Cemex, S.A. v. U.S.
| Decision Date | 28 September 2004 |
| Docket Number | No. 04-1058.,No. 04-1080.,04-1058.,04-1080. |
| Citation | 384 F.3d 1314 |
| Parties | CEMEX, S.A., Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellee, and The Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and National Cement Company of California, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Federal Circuit |
Appeal from the United States Court of International Trade, Jane A. Restani, Chief Judge.
Irwin P. Altschuler, Greenberg Traurig, LLP, of Washington, DC, argued for plaintiff-cross appellant. With him on the brief was Jeffrey S. Neeley. Of counsel was David R. Amerine, Manatt, Phelps & Phillips, LLP, of Washington, DC.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Jeanne E. Davidson, Deputy Director. Of counsel on the brief was Edward N. Maurer, Deputy Assistant Chief Counsel, International Trade Litigation, Bureau of Customs and Border Protection, Department of Homeland Security, of New York, NY.
Jeffrey M. Telep, King & Spalding LLP, of Washington, DC, argued for defendants-appellants. With him on the brief were Joseph W. Dorn and Michael P. Mabile.
Before NEWMAN, MICHEL, and RADER, Circuit Judges.
Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement and National Cement Company of California (collectively, "Ad Hoc") appeal the decision of the United States Court of International Trade denying its motion to enforce the judgment entered against Cemex, S.A. ("Cemex"), a Mexican importer of gray portland cement, in Cemex, S.A. v. United States, 20 CIT 1272 (1996), aff'd 133 F.3d 897 (Fed.Cir.1998) ("Cemex I"). In that case, Ad Hoc successfully obtained an increase in the amount of antidumping duties calculated by the Department of Commerce ("Commerce") for the second administrative review period, August 1, 1991 to July 31, 1992, from 42.74 percent ad valorem to 106.846 percent ad valorem. Despite Ad Hoc's successful challenge, affirmed by this court, some 140 entries subject to the higher duty were deemed liquidated at the Port of Nogales, Arizona, "as entered" at the cash deposit rate of 56.94 percent ad valorem rather than the final assessment rate of 106.846 percent ad valorem.
In denying Ad Hoc's motion, the Court of International Trade concluded that while none of those 140 entries were properly deemed liquidated under 19 U.S.C. § 1504(d), the United States Customs Service's ("Customs")1 subsequent decision to acknowledge the deemed liquidation by posting a bulletin notice at the Port of Nogales became "final and conclusive upon all persons" under 19 U.S.C. § 1514(a), barring Ad Hoc's claim. Cemex, S.A. v. United States, 279 F.Supp.2d 1357 (Ct. Int'l Trade 2003) ("Cemex II").
Ad Hoc agrees with the trial court that none of the subject entries were properly deemed liquidated under 19 U.S.C. § 1504(d), yet seeks to reverse the court's holding that the finality provisions of 19 U.S.C. § 1514(a) preclude all challenges to Customs' subsequent decision to recognize the entries as liquidated. Cemex cross-appeals, claiming the Court of International Trade erred in determining that no deemed liquidation had occurred. Because we agree with the Court of International Trade that 19 U.S.C. § 1514(a) rendered Customs' — albeit erroneous — decision to acknowledge the deemed liquidations "final and conclusive upon all persons," we affirm the denial of Ad Hoc's motion.
Between August 1, 1991 and July 31, 1992, Sunbelt Cement, Inc. entered gray portland cement produced by Cemex and Cementos de Chihuahua from Mexico into the United States through the Ports of Nogales, Arizona; Los Angeles, California; San Diego, California; and El Paso, Texas. These entries were covered by an antidumping duty order on gray portland cement from Mexico at the rate of 56.94 percent ad valorem in effect during the second administrative review period. Gray Portland Cement And Clinker From Mexico, 55 Fed.Reg. 35443 (1990). After Commerce concluded the second administrative review, setting a final dumping margin of 42.74 percent ad valorem for the August 1, 1991 to July 31, 1992 entries ("Second Review Entries"), Ad Hoc brought an action challenging certain aspects of Commerce's final results. The Court of International Trade consolidated Ad Hoc's action with a suit contesting the results of the second administrative review filed by Cemex and, on October 6, 1993, enjoined liquidation of the Second Review Entries under 19 U.S.C. § 1516a(c)(2) pending resolution of the consolidated action.
Following two remands to Commerce, the Court of International Trade issued its final judgment on October 24, 1996, sustaining the 109.43 percent ad valorem dumping margin for the Second Review Entries calculated by Commerce during the second remand. On December 27, 1996, the Court of International Trade again enjoined liquidation of those entries under 19 U.S.C. § 1516a(c)(2) pending appeal to this court. We affirmed the final judgment of the Court of International Trade on January 8, 1998, and issued our mandate on March 2, 1998. The ninety-day deadline for filing a petition for writ of certiorari to the United States Supreme Court expired on April 8, 1998, lifting the court-ordered suspension of liquidation.
On March 23, 1998, Commerce instructed Customs to liquidate the Second Review Entries at the rate of 106.846 percent ad valorem, thus implementing the 109.43 percent ad valorem dumping margin calculated by Commerce on second remand. Commerce sent its instructions in an e-mail, which Customs posted on a non-public (OTO3) bulletin board used to inform the ports of liquidation instructions. The e-mail announced the immediate lifting of the suspension of liquidation for the Second Review Entries and directed Customs to assess antidumping liability at 106.846 percent of the entered value for those entries.
Between May and September 1998, some two hundred Second Review Entries at the Ports of Los Angeles, San Diego, and El Paso were liquidated at the 106.846 percent rate.2 The Second Review Entries at the Port of Nogales ("Nogales Entries"), however, were not liquidated pursuant to the March 23, 1998 instructions. Although Gloria Zapata Quihuis, the import specialist at Nogales responsible for entries of cement, reviewed the OTO3 bulletin board daily, she did not see the March 23, 1998 e-mail message from Commerce. When asked by the Assistant Port Director for Trade at the Port of Nogales to inquire as to the status of these entries, Ms. Quihuis responded on January 10, 2001:
Minoo Hatten of the Commerce Department ... informs me that she found where the U.S. affirmed a 2nd remand in 1998. She said it would take her two or three days to track down whether or not any liquidation instructions were issued. She thinks that no instructions were issued. Once they find the information they will give me a call and let me know what the next step will be. She feels that at that point they will issue liquidation instructions.
On March 16, 2001, Ms. Hatten sent a copy of the March 23, 1998 liquidation instructions to Ms. Quihuis, stating "[p]lease get back to me and let me know whether these instructions will enable you to liquidate the unliquidated entries." On March 19, 2001, Thomas Ede at Customs Headquarters informed Ms. Quihuis that "[t]he entries of gray portland cement and clinker from Mexico covered by message 8082113 of 3/23/1998 deem liquidated [sic] by action of law in September, 1998" and that "[t]hese entries need to be liquidated `as entered' in ACS." Accordingly, on March 20, 2001, Ms. Quihuis reported:
On March 19, 2001 I spoke to Tom Ede of Headquarters OAB. I explained the situation and informed him that the instructions had never been posted. He told me he would look into this. He called back and confirmed that the instructions had never been posted on the bulletin board. He told me that the entries were now considered deemed. He sent the attached instructions on liquidating the entries. Entries for Sunbelt Cement for the above listed period have been liquidated no change and notation posted on notes in ACS.
(emphasis added).
On April 6, 2001, Customs published a bulletin notice at the Port of Nogales ("Bulletin Notice"), indicating that 121 of the Nogales Entries had been deemed liquidated as of September 23, 1998, and that 19 others had liquidated at "no change." All 140 entries were thus liquidated at the rate and amount of duties asserted by the importer upon entry, 56.94 percent ad valorem.
Ad Hoc first learned that some of the Second Review Entries had been liquidated "as entered" rather than at the final assessment rate upon filing a Freedom of Information Act ("FOIA") request with Customs on February 15, 2002. Ad Hoc had filed the FOIA request to inquire as to amounts distributed for the Second Review Entries under the Continued Dumping And Subsidy Offset Act of 2000, 19 U.S.C. § 1675c (the "CDSOA" or "Byrd Amendment"). The Byrd Amendment allows domestic producers with qualifying expenditures for a particular year to obtain a share of the antidumping duties collected by Customs for that year.
Customs responded by letter of September 24, 2002, forwarding four pages of the Bulletin Notice. On December 12, 2002, the domestic producers requested that Customs reliquidate the entries consistent with the final judgment of the Court of International Trade, affirmed by this court in Cemex I. Finally, on April 4, 2003, Ad Hoc moved the Court of International Trade to enforce that judgment, requesting that the court direct liquidation of the Nogales Entries at the 106.846 percent ad valorem final assessment rate.
In its August 12, 2003 Order, the Court of International...
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