Hutchison Quality Furniture, Inc. v. United States , 827 F.3d 1355 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
HUTCHISON QUALITY FURNITURE, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-1900
______________________
Appeal from the United States Court of International
Trade in No. 1:14-cv-00248, Judge Claire R. Kelly.
______________________
Decided: July 6, 2016
______________________
JOHN MICHAEL PETERSON, Neville Peterson LLP, New
York, NY, argued for plaintiff-appellant. Also represented by
RUSSELL ANDREW SEMMEL.
STEPHEN CARL TOSINI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented by
BENJAMIN C. MIZER, JEANNE E. DAVIDSON, PATRICIA M.
MCCARTHY.
______________________
Before REYNA, CLEVENGER, and WALLACH, Circuit Judges.
2 HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES
WALLACH, Circuit Judge.
This appeal concerns certain entries of merchandise
imported by Appellant Hutchison Quality Furniture, Inc.
(“Hutchison”) and subsequent actions taken on those
entries by the United States Department of Commerce
(“Commerce”) and the United States Department of
Homeland Security’s Customs and Border Protection
(“Customs”). The United States Court of International
Trade (“CIT”) dismissed Hutchison’s Complaint for lack of
subject matter jurisdiction, holding that because
Hutchison could have pursued a remedy under 28 U.S.C.
§ 1581(a) (2012), it could not invoke jurisdiction pursuant
to § 1581(i)(4). See Hutchison Quality Furniture, Inc. v.
United States, 71 F. Supp. 3d 1375, 1379 (Ct. Int’l Trade
2015). We affirm.
BACKGROUND
In 2007, Hutchison imported wooden bedroom furni-
ture from the People’s Republic of China (“China”). The
merchandise was exported by Orient International Hold-
ing Shanghai Foreign Trade Co., Ltd. (“Orient Interna-
tional”).
Commerce subsequently conducted an administrative
review of an antidumping duty order on wooden bedroom
furniture from China that examined Orient Internation-
al’s exports. 1 In the review’s final results, Commerce
1 “Commerce imposes duties on imported merchan-
dise that is being, or is likely to be, sold in the United
States at less than fair value . . . .” U.S. Steel Corp. v.
United States, 621 F.3d 1351, 1353 (Fed. Cir. 2010) (in-
ternal quotation marks and citation omitted). “Sales at
less than fair value are those sales for which the normal
value (the price a producer charges in its home market)
exceeds the export price (the price of the product in the
United States) or constructed export price.” Id. (internal
HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES 3
assigned an antidumping duty margin of 216.01% to
Orient International’s exports. Wooden Bedroom Furni-
ture from the People’s Republic of China, 74 Fed. Reg.
41,374, 41,380 (Dep’t of Commerce Aug. 17, 2009) (“Final
Results”).
Orient International initiated an action in the CIT
challenging various aspects of the Final Results. The CIT
enjoined Commerce from instructing Customs to liquidate
the subject entries 2 and directed “that the entries subject
to this injunction shall be liquidated in accordance with
the final court decision in this action, including all ap-
peals, as provided in 19 U.S.C. § 1516a(e).” J.A. 19.
On February 5, 2013, the CIT sustained Commerce’s
remand redetermination pertaining to the Final Results,
including its selection of a new rate of 83.55%. Lifestyle
Enter., Inc. v. United States, 896 F. Supp. 2d 1297, 1299
(Ct. Int’l Trade 2013). Orient International did not ap-
quotation marks and citation omitted). “At the conclusion
of a[n] . . . antidumping duty investigation, assuming the
requisite findings are made [by Commerce and the United
States International Trade Commission], Commerce may
issue orders imposing duties on imports of goods covered
by the investigation.” Fedmet Res. Corp. v. United States,
755 F.3d 912, 918 (Fed. Cir. 2014). Upon request, Com-
merce may conduct an administrative review of an anti-
dumping duty order to determine the dumping margin for
entries of subject merchandise made during a twelve
month period. See 19 U.S.C. § 1675(a)(1) (2012).
2 At the conclusion of an administrative review,
Commerce issues instructions to Customs that reflect the
amount of dumping duties to be assessed when Customs
liquidates the subject entries. 19 C.F.R. § 351.221(b)(6)
(2015); see also 19 C.F.R. § 159.1 (“Liquidation means the
final computation or ascertainment of duties on entries
for consumption or drawback entries.”).
4 HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES
peal the CIT’s decision. On June 13, 2013, the CIT or-
dered that “all entries exported by [Orient International]
. . . be liquidated without delay in accordance with this
[c]ourt’s February 5, 2013 [F]inal [J]udgment.” J.A. 1045.
Commerce then issued instructions to Customs to liqui-
date Orient International’s exports of subject merchandise
at Commerce’s redetermined rate of 83.55%. J.A. 39. In
September 2013, Customs liquidated the entries at this
rate.
Hutchison then filed a protest with Customs pursuant
to 19 U.S.C. § 1514, 3 J.A. 1027, asserting that its entries
were outside the scope of the antidumping duty order,
J.A. 1030. Customs denied the protest. J.A. 1027.
In October 2014, Hutchison sought review of the liq-
uidation of its entries before the CIT, invoking jurisdic-
tion under 28 U.S.C. § 1581(i)(4). J.A. 1002. Specifically,
Count I of Hutchison’s Complaint asserted that the sub-
ject entries should not have been liquidated at the rate
provided in Commerce’s instructions (i.e., 83.55%), but
rather should have been deemed liquidated at the rate at
which they entered (i.e., 7.24%) pursuant to 19 U.S.C.
§ 1504(d). J.A. 1004, 1014–15. Section 1504(d) provides
that “[w]hen a suspension required by statute or court
order is removed, [Customs] shall liquidate the entry . . .
within [six] months after receiving notice of the removal
from [Commerce], other agency, or a court with jurisdic-
tion over the entry,” and that if the entry is not liquidat-
ed within six months, the entry “shall be treated as
having been liquidated at the rate of duty, value, quanti-
ty, and amount of duty asserted by the importer of record”
3 A party may protest “any clerical error, mistake of
fact, or other inadvertence . . . adverse to the importer[] in
any entry, liquidation, or reliquidation” made by Customs
in certain decisions. 19 U.S.C. § 1514(a) (listing protesta-
ble decisions).
HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES 5
at the time of entry (“deemed liquidation”). 19 U.S.C.
§ 1504(d). Hutchison included no other count in its Com-
plaint.
In its Prayer for Relief, however, Hutchison argued
that Commerce’s liquidation instructions were arbitrary
and capricious because they misidentified “the date on
which suspension of liquidation was lifted.” J.A. 1015.
Commerce’s instructions provided that notice of removal
of the suspension occurred on June 13, 2013, the date that
the CIT amended the injunction governing Orient Inter-
national’s exports. J.A. 37–38. Hutchison claimed that
the suspension of the liquidation under the CIT’s injunc-
tion expired when the CIT entered Final Judgment on
February 5, 2013. J.A. 1013. Accordingly, Hutchison
sought a declaratory judgment that its entries were
deemed liquidated by operation of law in August 2013,
approximately six months after the CIT’s February 5,
2013 Final Judgment. J.A. 1002, 1015–16 (referencing 19
U.S.C. § 1504(d)).
The CIT dismissed Hutchison’s Complaint for lack of
subject matter jurisdiction. The CIT found that the “true
nature of [Hutchison’s] claim involves a protestable
[Customs] decision regarding liquidation and/or deemed
liquidation.” Hutchison, 71 F. Supp. 3d at 1378. The CIT
held that “a decision by [Customs] as to liquidation is a
protestable decision,” which Hutchison could have ap-
pealed pursuant to 28 U.S.C. § 1581(a) if its protest was
denied, “regardless of whether the [February 5, 2013
Final Judgment] constituted a final court decision or
whether [that Final Judgment] constituted notice to
[Customs] starting the six month period in § 1504(d).” Id.
Because Hutchison could have protested any allegedly
erroneous liquidation and appealed any denial of such a
protest pursuant to 28 U.S.C. § 1581(a), the CIT applied
the “well-settled [rule] that a party may not invoke juris-
diction under [28 U.S.C.] § 1581(i) when jurisdiction
under another subsection of § 1581 . . . could have been
6 HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES
available.” Id. (internal quotation marks and citation
omitted). Accordingly, the CIT found jurisdiction lacking.
Id. at 1381.
Hutchison appeals the CIT’s dismissal. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
I. Standard of Review
We review the CIT’s “decision to grant the Govern-
ment’s motion to dismiss [for lack of subject matter juris-
diction] de novo as a question of law.” Juice Farms, Inc. v.
United States, 68 F.3d 1344, 1345 (Fed. Cir. 1995). “[T]he
party invoking [the CIT’s] jurisdiction bears the burden of
establishing it.” Norsk Hydro Can., Inc. v. United States,
472 F.3d 1347, 1355 (Fed. Cir. 2006). However, we “must
accept well-pleaded factual allegations as true and must
draw all reasonable inferences in favor of the claimant.”
Hartford Fire Ins. Co. v. United States, 772 F.3d 1281,
1284 (Fed. Cir. 2014) (internal quotation marks and
citation omitted).
II. The CIT Properly Held that it Lacked Subject Matter
Jurisdiction Over Hutchison’s Complaint
Chapter 95 of Title 28 of the United States Code con-
tains Congress’s jurisdictional grant to the CIT. The first
section, § 1581, is titled “Civil actions against the United
States and agencies and officers thereof” and consists of
subsections (a) through (j). 28 U.S.C. § 1581. “Each
[§] 1581 subsection delineates particular laws over which
the [CIT] may assert jurisdiction.” Nat’l Corn Growers
Ass’n v. Baker, 840 F.2d 1547, 1555 (Fed. Cir. 1988). The
sole issue in this appeal is whether the CIT correctly
applied its own jurisdictional statute, 28 U.S.C. § 1581.
The CIT held that Hutchison could have sought judi-
cial review pursuant to § 1581(a) and therefore could not
invoke the CIT’s jurisdiction under § 1581(i)(4).
HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES 7
Hutchison, 71 F. Supp. 3d at 1379. Section 1581(a) pro-
vides the CIT with “exclusive jurisdiction [over] any civil
action commenced to contest the denial of a protest” by
Customs. 28 U.S.C. § 1581(a). Protestable decisions
include “the liquidation . . . of an entry . . . pursuant to . . .
[19 U.S.C. § 1504].” 19 U.S.C. § 1514(a)(5). Section
1581(i) provides the CIT with residual jurisdiction over
civil actions that arise from import transactions. See
Conoco, Inc. v. U.S. Foreign–Trade Zones Bd., 18 F.3d
1581, 1588 (Fed. Cir. 1994). In particular, subsection (i)
provides the CIT with
exclusive jurisdiction of any civil action com-
menced against the United States, its agencies, or
its officers, that arises out of any law of the Unit-
ed States providing for–
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other
than the raising of revenue;
(3) embargoes or other quantitative re-
strictions on the importation of merchandise
for reasons other than the protection of the
public health or safety; or
(4) administration and enforcement with re-
spect to the matters referred to in paragraphs
(1)–(3) of this subsection and subsections (a)–
(h) of this section.
28 U.S.C. § 1581(i). “[T]o prevent circumvention of the
administrative processes crafted by Congress [in other
subsections of § 1581],” we have held that “jurisdiction
under subsection 1581(i) may not be invoked if jurisdic-
tion under another subsection of section 1581 is or could
have been available, unless the other subsection is shown
to be manifestly inadequate.” Hartford Fire Ins. Co. v.
8 HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES
United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008) (cita-
tion omitted).
We look to the “true nature of the action” in determin-
ing whether the CIT properly found jurisdiction lacking.
Id. at 1293 (citation omitted). The true nature of a par-
ticular action will depend upon the attendant facts as-
serted in the pleadings. See Norsk, 472 F.3d at 1355;
Williams v. Sec’y of Navy, 787 F.2d 552, 557–58 (Fed. Cir.
1986) (explaining that “the substance of the pleadings
define a suit”). Determining the true nature of an action
under § 1581 requires us to discern the particular agency
action that is the source of the alleged harm so that we
may identify which subsection of § 1581 provides the
appropriate vehicle for judicial review. See Nat’l Corn
Growers Ass’n, 840 F.2d at 1555.
A. The True Nature of Hutchison’s Complaint Concerns a
Protestable Customs Decision
Hutchison argues that “[t]he CIT erred in dismissing
[its claim] for lack of subject matter jurisdiction” under 28
U.S.C. § 1581(i)(4) because the CIT erred in determining
the true nature of its action. Hutchison’s Br. 19.
Hutchison asserts that, in holding that its “sole avenue
for raising its claim was to protest [Customs]’s allegedly
untimely liquidation of its entries, and to bring suit under
[the CIT’s] 28 U.S.C. § 1581(a) ‘protest’ jurisdiction,” the
CIT “overlook[ed] the fact that the decision which
Hutchison challenges” was made by Commerce as opposed
to Customs. Id. According to Hutchison, “[a] protest
against the assessment of antidumping duties [under 28
U.S.C. § 1581(a)] can only be brought . . . where the error
results from a decision by [Customs], and not in those
cases where [Customs] is merely carrying out its ministe-
rial tasks of enforcing and applying Commerce decisions
and instructions.” Id. (citations omitted). We disagree.
The true nature of Hutchison’s action is a challenge to
Customs’s September 2013 liquidation of its entries.
HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES 9
What Hutchison ultimately seeks is the liquidation of its
entries at the rate its merchandise entered (i.e., 7.24%)
because, according to Hutchison, the entries should have
been deemed liquidated in August 2013, one month before
Customs actually liquidated the entries at the 83.55%
rate provided in Commerce’s instructions. J.A. 1002,
1014–15. A deemed liquidation is a protestable event that
falls squarely within the ambit of 28 U.S.C. § 1581(a). See
Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364,
1374 (Fed. Cir. 2002) (An importer challenging liquidation
can “invoke[] the jurisdiction of the [CIT] under 28 U.S.C.
§ 1581(a) if, pursuant to 19 U.S.C. § 1514(a)(5),” which
cross-references the deemed liquidation provision of 19
U.S.C. § 1504, the importer “timely protest[s] the liquida-
tions.”); see also Cemex, S.A. v. United States, 384 F.3d
1314, 1324 (Fed. Cir. 2004) (“While we agree that Cus-
toms’[s] role in making antidumping decisions, i.e., in
calculating antidumping duties, is generally ministerial,
Customs here made a decision regarding liquidation,”
which may be protested under § 1514(a). (footnote omit-
ted)).
Hutchison’s contention that the true nature of its ac-
tion focuses on Commerce’s instructions belies the terms
of its Complaint. Hutchison included only one count in its
Complaint, and that count speaks only to deemed liquida-
tion, an action committed solely to Customs. 19 U.S.C.
§§ 1500(c)–(d), 1504(d). Had Hutchison intended its
action to concern Commerce’s liquidation instructions, we
suspect it would have included an additional count with
the relevant allegations and legal authority.
Our decision in Fujitsu confirms that the true nature
of Hutchison’s appeal concerns Customs’s liquidation of
its entries. In Fujitsu, the appellant argued that “Cus-
toms had improperly failed to liquidate the entries within
six months of having received notice that the injunction
against liquidation had been removed.” 283 F.3d at 1367
(emphasis added). The appellant in Fujitsu did not allege
10 HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES
a Commerce error. See id. We held that the appellant
could not invoke the CIT’s jurisdiction under 28 U.S.C.
§ 1581(i)(4) because the appellant could have pursued a
remedy under § 1581(a). See id. at 1376.
Hutchison’s Complaint attempts to distinguish its ap-
peal from Fujitsu by emphasizing the facts related to
Commerce’s June 25, 2013 instructions to Customs. J.A.
1013–15. Indeed, Hutchison attempts to attribute a
Customs decision (i.e., whether to treat certain entries as
deemed liquidated) to Commerce. See J.A. 1013–15; see
also 19 U.S.C. §§ 1500(c)–(d), 1504(d) (providing Customs
with the authority to deem entries liquidated). Although
the facts in the instant appeal and Fujitsu are different,
Hutchison’s recasting of the liquidation of its entries as a
Commerce error obscures the true nature of its action.
See Hartford Fire, 544 F.3d at 1293.
Accordingly, we agree with the CIT that Hutchison “is
challenging a decision by [Customs] as to the appropriate
time for liquidation,” that this “decision would have been
protestable under 19 U.S.C. § 1514(a)(5),” and any denial
of the protest would have been reviewable under 28
U.S.C. § 1581(a). 4 Hutchison, 71 F. Supp. 3d at 1380.
4 Even if we regarded the true nature of
Hutchison’s appeal to concern Commerce’s liquidation
instructions, such that the CIT possessed jurisdiction
under § 1581(i)(4), Hutchison fails to assert a claim for
which relief could be granted because it has not based its
claim for relief on a plausible legal theory. See, e.g., Fifth
Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2471–72
(2014) (explaining that allegations in a complaint must
rest on a plausible legal theory to survive a motion to
dismiss for failure to state a claim). Hutchison argues
that Customs should have determined the deemed liqui-
dation date by using the CIT’s February 5, 2013 Final
HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES 11
B. Hutchison’s Remedy Under 28 U.S.C. § 1581(a) Was
Not Manifestly Inadequate
“[J]urisdiction under subsection 1581(i) may not be
invoked if jurisdiction under another subsection of section
1581 is or could have been available, unless the other
subsection is shown to be manifestly inadequate.” Hart-
ford Fire, 544 F.3d at 1292 (citation omitted). “To be
manifestly inadequate, the protest must be an exercise in
futility”—i.e., “incapable of producing any result.” Id. at
1294 (internal quotation marks, emphasis, and citation
omitted). Although Hutchison alleges it “mistakenly
filed” a protest that Customs denied, Hutchison’s Br. 21
n.9, it nonetheless contends that any challenge to Cus-
toms’s liquidation of its entries would have been “mani-
festly [inadequate because its claim] could not have been
raised by protest and [therefore] by an action brought
under 28 U.S.C. § 1581(a),” id. at 21 (footnote omitted).
Specifically, Hutchison asserts that “a protest cannot be
filed with [Customs] to challenge a decision by another
federal agency, [such as Commerce,] in circumstances
Judgment as the starting point. Hutchison’s Br. 30.
However, that argument ignores Fujitsu, which held that
a final judgment does not take effect immediately, but
only after the time for further appeal expires, or the
mandate in any appeal therefrom issues and the time to
file a petition for certiorari expires. See, e.g., Fujitsu, 283
F.3d at 1379. Thus, because the relief sought in
Hutchison’s Complaint rests on a faulty legal premise, its
Complaint fails to state a claim for relief that the CIT
could grant. To the extent Hutchison asks us to reconsid-
er Fujitsu, see Hutchison’s Br. 31, we may not, see Deckers
Corp. v. United States, 752 F.3d 949, 965 (Fed. Cir. 2014)
(explaining that only the en banc court or the Supreme
Court has the authority to overrule prior precedential
panel decisions).
12 HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES
where [Customs’s] role in relation to that decision is
ministerial.” Id.
We have held that an importer “seeking to use [a
deemed liquidation] claim as a sword in a refund action
under 28 U.S.C. § 1581(i)” may not invoke jurisdiction
under § 1581(i)(4) if the importer “could have timely
protested Customs’[s] purported liquidations under 19
U.S.C. § 1514(a)(5).” Fujitsu, 283 F.3d at 1375–76 (em-
phasis added). Indeed, when Customs makes a decision
to liquidate, that decision is “[m]ore than passive or
ministerial” and “constitute[s] a ‘decision’ within the
context of section 1514(a).” Cemex, 384 F.3d at 1324. The
record demonstrates that Hutchison not only could have
filed a protest, but that it in fact did so after Customs
liquidated its entries. J.A. 1027. Hutchison’s incorrect
“belief that it had no remedy under subsection 1581(a)
[does] not make that remedy inadequate,” and in any
event is belied by the actions Hutchison took prior to
filing suit. Hartford Fire, 544 F.3d at 1294.
A party filing a protest is required to “set forth dis-
tinctly and specifically . . . the nature of each objection
and the reasons therefor.” 19 U.S.C. § 1514(c)(1)(C). In
its protest, Hutchison asserted that its entries were
outside the scope of the antidumping duty order. 5 J.A.
1030. It did not allege that the entries were or should
have been deemed liquidated pursuant to 19 U.S.C.
§ 1504(d), as it does in its Complaint. While Hutchison
could have raised its deemed liquidation argument at any
time before Customs denied its protest, see 19 U.S.C.
§ 1514(c)(1), its failure to do so means the CIT was unable
5 In this respect, Hutchison’s protest sought relief
from the wrong Federal agency. Commerce, not Customs,
determines whether a particular product falls within the
scope of an antidumping duty order. See 19 C.F.R.
§ 351.225(a).
HUTCHISON QUALITY FURNITURE, INC. v. UNITED STATES 13
to exercise jurisdiction pursuant to § 1581(a). See Fujitsu,
283 F.3d at 1371–73 (holding that the CIT may not invoke
§ 1581(a) jurisdiction over new grounds for relief that a
party does not raise in its protest to Customs). With that
avenue closed, Hutchison likely regarded § 1581(i)(4) as
its only option for judicial review. However, a party’s
failure to timely raise an argument to Customs in a
protest does not change the fact that jurisdiction under
section 1581(a) could have been available if the argument
had been timely raised. See id. at 1376; Juice Farms, 68
F.3d at 1346. Therefore, the CIT properly dismissed the
case for lack of jurisdiction.
CONCLUSION
We have considered Hutchison’s remaining argu-
ments and find them unpersuasive. Accordingly, the
decision of the United States Court of International Trade
is
AFFIRMED