Fujitsu General America, Inc. v. U.S.

• Decision Date: 20 March 2002
• Docket Number: No. 01-1042.,01-1042.
• Citation: 283 F.3d 1364
• Parties: FUJITSU GENERAL AMERICA, INC. (Successor-in-interest to Teknika Electronics Corp.), Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

283 F.3d 1364

FUJITSU GENERAL AMERICA, INC. (Successor-in-interest to Teknika Electronics Corp.), Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 01-1042.

United States Court of Appeals, Federal Circuit.

March 20, 2002.

COPYRIGHT MATERIAL OMITTED

Brian S. Goldstein, Duane, Morris & Heckscher LLP, of New York, NY, argued for plaintiff-appellant.

James A. Curley, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of New York, New York, argued for defendant-appellee. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; and David M. Cohen, Director; of Washington, DC. Also on the brief was John J. Mahon, Assistant Branch Director, International Trade Field Office, of New York, New York. Of counsel on the brief was Chi S. Choy, Office of Assistant Chief Counsel, United States Customs Service, of New York, New York. Of counsel was Melanie A. Frank, Attorney, Office of Assistant Chief Counsel for Import Administration, Department of Commerce, of Washington, DC.

Before SCHALL, GAJARSA, and LINN, Circuit Judges.

SCHALL, Circuit Judge.

Plaintiff-Appellant Fujitsu General America, Inc. ("Fujitsu") is the successor-in-interest to Teknika Electronics Corp. ("Teknika"). Between 1986 and 1988, Teknika imported into the United States color televisions manufactured in Japan by Fujitsu General Limited (formerly known as General Corporation) ("Fujitsu General"). The color televisions that Teknika imported were subject to a 1971 antidumping finding. See Television Receiving Sets, Monochrome and Color, From Japan, 36 Fed.Reg. 4,597 (Dep't Treas. Mar. 10, 1971). Between November of 1997 and February of 1998, the United States Customs Service ("Customs") liquidated entries of the color televisions that occurred between March 20, 1986, and March 11, 1988, and assessed antidumping duties on the entries.¹ The liquidations followed litigation in the United States Court of International Trade between Fujitsu General and the government concerning the proper antidumping duty rate for the color televisions, during which Customs was enjoined by the court from liquidating the entries.

As the successor to Teknika, Fujitsu initiated three protests with respect to Customs' liquidation of the entries.² Fujitsu challenged the liquidation of the entries as untimely and the assessment of interest on the antidumping duties found to be due as unlawful. After Customs denied all three protests, Fujitsu brought suit in the Court of International Trade. Fujitsu contended that Customs had improperly failed to liquidate the entries within six months of having received notice that the injunction against liquidation had been removed. According to Fujitsu, pursuant to 19 U.S.C. § 1504(d),³ that resulted in the entries being deemed liquidated at the rate of duty asserted on entry. Fujitsu also renewed its challenge to the assessment of interest. On cross-motions for summary judgment, the Court of International Trade granted summary judgment in favor of the United States. The court held that, as far as Fujitsu's first and second protests were concerned, it lacked jurisdiction to consider whether the entries at issue were deemed liquidated under section 1504(d). The court based its ruling on the fact that the deemed liquidation claims had not been raised before Customs by protest within 90 days of the challenged liquidations, as required by 19 U.S.C. § 1514(c)(3). Fujitsu Gen. Am., Inc. v. United States, 110 F.Supp.2d 1061 (Ct. Int'l Trade 2000) ("Fujitsu"). Next, the Court of International Trade addressed the deemed liquidation claim in Fujitsu's third protest. The court found that the claim had been timely raised in the protest. On the merits, the court determined that since the liquidation challenged in the protest had occurred less than six months after Customs received notice to liquidate the entries at issue, the entries were not deemed liquidated under section 1504(d). Id. at 1077. Finally, the court upheld the assessment of interest on the antidumping duties that had been found to be due. Fujitsu now appeals from the court's decision. We affirm.⁴

BACKGROUND

I.

The pertinent facts are not in dispute. As noted, the color televisions that were imported by Fujitsu were subject to an antidumping duty. See 19 U.S.C. § 1673. During the relevant period, antidumping duties assessed on color televisions from Japan were subject to periodic review by the United States Department of Commerce ("Commerce"). 19 U.S.C. § 1675(a)(1). After each review, duties were assessed retroactively on the entries covered by the review, and future entries became subject to a deposit requirement at the dumping rate calculated in the review. Id.

In a series of periodic reviews published between 1981 and 1987, Commerce found the dumping margin for the color televisions imported by Fujitsu to be either zero or de minimis. See Television Receiving Sets, Monochrome and Color, from Japan, 46 Fed.Reg. 30,163 (Dep't Commerce, June 5, 1981); Television Receiving Sets, Monochrome and Color, from Japan, 50 Fed.Reg. 24,278 (Dep't Commerce, June 10, 1985); Television Receiving Sets, Monochrome and Color, from Japan, 52 Fed.Reg. 8,940 (Dep't Commerce, Mar. 20, 1987). Thereafter, in a subsequent review published on February 11, 1988, Commerce calculated a dumping margin of 4.06%. Television Receiving Sets, Monochrome and Color, from Japan, 53 Fed. Reg. 4050 (Dep't Commerce, Feb. 11, 1988). As a result of these reviews, the televisions imported by Fujitsu during the period from March 20, 1986 until February 11, 1988, required no cash deposit, while televisions imported by Fujitsu between February 11 and March 11, 1988, required a cash deposit of 4.06%. However, Customs did not liquidate the March 20, 1986 — March 11, 1988 entries at issue at the above rates, since the administrative review process had been initiated with respect to the entries. Fujitsu, 110 F.Supp.2d at 1067.

On February 11, 1991, Commerce published the results of the administrative review that had been initiated with respect to the 1986-1988 entries. Television Receiving Sets, Monochrome and Color, from Japan, 56 Fed.Reg. 5,392 (Dep't Commerce, Feb. 11, 1991). In that review, Commerce calculated a dumping margin for the entries of 35.40%. Fujitsu General, the manufacturer of the televisions, challenged the dumping margin determination by bringing an action in the Court of International Trade under 19 U.S.C. § 1516a(a)(2)(B)(iii). Pursuant to 19 U.S.C. § 1516a(c)(2), the court promptly enjoined Commerce from liquidating the 1986-1988 entries during the pendency of the litigation. See Fujitsu, 110 F.Supp.2d at 1065. In due course, the court granted Commerce's request to remand the case for a recalculation of the dumping margin. After Commerce reduced the dumping margin for the entries from 35.40% to 26.17% in its remand determination, the court affirmed the modified results of the administrative review. See Fujitsu Gen. Ltd. v. United States, 883 F.Supp. 728 (Ct. Int'l Trade 1995). Thereafter, on July 3, 1996, this court affirmed the Court of International Trade's approval of Commerce's 26.17% dumping margin determination. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034 (Fed.Cir.1996) ("Fujitsu General"). The court's mandate issued on August 26, 1996, and Fujitsu General's time to petition for certiorari to the United States Supreme Court expired on October 1, 1996. See Fujitsu, 110 F.Supp.2d at 1065; 28 U.S.C. § 2101(c).

On September 16, 1997, Commerce published notice of the Fujitsu General decision in the Federal Register. See 62 Fed. Reg. 48,592 (Dep't Commerce, Sept. 16, 1997). Ten days later, on September 26, 1997, Commerce sent Customs an e-mail instructing it to liquidate the 1986-1988 entries at the affirmed 26.17% dumping margin. Pursuant to those instructions, Customs liquidated the entries on multiple occasions between November of 1997 and February of 1998.

Fujitsu filed three separate protests of the liquidations, under 19 U.S.C. § 1514. First, on February 11, 1998, Fujitsu filed Protest No. 2704-98-100059 ("Protest 1"), challenging Customs' assessment of interest in connection with the liquidation of entries on November 14, 1997, and December 5, 1997. See Fujitsu, 110 F.Supp.2d at 1065-66. One month later, Customs denied the protest. See id. at 1066. Thereafter, on April 15, 1998, Fujitsu sent Customs a letter in which it sought to supplement Protest 1 with a claim that the protested liquidations were improper because the entries previously had been "deemed liquidated" at the rate and amount of duties asserted at the time of entry more than a decade earlier. See id. Customs acknowledged receipt of the letter but refused to reconsider its denial of Protest 1. See Fujitsu, 110 F.Supp.2d at 1066.

On February 11, 1998, the same day it filed Protest 1, Fujitsu filed Protest No. 3001-98-100026 ("Protest 2"). In Protest 2, Fujitsu challenged Customs' assessment of interest on entries liquidated on November 28, 1997. See id. Thereafter, on March 30, 1998, before Customs had ruled on Protest 2, Fujitsu supplemented the protest. As in the Case of Protest 1, Fujitsu sought to add the claim that the challenged liquidation was unlawful because the entries were already deemed liquidated. See id. On April 22, 1998, Customs denied Protest 2. See id.

Finally, on March 24, 1998, Fujitsu filed Protest No. 5301-98-100053 ("Protest 3"). In that protest, Fujitsu challenged Customs' assessment of interest in connection with the liquidation of entries on February 27, 1998. See id. Subsequently, on April 1, 1998, Fujitsu supplemented Protest 3 with a deemed liquidation claim. Fujitsu sent its April 1, 1998 letter alleging deemed liquidation before Customs had ruled on Protest 3, and, unlike the deemed liquidation claims filed in connection with Protests 1 and 2, within ninety days of the protested liquidation. See id. Customs denied Protest 3 on ...