Forest Products Northwest, Inc. v. U.S.

• Decision Date: 05 July 2006
• Docket Number: No. 05-5007.,05-5007.
• Parties: FOREST PRODUCTS NORTHWEST, INCORPORATED, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

453 F.3d 1355

FOREST PRODUCTS NORTHWEST, INCORPORATED, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 05-5007.

United States Court of Appeals, Federal Circuit.

July 5, 2006.

Kenneth G. Weigel, Alston & Bird, LLP, of Washington, DC, argued for plaintiff-appellant.

Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Patricia M. McCarthy, Assistant Director, and Claudia Burke, Trial Attorney.

Before SCHALL and PROST, Circuit Judge, CLEVENGER, Senior Circuit Judge.

CLEVENGER, Senior Circuit Judge.

Plaintiff-Appellant Forest Products Northwest, Inc. (Forest Products) appeals the decision of the United States Court of Federal Claims holding that it did not have jurisdiction over Forest Products's claim for a refund of antidumping and countervailing duties paid to the United States Customs and Border Protection, Department of Homeland Security (Customs). Forest Prods. Nw., Inc. v. United States, 62 Fed.Cl. 109 (2004). Forest Products also asserts that the Court of Federal Claims abused its discretion in denying its motion for a protective order. Because we agree with the Court of Federal Claims that it does not have jurisdiction over Forest Products's claim, and because the court did not abuse its discretion in denying Forest Products's motion for a protective order, we affirm.

I

In October 2003, Forest Products imported two shipments of lumber from Canada. The first shipment of merchandise, Entry No. WQO-1289736-0, was entered under Subheading 4407.10.0068 of the Harmonized Tariff Schedule of the United States (HTSUS), the tariff provision for "[w]ood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm: Coniferous." The second shipment, Entry No. WQO-1289757-6, was entered under HTSUS subheading 4421.90.9740, the provision for "other articles of wood...." Both entries were allegedly subject to antidumping and countervailing duty orders. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Softwood Lumber Products from Canada, 67 Fed.Reg. 36,068 (May 22, 2002); Notice of Amended Final Affirmative Countervailing Duty Determination and Notice of Countervailing Duty Order: Certain Softwood Lumber Products from Canada, 67 Fed.Reg. 36,070 (May 22, 2002). Thus, Forest Products paid estimated antidumping and countervailing duties, at the time of importation, in the amount of $20,357.84. However, Forest Products asserted that it was paying these duties "under protest."

On October 21, 2003, Forest Products filed suit against Defendant-Appellee the United States (government) in the Court of Federal Claims, asserting three contentions: first, that Customs misclassified the subject imports; second, that Customs violated the Customs Modernization Act (Mod Act), codified at 19 U.S.C. § 1625, by failing to follow another Customs ruling; and finally, that Customs erred in applying the antidumping and countervailing duty orders to the subject imports.

On January 28, 2004, the government filed a motion to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC). Forest Products filed an opposition to the government's motion to dismiss on February 10, 2004, but did not serve a copy on the government. Rather, Forest Products requested a protective order and stated that it would not serve a copy of its opposition upon the government until such protective order was in place. The Court of Federal Claims ordered Forest Products to serve a copy of the opposition upon the government, and Forest Products did so on April 1, 2004. The court denied Forest Products's motion for a protective order on April 22, 2004, and on September 17, 2004, the court granted the government's motion to dismiss. See Forest Products, 62 Fed.Cl. 109. Forest Products timely appealed to this court, and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3).

II

Before assessing whether jurisdiction over the instant case lies in the Court of Federal Claims, it is helpful to understand the statutory and regulatory scheme governing duties paid on imports, including countervailing and antidumping duties. When an importer wishes to import merchandise into the United States, it must make an "entry" by filing documentation with Customs. This documentation enables Customs to properly assess the duties due on the merchandise. See Wolff Shoe Co. v. United States, 141 F.3d 1116, 1118 (Fed.Cir.1998) (citing 19 U.S.C. § 1484). At the time of entry, "[t]he importer must also deposit estimated duties with Customs." Id. (citing 19 U.S.C. § 1505(a)). After the proper documents are filed and the estimated duties are deposited, "the imported merchandise can pass into the commerce of the United States." Id. (citing 19 U.S.C. § 1490).

At some later time, "Customs reviews the entry and makes its final determination as to whether the amount of duty deposited is correct — i.e., Customs liquidates the entry." Travenol Labs., Inc. v. United States, 118 F.3d 749, 752 (Fed.Cir. 1997) (citing 19 C.F.R. §§ 159.0-.12 (1996)). Liquidation is "the final computation or ascertainment [by Customs] of the duties ... or drawback accruing on an entry." 19 C.F.R. § 159.1 (2004). During liquidation, "Customs will collect any increased duties due or refund any excess of the estimated duties deposited on entry." Wolff Shoe, 141 F.3d at 1118 (citing 19 U.S.C. § 1505(b)). Liquidation of an entry is "final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed ... or unless a civil action contesting the denial of a protest ... is commenced in the United States Court of International Trade." 19 U.S.C. § 1514(a) (2000).

Entries not liquidated within one year of entry are "deemed liquidated" unless one of several exceptions applies. See 19 U.S.C § 1504(a), (b) (2000) (providing that entries are deemed liquidated after one year unless liquidation is "suspended as required by statute or court order" and allowing the Secretary of the Treasury to extend the period in which to liquidate an entry if "the information needed for the proper appraisement or classification of the merchandise" is unavailable or if the importer "requests such extension and shows good cause therefor"). Thus, for example, the Court of International Trade "may enjoin the liquidation of some or all entries of merchandise covered by [an antidumping or countervailing duty order]." 19 U.S.C. § 1516a(c)(2) (2000). Further, liquidation of all entries of merchandise subject to a particular outstanding antidumping or countervailing duty order is suspended during Customs' annual review of that order. See 19 U.S.C. § 1675 (2000); 19 U.S.C § 1504; Wolff Shoe, 141 F.3d at 1118.

Once an entry has been liquidated, the importer may lodge a protest with Customs under section 515 of the Tariff Act of 1930, codified at 19 U.S.C. § 1515. That protest will be allowed or denied within two years of filing. 19 C.F.R. §§ 174.21,.29 (2004). An importer may file for an accelerated disposition of the protest 90 days after filing, and, if the port director does not allow or deny the protest within 30 days, the protest is deemed denied. 19 C.F.R. § 174.22 (2004). If Customs denies a protest, the importer may appeal to the Court of International Trade within 180 days of the denial. 19 U.S.C. § 1515 (2000); 19 C.F.R. § 174.31 (2004). The review of denials of protests is within the exclusive jurisdiction of that court. 28 U.S.C. § 1581(a) (2000).

In this case, Forest Products's entries have not yet been liquidated, as there is an ongoing administrative review of the relevant antidumping and countervailing duty orders, such that liquidation has been suspended. Thus, Forest Products cannot yet file a protest with Customs, nor is there a denial of a protest that may be reviewed by the Court of International Trade. However, importers may also seek review of antidumping or countervailing duties by requesting a scope ruling from the Department of Commerce (Commerce). That is "[a]ny interested party may apply [to Commerce] for a ruling as to whether a particular product is within the scope of an order or a suspended investigation." 19 C.F.R. § 351.225(c)(1) (2004). If Commerce concludes that the imported merchandise is not within the scope of the antidumping or countervailing duty order, Commerce will order Customs to refund any cash deposits paid by the importer. 19 C.F.R. § 351.225(l)(2)-(3). If Commerce concludes that the imported merchandise is within the scope of the relevant order, the importer may seek review of that decision in the Court of International Trade under section 516 of the Tariff Act of 1930, codified at 19 U.S.C. § 1516a. See 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(a)(2)(B)(vi) (stating that an importer may seek review in the Court of International Trade of "[a] determination by the administering authority as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or antidumping or countervailing duty order"). However, Forest Products has not requested a scope ruling from Commerce.

III

Whether the Court of Federal Claims has jurisdiction over the instant case is a question of law that we review de novo. Wheeler v. United States, 11 F.3d 156, 158 (Fed.Cir.1993). We review discovery matters for an abuse of discretion.¹ See Commissariat A L'Enerqie Atomique v. Chi Mei Optoelectronics Corp., 395 F.3d 1315, 1319 (Fed.Cir.2005).

Section 1491 of Title 28 grants the Court of Federal Claims jurisdiction over "any claim against the United States founded either upon the Constitution, or any Act of Congress or...