Trade Courts Update for Week of June 10, 2015

United States Court of International Trade

Motion to Dismiss for Lack of Subject-Matter Jurisdiction Granted

In P.F. Stores, Inc. v. United States and American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company, Inc., Plaintiff challenged the liquidation of certain entries subject to the antidumping duty order on wooden bedroom furniture from the People’s Republic of China.  14-00200, Slip Op. No. 15-54 (June 9, 2015). 

The manufacturer of the bedroom furniture that Plaintiff PF Stores imported, Dream Rooms Furniture, filed suit contesting the results of the third administrative review of the antidumping duty order on wooden bedroom furniture.  Dream obtained an injunction against liquidation of its entries until a final judicial determination was secured.  That action was consolidated, and, after several remands, the results of the administrative review were sustained on February 5, 2013.  Dream did not appeal that court’s decision.  The actions were then deconsolidated and on June 13, 2013, Dream’s injunction was amended to order liquidation of all entries exported during the period of review, including the entries imported by Plaintiff PF Stores.  On June 25, 2013, Commerce issued instructions to Customs and Border Protection to liquidate the entries at the final rate determined by the administrative review.  Plaintiff filed protests arguing that the entries were deemed liquidated, which were denied. 

Plaintiff commenced the action to challenge the liquidation of the entries.  PF Stores argued that the entries were deemed liquidated six months after the Court’s February 5, 2013 opinion sustaining the final results.  Although Plaintiff had denied protests that could have been contested before the Court of International Trade under 28 U.S.C. § 1581(a), Plaintiff asserted jurisdiction under 28 U.S.C. § 1581(i).  Plaintiff argued the Court had jurisdiction because the challenge was to Commerce’s instructions, specifically that the agency issued its liquidation instructions beyond the ten day period prescribed in 19 U.S.C. § 1675(a)(3)(C). 

The Court held that the crux of the action involves a protestable decision regarding Customs liquidation or err in liquidation, which should have been brought under 28 U.S.C. § 1581(a).  A Plaintiff may only bring a claim under § 1581(i) if another subjection of jurisdiction is not available or is manifestly inadequate.  Because jurisdiction under § 1581(a) was available and because bringing an action under that subsection would not have been manifestly inadequate, Plaintiff could not invoke the Court’s residual jurisdiction of § 1581(i).  Furthermore, having not paid the duties and interest due upon liquidation, Plaintiff did not meet the jurisdictional prerequisites for challenging the denial of a protest.  The Court dismissed the action for lack of subject-matter jurisdiction with prejudice.

 

Motion to Dismiss for Lack of Subject-Matter Jurisdiction Granted    

Hutchinson Quality Furniture, Inc. v. United States, concerns a challenge to the liquidation of entries subject to the antidumping duty order on bedroom furniture from the People’s Republic of China. Court No. 14-00248, Slip Op. 15-55 (June 9, 2015).

The exporter of the bedroom furniture that Plaintiff Hutchison imported, Orient International Holding Shanghai Foreign Trade Co. Ltd., filed suit contesting the results of the third administrative review of the antidumping duty order on wooden bedroom furniture.  Orient International obtained an injunction against liquidation of its entries until a final judicial determination was secured.  That action was consolidated, and, after several remands, the results of the administrative review were sustained on February 5, 2013.  Orient International did not appeal that court’s opinion.  The actions were then deconsolidated on June 13, 2013, and Orient International’s injunction was amended to order liquidation of all entries exported during the period of review, including the entries imported by Hutchison.  On June 25, 2013, the Department of Commerce issued instructions to Customs and Border Protection to liquidate the entries at the final rate determined by the administrative review.

Plaintiff commenced the action under 28 U.S.C. § 1581(i) to challenge the validity of Commerce’s liquidation instructions.  Plaintiff argued that the entries were deemed liquidated by operation of law six months after the Court’s February 5, 2013 judgment sustaining the Final Results of the administrative review, and therefore sought a declaratory judgment that the entries were deemed liquidated. 

The Court held that it did not have subject-matter jurisdiction to review Plaintiff’s claim on its merits.  The Court broadly interpreted 19 U.S.C. § 1514 as bestowing upon Customs and Border protection the entire province of determinations regarding the timing of liquidation, regardless of intervening conduct by Commerce.  As such, any liquidation decision by Customs is protestable under § 1504(d) and cannot be brought before the Court under § 1581(i).  The Court held that Plaintiff could have protested the liquidation, and then contested the denial of such protest under the jurisdiction subsection § 1581(a).  Because another subsection of jurisdiction was available to the Plaintiff, the Court could not hear the action under its residual jurisdiction grant of § 1581(i), and therefore dismissed the case for lack of subject matter jurisdiction. 

 

Partial Revocation of Antidumping Order Held Not Supported by Substantial Evidence, Remanded

The Commerce Department’s decision to revoke the antidumping order against Frozen Warmwater Shrimp from China with respect to a Chinese exporter was not supported by substantial evidence, and must be reconsidered, the U.S. Court of International Trade recently ruled.

In  Ad Hoc Shrimp Trade Action Committee v. United States, Slip Op. 15-53 (June 5, 2015), the Commerce Department had revoked the antidumping order as to a Chinese exporter, Zhanjiang Regal (“Regal”)  based on a showing that Regal had no sales below fair value for the 4th, 5th, 6th and 7th annual review periods for the order. The domestic petitioners challenged the revocation, arguing that Commerce had based its determination of no LTFV sales for the 5th review, in which Commerce made its determination of “normal value” on the basis of surrogate factors data from Indian producers. However, the domestic industry had previously successfully challenged Commerce’s use of Indian data, in that review, the CIT ruling that Thai data was more reliable.

Because the Indian data had been rejected for the 5th review, it was unreasonable for Commerce to rely on it in making the revocation decision as to Regal. The matter was remanded to Commerce for further consideration.