Nichimen America, Inc. v. U.S.

• Decision Date: 10 July 1991
• Docket Number: No. 90-1004,90-1004
• Citation: 938 F.2d 1286
• Parties: NICHIMEN AMERICA, INC., formerly known as Nichimen Co., Inc., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1286

938 F.2d 1286

13 ITRD 1443

NICHIMEN AMERICA, INC., formerly known as Nichimen Co., Inc., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 90-1004.

United States Court of Appeals, Federal Circuit.

July 10, 1991.

Ralph A. Mantynband, Arvey, Hodes, Costello & Burman, Chicago, Ill., argued for plaintiff-appellant. With him on the brief was Edward H. Soderstrom, II.

Velta A. Melnbrencis, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Wendell Willkie, II, Gen. Counsel, Stephen J. Powell, Chief Counsel for Import-Administration and Anne White, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

Before NEWMAN, ARCHER and ALARCON, ^* Circuit Judges.

ARCHER, Circuit Judge.

Nichimen America, Inc. (Nichimen) appeals from the judgment of the United States Court of International Trade, Nichimen Am., Inc. v. United States, 719 F.Supp. 1106 (Ct.Int'l Trade 1989), dismissing for lack of jurisdiction Nichimen's appeal from the denial of a protest filed with the United States Customs Service (Customs). We affirm-in-part, reverse-in-part, and remand for further proceedings.

I

On March 10, 1971, the Secretary of the Treasury issued a finding of dumping of television receivers imported from Japan, making them subject to the imposition of antidumping duties. See T.D. 71-76, 5 Cust.Bull. 151 (1971). Between May and November of 1976, a period during which T.D. 71-76 was effective, Nichimen imported Japanese-manufactured television receivers into the United States. The television receivers were allegedly manufactured and imported for Montgomery Ward & Co., Inc. Nichimen posted an immediate entry and consumption bond, agreeing to pay any duties ultimately found to be due, to obtain the release of the television receivers before formal entry and ascertainment by Customs of the applicable duties and charges assessable. The television receivers were released into the stream of commerce between May and November, 1976.

On August 30, 1985, the Department of Commerce notified Nichimen that its television receivers entered before March 31, 1979 (including the entries between May and November, 1976), would be assessed additional antidumping duties at 3.37% ad valorem unless Nichimen requested an administrative review pursuant to section 751(a) of the Trade Agreements Act of 1979, 19 U.S.C. Sec. 1675(a) (1982). When no request under section 751(a) was made for the television receivers at issue, these entries were liquidated on August 15, 1986, and the additional 3.37% ad valorem antidumping duties were assessed.

After payment of the assessed duties, Nichimen timely filed a protest under 19 U.S.C. Sec. 1514(a) (1982) alleging that (a) all dumping duties with respect to Nichimen's entries for Montgomery Ward had been settled under a 1980 settlement agreement, ¹ (b) Customs had not followed required appraisal procedures because the imported goods "were not actually before the appraiser when the appraisement was made," (c) Customs had not determined the foreign market value and the cost of production of the goods as required under 19 U.S.C. Sec. 161, (d) the entries were not timely liquidated as required under applicable Customs law and therefore "the United States is estopped to liquidate these entries," (e) "[t]he determination upon which the United States relies in assessing the anti-dumping duty was arbitrary, capricious and an abuse of discretion, and not in accordance with law," (f) the price of the entries was no less than foreign market value or less than fair value, and (g) the dumping findings were improperly applied to Nichimen "inasmuch as the true 'manufacturer/exporter' was Hitachi, Ltd./Nichimen Co., Inc." Protest pp 3(a)-(g).

When its protest was denied, Nichimen filed a summons and complaint in the Court of International Trade in January, 1987, alleging jurisdiction under 28 U.S.C. Sec. 1581(a) (1982). The complaint mirrored the allegations in the protest.

In the Court of International Trade, Nichimen moved for summary judgment or, in the alternative, judgment on the pleadings. The government opposed the motion alleging that the court lacked jurisdiction under section 1581(a) and also sought summary judgment. Both Nichimen's and the government's motions for summary judgment were denied. Nichimen Am., Inc. v. United States, Nos. 88-128, 87-01-00047, 1988 WL 98472 (Ct. Int'l Trade, September 22, 1988). The court concluded that genuine issues of material fact remained in dispute over whether the 1980 settlement agreement covered the claims at issue and whether Customs had employed proper appraisal procedures. The government's motion to dismiss for lack of jurisdiction was denied with leave to renew. Id.

Thereafter, the Court of International Trade granted the government's renewed dismissal motion on the ground that the court lacked jurisdiction under 28 U.S.C. Sec. 1581 to hear the claims. Nichimen, 719 F.Supp. at 1109-10. The court held that the Customs determinations challenged in Nichimen's protest were not protestable matters because the determinations were final and conclusive under 19 U.S.C. Sec. 1514(b), as amended by the Trade Agreements Act of 1979. Not being protestable matters, the court held that Customs' denial of the protest did not give it jurisdiction under 28 U.S.C. Sec. 1581(a). Id. In addition, the court indicated that Nichimen properly should have requested section 751 review when it was notified by the Department of Commerce that it could request such a review. Because Nichimen had not exhausted this administrative remedy, the court held that it also lacked jurisdiction under 28 U.S.C. Sec. 1581(c). Id.

II

A. The jurisdiction of the Court of International Trade, as pertinent here, is set forth in 28 U.S.C. Sec. 1581:

Sec. 1581. Civil actions against the United States and agencies and officers thereof;

(a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [19 U.S.C. Sec. 1515].

(b) ....

(c) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516a of the Tariff Act of 1930 [19 U.S.C. Sec. 1516a].

Nichimen contends that section 1581(a) conferred jurisdiction on the Court of International Trade over its complaint because all of the issues in the complaint had been included in Nichimen's timely filed protest, which Customs denied. We must, therefore, consider whether the Court of International Trade had jurisdiction over any or all of Nichimen's claims. Specifically, the question is whether Nichimen sought and exhausted the proper administrative remedies for the claims at issue.

Jurisdiction is a question of law. See Zumerling v. Marsh, 783 F.2d 1032, 1034 (Fed.Cir.1986). As such, we review de novo the Court of International Trade's decision as to its jurisdiction. ²

The jurisdictional question in this case is complicated by the passage of the Trade Agreements Act of 1979, Pub.L. No. 96-39, 93 Stat. 144 (the 1979 Act), which became effective on January 1, 1980. Nichimen imported the television receivers prior to the 1979 Act's effective date, but the antidumping duties were assessed after the effective date. We must consider provisions of the Antidumping Duty Act of 1921, 19 U.S.C. Secs. 160-173 (1976) (the 1921 Act), as well as the 1979 Act and its transitional rules, to determine whether the trial court's jurisdictional rulings were correct.

B. The 1921 Act provided for the assessment of a special antidumping duty equal in amount to the difference between the foreign market value and the purchase price (or the exporter's sales price). 19 U.S.C. Sec. 161(a). When a finding of dumping was issued by the Secretary of the Treasury, Customs was delegated the responsibility of determining and assessing antidumping duties. Section 169 provided that the assessment of the special dumping duties under the 1921 Act was subject to the same right of appeal and protest as other customs duties. ³ Thus, once the duties were assessed, the determinations of Customs, such as foreign market value, purchase price, etc., used to compute the antidumping duties could be challenged by filing an administrative protest. See 19 U.S.C. Sec. 1514(a) (1976). ⁴ If the protest was denied, a civil action under 28 U.S.C. Sec. 2632 (1976) contesting the antidumping duties, including the underlying less than fair value and injury determinations which led to the dumping finding, could then be brought in the United States Customs Court. ⁵ See, e.g., Pasco Terminals v. United States, 634 F.2d 610 (CCPA 1980). Prior to the 1979 Act, therefore, protest after liquidation of an entry was the only administrative procedure available for contesting special antidumping duties.

The 1979 Act replaced the 1921 Act with a new antidumping statute. Pub.L. No. 96-39, Sec. 101, 93 Stat. 144, 150-189. Any outstanding dumping findings issued under the 1921 Act, however, were continued in effect under the 1979 Act. Pub.L. No. 96-39, Sec. 106, 93 Stat. 144, 193. The statute also provided that the 1979 Act was generally applicable to any assessment of antidumping duties after its effective date, January 1, 1980, but it contained one exception where the prior law procedures for protest and judicial review continued to be applicable. Section 1002(b)(3) of the 1979 Act provided:

The amendments made by this title shall apply with respect to the review of the assessment of, or failure to assess, any countervailing duty or antidumping duty on entries subject to a countervailing duty order or antidumping finding if the assessment is made after the effective date. If no assessment of such duty had been made before the...