Slip Op. 16-101 

UNITED STATES COURT OF INTERNATIONAL TRADE

OPINION AND ORDER

[The court grants Defendant’s motion to dismiss Plaintiff’s first claim for lack of subject matter 

jurisdiction. The court grants Defendant’s motion for judgment on the pleadings with respect to 

Plaintiff’s alternative claim.] 

Dated: October 25, 2016 

Robert L. LaFrankie, Matthew R. Nicely, and Alexandra B. Hess, Hughes Hubbard & 

Reed LLP, of Washington, DC, for plaintiff.

Justin R. Miller, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, of New York, NY, for defendant. With him on the brief were 

Benjamin C. Mizer, Principle Deputy Assistant Attorney General, Jeanne E. Davidson, Director, 

and Claudia Burke, Assistant Director.

 Goldberg, Senior Judge: Plaintiff, ThyssenKrupp Steel North America (“Plaintiff”), 

challenges United States Customs and Border Protection’s (“CBP”) rejection of its protests 

regarding CBP’s refusal to reliquidate Plaintiff’s entries. In the alternative, Plaintiff challenges 

the lawfulness of liquidation instructions issued by the United States Department of Commerce 

(“Commerce”). Commerce, CBP, and the United States (collectively, “Defendant”) move for 

THYSSENKRUPP STEEL NORTH 

AMERICA, INC., 

 

 Plaintiff, 

 

v. 

 

UNITED STATES, 

 

 Defendant.

 

Before: Richard W. Goldberg, Senior Judge

Court No. 15-00072 
Court No. 15-00072 Page 2 

dismissal of Plaintiff’s first claim for lack of subject matter jurisdiction and for judgment on the 

pleadings with respect to Plaintiff’s alternative claim. The court grants both motions. 

BACKGROUND

In 1993, Commerce published an antidumping duty order on certain corrosion-resistant 

steel from Germany (“CORE”). Certain Hot-Rolled Carbon Steel Flat Products, Certain ColdRolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and 

Certain Cut-to-Length Carbon Steel Plate from Germany, 58 Fed. Reg. 44,170 (Dep’t 

Commerce Aug. 19, 1993) (amended final determ.). 

On January 3, 2012, the International Trade Commission (“ITC”) instituted the third 

sunset review of the antidumping duty order on CORE. Corrosion-Resistant Carbon Steel Flat 

Products from Germany and Korea, 77 Fed. Reg. 301 (ITC Jan. 4, 2012) (institution of five-year 

review). 

From February 14, 2012 through July 14, 2012, Plaintiff entered eight shipments of 

CORE that are the subject of this action. See HQ H243862 and H260365 (Dec. 29, 2014) at 1,

ECF No. 41-2, Ex. 7 (“Decision Letter”). Six entries arrived through the Port of Mobile, AL and 

two entries arrived through the Port of Philadelphia, PA. Id. at 1–2. At the time of entry, 

Plaintiff deposited estimated antidumping duties on these entries at the 10.02% rate then in 

effect. Compl. ¶ 19, ECF No. 5. As part of its annual review process, Commerce solicited 

requests for review of the CORE antidumping order. See 19 U.S.C. § 1675(a). Liquidation of 

subject entries was suspended during the review process. No interested party requested a review 

and, therefore, Commerce lifted the suspension of liquidation and issued liquidation instructions. 

Admin. Message No. 2291302 (October 17, 2012), ECF No. 41-2, Ex. 1. 

Commerce’s October 17, 2012 liquidation instructions directed CBP to assess 

antidumping duties “at the cash deposit or bonding rate in effect on the date of entry.” Id. ¶ 2.
Court No. 15-00072 Page 3 

CBP liquidated Plaintiff’s Mobile entries on November 16, 2012 and liquidated Plaintiff’s

Philadelphia entries on December 21, 2012. Compl. ¶ 21. 

On March 11, 2013, the ITC published its final determination pursuant to the sunset 

review, finding that revocation of the CORE antidumping order was warranted. CorrosionResistant Carbon Steel Flat Products from Germany and Korea, 78 Fed. Reg. 15,376 (ITC Mar. 

11, 2013) (final determ.).

On March 19, 2013, pursuant to the ITC’s determination, Commerce revoked the CORE 

antidumping order. Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea,

78 Fed. Reg. 16,832 (Dep’t Commerce Mar. 19, 2013) (revocation of orders). Commerce’s 

revocation was effective retroactively, applicable to entries back to and including February 14, 

2012. Id.

On April 4, 2013, Commerce issued new liquidation instructions advising CBP that it had 

revoked the order on CORE. Admin. Message No. 3094301 (April 4, 2013), ECF No. 41-2, Ex. 

2. Commerce’s instructions directed CBP to liquidate all relevant “unliquidated entries . . . . 

without regard to antidumping duties.” Id. ¶¶ 2, 3. 

On April 16, 2013, Plaintiff filed protests with the Port of Mobile. ECF No. 41-2, Ex. 4 

(“Port of Mobile Protests”). Plaintiff argued that the liquidation of its entries was not “final” as 

Plaintiff had filed valid protests, that its entries therefore remained “unliquidated” within the 

meaning of the new liquidation instructions, and that CBP should now reliquidate those entries 

without antidumping duties. Id. at Attachment. The Port of Mobile forwarded the protests to 

CBP Headquarters (“HQ”) for further review. See Decision Letter 3. 

On May 2, 2013, Plaintiff filed a similar protest with the Port of Philadelphia. ECF No. 

41-2, Ex. 6 (“Port of Philadelphia Protest”). On June 4, 2013, the Port of Philadelphia denied the 
Court No. 15-00072 Page 4 

protest and Plaintiff’s application for further review. See Decision Letter 3. In its denial, the 

Port of Philadelphia stated that Commerce’s instructions applied only to “unliquidated entries,” 

which it interpreted to exclude Plaintiff’s previously-liquidated entries. Port of Philadelphia

Protest at item 18.

On August 1, 2013, Plaintiff requested that CBP HQ set aside the Port of Philadelphia’s 

denial of further review of Plaintiff’s protest. See Decision Letter 3. On August 29, 2013, CBP 

HQ granted Plaintiff’s request for further review and voided the Port of Philadelphia’s actions so 

that CBP HQ could review the Mobile and Philadelphia protests together. See id.

On December 29, 2014, CBP HQ issued its Decision Letter, ruling that no protestable 

issues existed because CBP had properly interpreted the term “unliquidated” in Commerce’s 

April 4, 2013 instructions to exclude Plaintiff’s entries. The ports of Mobile and Philadelphia 

thereafter rejected Plaintiff’s protests in accordance with CBP HQ’s decision. Compl. ¶¶ 32–33. 

On March 19, 2015, Plaintiff brought a claim under 28 U.S.C. § 1581(a) to challenge 

CBP’s decisions. Summons and Compl., ECF Nos. 1, 5. Plaintiff also filed an alternative claim 

under 28 U.S.C. § 1581(i) challenging Commerce’s April 4, 2013 liquidation instructions as 

contrary to law. Compl. ¶ 2. 

Defendant now moves to dismiss, under USCIT R. 12(b)(1), Plaintiff’s claim against 

CBP for lack of subject matter jurisdiction. Def.’s Mot. to Dismiss for Lack of Subject Matter 

Jurisdiction under 28 U.S.C. § 1581(a), or in the Alternative, Mot. for J. on the Pleadings, ECF 

No. 32 (“MTD”). Defendant argues that CBP’s actions with respect to Plaintiff were not 

protestable, such that this court lacks jurisdiction under § 1581(a). Def.’s Mem. in Support of its 

MTD at 7, ECF No. 32 (“MTD Memo”). Because the court agrees, and for additional reasons 

stated below, the court grants Defendant’s motion. Defendant also moves, pursuant to USCIT R. 
Court No. 15-00072 Page 5 

12(c), for judgment on the pleadings with respect to Plaintiff’s alternative claim. MTD. The 

court finds that Defendant is entitled to judgment as a matter of law and grants Defendant’s 

motion for judgment on the pleadings. 

STANDARD OF REVIEW

“Once jurisdiction is challenged, the plaintiff bears the burden of proving that the court’s

jurisdiction is invoked properly.” Pentax Corp. v. Robison, 125 F.3d 1457, 1462 (Fed. Cir. 

1997). In considering this USCIT R. 12(b)(1) motion to dismiss for lack of subject matter 

jurisdiction, the court assumes that well-pleaded factual allegations are true. See Cisco Sys., Inc. 

v. United States, 35 CIT __, __, 804 F. Supp. 2d 1326, 1330 (2011). 

Judgment on the pleadings is appropriate where there are no material facts in dispute and 

the moving party is entitled to judgment as a matter of law. See New Zealand Lamb Co. v. 

United States, 40 F.3d 377, 380 (Fed. Cir. 1994). “A ruling on a motion for judgment on the 

pleadings is reviewed under the same standard as a motion to dismiss under USCIT R. 12(b) for 

failure to state a claim” and the court “must accept all well-pleaded facts as true.” Forest Labs., 

Inc. v. United States, 29 CIT 1401, 1402–03, 403 F. Supp. 2d 1348, 1349 (2005), aff'd, 476 F.3d 

877 (Fed. Cir. 2007). However, “the tenet that a court must accept as true all of the allegations 

contained in a complaint is inapplicable to legal conclusions.” Macclenny Prod. v. United States,

38 CIT __, __, 963 F. Supp. 2d 1348, 1357 n.16 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009)). 

DISCUSSION

I. Plaintiff Has Failed to Establish § 1581(a) Jurisdiction. 

An importer can only protest “decisions” by CBP that concern one or more of seven 

events listed in 19 U.S.C. § 1514(a). Consequently, a protest is invalid if the challenged action 

does not fit within § 1514(a) or if the challenged action cannot be characterized as a “decision” 
Court No. 15-00072 Page 6 

of CBP. See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) (finding 

that § 1581(a) jurisdiction was inappropriate because plaintiff’s claim did not concern a 

protestable decision by CBP). A protest must also be filed “within 180 days after but not before 

[the] date of liquidation or reliquidation,” or “the date of the decision as to which protest is 

made.” 19 U.S.C. § 1514(c)(3). This court has “exclusive jurisdiction of any civil action 

commenced to contest the denial of a protest.” 28 U.S.C. § 1581(a). 

Because Plaintiff has alleged jurisdiction under § 1581(a), the court must determine 

whether Plaintiff timely protested a protestable CBP decision and whether CBP subsequently 

denied that protest. The court finds that Plaintiff has established none of these requisite 

jurisdictional facts. 

First, with respect to CBP’s refusal to reliquidate Plaintiff’s entries, Plaintiff’s protests 

were untimely. 19 U.S.C. § 1514(c)(3) (requiring that protests occur “within 180 days after but 

not before . . . the date of liquidation or reliquidation, or . . . the date of the decision as to which 

protest is made.” (emphasis added)). Plaintiff’s protests, filed on April 16, 2013 and May 2, 

2013, challenged CBP’s alleged failure to apply Commerce’s April 4, 2013 instructions to 

Plaintiff’s entries. Compl. ¶¶ 27–28. But CBP had six months to apply those instructions before 

subject entries would be considered liquidated by operation of law. 19 U.S.C. § 1504(d). 

Therefore, when Plaintiff filed its protests, it could not know whether or not CBP interpreted the 

liquidation instructions to encompass Plaintiff’s entries. Nor was there a decision for CBP to 

make before Plaintiff filed its protests, since the protests themselves are the basis for the claim 

that CBP erred. See, e.g., Port of Mobile Protests, Attachment at 6 (protesting that “these entries 

remain ‘unliquidated’” because they are “subject to proper and timely protests”). These 

anticipatory protests violated § 1514(c)(3) and are invalid. See Canadian Reynolds Metals Co. v. 
Court No. 15-00072 Page 7 

United States, 28 CIT 2053, 2058, 350 F. Supp. 2d 1302, 1307 (2004) (explaining that a protest 

is “untimely and invalid” unless “[t]he decision the protesting party objects to . . . occur[s] prior 

to the filing of the protest.”).

Second, and consequently, Plaintiff’s protests can be considered timely only with respect

to the November 16 and December 21, 2012 liquidations of its entries. However, while timely, 

such protests are also invalid because they did not concern a protestable decision by CBP. 

Plaintiff’s own admissions make this conclusion plain. As of November 16 and December 21, 

2012, Plaintiff’s entries were subject to an antidumping duty order. Compl. ¶¶ 19–20.

Commerce lifted suspension of liquidation and instructed CBP to liquidate relevant entries “at 

the cash deposit or bonding rate in effect on the date of entry,” 10.02%. Id. CBP then correctly 

applied those instructions to Plaintiff’s entries. See id. ¶ 21. When CBP “merely follows 

Commerce’s instructions in assessing and collecting duties” it does not make a protestable 

decision under 19 U.S.C. § 1514(a). Mitsubishi, 44 F.3d at 977 (Fed. Cir. 1994). 

Finally, assuming that Plaintiff’s protests suffered from none of the foregoing maladies, 

Plaintiff would still need to prove that CBP denied its protests because jurisdiction pursuant to § 

1581(a) must be predicated on the “denial of a protest.” 28 U.S.C. § 1581(a); see Zojirushi Am. 

Corp. v. United States, Slip Op. 16-78, 2016 WL 4146418, at *9–10 (CIT Aug. 4, 2016). The 

protest form, CBP Form 19, allows CBP to indicate that an importer’s protest has been

“Approved,” “Rejected as non-protestable,” “Denied in full,” or “Denied in part.” See Port of 

Philadelphia Protest at item 18. An importer can seek an accelerated disposition of a protest and 

if the protest “has not been allowed or denied in whole or in part within thirty days” following a 

request for accelerated disposition, it is “deemed denied.” 19 U.S.C. § 1515(b). Despite 

representing to the court on numerous occasions that CBP “denied” its protests, see, e.g., Compl. 
Court No. 15-00072 Page 8 

¶¶ 32, 33, 36, CBP in fact “rejected” Plaintiff’s challenges “as non-protestable,” see Port of 

Mobile Protests at item 18. Plaintiff does not allege that its “rejected” protests were later denied 

or deemed denied. In fact, Plaintiff successfully petitioned to have set aside the only protest 

denial it received. Decision Letter 3. Without a denial of Plaintiff’s protests, this court has no 

jurisdiction under § 1581(a). 

For these reasons, the court grants Defendant’s motion to dismiss Plaintiff’s first claim 

for lack of subject matter jurisdiction. 

II. Plaintiff’s Alternative Claim Fails as a Matter of Law. 

Defendant also moves for judgment on the pleadings pursuant to USCIT R. 12(c) with 

respect to Plaintiff’s claim that Commerce’s April 4, 2013 liquidation instructions were 

“contrary to law as written and enforced,” in violation of the Administrative Procedure Act 

(“APA”). Compl. ¶ 40.1

 As a threshold matter, the court has jurisdiction to hear Plaintiff’s 

alternative claim under 28 U.S.C. § 1581(i). Carbon Activated Corp. v. United States, 791 F.3d 

1312, 1317 (Fed. Cir. 2015) (a party bringing a challenge to “Commerce’s erroneous instructions 

to Customs . . . c[an] invoke § 1581(i) jurisdiction.”). For the following reasons, the court grants 

Defendant’s motion for judgment on the pleadings. 

Commerce’s April 4, 2013 liquidation instructions to CBP directed that “all unliquidated

entries of CORE from Germany entered, or withdrawn from warehouse, for consumption on or 

after 02/14/2012 should be liquidated without regard to antidumping duties.” Admin. Message 

No. 3094301 ¶ 3 (emphasis added). These instructions were in accordance with the statutory 

provision regarding the revocation of an antidumping duty order. 19 U.S.C. § 1675(d)(3) 

 

1

 Pursuant to the APA, this court shall “hold unlawful and set aside agency action” found to be arbitrary, in

excess of statutory authority, or otherwise not in accordance with law, among other reasons. 5 U.S.C. § 706(2)(A)-

(F).
Court No. 15-00072 Page 9 

(stating that a “determination to revoke an order . . . shall apply with respect to unliquidated 

entries”). Citing no relevant authorities, Plaintiff insists that because it filed protests, “the 

liquidation process was not yet final, and the entries remained ‘unliquidated’ within the meaning 

of the law and within the scope of Commerce’s liquidation instructions.” Compl. ¶ 37.2

In rejecting Plaintiff’s protests, CBP determined that “unliquidated” and “a liquidation 

that has occurred but is not final” because of a pending protest are “different legal concepts.” 

Decision Letter 4. The court agrees. Indeed, Plaintiff’s claim is premised on the unfounded 

conflation of distinct provisions. It is true that liquidation is the “final” computation of duties on 

an entry. 19 C.F.R. § 159.1. At the time of entry, an importer makes a provisional deposit at the 

estimated antidumping duty rate, 19 U.S.C. § 1505(a), and then has the opportunity to request a 

review of the applicable order and rate, 19 U.S.C. § 1675(a)(1). Liquidation is the final

computation of duties in that it follows the provisional deposit and any subsequent adjustments 

to the applicable rate and is meant to establish the ultimate sum owed by the importer. By 

contrast, it is certain “decisions of the Customs Service” which are not “final and conclusive” 

when timely and validly protested. 19 U.S.C. § 1514(a) (emphasis added). The fact that a valid 

and meritorious protest concerning a decision of CBP can lead to a modification of the “final” 

computation of duties does not mean that no “final” computation of duties has taken place.

Plaintiff merges the two concepts to arrive at its claim that its entries were “unliquidated”

within the meaning of Commerce’s April 4, 2013 instructions. See Compl. ¶ 41. The term 

“unliquidated” logically extends to those entries for which there has been no final computation of 

duties, i.e., no liquidation. However, Plaintiff’s claim that the term “unliquidated” also extends 

 

2

 Plaintiff argues that Koyo Corp. v. United States, 497 F.3d 1231 (Fed. Cir. 2007) and CBP ruling HQ 

H030656 support its position. See Port of Mobile Protests, Attachment at 8. However, neither decision concerned

instructions directing liquidation of “unliquidated” entries. 
Court No. 15-00072 Page 10 

to its previously-liquidated entries rests on Plaintiff’s legal conclusion that it is so. The court 

gives such legal conclusions no weight. Instead, for reasons discussed below, the court holds 

that the term “unliquidated,” as used in Commerce’s April 4, 2013 instructions, excludes 

Plaintiff’s entries. 

Commerce’s instructions were issued in light of the revocation of the applicable 

antidumping duty order following a five-year “sunset” review by the ITC. Admin. Message No. 

3094301 ¶ 1. “The focus in such ‘sunset’ reviews is entirely prospective, with the key inquiry 

being whether termination of suspended investigations ‘would be likely to lead’ to the dumping 

of foreign imports into a particular market in the future.” Comm. for Fairly Traded Venezuelan 

Cement v. United States, 372 F.3d 1284, 1286 (Fed. Cir. 2004) (citing 19 U.S.C. § 

1675(c)(1)(C)). Even though the effective date of the revocation was retroactive, interpreting the 

term “unliquidated” to mean “not previously-liquidated” ensures that the effect of the sunset 

review “is entirely prospective,” in that it applies only to future liquidations. See Canadian 

Wheat Bd. v. United States, 641 F.3d 1344, 1350 (Fed. Cir. 2011) (explaining that liquidating 

“unliquidated entries” is a “prospective action[]”). Accordingly, reading Commerce’s 

instructions to exclude Plaintiff’s entries comports with the purpose of the sunset review, since 

those entries were previously liquidated in accordance with the order then in effect. 

Commerce’s April 4, 2013 instructions, therefore, are not only in strict accordance with 

the wording of 19 U.S.C. § 1675(d)(3), but also appear to be in accordance with the purpose of 

the statutory scheme and with the court’s understanding of the term “unliquidated” as meaning 

“not previously-liquidated.” See, e.g., Canadian Wheat Bd., 641 F.3d at 1350 (contrasting 

directions to liquidate “unliquidated entries” with directions to “invalidate antidumping duties 

that had already been liquidated”); Timken Co. v. United States, 21 CIT 889, 891, 972 F. Supp. 
Court No. 15-00072 Page 11 

702, 703 (1997), aff'd sub nom. Koyo Seiko Co. v. United States, 155 F.3d 574 (Fed. Cir. 1998) 

(contrasting “previously-liquidated” entries with “unliquidated entries”). Moreover, Plaintiff 

cites no authority supporting its interpretation of the term “unliquidated” and has failed to place

any material facts in dispute. The court, therefore, finds that Defendant is entitled to judgment as 

a matter of law.3

CONCLUSION

For the forgoing reasons, Defendant’s motion to dismiss Plaintiff’s first claim for lack of 

subject matter jurisdiction is granted and Defendant’s motion for judgment on the pleadings with 

respect to Plaintiff’s alternative claim is granted. 

 /s/ Richard W. Goldberg 

 Richard W. Goldberg 

 Senior Judge 

Dated: October 25, 2016 

New York, New York 

 

3

 Even if Plaintiff were correct that entries remain “unliquidated” when “subjected to valid protests,” 

Plaintiff’s claim fails on its own terms. See Compl. ¶ 41. The court has already held that Plaintiff’s protests were 

untimely and that the November 16 and December 21, 2012 liquidations involved no protestable CBP decisions. 

See supra Part I. The court cannot now find that those same liquidations were non-final (and Plaintiff’s entries 

“unliquidated”) by virtue of Plaintiff’s invalid protests.