Court Remand (Remand II). 1

Because no other subsection of 28 U.S.C. § 1581 was or could have been a basis for jurisdiction in this case, trial court was correct in finding jurisdiction under section 1581(i). In addition, this court agrees with the trial court's holding that the exhaustion doctrine does not apply in this case, but does not agree that

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the "pure question of law" exception applies. Finally, because the Court of International Trade erred in interpreting 19 U.S.C. § 1675(a)(2)(C) (2000), this court vacates the judgment below and remands for further proceedings consistent with this opinion.


Commerce issues antidumping duty orders for imported merchandise that is sold in the United States below its fair value and materially injures or threatens to injure a domestic industry. See 19 U.S.C. § 1673e (2000); 19 U.S.C.§ 1673d (2000). These antidumping duties reflect the difference between the foreign exporter's sales price and the domestic price of the merchandise. See 19 U.S.C. § 1673e(a)(1) (2000). Upon entry of merchandise covered by an antidumping order, an importer must make a cash deposit of estimated duties (cash deposit rate). See 19 U.S.C. § 1673e(a)(3) (2000).

Under Commerce's accounting system, the actual liquidation of entries subject to an antidumping order may occur years after importation. Before final liquidation, any interested party may request an administrative review of the antidumping duty order. See 19 U.S.C. § 1675 (2000). The final results of such a review "shall be the basis for the assessment of countervailing or antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties." 19 U.S.C. § 1675(a)(2)(C) (2000). Without a request for administrative review, Commerce liquidates the merchandise at the cash deposit rates (i.e., the deposit rates at the time of entry). See 19 C.F.R. § 351.212(c)(i) (2003).

In 1989, Commerce issued antidumping duty orders on antifriction bearings (AFBs) from Germany. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof from the Federal Republic of Germany, 54 Fed.Reg. 20,900 (May 15, 1989) (the 1989 orders). Between 1989 and 1997, Consolidated purchased and imported AFBs manufactured in Germany by FAG Kugelfischer Georg Schaefer KgaA (FAG). Consolidated did not purchase the AFBs directly from FAG. Rather, Consolidated imported the AFBs from an unrelated foreign reseller. Upon importation of the AFBs under the 1989 orders, Consolidated paid cash deposits of estimated duties based on the rates assigned to the manufacturer FAG.

In 1990, various domestic importers of AFBs manufactured by FAG requested an administrative review. Commerce initiated the review on June 11, 1990 and published its final results on July 11, 1991. 2 Consolidated did not request or participate in the administrative review. After the Court of International Trade adjudicated some challenges to those final results, Commerce issued its amended final results (the final results). 3 Under these final results, each participating importer of FAG-manufactured AFBs received a new specific duty rate. Information concerning Consolidated's imports and the reseller that

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exports to Consolidated was not presented to Commerce in the administrative review.

In September 1997, the United States Customs Service (Customs) received liquidation instructions from Commerce. These instructions implemented the final results for the liquidation of AFB entries for the participating importers (the 1997 instructions). Because Consolidated was not a party to the administrative review, the final results did not contain a new antidumping rate specifically for Consolidated or the reseller that exports to Consolidated. On August 4, 1998, Customs again implemented liquidation instructions from Commerce. These 1998 instructions directed Customs to liquidate all entries of AFBs from Germany that had not been liquidated by the 1997 instructions. Under the 1998 instructions, Customs liquidated the remaining merchandise at the cash deposit rate in effect at the time of entry. These 1998 instructions required liquidation of Consolidated's entries at the time-of-entry cash deposit rates, which were much higher than the rates for the participating importers under the final results.

Consequently, Consolidated brought this action to challenge the 1998 instructions and compel Commerce to apply the antidumping rates in the final results to Consolidated's entries of AFBs from Germany. Specifically, Consolidated contends that Commerce should apply to Consolidated's entries a rate equal to a weighted-average of the rates established in the final results for FAG-manufactured AFBs. In Consolidated I, the Court of International Trade found jurisdiction, found no violation of the exhaustion doctrine, entered judgment on the merits in favor of Consolidated, and remanded the case for Commerce to reassess the antidumping duty. 166 F.Supp.2d at 582-93. The Court of International Trade ultimately affirmed Commerce's actions in Remand II. See Consolidated VI, 02-72 at 4.

The Court of International Trade invalidated the 1998 instructions as an unlawful correction or modification of the 1997 instructions. See Consolidated II, 182 F.Supp.2d at 1382-83. Commerce expressed its opinion that the trial court was in error. Nevertheless, to comply with the remand order, Commerce annulled the 1998 instructions and used the ad valorem rates in the 1997 instructions (from the final results) for liquidation of Consolidated's FAG-manufactured AFB imports. In this appeal, Commerce challenges the trial court's judgment on the merits in Consolidated I, and Consolidated challenges the trial court's affirmance of Commerce's second remand determination in Remand II. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2000).


Subject Matter Jurisdiction

This court reviews the trial court's subject matter jurisdiction ruling as a legal determination without deference. See JCM, Ltd. v. United States, 210 F.3d 1357, 1359 (Fed.Cir. 2000). Consolidated sought jurisdiction under title 28's residual jurisdiction provision:


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