824 F.2d 961 (Fed. Cir. 1987), 87-1083, Miller & Co. v. United States

Docket Nº:87-1083.
Citation:824 F.2d 961
Party Name:MILLER & COMPANY, Plaintiff-Appellant, v. The UNITED STATES, The United States Department of Commerce, The United States Department of the Treasury and The United States Customs Service, Defendants-Appellees.
Case Date:July 29, 1987
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 961

824 F.2d 961 (Fed. Cir. 1987)

MILLER & COMPANY, Plaintiff-Appellant,

v.

The UNITED STATES, The United States Department of Commerce,

The United States Department of the Treasury and

The United States Customs Service,

Defendants-Appellees.

No. 87-1083.

United States Court of Appeals, Federal Circuit

July 29, 1987

Herbert C. Shelley, Howrey & Simon, Washington, D.C., argued for plaintiff-appellant. With him on the brief were Joel D. Kaufman and Alice A. Kipel.

Elizabeth C. Seastrum, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Velta A. Melnbrencis, Asst. Director. Also on the brief were Douglas A. Riggs, Gen. Counsel, M. Jean Anderson, Chief Counsel for Intern. Trade and Andrea E. Migdal, Atty.-Advisor, Office of the Deputy Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

Page 962

Before MARKEY, Chief Judge, RICH, Circuit Judge, and BALDWIN, Senior Circuit Judge.

MARKEY, Chief Judge.

Appeal from a decision of the United States Court of International Trade, 648 F.Supp. 9 (1986), dismissing the complaint of Miller & Company (Miller). We affirm.

BACKGROUND

On April 4, 1980, the International Trade Administration (ITA) of the United States Department of Commerce published a countervailing duty order, 19 U.S.C. Sec. 1303, on pig iron from Brazil. 45 Fed.Reg. 23,045 (1980). On July 7, 1983, the ITA announced its intent to conduct an administrative review of that countervailing duty order for the period of January 1, 1981 through December 31, 1981, as 19 U.S.C. Sec. 1675(a)(1) then required. 48 Fed.Reg. 31,280 (1983). The ITA published its preliminary results on November 30, 1983, inviting comments and requests for hearings from "interested parties." 48 Fed.Reg. 54,091 (1983). The ITA published its final results on March 16, 1984, and directed the Customs Service to assess countervailing duties in excess of the cash deposits already paid on 1981 imports of Brazilian pig iron. 49 Fed.Reg. 9,923 (1984).

Miller, an importer, did not participate in the proceedings in the ITA. After the ITA published its final determination, Miller filed an action in the Court of International Trade challenging that determination and seeking to enjoin its implementation. Miller alleged that, because the ITA did not complete its review within the statutory time period, it lacked authority to enforce its final determination. Miller initially alleged jurisdiction under 28 U.S.C. Sec. 1581(i), but sought to amend its summons to include an assertion of jurisdiction under 28 U.S.C. Sec. 1581(c). The government filed alternative motions for dismissal or summary judgment.

On November 21, 1984, the Court of International Trade denied Miller's motion to amend because Miller had not participated in the proceedings in the ITA, a requirement for judicial review of a countervailing duty order determination under 28 U.S.C. Sec. 1581(c). 598 F.Supp. 1126, 1128-29 (C.I.T.1984) (Miller I ). The court did not decide at that time whether jurisdiction existed under 28 U.S.C. Sec. 1581(i). The court concluded that 28 U.S.C. Sec. 1581(i) could serve as an avenue of relief "if the ITA's actions were patently ultra vires [so that] it would be inappropriate to require [Miller] to...

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