United States v. American Home Assurance Co.

United States Court of Appeals
for the Federal Circuit
______________________
UNITED STATES,
Plaintiff-Cross-Appellant
v.
AMERICAN HOME ASSURANCE COMPANY,
Defendant-Appellant
______________________
2014-1292, 2014-1355
______________________
Appeals from the United States Court of International
Trade in No. 10-cv-00185, Senior Judge Richard W.
Goldberg.
______________________
Decided: June 17, 2015
______________________
EDWARD FRANCIS KENNY, International Trade Field
Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice, New York, NY,
argued for plaintiff-cross-appellant. Also represented by
STUART F. DELERY, JEANNE E. DAVIDSON, AMY M. RUBIN.
HERBERT C. SHELLEY, Steptoe & Johnson, LLP, Wash-
ington, DC, argued for defendant-appellant. Also repre-
sented by MARK FREDERICK HORNING, JEFFREY M.
THEODORE.
______________________
2 US v. AMERICAN HOME ASSURANCE CO.
Before MOORE, SCHALL, and REYNA, Circuit Judges.
SCHALL, Circuit Judge.
American Home Assurance Company (“AHAC”) ap-
peals, and the government cross-appeals, the final deci-
sion of the United States Court of International Trade in
United States v. American Home Assurance Co., 964 F.
Supp. 2d 1342 (Ct. Int’l Trade 2014) (“American Home”).
In its decision, the Court of International Trade made
three rulings on summary judgment. First, the court held
that AHAC was liable to the government under the con-
tinuous bond that it had issued to secure the payment of
antidumping duties owed by JCOF (USA) International,
Inc. (“JCOF”). Specifically, the court ruled that AHAC
was liable under the bond for antidumping duties in
connection with two entries of freshwater crawfish tail
meat from China. Id. at 1347–49. Second, the court held
that the government was not entitled to statutory pre-
judgment interest under 19 U.S.C. § 580 on the amount
due under the bond. Id. at 1351–54. Third, the court
held that AHAC was liable to the government for equita-
ble prejudgment interest on the amount due under the
bond. Id. at 1354–57. AHAC appeals the court’s rulings
on liability and equitable prejudgment interest; the
government cross-appeals its ruling on statutory pre-
judgment interest.
For the reasons set forth below, we (1) affirm the
Court of International Trade’s ruling that AHAC is liable
to the government under its bond; (2) reverse the court’s
ruling that the government is not entitled to statutory
prejudgment interest on the amount due; and (3) vacate
the court’s ruling that AHAC is liable to the government
for equitable prejudgment interest on the amount due.
The case is remanded to the Court of International Trade
for further proceedings consistent with this opinion.
US v. AMERICAN HOME ASSURANCE CO. 3
BACKGROUND
The facts of the case are generally undisputed and are
set forth in the Court of International Trade’s decision.
See Am. Home, 964 F. Supp. 2d at 1345–46. We recite
here the facts pertinent to the issues before us.
I.
Following a 1996 investigation, the U.S. Department
of Commerce (“Commerce”) determined that freshwater
crawfish tail meat imported from China was being sold in
the United States at less than fair market value. See
Freshwater Crawfish Tail Meat from the People’s Republic
of China, 62 Fed. Reg. 41,347 (Aug. 1, 1997). As a result,
Commerce ordered that entries of freshwater crawfish tail
meat from China be subject to antidumping duties upon
entry into the United States. 1
II.
JCOF is an importer based in New York. In 2001, it
arranged to import into the United States shipments of
freshwater crawfish tail meat from a Chinese exporter,
Yangzhou Lakebest Foods Company, Ltd. (“Yangzhou”).
Yangzhou did not export freshwater crawfish tail meat to
1 Dumping occurs when foreign-produced goods are
sold in the United States at a price below the sales price
in the country of origin. E.g., Dongbu Steel Co. v. United
States, 635 F.3d 1363, 1365 (Fed. Cir. 2011). If domestic
companies believe they are being injured by dumping
activity, they can lodge complaints with Commerce re-
questing the imposition of antidumping duties. Id.Commerce then conducts an investigation based on the
complaints to determine whether, and to what extent,
dumping is occurring. It orders antidumping duties if a
domestic industry is being injured by less-than-fair-
market prices. Id.4 US v. AMERICAN HOME ASSURANCE CO.
the United States during the period of Commerce’s 1996
investigation. For that reason, for purposes of exporting
freshwater crawfish tail meat to the United States in
2001, it qualified as a “new exporter” of merchandise
under 19 U.S.C. § 1675(a)(2)(B). Yangzhou’s “new export-
er” status gave JCOF options for how it could post the
security necessary for the Bureau of Customs and Border
Protection (“Customs”) to release the imported goods from
its custody. It had the option of “posting, until the com-
pletion of the [administrative] review [of the new export-
er], . . . a bond or security in lieu of a cash deposit.” 19
U.S.C. § 1675(a)(2)(B)(iii).
Exercising that option, JCOF chose to use a surety
company to post the required security. In April 2001, it
contracted with AHAC, a New York-based surety, for the
issuance of a one-year, continuous bond in the amount of
$600,000. 2 The bond became effective on May 4, 2001,
and provided Customs with security for future duties
owed on entries of freshwater crawfish tail meat from
Yangzhou. [J.A. 23] Under the terms of the bond, AHAC
and JCOF were jointly and severally obligated, and had a
liability cap of $600,000. Am. Home, 964 F. Supp. 2d at
1345.
During the period covered by the bond, JCOF made
two entries of crawfish tail meat from Yangzhou at the
Port of Los Angeles/Long Beach. Id. The entries occurred
on November 1, and 2, 2001, and were identified as M42–
1164064–2 and M42–1164065–9, respectively. At the
time of entry, JCOF declared a 0% ad valorem antidump-
2 A “continuous bond,” as compared to a “single
transaction bond,” covers “liabilities resulting from multi-
ple import transactions over a period of time, such as one
year.” Nat’l Fisheries Inst., Inc. v. U.S. Bureau of Cus-
toms & Border Prot., 465 F. Supp. 2d 1300, 1302 (Ct. Int’l
Trade 2006); see also 19 C.F.R. § 113.12.
US v. AMERICAN HOME ASSURANCE CO. 5
ing duty rate, which was the deposit rate then in effect for
shipments by Yangzhou. Id. Based on JCOF’s bond,
Customs allowed the freshwater crawfish tail meat to be
released from its custody and to enter the stream of
commerce in the United States.
Shortly thereafter, Commerce conducted an adminis-
trative review of freshwater crawfish tail meat entries
during the period of September 1, 2001, through August
31, 2002. 3 During the review, liquidation of JCOF’s two
entries was suspended while Yangzhou’s final antidump-
ing duty rate was determined. 4 When Commerce eventu-
ally published the final results of its administrative
review in February 2004, it assigned Yangzhou a 223.01%
ad valorem antidumping duty rate. See Freshwater
Crawfish Tail Meat from the People’s Republic of China,
69 Fed. Reg. 7,193, 7,194 (Feb. 13, 2004).
On May 12, 2004, Commerce issued instructions di-
recting Customs to liquidate JCOF’s November 2001
entries at the new rate assigned to Yangzhou. Customs
thereafter liquidated the entries on June 25, 2004, and
billed JCOF for duties owed. Am. Home, 964 F. Supp. 2d
at 1346. Following JCOF’s failure to pay the duties,
3 An interested party may request Commerce to
conduct an “administrative review” of an outstanding
antidumping order. See 19 U.S.C. § 1675. The final
results of such a review “shall be the basis for the assess-
ment of countervailing or antidumping duties on entries
of merchandise covered by the determination and for
deposits of estimated duties.” Id. at § 1675(a)(2)(C).
4 “Liquidation” means the final computation or as-
certainment of the duties accruing on an entry. 19 C.F.R.
§ 159.1. Under Commerce’s accounting system, and as a
result of suspended liquidations, the actual liquidation of
entries subject to an antidumping order may occur years
after the date of importation.
6 US v. AMERICAN HOME ASSURANCE CO.
Customs sought payment from AHAC, as JCOF’s surety.
In November 2004, AHAC denied liability and responded
to Customs’ demand for payment under the bond by filing
Protest No. 2704-04-102655 (the “102655 protest”).
At about the same time, Shanghai Taoen Internation-
al Trading Co., Ltd. (“Shanghai Taoen”), one of the other
exporters of freshwater crawfish tail meat subject to
Commerce’s 2004 administrative review, filed suit in the
Court of International Trade challenging the results of
the review. Id. Shanghai Taoen’s suit precipitated a
preliminary injunction enjoining liquidation of the entries
of crawfish tail meat exported by it. Id. Yangzhou was
not named in the injunction, however, as it was not a
party to the pending litigation. Id. Subsequently, in
February 2005, the Court of International Trade sus-
tained Commerce’s final results. Shanghai Taoen Int’l
Trading Co., Ltd. v. United States, 360 F. Supp. 2d 1339,
1348 (Ct. Int’l Trade 2005). The court’s affirmance dis-
solved the outstanding injunction, and Customs was
instructed to liquidate Shanghai Taoen’s entries at the
applicable rate.
Following dissolution of the Shanghai Taoen injunc-
tion, and even though the injunction had not applied to
shipments from Yangzhou, Customs reliquidated JCOF’s
two November 2001 entries on June 3, 2005, believing
that the original liquidations in June 2004 may have been
in violation of the Shanghai Taoen injunction. See Joint
Appendix (“J.A.”) 109–112. 5 As a result of those mistaken
5 In an August 7, 2007, letter to JCOF and AHAC,
Customs wrote that it believed the preliminary injunction
issued by the Court of International Trade in Shanghai
Taoen covered JCOF’s entries. As a result, Customs said
it had thought it should “unset” its original June 2004
liquidations as being in violation of the court’s order. J.A.
110. Reliquidation of JCOF’s entries in June 2005 fol-
US v. AMERICAN HOME ASSURANCE CO. 7
reliquidations, Customs voided its prior bills for duties
owed and issued new bills to JCOF. When JCOF failed to
pay the duties, Customs again sought payment from
AHAC. Several weeks later, in July 2005, apparently not
appreciating the effect of its reliquidation action, Customs
denied the 102655 protest. That protest had remained
unresolved following the original June 2004 liquidations.
In September 2005, Customs issued a second demand to
AHAC for payment of duties on the entries reliquidated in
June 2005.
AHAC did not appeal the denial of the 102655 protest
by filing suit in the Court of International Trade. In-
stead, in December 2005, it filed a second protest, Protest
No. 2704-05-102579 (the “102579 protest”), contesting
Customs’ further demand for payment under the continu-
lowed the court’s February 2005 opinion in Shanghai
Taoen sustaining the findings of Commerce’s administra-
tive review and lifting the injunction. Customs stated in
its 2007 letter that, when it reliquidated, it believed it
had authority to do so under 19 U.S.C. § 1504(d) because
the June 2005 reliquidations were being made within six
months of the court’s February 2005 order, which it
mistakenly perceived as removing a suspension of liquida-
tion covering JCOF’s entries. It is now undisputed that
the Shanghai Taoen preliminary injunction never applied
to JCOF’s entries and that 19 U.S.C. § 1501 therefore
provided the proper timeframe within which Customs
could have reliquidated the entries: “within ninety days
from the date on which notice of the original liquidation is
given or transmitted to the importer.” That is, in this
case, within ninety days of notice of the June 2004 liqui-
dations, Customs could have reliquidated. It is undisput-
ed that Customs’ June 2005 reliquidations fell outside of
the § 1501 timeframe and were thus erroneous, in addi-
tion to being unnecessary.
8 US v. AMERICAN HOME ASSURANCE CO.
ous bond following the erroneous reliquidations. In July
2006, Customs denied AHAC’s protest. AHAC did not file
an action in the Court of International Trade contesting
the denial.
On February 9, 2007, Customs sent a third demand
letter to AHAC. In it, Customs sought a total payment of
$1,157,898.22 for unpaid duties and interest in connection
with JCOF’s two November 2001 freshwater crawfish tail
meat entries. Am. Home, 964 F. Supp. 2d at 1346. AHAC
denied liability and refused to make payment under the
bond.
III.
On June 21, 2010, the government filed suit in the
Court of International Trade to recover from AHAC, as
JCOF’s surety, the duties and interest allegedly owed on
the November 2001 entries. The parties, in due course,
cross-moved for summary judgment on various issues.
Seeking summary judgment on the merits, AHAC assert-
ed that the government’s collection action was moot due
to the 2005 reliquidations. It argued that the erroneous
reliquidations voided the previous timely liquidations of
June 2004, resulting in a scenario where no valid liquida-
tion or reliquidation occurred. According to AHAC, since
no valid liquidation was on record, the entries at issue
should have been deemed liquidated by operation of law
under 19 U.S.C. § 1504(d) at the initially-declared 0% rate
six months after the suspension of liquidation was re-
moved in February 2004.
The government moved for summary judgment on en-
titlement to prejudgment statutory interest under 19
U.S.C. § 580. Section 580 provides that “[u]pon all bonds,
on which suits are brought for the recovery of duties,
interest shall be allowed . . . from the time when said
bonds became due.” The government argued that the
statute’s plain language mandated that it be awarded
interest for AHAC’s delayed payment under the continu-
US v. AMERICAN HOME ASSURANCE CO. 9
ous bond. The government also claimed entitlement to
equitable prejudgment interest.
In the decision now on appeal, the Court of Interna-
tional Trade ruled on the summary judgment motions.
The court first determined that AHAC was legally obli-
gated to pay under its continuous bond. Am. Home, 964
F. Supp. 2d at 1347. It agreed with AHAC that the 2005
reliquidations superseded and voided the original liquida-
tions. It ruled, however, that AHAC was required to
preserve its rights by timely protesting the reliquidations
by instituting litigation. Id. at 1347, 1349. The court
concluded that, under our decision in Juice Farms, Inc. v.
United States, 68 F.3d 1344 (Fed. Cir. 1995), the 2005
reliquidations became final, “whether legal or not,” once
AHAC failed to challenge them in court. Am. Home, 964
F. Supp. 2d at 1347 (quoting Juice Farms, 68 F.3d at
1346). The court held that since AHAC failed to timely
challenge the reliquidations in court, it had failed to
preserve its rights and was thus liable under the continu-
ous bond. Id. at 1349.
Having found AHAC liable, the Court of International
Trade next held that the government was not entitled to
statutory prejudgment interest under § 580. Id. at 1350–
55. In the court’s view, the historical context of the stat-
ute did not allow the word “duties” to encompass anti-
dumping duties. The court determined that, “in the
period since the statute’s enactment over 200 years ago,
Congress, courts, and the Government itself have coun-
seled that antidumping duties are not comparable to
normal customs duties in function, purpose, and charac-
ter.” Id. at 1352. In reaching its decision, the court relied
on Dynacraft Industries v. United States, 118 F. Supp. 2d
1286 (Ct. Int’l Trade 2000), and Wheatland Tube Co. v.
United States, 495 F.3d 1355 (Fed. Cir. 2007). The court
stated that, in Dynacraft, it had previously interpreted
“duties” in an interest statute, 19 U.S.C. § 1505, as en-
compassing only “ordinary” customs duties. Am. Home,
10 US v. AMERICAN HOME ASSURANCE CO.
964 F. Supp. 2d at 1353 (citing Dynacraft, 118 F. Supp. 2d
at 1292). Citing our decision in Wheatland Tube, the
court noted that the government itself had previously
advocated for the interpretation of “duties” adopted in
Dynacraft. Id. (citing Wheatland Tube, 495 F.3d at 1361–
63).
The Court of International Trade did rule, though,
that the government was entitled to equitable prejudg-
ment interest (in excess of the $600,000 bond limit) for
AHAC’s use of the money owed after payment had become
due. Id. at 1354–57. The court determined that both
equity and fairness weighed in favor of awarding equita-
ble interest to the government. Id. at 1356–57.
AHAC timely appealed the Court of International
Trade’s decision on liability and equitable interest; the
government timely cross-appealed the court’s denial of
§ 580 interest. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(5).
DISCUSSION
In the Court of International Trade, summary judg-
ment is available when “the movant shows that there is
no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” U.S. Ct.
Int’l Trade R. 56(a). We review the Court of International
Trade’s grant or denial of summary judgment “for cor-
rectness as a matter of law, deciding de novo the proper
interpretation of the governing statute and regulations as
well as whether genuine issues of material fact exist.” St.
Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763,
767 (Fed. Cir. 1993); see also Esso Standard Oil Co. (PR)
v. United States, 559 F.3d 1297, 1300 (Fed. Cir. 2009). As
noted, in this case the material facts are not in dispute.
US v. AMERICAN HOME ASSURANCE CO. 11
I.
A.
AHAC argues that the Court of International Trade
erred in finding it liable under the continuous bond for
antidumping duties. It contends that, despite being
unnecessary and erroneous, the June 2005 reliquidations
were valid for purposes of superseding and voiding the
timely June 2004 liquidations. In the same breath,
though, it urges that because the reliquidations occurred
more than ninety days after the June 2004 liquidations,
they were nevertheless invalid under 19 U.S.C. § 1501 for
purposes of conferring liability. AHAC states that § 1501
requires that reliquidations not occurring “within ninety
days from the date on which notice of the original liquida-
tion is given” are considered void. 6 Id. Thus, in AHAC’s
view, no valid liquidation or reliquidation occurred, and,
consequently, the “deemed liquidation” provisions of 19
U.S.C. § 1504(d) must therefore apply.
Subsection 1504(d), titled “Removal of suspension,”
provides a timeframe within which, following the removal
of a suspension of liquidation, Customs must properly
liquidate an entry or otherwise accept the rate initially
declared by the importer. It states that the “Customs
Service shall liquidate the entry, unless liquidation is
6 The first sentence of § 1501 provides, in full: “A
liquidation made in accordance with section 1500 or 1504
of this title or any reliquidation thereof made in accord-
ance with this section may be reliquidated in any respect
by the Customs Service, notwithstanding the filing of a
protest, within ninety days from the date on which notice
of the original liquidation is given or transmitted to the
importer, his consignee or agent.” It is undisputed that
the June 2005 reliquidations occurred outside of that
statutory timeframe.
12 US v. AMERICAN HOME ASSURANCE CO.
extended under subsection (b) of this section, within 6
months after receiving notice of the removal from the
Department of Commerce, other agency, or a court with
jurisdiction over the entry.” Continuing, it provides: “Any
entry . . . not liquidated by the Customs Service within 6
months after receiving . . . notice [of the removal of a
suspension order] shall be treated as having been liqui-
dated at the rate of duty . . . asserted at the time of entry
by the importer of record.” According to AHAC, the two
shipments of freshwater crawfish tail meat imported by
JCOF in November 2001 were “deemed liquidated” in
August 2004 at the 0% rate declared at the time of entry,
because there was no valid liquidation of the entries
within six months of the removal of the suspension order
in February 2004.
AHAC also argues that it was not required to chal-
lenge in court the “legally void” 2005 reliquidations in
order to preserve its contention that the reliquidations
were invalid for purposes of conferring liability. AHAC
contends that the Court of International Trade erred in
finding that its failure to appeal the denied 102579 pro-
test resulted in the reliquidations being “final and conclu-
sive” because the entries were deemed liquidated before
that time. It relies on United States v. Cherry Hill Tex-
tiles, Inc. in support of its position that, if entries are
deemed liquidated, a subsequent reliquidation need not
be protested in order to preserve defenses to future collec-
tion actions. 112 F.3d 1550, 1560 (Fed. Cir. 1997).
The government responds by arguing that no “deemed
liquidation” occurred. It contends that the original June
2004 liquidations were timely made under § 1504(d)
because they took place within six months of the removal
of the suspension of liquidation that was in place during
Commerce’s 2004 administrative review. It asserts that
AHAC prevented those liquidations from becoming final
and conclusive by filing the 102655 protest in November
2004, and that the government reliquidated the entries in
US v. AMERICAN HOME ASSURANCE CO. 13
June 2005 before the pending protest was denied. Alt-
hough AHAC protested the later, mistaken 2005 reliqui-
dations in the 102579 protest in December 2005, the
government argues that AHAC’s failure to contest the
denial of the 102579 protest at the Court of International
Trade allowed those reliquidations to become final and
conclusive pursuant to 19 U.S.C. § 1514(a) and relevant
case law. 7
B.
We agree with the Court of International Trade that
AHAC is liable to the government under the continuous
bond. Contrary to AHAC’s protestations, no “deemed
liquidation” occurred here. Under § 1504(d), an entry is
only deemed to be liquidated by operation of law when it
is “not liquidated by the Customs Service within 6 months
after receiving [a notice of removal of a suspension of
liquidation]” from Commerce. We have explained that,
under § 1504(d), three elements are required in order for
a deemed liquidation to occur: “(1) the suspension of
liquidation that was in place must have been removed; (2)
Customs must have received notice of the removal of the
suspension; and (3) Customs must not liquidate the entry
at issue within six months of receiving such notice.”
Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364,
1376 (Fed. Cir. 2002).
The liquidation of JCOF’s November 2001 entries was
suspended pending the conclusion of Commerce’s admin-
7 In relevant part, 19 U.S.C. § 1514(a) provides that
liquidation and reliquidations “shall be final and conclu-
sive upon all persons (including the United States and
any officer thereof) unless a protest is filed in accordance
with this section, or unless a civil action contesting the
denial of a protest, in whole or in part, is commenced in
the United States Court of International Trade.”
14 US v. AMERICAN HOME ASSURANCE CO.
istrative review. See Freshwater Crawfish Tail Meat from
the People’s Republic of China, 69 Fed. Reg. 7,193, 7,194
(Feb. 13, 2004). Thereafter, following completion of the
administrative review, and publication thereof in the
Federal Register on February 13, 2004, id., Commerce
instructed Customs, on May 12, 2004, to proceed with
liquidating the entries. Customs did not delay liquidation
for over “six months after receiving notice.” 19 U.S.C.
§ 1504(d). Instead, it timely liquidated both entries
within five months, on June 25, 2004. Thus, the third
element required for a “deemed liquidation” to occur is
clearly absent. See Fujitsu Gen. Am., 283 F.3d at 1376(“Customs must not liquidate the entry at issue within six
months of receiving such notice.”).
To avoid this straightforward result, AHAC contends
that the 2005 reliquidations superseded and voided the
original timely liquidations, with the result that it is as if
Customs’ prior actions never took place. In other words,
AHAC asks us to hold that the 2005 reliquidations retro-
actively created a void in the chain of events, producing
the possibility that a final and conclusive deemed liquida-
tion occurred before the reliquidations. We are unable to
accept the invitation. By liquidating in June 2004, Cus-
toms did take the action required under the statute to
avoid liquidation by operation of law. Moreover, at the
time of Customs’ mistaken reliquidations, the 102655
protest, filed by AHAC in November 2004, was pending.
See 19 U.S.C. § 1514(a) (providing that liquidations
become final “unless a protest is filed”). Thus, at the time
of the June 2005 reliquidations, Customs had acted to
liquidate the entries and the original liquidations were
not yet final. In short, nothing had triggered the opera-
tion of the “deemed liquidation” provision of § 1504(d).
AHAC’s theory of “retroactive deemed liquidation”
would create a universe where a reliquidation made by
Customs could be simultaneously valid for purposes of
retroactively vacating an earlier liquidation, thereby
US v. AMERICAN HOME ASSURANCE CO. 15
giving rise to a “deemed liquidation” under § 1504(d), but
invalid for purposes of conferring liability. AHAC’s theo-
ry, and the rule it creates, would subvert the purpose
behind § 1504(d). As we explained in Cherry Hill, “[t]he
‘deemed liquidated’ provision . . . was added to the cus-
toms laws in 1978 to place a limit on the period within
which importers and sureties would be subject to the
prospect of liability for a customs entry.” 112 F.3d at
1559. If Customs takes action within that “period,”
importers are timely aware of their liability. Here, Cus-
toms’ original, timely liquidation placed the “prospect of
liability” clearly and fairly upon AHAC. Id. Indeed, the
June 2005 reliquidations were calculated under the same
223.01% ad valorem antidumping duty rate as the origi-
nal June 2004 liquidations. AHAC knew full well of its
liability; it faced none of the concerns that § 1504(d) aims
to alleviate.
Cherry Hill, upon which AHAC relies, does not in fact
support its position. In Cherry Hill, Customs failed to
make an original liquidation for over thirteen months
after September 18, 1987, when the goods at issue were
entered as duty free. Id. at 1551. Eventually, on October
28, 1988, Customs liquidated the entry as dutiable in the
amount of $12,220.62. Id. The government gave notice of
the liquidation to Cherry Hill and subsequently demand-
ed payment from Cherry Hill’s surety, International
Cargo & Surety Insurance Co. (“IC&S”), under the bond it
had given. IC&S refused to make payment. It did not,
however, protest under 19 U.S.C. § 1514 either the liqui-
dation or the demand for payment. Id. After the passage
of the ninety-day period within which a protest could be
filed, the government filed an enforcement action in the
Court of International Trade seeking recovery of the
assessed duties. The court granted summary judgment to
the government for the full amount of its claim for duties,
plus interest. Id.16 US v. AMERICAN HOME ASSURANCE CO.
On appeal, IC&S contended that summary judgment
should not have been granted in favor of the government
because the entry at issue was “deemed liquidated” duty
free by operation of law when Customs failed to liquidate
it within the one-year period required by 19 U.S.C.
§ 1504(a). We agreed with IC&S that it was not required
to protest the October 1988 liquidation in order to defend
against Customs’ enforcement action by arguing that
Customs was legally foreclosed from liquidating the entry
anew after the entry had been deemed liquidated. Id. at
1558, 1560. We held that a “‘deemed liquidation’ defense
did not have to be raised through a protest, and that the
trial court should have considered that issue on the
merits.” Id. at 1558. Relying on United States v. Sher-
man & Sons Co., 237 U.S. 146 (1915), we created a nar-
row exception to the usual timely protest requirement set
forth in 19 U.S.C. § 1514. Cherry Hill, 112 F.3d at 1558–
59. We explained that an exception was necessary to
prevent Customs from “purport[ing] to liquidate an entry
anew, years after the first liquidation had become final,
and thereby impos[ing] liability on the importer or surety
if the importer or surety were not vigilant in watching for
notice of such untimely liquidations or if it were no longer
able to undertake the burden of filing and pursuing a
protest.” Id. at 1560.
However, the entry in Cherry Hill, unlike the entries
here, “was deemed liquidated . . . one year after the entry”
because the government took no action at all within the
statutory period set forth in § 1504(a). Id. at 1559.
Rather, Customs purported to make a new liquidation a
month later, outside the one-year period from entry, and
attempted to treat that new liquidation as the operative
liquidation. We held that Customs lost its opportunity to
do so because the “deemed liquidation” was already final
and conclusive. Id. at 1560 (“In cases in which a liquida-
tion has become final, the government cannot seek to
recover additional duties simply by making a new liquida-
US v. AMERICAN HOME ASSURANCE CO. 17
tion of the original entry.”). Unlike in Cherry Hill, where
a deemed liquidation occurred pursuant to § 1504(a), in
this case there was no deemed liquidation under
§ 1504(d). The reason is that the original liquidations of
June 2004 were timely (because they were made within
six months of the notice of removal of the suspension of
liquidation). Moreover, they were not final at the time of
the reliquidations (because of AHAC’s pending protest).
In short, this is not a case where Customs “purport[ed] to
liquidate an entry anew, years after the first liquidation
had become final.” Id.
Because we conclude that no “deemed liquidation” oc-
curred, AHAC’s theory of zero liability must fail. This
case is governed, not by Cherry Hill, but by the ordinary
timely protest requirements. See 19 U.S.C. § 1514(a). In
Juice Farms, we directly addressed whether the time
limit for protests set forth in § 1514(a) “applies to alleged-
ly illegal liquidations,” such as Customs’ 2005 reliquida-
tions of JCOF’s entries. 68 F.3d at 1345. We held that
“all liquidations, whether legal or not, are subject to the
timely protest requirement” and that “[w]ithout a timely
protest, all liquidations become final and conclusive under
19 U.S.C. § 1514.” Id. at 1346.
In sum, even though it is undisputed that Customs’
2005 reliquidations were erroneous, AHAC’s failure to
challenge those reliquidations in the Court of Interna-
tional Trade resulted in those liquidations becoming final
and conclusive. Id.; see also Cherry Hill, 112 F.3d at 1559(“this court does not recognize a distinction between ‘void’
and ‘voidable’ liquidations for purposes of determining the
applicability of the protest requirement”); Omni U.S.A.,
Inc. v. United States, 840 F.2d 912, 915 (Fed. Cir. 1988)
(same); United States v. A.N. Deringer, Inc., 593 F.2d
1015, 1020 (CCPA 1979) (same). We therefore affirm the
Court of International Trade’s decision that AHAC is
legally obligated to pay under its continuous bond.
18 US v. AMERICAN HOME ASSURANCE CO.
II.
We turn now to the government’s cross-appeal, ad-
dressing the issue of whether statutory prejudgment
interest under 19 U.S.C. § 580 applies to antidumping
duties. As noted, § 580, titled “Interest in suits on bonds
for recovery of duties,” provides that “[u]pon all bonds, on
which suits are brought for the recovery of duties, interest
shall be allowed . . . from the time when said bonds be-
came due.” The Court of International Trade held that
§ 580 does not apply to bonds that secure antidumping
duties. On appeal, we review the court’s statutory inter-
pretation de novo. 8 Princess Cruises, Inc. v. United
States, 397 F.3d 1358, 1357 (Fed. Cir. 2005).
A.
The government contends that the Court of Interna-
tional Trade erred in holding that AHAC is not liable for
§ 580 interest on the delayed payment of the antidumping
duties owed under the continuous bond. In particular, the
government argues that the court erred in finding that
“duties” in § 580 refers only to traditional customs duties,
and not to “special” duties, such as antidumping duties.
It argues that the court mistakenly focused its inquiry on
the types of “duties” instead of on the fact that the statute
provides for interest on “all bonds.” In the government’s
view, the statute is broad enough on its face to cover all
customs bonds, not simply bonds relating to traditional
8 Because neither Customs nor any other agency
has been charged with administering § 580, we, like the
Court of International Trade, construe the statute with-
out deference. See Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984) (requiring
Chevron deference to an agency’s reasonable interpreta-
tion only in the case of “construction of a statutory scheme
it is entrusted to administer”).
US v. AMERICAN HOME ASSURANCE CO. 19
customs duties. The government argues that, when § 580
was enacted, Congress understood and intended “duties”
to include protectionist elements similar to modern day
antidumping statutes. It argues that § 580 furthers the
goals of those shared protectionist principles and moti-
vates sureties to timely pay under issued bonds. It fur-
ther argues that, even if “duties” was once meant to
include only traditional customs duties, the scope of a
statute can expand over time to include circumstances
that did not exist when it was first enacted.
AHAC, for its part, agrees with the Court of Interna-
tional Trade that § 580 is limited to bonds securing tradi-
tional customs duties, and does not cover bonds securing
antidumping duties. It asserts that the original act,
codified in 1799, was for the purpose of regulating the
“collection of duties on imports and tonnage.” Act of
March 2, 1799, ch. 22, § 65, 1 Stat. 627. According to
AHAC, this means the act was directed to traditional,
revenue-raising duties. Citing Canadian Wheat Board v.
United States, AHAC contends that antidumping duties
are not considered revenue-raising duties and fall outside
of § 580’s scope. 641 F.3d 1344, 1351 (Fed. Cir. 2011)
(“Antidumping duty orders are imposed ‘for reasons other
than the raising of revenue.’ They are imposed to protect
American industries against unfair trade practices by
foreign entities who sell in the American market.”).
AHAC also points out that the “recovery of duties” lan-
guage in the modern version of § 580 was not altered
when § 580 was recodified four years after the antidump-
ing statutes were first enacted in 1921. According to
AHAC, this suggests that § 580 exists separate and apart
from the antidumping scheme.
AHAC further contends that the Court of Interna-
tional Trade’s interpretation of § 580 is supported by the
positions taken by the government in prior cases. For
example, AHAC notes that, in Wheatland Tube, the
government argued that antidumping duties should be
20 US v. AMERICAN HOME ASSURANCE CO.
distinguished from “normal,” or “general,” customs duties
and therefore should be treated differently. 495 F.3d at1361–62; see also Dynacraft, 118 F. Supp. 2d at 1291.
And, it asserts that we have recognized the government’s
recent change of position regarding whether § 580 applies
to bonds securing the payment of special duties, as well as
to bonds securing the payment of traditional duties. It
points out that, in United States v. Great American Insur-
ance Co. of New York, we noted that the government “only
recently . . . beg[an] to invoke section 580 in cases involv-
ing antidumping . . . duties,” which we characterized as “a
seemingly major change in the government’s asserted
position on the scope and relationship of old laws.” 738
F.3d 1320, 1327 (Fed. Cir. 2013). AHAC contends that
our decision in Great American suggests the correctness of
the Court of International Trade’s decision in this case.
In addition, AHAC argues that the separate treat-
ment of traditional and special duties reflects their differ-
ent underlying roles. It argues that antidumping duties,
while serving some protectionist purposes, are primarily
remedial in nature. It posits that Customs has long
viewed antidumping duties as “different from normal
customs duties because they implement a trade remedy.”
Stainless Steel Wire Rod from the Republic of Korea, 69
Fed. Reg. 19,153, 19,159 n.22 (April 12, 2004). It states
that we have said that “[a]ntidumping duties aim to
remedy sales by a foreign exporter in the U.S. market at
less than fair value. . . . Normal customs duties, [by]
contrast, have no remedial purpose.” Wheatland Tube,
495 F.3d at 1362.
B.
We hold, as a matter of law, that 19 U.S.C. § 580 pro-
vides for interest on bonds securing both traditional
customs duties and antidumping duties. We therefore
reverse the contrary holding of the Court of International
Trade.
US v. AMERICAN HOME ASSURANCE CO. 21
Our analysis begins with the language of § 580. E.g.,
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“The
starting point in discerning congressional intent is the
existing statutory text . . . .”); Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997) (“Our first step in interpreting a
statute is to determine whether the language at issue has
a plain and unambiguous meaning . . . .”). When the
statutory language is plain, we must enforce it according
to its terms. E.g., Dodd v. United States, 545 U.S. 353,
359 (2005); Lamie, 540 U.S. at 534. “In reviewing the
statute’s text, we give the words ‘their “ordinary, contem-
porary, common meaning,” absent an indication Congress
intended them to bear some different import.’” Indian
Harbor Ins. Co. v. United States, 704 F.3d 949, 954 (Fed.
Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 420, 431
(2000)).
Section 580 is a short, free-standing statute within
the Administrative Provisions section of Chapter 3 in
Title 19. It does not cross-reference other statutory
provisions and provides, in full: “Upon all bonds, on which
suits are brought for the recovery of duties, interest shall
be allowed at the rate of 6 per centum a year, from the
time when said bonds became due.” 19 U.S.C. § 580(emphases added). The language—“all bonds” on which
the government sues for “the recovery of duties”—is clear
and unqualified. As written, the term “duties” does not
modify the type of “bonds” on which interest shall be
allowed. Instead, the statute calls for interest on “all
bonds.” The term “duties” reflects only the requisite res
litigiosae—i.e., the general nature of the disputed proper-
ty in the government’s legal action against the surety.
Thus, by the statute’s plain terms, it covers, among other
things, bonds securing the payment of antidumping
duties when the government sues for payment under
those bonds. See Camargo Correa Metais, S.A. v. United
States, 200 F.3d 771, 773 (Fed. Cir. 1999) (“If the words
22 US v. AMERICAN HOME ASSURANCE CO.
are unambiguous, no further inquiry is usually re-
quired.”).
The fact that Congress first enacted § 580 in 1799 and
the fact that the statute at that time applied only to bonds
securing payment of then-existing customs duties do not
alter the plain-meaning analysis. As the Court of Inter-
national Trade recognized, statutory scope can and does
expand over time to encompass circumstances that did
not exist at the date of enactment. Am. Home, 964 F.
Supp. 2d at 1351; see also West v. Gibson, 527 U.S. 212,
218 (1999) (“Words in statutes can enlarge or contract
their scope as other changes, in law or in the world,
require their application to new instances . . . .”). It is
well established that, even though a “statute is presumed
to speak from the time of its enactment,” a statute later
“embraces all such persons or things as subsequently fall
within its scope, and ceases to apply to such as thereafter
fall without its scope.” De Lima v. Bidwell, 182 U.S. 1,
197 (1901); see also Barr v. United States, 324 U.S. 83, 90
(1945) (“[I]f Congress has made a choice of language
which fairly brings a given situation within a statute, it is
unimportant that the particular application may not have
been contemplated by the legislators.”); Newman v. Ar-
thur, 109 U.S. 132, 138 (1883) (statutes apply to later-
created circumstances if the “language fairly and clearly
includes them”). Thus, the creation of the current system
of levying antidumping duties in 1921, more than a
hundred years after enactment of what is now § 580, see
Antidumping Act of 1921, Pub. L. No. 67–10, 42 Stat. 11,
is not an obstacle to concluding that the plain terms of
§ 580 encompass bonds for securing the payment of such
duties.
Moreover, since § 580 was enacted in 1799, there have
been only minimal changes to the statutory language.
The original act, which was titled “An Act to regulate the
collection of duties on imports and tonnage,” provided:
“And on all bonds upon which suits shall be commenced,
US v. AMERICAN HOME ASSURANCE CO. 23
an interest shall be allowed at the rate of six per cent. per
annum, from the time when said bonds become due, until
the payment thereof.” Act of March 2, 1799, ch. 22, § 65,
1 Stat. 627, 677. The current version of the statute was
adopted in 1873. At that time, Congress retained the
phrase “all bonds” and incorporated the word “duties”
from the title of the original act into the phrase “for the
recovery of duties,” which is now in the body of the stat-
ute. 9 Compare id. at 627 (titled “An Act to regulate the
collection of duties on imports and tonnage”), with 1 Rev.
Stat. 181, § 963 (1875), and 19 U.S.C. § 580 (2012). Thus,
there have been no changes in the statutory language
which, on their face, would serve to move bonds for secur-
ing antidumping duties outside the scope of the statute.
Congress, for instance, did not alter the language or the
scope of § 580 following the enactment of the Antidump-
ing Act of 1921 or following § 580’s incorporation into
Title 19 from Title 28 in 1948. Act of June 25, 1948, ch.
646, § 1, 62 Stat. 869; see also Am. Home, 964 F. Supp. 2d
at 1350 (explaining that “Congress has not substantially
updated § 580 or otherwise signaled whether the statute
applies to antidumping duties”).
There is also no legislative history surrounding § 580
to suggest a reading that deviates from the plain lan-
guage of the statute. Neither party contends that any
legislative history is instructive as to whether the “all
9 The 1873 version of the statute appeared in the
1875 Revised Statutes with other provisions governing
“The Judiciary.” It first entered the United States Code
in Title 28, Judiciary and Judicial Procedure, see 28
U.S.C. § 787 (1926), fifty-one years later. In 1948, Con-
gress revised Title 28, and § 580 was moved without
change from Title 28 to its current location in Title 19,
which is now titled Customs Duties. See Act of June 25,
1948, ch. 646, § 1, 62 Stat. 869.
24 US v. AMERICAN HOME ASSURANCE CO.
bonds” language was intended to mean only bonds secur-
ing traditional, revenue-raising duties, to the exclusion of
antidumping duties. At the same time, the limited num-
ber of interpretations of § 580 suggests a broad and
independent purpose for § 580 that is consistent with its
plain language. In 1983, for example, Customs expressed
the view that § 580 is “not an interest charge for the use
of funds, but an exaction aimed at motivating apparently
recalcitrant debtor sureties to pay rather than force the
Government to sue to collect.” Proposed Customs Regula-
tions Amendments To Establish Interest Charges on
Certain Delinquent Accounts, 48 Fed. Reg. 10,077, 10,078
(Mar. 10, 1983) (emphasis added); see also Act of March 2,
1799, ch. 22, § 65, 1 Stat. 627, 676 (providing § 580 inter-
est for the situation “where any bond for the payment of
duties shall not be satisfied on the day it may become
due”). That purpose—which applies equally to “all
bonds,” whether securing traditional duties or antidump-
ing duties—is echoed by our decision in United States v.
Federal Insurance Co., 857 F.2d 1457, 1459 (Fed. Cir.
1988). In Federal Insurance, we suggested no limitation
as to the types of customs bonds covered by § 580, but
stated simply that “whenever a court awards unpaid
import duties in a suit upon a bond, interest must be
attached pursuant to section 580.” Id. Neither AHAC nor
the Court of International Trade have pointed us to an
interpretation of the language of § 580 that teaches
something other than the statute’s ordinary meaning.
The Court of International Trade’s opinion and
AHAC’s arguments on appeal are based largely on the
fact that, in certain other instances, “duties” has been
separated into “regular” and “special” duties. Am. Home,
964 F. Supp. 2d at 1352–53; Defendant-Appellant Resp. &
Repl. Br. 25–27. For example, both AHAC and the court
cite to Dynacraft, 118 F. Supp. 2d 1286. In that case, the
Court of International Trade determined that “regular
duties” included customs duties and that “special duties”
US v. AMERICAN HOME ASSURANCE CO. 25
included antidumping duties. Id. at 1291. After review-
ing the use of the word “duties” in the pre- and post-
Uruguay Rounds Agreement Act statutory schemes, the
court held that “antidumping and countervailing duties
were never intended to be regular or general duties.” Id.
at 1292. The Court of International Trade in this case
found that logic to be persuasive against the approach of
interpreting the “open-ended word ‘duties’” in § 580 “to
include all types of duties.” Am. Home, 964 F. Supp. 2d at
1354.
In Dynacraft, however, the court was not confronted
with the question of whether there is a difference be-
tween, on the one hand, bonds securing the payment of
“regular” duties and, on the other, bonds securing the
payment of “special” duties. Instead, the court addressed
the rather narrow and technical issue of whether over-
payment of estimated antidumping duty cash deposits
made pursuant to 19 U.S.C. § 1673b(d)(1)(B) constituted
“duties” under 19 U.S.C. §§ 1505(b) and (c), so that the
party making the overpayment became entitled to inter-
est on “excess moneys.” 10 118 F. Supp. 2d at 1291–92.
The plaintiff in that case, Dynacraft Industries, Inc.
(“Dynacraft”), argued that it was entitled to interest
under § 1505(c) on the cash deposits it had posted pursu-
ant to § 1673b(d)(1)(B) before an antidumping duty order
was published. The Court of International Trade agreed
with the government, however, that 19 U.S.C. §§ 1673f
and 1677g, which are part of the antidumping laws,
10 Subsection 1505(b), addressing “refunds of du-
ties,” provides, in relevant part, that “[r]efunds of excess
moneys deposited, together with interest thereon, shall be
paid within 30 days of liquidation or reliquidation.”
Subsection 1505(c) provides interest on “excess moneys”
“from the date the importer of record deposits estimated
duties, fees, and interest.”
26 US v. AMERICAN HOME ASSURANCE CO.
governed the payment of interest in the case. Sections
1673f and 1677g, respectively, cover the treatment of
estimated and final duties under antidumping duty
orders and provide for interest on overpayments. Those
provisions, the court stated, “prohibit the payment of
interest for security posted before the publication of an
antidumping order.” Id. at 1287. Rejecting Dynacraft’s
arguments, the court determined that § 1505(b) did not
control, but it did not decide the case based on the ground
that the word “duties” in § 1505(b) excludes antidumping
duties. Id. at 1292. It explicitly based its decision on four
other grounds related to the interplay between 19 U.S.C.
§§ 1505, 1673f, and 1677g. See id. It left open the ques-
tion of “whether or not for some purposes 19 U.S.C.
§ 1505(b) and (c) include antidumping duties among the
‘[d]uties, fees, and interest determined to be due upon
liquidation or reliquidation.’” Id.Neither does Wheatland Tube support the result
urged by AHAC. Wheatland Tube was cited by the Court
of International Trade and is relied upon by AHAC. In
Wheatland Tube, the issue was whether Ҥ 201 safeguard
duties” are “United States import duties” under 19 U.S.C.
§ 1677a(c)(2)(A), which covers the determination of export
price for antidumping purposes. See 495 F.3d at 1357. 11
The government took the position that § 201 duties are
“special antidumping duties” because they are “more
like . . . [antidumping duties] in purpose and function
than they are like ordinary customs duties.” Id. at 1362
(alterations in original). Ultimately, we determined that
“Commerce’s interpretation that ‘United States import
11 Section 201 of the Trade Act of 1974, 19 U.S.C.
§ 2251, authorizes the President to impose “safeguard
duties” if merchandise is imported to the United States in
such large quantities that it injures domestic industry.
Wheatland Tube, 495 F.3d at 1357.
US v. AMERICAN HOME ASSURANCE CO. 27
duties’ does not include § 201 safeguard duties for the
purposes of determining the [export price] and calculating
. . . dumping margin is reasonable.” Id. at 1363. Wheat-
land Tube did not address surety bonds or distinctions
between bonds that secure the payment of various types
of duties owed. Rather, it focused on a different statutory
scheme; it addressed whether “safeguard duties” paid
under § 201 of the Trade Act of 1974, 19 U.S.C. § 2251,
are considered “United States import duties” under 19
U.S.C. § 1677a(c)(2)(A) for purposes of calculating dump-
ing margins. Nothing in Wheatland Tube justifies deviat-
ing from the plain language of § 580 in this case.
As AHAC points out, in Great American we did state
that the government’s decision “to invoke section 580 in
cases involving antidumping (or, apparently, countervail-
ing) duties” seemed like a “major change in the govern-
ment’s asserted position on the scope and relationship of
old laws.” 738 F.3d at 1327. We did not, however, take
the position that § 580 is not applicable to bonds securing
the payment of antidumping duties. Rather, we said that
“[t]he characterization [of § 580 interest as a penalty]
leaves, rather than disposes of, questions about whether
section 580 applies to antidumping duties at all and
whether, if so, case-specific equitable considerations are
relevant to its application, as is common under other,
variously worded authorizations to apply penalties.” Id.
(footnote omitted). We determined in Great American
that the prejudgment interest issue needed further devel-
opment at the trial level “because the government’s
request . . . raise[d] significant questions about, for exam-
ple, the equitable considerations attending equitable
interest and/or section 580 interest, the novelty of appli-
cation of section 580 to antidumping duties, and the
soundness of the theory that both types of interest should
be awarded.” Id. at 1328. In this case, unlike Great
American, development of the necessary legal and factual
28 US v. AMERICAN HOME ASSURANCE CO.
issues relating to the application of § 580 interest has
taken place.
In sum, nothing before us overcomes the clear lan-
guage of 19 U.S.C. § 580. We, accordingly, reverse the
decision of the Court of International Trade and hold that
the government is entitled to statutory prejudgment
interest under § 580. On remand, the Court of Interna-
tional Trade will calculate the precise amount of such
interest owed.
III.
We address next the issue of whether the government
is entitled to equitable prejudgment interest, in view of
our holding that it is entitled to statutory prejudgment
interest under 19 U.S.C. § 580.
A.
We have explained that, “[i]n the absence of a statute
governing the award of prejudgment interest, ‘the ques-
tion [of prejudgment interest] is governed by traditional
judge-made principles.’” Princess Cruises, 397 F.3d at
1367 (quoting City of Milwaukee v. Cement Div., Nat’l
Gypsum Co., 515 U.S. 189, 194 (1995)). In that situation,
we have viewed the award of prejudgment interest as an
equitable determination to be exercised at the discretion
of the trial judge. United States v. Reul, 959 F.2d 1572,
1577 (Fed. Cir. 1992) (“Although no statute authorizes the
award of prejudgment interest in this case, the Court of
International Trade in exercising its equitable powers
may in its sound discretion award prejudgment inter-
est.”); United States v. Imperial Food Imports, 834 F.2d
1013, 1016 (Fed. Cir 1987) (“[I]n cases such as this in
which no statute specifically authorizes an award of
prejudgment interest, such an award lies within the
discretion of the court as part of its equitable powers.”).
Relatedly, while we have stated that “[t]he degree to
which the trial court is to balance equitable factors to
US v. AMERICAN HOME ASSURANCE CO. 29
determine whether to award prejudgment interest is not
easy to discern from the case law,” there is no doubt that
equitable considerations are central to such an award.
Princess Cruises, 397 F.3d at 1368; see also Imperial
Foods, 834 F.2d at 1016 (prejudgment interest is “a
matter of equity and fairness”). Prejudgment interest
typically “compensate[s] for the loss of use of money due
as damages from the time the claim accrues until judg-
ment is entered, thereby achieving full compensation for
the injury those damages are intended to redress.” West
Virginia v. United States, 479 U.S. 305, 310 n.2 (1987).
Finally, the Supreme Court has cautioned against an
overly mechanical application of equitable prejudgment
interest. See Blau v. Lehman, 368 U.S. 403, 414 (1962)
(“interest is not recovered according to a rigid theory of
compensation for money withheld, but is given in re-
sponse to considerations of fairness”). In National Gyp-
sum, the Court stated that equitable prejudgment interest
is not “automatic,” but “depends upon the circumstances
of each case, and rests very much in the discretion of the
tribunal.” 515 U.S. at 196. In Kansas v. Colorado, the
Court was “unable to conclude with sufficient certainty
that Colorado was on notice that such interest would be
imposed as a matter of course” and found that the “Spe-
cial Master acted properly in carefully analyzing the facts
of the case and in only awarding as much prejudgment
interest as was required by a balancing of the equities.”
533 U.S. 1, 14 (2001).
In the context of bonds securing antidumping duties,
we have recently explained that there are “equitable
considerations that affect equitable prejudgment inter-
est.” Great Am., 738 F.3d at 1326. We noted in Great
American that “prejudgment interest ‘traditionally has
been considered part of the compensation due plaintiff.’”
Id. (quoting Osterneck v. Ernst & Whinney, 489 U.S. 169,
175 (1989)). And, in Great American, we listed certain
factors that may be considered in determining an award
30 US v. AMERICAN HOME ASSURANCE CO.
of equitable prejudgment interest: “[1] the degree of
personal wrongdoing on the part of the defendant, [2] the
availability of alternative investment opportunities to the
plaintiff, [3] whether the plaintiff delayed in bringing or
prosecuting the action, and [4] other fundamental consid-
erations of fairness.” Id. (quoting Osterneck, 489 U.S. at
176).
Some of the factors discussed in Great American were
considered by the Court of International Trade in this
case. Am. Home, 964 F. Supp. 2d at 1356. For example,
in exercising its discretion to award equitable prejudg-
ment interest, the court considered “delay[] in bringing
suit,” “good faith defenses to liability,” and “Customs’
erroneous reliquidations.” Id. In addition, the court
noted that “[a]lthough case law diverges on what equita-
ble factors the Court should consider in awarding pre-
judgment interest, it is clear that full compensation
should be the court’s overriding concern.” Id. The court
explained that it thought its award “str[uck] a fair bal-
ance between the parties” and that “equity favor[ed]
awarding the [g]overnment interest in this action.” Id. at
1357.
B.
For the reasons set forth in Part II.B above, we have
held that the government is entitled to statutory pre-
judgment interest under 19 U.S.C. § 580. That holding
has altered the landscape of the case. The Court of Inter-
national Trade’s award of equitable prejudgment interest
was made without the court having the opportunity to
consider the effect of an award of § 580 interest and
whether dual sources of interest are proper. See, e.g.,
Great Am., 738 F.3d at 1327 (requiring further factual
development as to whether § 580 “applies in addition to
equitable prejudgment interest”); Great Am., No. 09-
00187, 2012 WL 1229132, at *3 (Ct. Int’l Trade Apr. 11,
2012) (“The Government’s contention that it is entitled to
US v. AMERICAN HOME ASSURANCE CO. 31
both statutory and equitable interest is incorrect because
it is in the absence of a statute that provides for interest
that a court may exercise its equitable powers to award
prejudgment interest.”).
Under the circumstances, we think that the best ap-
proach is to vacate the Court of International Trade’s
award of equitable prejudgment interest and remand the
case to the court so that it, in the first instance, may
determine the issue of the government’s entitlement to
equitable prejudgment interest. We therefore vacate the
court’s award of equitable prejudgment interest. 12 On
remand, the court will be in a position to entertain and
consider all relevant arguments of the parties on the
question of equitable prejudgment interest. 13
12 The court’s ultimate ruling may alter its standing
award of equitable postjudgment interest to the extent
that its ruling on such interest might continue to be
“based on the same considerations of equity and fairness”
as the award of equitable prejudgment interest. Am.
Home, 964 F. Supp. 2d at 1357 (quoting United States v.
C.H. Robinson Co., 880 F. Supp. 2d 1335, 1348 (Ct. Int’l
Trade 2012)).
13 Among other things, AHAC has argued on appeal
that the government is not entitled to equitable prejudg-
ment interest because such an award would create an
inappropriate windfall to the government because any
recovery of such interest may ultimately end up in a
separate, non-interest-bearing account for the benefit of
domestic producers under the Continued Dumping and
Subsidy Offset Act of 2000 (“CDSOA”), Pub. L. No. 106–
387, §§ 1001–03, 114 Stat. 1549, 1549A–72 to –75 (Oct.
28, 2000), repealed by Deficit Reduction Act of 2005, Pub
L. No. 109–171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006)
(effective Oct. 1, 2007). The government has responded
that AHAC waived its CDSOA argument and that, in any
32 US v. AMERICAN HOME ASSURANCE CO.
CONCLUSION
For the foregoing reasons, we affirm-in-part, reverse-
in-part, and vacate-in-part the decision of the Court of
International Trade. The case is remanded for further
proceedings on (1) the amount of prejudgment interest to
which the government is entitled under 19 U.S.C. § 580and (2) the issue of whether the government is entitled to
equitable prejudgment interest in addition to statutory
prejudgment interest under § 580.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED-IN-PART, AND REMANDED
COSTS
Each party shall bear its own costs.
event, the argument lacks merit. On remand, should it
wish to do so, AHAC is free to raise its CDSOA argument.
Needless to say, we express no views on the merits of the
argument, or on the merits of any other argument AHAC
or the government may wish to assert in the Court of
International Trade.