Gerdau Ameristeel Corp. v. U.S.

• Decision Date: 12 March 2008
• Docket Number: No. 2007-1143.,2007-1143.
• Citation: 519 F.3d 1336
• Parties: GERDAU AMERISTEEL CORP., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and Icdas Celik Enerji Tersane Ve Ulasim Sanayi, A.S., Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

519 F.3d 1336

GERDAU AMERISTEEL CORP., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and Icdas Celik Enerji Tersane Ve Ulasim Sanayi, A.S., Defendant-Appellee.

No. 2007-1143.

United States Court of Appeals, Federal Circuit.

March 12, 2008.

Damon E. Xenopoulos, Brickfield, Burchette, Ritts & Stone, P.C., of Washington, DC, argued for plaintiff-appellant. With him on the brief was Eric J. Lacey.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee, United States. With her on the brief were Jeanne E. Davidson, Director, and David S. Silverbrand, Attorney. Of counsel was Scott McBride, United States Department of Commerce, of Washington, DC.

Lawrence A. Schneider, Arnold & Porter LLP, of Washington, DC, argued for defendant-appellee, Icdas Celik Enerji Tersane Ve Ulasim Sanayi, A.S.

Before NEWMAN and DYK, Circuit Judges, and YEAKEL,^* District Judge.

NEWMAN, Circuit Judge.

Gerdau Ameristeel Corporation appeals the ruling of the United States Court of International Trade, dismissing as moot Gerdau's action for review of an antidumping order pursuant to 19 U.S.C. § 1516a(a)(2).¹ We vacate the dismissal and remand for further proceedings.

BACKGROUND

In 1997 the Department of Commerce determined that steel concrete reinforcing bars ("rebar") produced in Turkey were being sold in the United States at less than fair value. The International Trade Commission determined that an industry in the United States was materially injured, and Commerce ordered that antidumping duties be assessed. Antidumping Duty Order: Certain Steel Concrete Reinforcing Bars from Turkey, 62 Fed.Reg. 18,748 (Apr. 17, 1997) ("the 1997 Antidumping Order"). In accordance with 19 U.S.C. § 1675, interested parties may seek annual administrative review of antidumping orders by the Department of Commerce; these reviews may be challenged by appeal to the Court of International Trade pursuant to 19 U.S.C. § 1516a(a)(2), and then appealed to the Federal Circuit pursuant to 28 U.S.C. § 1295(a)(5).

The Department of Commerce conducted several annual administrative reviews of the 1997 Antidumping Order. In the Fifth Review, for the period April 1, 2001 through March 31, 2002, Commerce assigned a de minimis dumping margin² to imported products of the Turkish rebar producer ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A.S. ("ICDAS"). Certain Steel Concrete Reinforcing Bars from Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination Not To Revoke in Part, 68 Fed.Reg. 53,127, 53,128 (Sept. 9, 2003) ("Fifth Review").

In the Sixth Review, for the period April 1, 2002 through March 31, 2003, Commerce determined that ICDAS had a dumping margin of 0.00%, thus de minimis under 19 C.F.R. § 351.106(c)(2). Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination Not To Revoke in Part, 69 Fed.Reg. 64,731, 64,733 (Nov. 8, 2004) ("Sixth Review"). Gerdau Ameristeel, a domestic manufacturer of rebar, challenged the correctness of the Sixth Review as applied to ICDAS by filing a complaint in the Court of International Trade pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii). Gerdau has stated that it did not seek reliquidation of these ICDAS entries, and that its purpose was to avert revocation of the 1997 Antidumping Order as could occur after three successive de minimis margins as to that exporter or producer:

In determining whether to revoke an antidumping duty order in part, the Secretary will consider:

(A) Whether one or more exporters or producers covered by the order have sold the merchandise at not less than the normal value for a period of at least three consecutive years;

(B) Whether, for any exporter or producer that the Secretary previously has determined to have sold the subject merchandise at less than normal value, the exporter or producer agrees in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Secretary concludes that the exporter or producer, subsequent to the revocation, sold the merchandise at less than normal value; and

(C) Whether the continued application of the antidumping order is otherwise necessary to offset dumping.

19 C.F.R. § 351.222(b)(2)(i). Thus, after the Fifth and Sixth de minimis determinations, ICDAS needed only one more consecutive de minimis margin to be eligible for revocation of the antidumping order.

In its complaint in the Court of International Trade, Gerdau alleged that the Sixth Review significantly understated ICDAS's dumping margin, due to three errors by Commerce: first, the decision to collapse data for ICDAS and its affiliate Demir Sanayi into a single producing entity; second, the determination that Demir Sanayi's steel rolling services are not a "major input"; and third, the decision to treat ICDAS's United States sales price as the export price instead of using a constructed export price. Gerdau stated that these errors led Commerce to an inaccurately low weighted-average dumping margin and it asked the court to declare Commerce's determination unlawful and to remand for redetermination.

Gerdau filed its complaint in the Court of International Trade on December 29, 2004, but did not seek to enjoin liquidation of ICDAS's entries that were subject to the Sixth Review, as it could have done pursuant to 19 U.S.C. § 1516a(c)(2). The United States Customs and Border Protection agency ("Customs") liquidated these entries on December 17, 2004 and February 11, 2005. The defendants then moved to dismiss the appeal for lack of jurisdiction, arguing that because Gerdau had not sought to enjoin the liquidation it lacked a remedy for any errors in the Sixth Review margin determination, citing Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983), and therefore that the appeal was rendered moot. The Court of International Trade granted the dismissal, ruling that the liquidation of these entries eliminated the only remedy for an incorrect Sixth Review, thereby depriving the court of subject matter jurisdiction.

While Gerdau's appeal of the Sixth Review was pending in the Court of International Trade, Commerce conducted a seventh administrative review as to ICDAS and other rebar producers, for the period April 1, 2003 through March 31, 2004. Commerce again found that ICDAS's dumping margin was de minimis and, upon this third consecutive de minimis finding, revoked the 1997 Antidumping Order as it pertained to ICDAS. Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination To Revoke in Part, 70 Fed.Reg. 67,665 (Nov. 8, 2005) ("Seventh Review"). Gerdau and other domestic rebar producers have challenged the Seventh Review in a separate action in the Court of International Trade. At the request of the petitioners in that action, the court preliminarily enjoined liquidation of the entries subject to the Seventh Review, but declined to extend the injunction to entries after the Seventh Review period. Nucor Corp. v. United States, 412 F.Supp.2d 1341, 1343, 1357 (Ct. Int'l Trade 2005).

This appeal is directed to the dismissal of Gerdau's appeal of the Sixth Review.

DISCUSSION

Gerdau does not request reliquidation of the ICDAS rebar that was subject to the Sixth Review; however, Gerdau seeks redetermination of the de minimis dumping margin for the period of the Sixth Review, stating that it was incorrectly measured and that correction of the Sixth Review would have the tangible consequence of averting revocation of the Antidumping Order after the Seventh Review, and therefore that the appeal is not mooted by the liquidation.

The government and ICDAS respond that Gerdau lost its only ground for challenging the Sixth Review when Gerdau did not seek to enjoin or suspend liquidation of the ICDAS entries subject to the Sixth Review, and that this court's decision in Zenith requires that result. Zenith held that since liquidation deprives a challenger of its only remedy for an incorrect dumping margin determination, this creates an irreparable injury that must be weighed in considering whether to enjoin liquidation pending judicial review. 710 F.2d at 810-11. The appellees argue that, with one exception, this holding of Zenith has led the courts to find appeals of administrative reviews moot where liquidation has already occurred. See, e.g., SKF USA Inc. v. United States, 512 F.3d 1326,1332, (Fed. Cir.2008) (finding action challenging administrative review of antidumping order moot under Zenith in light of deemed liquidation); Chr. Bjelland Seafoods A/S v. United States, 19 Ct. Int'l Trade 35, 51-52 (1995) (dismissing challenge to administrative review of antidumping determinations as moot). But see Hylsa, S.A. de C.V. v. United States, 469 F.Supp.2d 1341, 1345 (Ct. Int'l Trade 2007) (finding liquidation did not moot challenge to the dumping margin calculated in an administrative review where that margin "may have consequences for future revocation determinations" in light of 19 C.F.R. § 351.222(b)(2)).

Gerdau contends that Zenith does not extend to the present facts, because there was no issue in Zenith of the effect of liquidation of a specific entry on the future application of the antidumping order, quite apart from the antidumping duty assessed for that specific entry. Gerdau acknowledges that liquidation ended its right to challenge the duty assessed on the goods subject to the Sixth Review, but it argues that since its challenge to the dumping margin of the Sixth Review affects subsequent years, that challenge is not extinguished or mooted by the liquidation. The government disagrees, and also argues that Gerdau cannot seek relief that would have an effect outside the Sixth Review,...