Justia Civil Procedure Opinion Summaries

Articles Posted in International Trade
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The Generalized System of Preferences (GSP) provides “duty-free treatment” for “eligible article[s] from . . . beneficiary developing countr[ies],” 19 U.S.C. 2461 (2012), including India. Congressional authorization for the GSP expired on July 31, 2013, and was not renewed until June 29, 2015. For GSP-eligible entries made during the lapse, Congress provided for “retroactive application” (a refund of duties paid), if the importer filed a request with Customs “not later than” December 28, 2015. Industrial made 65 entries of organic chemicals from India between August 2013 and October 2014. The entries were liquidated between June 2014 and September 2015. Industrial did not submit its request for retroactive GSP treatment until February 2, 2016. U.S. Customs and Border Protection denied the request. Industrial filed a Protest, which was denied as untimely under 19 U.S.C. 1514 because it had been filed more than 180 days after the liquidation of its entries. The Court of International Trade dismissed Industrial’s complaint. The Federal Circuit affirmed. The Trade Court lacked jurisdiction under 28 U.S.C. 1581(a) because the Protest was invalid. The court further noted that Customs did not have the discretion to exempt Industrial Chemicals from the deadline set by Congress. View "Industrial Chemicals, Inc. v. United States" on Justia Law

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The Department of Commerce conducted its ninth administrative review of an antidumping duty order on chlorinated isocyanurates from China, 19 U.S.C. 1677(18)(A), and assigned Kangtai, selected by Commerce as a mandatory respondent, a 0% antidumping duty margin. After a tenth review, Commerce assigned Kangtai, again a mandatory respondent, a 35.05% rate. Kangtai filed a complaint, asserting Commerce improperly instructed Customs to assess an anti-dumping duty margin on 18 of Kangtai’s subject merchandise entries at a rate higher than the zero percent rate calculated for Kangtai’s entries in the Review 9 Final Results. The Court of International Trade dismissed the complaint, concluding that it lacked jurisdiction under 28 U.S.C. 1581(i). The Federal Circuit affirmed. The Trade Court’s residual jurisdiction may not be invoked when jurisdiction under another section 1581 subsection could have been available unless the remedy provided under that other subsection would be manifestly inadequate. Kangtai could have sought relief under section 1581(c) because the true nature of Kangtai’s action is a challenge to Commerce’s determination to assess antidumping duties on entries, rather than on sales, made during the relevant period of review. Kangtai did not demonstrate that relief under 1581(c) would have been manifestly inadequate. Not only could Kangtai have challenged Commerce’s decision to assess duties on entries in the Review 9 Results, Kangtai actually did file a complaint contesting the Review 10 Final Results. View "Juancheng Kangtai Chemical Co. v. United States" on Justia Law

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Hymer imported vehicles into the U.S. from Canada. Customs classified them under Harmonized Tariff Schedule of the United States (HTSUS) 8703.24.00, which applies a tariff of 2.5% to “motor vehicles principally designed for transporting persons.” Hymer filed a protest, arguing that the entries were entitled to duty-free treatment under HTSUS 9802.00.50 and North American Free Trade Agreement Article 307, “American Goods Returned,” as qualifying goods that reenter the U.S. customs territory after repairs or alterations in Canada or Mexico. Hymer requested that Customs “suspend action on th[e] protest” until the Court of International Trade (CIT) issued a decision in other cases (Pleasure-Way) addressing whether van-based motorhomes—similar to the Hymer vehicles —qualified for preferential tariff treatment. In Pleasure-Way, the Federal Circuit affirmed that HTSUS 9802.00.50 did not apply; the vehicles were liquidated at 2.5%. While Pleasure-Way was pending, a Customs Import Specialist checked “Approved” on Hymer’s Protest Form, which was sent to Hymer without a refund check or any explanations. Later, an Import Specialist updated Customs’ electronic system to reflect that the protest was suspended. Hymer sought an order directing Customs to reliquidate the entries of the vehicles under HTSUS 9802.00.50, asserting CIT jurisdiction under 28 U.S.C. 1581(i)(1) and (i)(4), on grounds that Customs’ failure to provide a refund check constituted unlawfully withheld action under the Administrative Procedure Act. The Federal Circuit reversed CIT's judgment in favor of the government. CIT’s assertion of residual jurisdiction under 28 U.S.C. 1581(i) was improper because a civil action for contesting the denial of protests could have been available under 28 U.S.C. 1581(a), and the remedy provided under 1581(a) is not manifestly inadequate. View "Erwin Hymer Group v. United States" on Justia Law

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The Department of Commerce published antidumping and countervailing duty orders on certain crystalline silicon photovoltaic cells imported from China (CSPV Orders). Sunpreme, a U.S. company, imports solar modules produced in China that are composed, in part, of solar cells designed, developed, and tested at Sunpreme’s California facility. Sunpreme’s solar modules had been imported as entry type “01,” ordinary consumption entries not subject to any antidumping or countervailing duties. In April 2015, Customs requested that Sunpreme file its entries under type “03,” entries subject to duties. Sunpreme provided Customs with lab results from an independent third party and invited Customs to its California facility to observe its production process, arguing that its products were not within the scope of the CSPV orders. Customs performed its own laboratory testing. Sunpreme sought relief in the Trade Court. Commerce initiated a formal scope inquiry. The Trade Court issued a preliminary injunction, holding that Customs acted outside its authority in its unilateral interpretation of the scope language of the CSPV Orders to include Sunpreme’s solar modules. Commerce issued its final scope determination concluding that Sunpreme’s products fall within the scope of those Orders. The Federal Circuit reversed, holding that the Trade Court lacked jurisdiction under 28 U.S.C. 1581. Sunpreme was required to exhaust administrative remedies by a scope ruling inquiry and scope ruling determination. View "Sunpreme Inc. v. United States" on Justia Law

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Purchasers of vitamin C filed suit, alleging that Chinese exporters had agreed to fix the price and quantity of vitamin C exported to the U.S., in violation of the Sherman Act. The exporters unsuccessfully moved to dismiss the complaint and later sought summary judgment, arguing that Chinese law required them to fix the price and quantity of exports, shielding them from liability under U.S. antitrust law. China’s Ministry of Commerce, the authority authorized to regulate foreign trade, asserted that the alleged conspiracy was actually a pricing regime mandated by the Chinese Government. The purchasers countered that the Ministry had identified no law or regulation requiring the agreement; highlighted a publication announcing that the sellers had agreed to control the quantity and rate of exports without government intervention; and noted China’s statement to the World Trade Organization that it ended its export administration of vitamin C in 2002. The Second Circuit reversed a verdict for the purchasers, stating that federal courts are “bound to defer” to the foreign government’s construction of its own law, whenever that construction is “reasonable.” The Supreme Court vacated. A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to such statements. Relevant considerations include the clarity, thoroughness, and support of the foreign government's statement; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions. Determination of foreign law must be treated as a question of law; courts are not limited to materials submitted by the parties, but “may consider any relevant material or source.” View "Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co." on Justia Law

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Trade Court abused its discretion in waiving the exhaustion requirement in appeal of antidumping order. The Department Commerce initiated an investigation into whether oil country tubular goods (OCTGs) from Saudi Arabia and other countries were sold for less than fair value in the U.S. Commerce selected Duferco as the mandatory respondent; preliminarily found dumping; determined to treat Duferco and three affiliates as a single entity; and determined that Duferco is affiliated with JESCO, the producer of the OCTGs. Duferco owns 10 percent of JESCO. JESCO participated as a voluntary respondent. Commerce published its final determination, concluding that Saudi OCTGs were being dumped and recalculating the duty margin at 2.69 percent. Following the final determination, JESCO identified an error in Commerce’s calculation of Constructed Value (CV) profit. Correcting this error lowered JESCO’s CV profit, reducing JESCO's dumping margin to 1.37 percent. Commerce issued an amended negative final determination, imposing no duties. U.S. companies appealed, arguing that JESCO’s sales to a Colombian distributor were intra-company transfers within the Duferco entity, not an appropriate basis to construct CV profit--an argument not made during the investigation. The Trade Court affirmed Commerce’s determination, declining to apply the exhaustion requirement because the parties did not know that Commerce was considering using the Colombian sales until the final determination. The Federal Circuit vacated. Commerce need not expressly notify interested parties when it intends to change its methodology between its preliminary and final determinations, given the inclusion of the relevant data in the record and the advancement of arguments related to that data. The parties had an opportunity to raise their single entity objection before Commerce. View "Boomerang Tube LLC v. United States" on Justia Law

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In 1963, the Republic of Guinea entered into an agreement with Halco establishing the Compagnie des Bauxites de Guinée (CBG) for the purpose of developing Guinea's rich bauxite mines. Nanko filed suit against Alcoa, alleging breach of the CBG Agreement, asserting that it was a third-party beneficiary thereof, and another for racial discrimination in violation of 42 U.S.C.1981. Nanko later added Halco as a defendant and asserted an additional claim against Alcoa for tortious interference with contractual relations. The district court dismissed the case under Rule 12(b)(7) for failure to join Guinea as a required Rule 19 party. The court concluded that the district court's Rule 19 holding failed to fully grapple with Nanko's allegations and that those allegations, accepted as true, state a claim for racial discrimination under section 1981. The court reasoned that, insofar as the existing parties' interests are concerned, evidence of Guinea's actions, views, or prerogatives can be discovered and introduced where relevant to the parties' claims and defenses even if Guinea remained a nonparty. At this stage in the pleadings, the court did not believe that the allegations could be reasonably read to show that Guinea was a necessary party. Accordingly, the court reversed and remanded. View "Nanko Shipping, USA v. Alcoa" on Justia Law

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NMEPT, a joint venture, was formed to sell environmental equipment in China. Nalco owned 55% of the venture, Chen 40%, and a third party 5%. When NMEPT encountered business problems, Nalco paid its creditor and sued Chen for his 40% share of the outlay. The district court awarded Nalco more than $2 million, rejecting Chen's counterclaim that Nalco’s subsidiary, NMI, had caused the joint venture to borrow $300,000 without Chen's approval, even though the agreement required all investors’ consent for borrowing. Chen also claimed that the creditor petitioned the joint venture into bankruptcy under Chinese law, on behalf of NMI, in an effort to avoid a clause requiring the investors’ unanimous consent for bankruptcy proceedings. Nalco wanted to wind up the unprofitable venture, but Chen preferred to keep it alive (if dormant) to protect its intellectual property. Chen did not appeal, but filed a new suit in China, against Mobotec. The Seventh Circuit affirmed an injunction, prohibiting Chen from pursuing the Chinese litigation. Rejecting an argument that Mobotec was not a party to and could not benefit from the Illinois judgment, the court stated: “That would be a questionable proposition even if Mobotec were a distinct entity, for federal courts no longer require mutuality in civil litigation.” The district court found that NMI and Mobotec are the same entity. View "Nalco Co. v. Chen" on Justia Law

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Polar, a Finnish company based in Finland, owns U.S. patents directed to a method and apparatus for measuring heart rates during physical exercise. Polar sued, alleging infringement directly and indirectly, through the manufacture, use, sale, and importation of Suunto products. Suunto is a Finnish company with a principal place of business and manufacturing facilities in Finland. Suunto and ASWO (a Delaware corporation with a principal place of business in Utah) are owned by the same parent company. ASWO distributes Suunto’s products in the U.S. Suunto ships the accused products to addresses specified by ASWO. ASWO pays for shipping; title passes to ASWO at Suunto’s shipping dock in Finland. At least 94 accused products have been shipped from Finland to Delaware retailers using that standard ordering process. At least three Delaware retail stores sell the products. Suunto also owns, but ASWO maintains, a website, where customers can locate Delaware Suunto retailers or order Suunto products. At least eight online sales have been made in Delaware. The Federal Circuit vacated dismissal of Suunto for lack of personal jurisdiction. Suunto’s activities demonstrated its intent to serve the Delaware market specifically; the accused products have been sold in Delaware. Suunto had purposeful minimum contacts, so that Delaware’s “assertion of personal jurisdiction is reasonable and fair” and proper under the Delaware long-arm​ statute. View "Polar Electro Oy v. Suunto Oy" on Justia Law

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In 2007, Hutchison imported furniture from China through Orient International. The Commerce Department assigned Orient an antidumping duty margin of 216.01%. The Court of International Trade (CIT) entered an injunction and directed that the entries be liquidated “in accordance with the final court decision ... including all appeals.” In February 2013, CIT sustained Commerce’s remand redetermination, including a rate of 83.55%. Orient did not appeal; in June CIT ordered that Orient’s entries be liquidated in accordance with the February Final Judgment. In September, Customs liquidated the entries at 83.55%. Hutchison filed an unsuccessful protest with Customs under 19 U.S.C. 1514. In October 2014, Hutchison sought review under 28 U.S.C. 1581(i)(4), asserting that the entries should have been deemed liquidated at 7.24%, citing 19 U.S.C. 1504(d): “[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,” and, if the entry is not so liquidated, it shall be deemed "liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer” at the time of entry. Hutchison argued that Commerce’s liquidation instructions misidentified the date on which suspension of liquidation was lifted and that the suspension expired with the Final Judgment. CIT dismissed for lack of subject matter jurisdiction, stating that the “claim involves a protestable [Customs] decision,” which Hutchison could have appealed under 28 U.S.C. 1581(a) if its protest was denied. The Federal Circuit affirmed; regardless of whether the Final Judgment constituted a final court decision or constituted notice to Customs, starting the six-month period in 1504(d), a party may not invoke jurisdiction under 28 U.S.C. 1581(i) when jurisdiction under another subsection could have been invoked. View "Hutchison Quality Furniture, Inc. v. United States" on Justia Law