Pyke Mfg. Co. v. U.S.
| Decision Date | 17 December 1997 |
| Docket Number | Slip Op. 97-174.,Court No. 95-09-01173. |
| Citation | 991 F.Supp. 648 |
| Parties | PYKE MANUFACTURING COMPANY, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Irving A. Mandel (Thomas J. Kovarcik, Steven R. Sosnov), New York City, for Plaintiff.
Frank W. Hunger, Assistant Attorney General of the U.S.; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Shalom Brilliant); Karen Bland, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, Washington, DC, for Defendant.
This case is before the Court on cross-motions for summary judgment pursuant to U.S. CIT R. 56. Plaintiff challenges the United States Customs Service's ("Customs") retention of antidumping duties paid on ten entries of man-made fiber sweaters from Taiwan following their liquidation in March 1992. The duties were assessed pursuant to an antidumping duty order which was in effect at the time of the entries' liquidation, but was revoked in July 1994, subsequent to the liquidation of the ten entries at issue. Plaintiff moves for summary judgment contending it is entitled to a refund of the $105,920 in antidumping duties it paid in April 1992, plus interest, and asserts this Court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (1988) to decide its claim.
Defendant opposes plaintiff's Motion for Summary Judgment and has filed a Cross-Motion for Summary Judgment. Defendant asserts this Court does not have jurisdiction to hear plaintiff's claim pursuant to 28 U.S.C. § 1581(i), and alternatively argues that should this Court determine it does have jurisdiction pursuant to 28 U.S.C. § 1581(i) to decide plaintiff's claim, defendant is entitled to the entry of summary judgment in its favor.
On October 19, 1989, the Department of Commerce ("Commerce") initiated an antidumping duty investigation of imports of sweaters wholly or in chief weight of man-made fiber from Taiwan. See Initiation of Antidumping Duty Investigations: Sweaters Wholly or in Chief Weight of Man-Made Fiber From Hong Kong, the Republic of Korea, and Taiwan, 54 Fed. Reg. 42,972 (Dep't Comm. 1989). Commerce published its preliminary determination that the sweaters in question were being, or were likely to be, sold in the United States at less than fair value on April 27, 1990, and instructed Customs to suspend liquidation of entries of man-made fiber sweaters from Taiwan that were entered, or withdrawn from warehouse for consumption, on or after that date. See Preliminary Determination of Sales at Less Than Fair Value: Sweaters Wholly or in Chief Weight of Man-Made Fiber From Taiwan, 55 Fed. Reg. 17,779 (Dep't Comm. 1990) (prelim. determ.) ("Preliminary Determination"). Pursuant to the instructions to suspend liquidation, importers were required to post a bond or remit a cash deposit in the amount equal to the estimated antidumping duties calculated in the Preliminary Determination. See 19 U.S.C. § 1673b(d)(2) (1988) (). Following Commerce's publication of its affirmative preliminary determination, plaintiff made ten entries of man-made fiber sweaters from Taiwan between May 13, 1990 and September 19, 1990.
On September 24, 1990, based upon its final determination that imports of man-made fiber sweaters from Taiwan were being sold at less than fair value, and a final determination by the International Trade Commission ("ITC") that a United States industry was materially injured by reason of these imports, Commerce issued an antidumping duty order covering imports of man-made fiber sweaters from Taiwan. See Antidumping Duty Order and Amendment to the Final Determination of Sales at Less Than Fair Value: Sweaters Wholly or in Chief Weight of Man-Made Fiber From Taiwan, 55 Fed. Reg. 39,033 (Dep't Comm. 1990). Several importers and exporters of man-made fiber sweaters from Taiwan contested the ITC's material injury determination before this Court. See Chung Ling Co., Ltd. v. United States, 16 CIT 636, 805 F.Supp. 45 (1992) ("Chung Ling I"). Plaintiff was not a party to that challenge and did not seek a preliminary injunction suspending the liquidation of its entries.
On September 19, 1991, Commerce published a notice informing interested parties of their opportunity to request an administrative review of its antidumping duty order covering man-made fiber sweaters from Taiwan. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 56 Fed. Reg. 47,450 (Dep't Comm. 1991). The notice informed interested parties that if Commerce did not receive a timely request for an administrative review, it would instruct Customs to assess antidumping duties upon entries of man-made fiber sweaters from Taiwan at a rate equal to the cash deposit or bond rate for estimated duties required on the merchandise at the time of entry. Pyke did not request an administrative review of Commerce's antidumping duty order on sweaters of man-made fiber from Taiwan, making its ten entries subject to the automatic assessment of antidumping duties at the estimated rate required on the merchandise at the time of entry pursuant to 19 C.F.R. § 353.22(e) (1992) (). Customs liquidated the entries in question on March 6, 1992, and the liquidated duties were paid by plaintiff on April 16, 1992.
On July 28, 1992, this Court remanded the ITC's material injury determination, finding it to be unsupported by substantial evidence on the record and not otherwise in accordance with law. See Chung Ling I, 805 F.Supp. at 56. On remand, the ITC determined that a United States industry was not materially injured or threatened with material injury by reason of imports of man-made fiber sweaters from Taiwan. See Sweaters Wholly or in Chief Weight of Manmade Fibers from Hong Kong, the Republic of Korea, and Taiwan, USITC Pub. 2577, Views on Remand in Inv. Nos. 731-TA-448-450 (1992). This Court sustained the ITC's negative remand determination. See Chung Ling Co., Ltd. v. United States, 17 CIT 829, 840, 829 F.Supp. 1353, 1363 (1993) ("Chung Ling II"). The domestic producers appealed the decision of this Court to the United States Court of Appeals for the Federal Circuit ("Federal Circuit"), which affirmed this Court's decision on June 15, 1994. See Chung Ling Co., Ltd. v. United States, 29 F.3d 645 (Fed.Cir. 1994) ("Chung Ling III").
Pursuant to the final judgment entered by the Federal Circuit, Commerce published a notice on July 14, 1994, revoking the antidumping duty order with respect to all unliquidated entries of man-made fiber sweaters from Taiwan, effective April 27, 1990. See Sweaters Wholly or in Chief Weight of Man-Made Fiber From Hong Kong, Korea, and Taiwan, Notice of Court Decision, Revocation of Antidumping Duty Orders, and Termination of Administrative Reviews, 59 Fed. Reg. 35,911 (Dep't Comm. 1994) ("Notice of Revocation"). Following publication of the Notice of Revocation, Pyke and its counsel wrote letters to Customs dated September 2, 1994 and May 1, 1995, respectively, requesting a refund of the antidumping duties paid. These requests were denied, and Pyke commenced this action on September 15, 1995.
Plaintiff has filed a Motion for Summary Judgment pursuant to U.S. CIT R. 56, contending it is entitled to "the return of the money it deposited during the course of the unfinished antidumping action" because the antidumping order, pursuant to which duties were assessed, was revoked subsequent to plaintiff's payment of antidumping duties in April 1992. (Pl.'s Br. in Supp. of Mot. for Summ. J. ("Pl.'s Br.") at 3.) Plaintiff contends its cause of action arose on July 14, 1994, when Commerce published a notice revoking the antidumping duty order with respect to all unliquidated entries of sweaters of man-made fiber from Taiwan. See Notice of Revocation, 59 Fed. Reg. at 35,911. Plaintiff asserts its claim falls within this Court's jurisdiction under 28 U.S.C. § 1581(i), and contends its claim, which was filed within fourteen months of publication of Commerce's Notice of Revocation of the antidumping duty order on sweaters of man-made fibers from Taiwan, satisfies the applicable two-year statute of limitations codified at 28 U.S.C. § 2636(h) (1988).
Plaintiff appears to argue that it would have been impossible to have obtained relief by filing a protest challenging Customs' retention of the antidumping duties and seeking judicial review of Customs' denial of its protest pursuant to 28 U.S.C. § 1581(a). In support of this argument, plaintiff cites Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 976-77 (Fed.Cir.1994) ("Mitsubishi"), which held Customs' collection of antidumping duties assessed pursuant to a valid antidumping duty order is not an act subject to protest pursuant to 19 U.S.C. § 1514(a)-(b). Although the plaintiff's papers never explicitly make the contention, the Court presumes the plaintiff cites Mitsubishi for the proposition that even though plaintiff did file a protest contesting the Customs Service's retention of the antidumping duties, it was impossible for plaintiff to obtain relief on its claim by filing a protest, and therefore plaintiff's sole means for obtaining relief...
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