Slip Op. 07-59

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

___________________________________

:

SHINYEI CORPORATION OF AMERICA, :

:

Plaintiff, :

: Consolidated

v. : Court No. 00-00130

:

UNITED STATES, :

:

Defendant. :

___________________________________:

Held: Plaintiff’s motion for partial summary judgment denied.

Defendant’s cross-motion for summary judgment granted. Final

judgment entered for Defendant. 

April 20, 2007

Charles H. Bayar, for Shinyei Corporation of America,

plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S.

Williams, Attorney in Charge, International Trade Field Office,

Commercial Litigation Branch, Civil Division, United States

Department of Justice (James A. Curley), for the United States,

defendant.

OPINION

TSOUCALAS, Senior Judge: This matter comes before the Court

pursuant to the decision of the Court of Appeals for the Federal

Circuit (“CAFC”) in Shinyei Corp. of Am. v. United States,

(“Shinyei CAFC”) 355 F.3d 1297 (Fed. Cir. 2004), and the CAFC
Court No. 00-00130 Page 2

 “The APA is not a jurisdictional statute and ‘does not 1

give an independent basis for finding jurisdiction in the Court

of International Trade.’” Shinyei CAFC, 355 F.3d at 1304; citing

to Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546,

1552 (Fed.Cir. 1983). The CAFC has ruled that the Plaintiff in

the case at bar has jurisdiction under 28 U.S.C. § 1581(i)(4). 

See Shinyei CAFC, 355 F.3d at 1304-05.

mandate of March 12, 2004, reversing and remanding the judgment of

this Court in Shinyei Corp. of Am. v. United States, (“Shinyei

CIT”) 27 CIT 305, 248 F. Supp. 2d 1350 (2003). The CAFC held that

this Court erred in granting Defendant’s motion to dismiss the

action pursuant to USCIT R. 12(b)(1). Accordingly, the parties

proceeded on the merits of the case consistent with the CAFC

decision.

JURISDICTION

Shinyei is pleading an Administrative Procedure Act, 5 U.S.C.

§§ 701-706 (2000) (“APA”), cause of action and this Court has

jurisdiction over the matter pursuant to 28 U.S.C. § 1581(i)(4)

(2000). See Shinyei CAFC, 355 F.3d at 1304-05. 1

STANDARD OF REVIEW

On a motion for summary judgment, the Court must determine

whether there are any genuine issues of fact that are material to

the resolution of the action. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A factual dispute is genuine if it might
Court No. 00-00130 Page 3

affect the outcome of the suit under the governing law. See id.

Accordingly, the Court may not decide or try factual issues upon a

motion for summary judgment. See Phone-Mate, Inc. v. United

States, 12 CIT 575, 577, 690 F. Supp. 1048, 1050 (1988). When

genuine issues of material fact are not in dispute, summary

judgment is appropriate if a moving party is entitled to judgment

as a matter of law. See USCIT R. 56; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

DISCUSSION

I. Background

A. Procedural History

Plaintiff, Shinyei Corporation of America (“Shinyei”), a

United States corporation wholly owned by Shinyei Kaisha Company

(“Kaisha”), a Japanese trading company, filed a complaint with this

Court on March 23, 2000. On September 25, 2002, this Court granted

Shinyei’s motion for leave to amend its complaint, in which Shinyei

sought to declare certain instructions issued by the United States

Department of Commerce (“Commerce”) in violation of 19 U.S.C. §

1675(a)(2) (1988 & Supp. 1993). As such, Shinyei moved to remand

this case to Commerce for the purpose of issuing corrected

instructions with regard to liquidation of the forty-two Shinyei

entries of certain bearings. See Shinyei CIT, 27 CIT at 306, 248
Court No. 00-00130 Page 4

F. Supp. 2d at 1351. Subsequently, on October 8, 2002, Defendant

moved to dismiss this case pursuant to USCIT R. 12(b)(1) for lack

of subject matter jurisdiction and USCIT R. 12(b)(5) for failure to

state a claim on which relief can be granted. See Shinyei CIT, 27

CIT at 306, 248 F. Supp. 2d at 1352. On February 14, 2003, this

Court granted Defendant’s motion to dismiss under USCIT R.

12(b)(1). See Shinyei CIT, 27 CIT at 328, 248 F. Supp. 2d at 1360.

On January 20, 2004, the CAFC reversed, and remanded the action for

further proceedings on the merits. See Shinyei CAFC, 355 F.3d at

1312. On March 22, 2004, this Court ordered that Shinyei proceed

with the merits of the case consistent with the CAFC’s opinion.

See Shinyei Corp. of Am. v. United States, 28 CIT, ___, ___, Slip

Op. 04-26, 2004 Ct. Intl. Trade LEXIS 26 (2004).

B. Factual Background

The full factual and procedural background of this case has

been set forth in the prior decisions of the CAFC and this Court.

See Shinyei CAFC, 355 F.3d 1297; Shinyei CIT, 27 CIT 305, 248 F.

Supp. 2d 1350. The facts relevant to the instant inquiry are as

follows. Between the May 1, 1990 and April 30, 1991 period of

review (“POR”), Shinyei imported certain merchandise into the

United States. The merchandise at issue (“Merchandise” or “Subject

Entries” or “Disputed Entries”) was purchased by Shinyei from

Kaisha which, in turn, purchased the Merchandise from six Japanese
Court No. 00-00130 Page 5

manufacturers (collectively “Six Manufacturers”), namely, Fujino

Iron Works Co., Ltd. (“Fujino”), Nakai Bearing Co., Ltd. (“Nakai”),

Nankai Seiko Co., Ltd. (“Nankai”), Inoue Jikuuke Kogyo Co.

(“Inoue”), Showa Pillow Block Mfg., Ltd. (“Showa”) and Wada Seiko

Co., Ltd. (“Wada”). See Final Results of Antidumping Duty

Administrative Reviews of Antifriction Bearings (Other Than Tapered

Roller Bearings) and Parts Thereof From France; et. al., (“Final

Results”) 57 Fed. Reg. 28,360 (ITA June 24, 1992); Shinyei CIT, 27

CIT at 306-07, 248 F. Supp. 2d at 1352.

The Disputed Entries were subject to an antidumping

investigation. See Initiation of Antidumping Duty Investigation;

Antifriction Bearings (Other Than Tapered Roller Bearings) and

Parts Thereof From Japan, 53 Fed. Reg. 15,076 (ITA Apr. 27, 1988);

Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at 1352. On November

9, 1988, Commerce published its preliminary determination with

regard to this investigation instructing the United States Customs

Service (“Customs”) that: (1) liquidations of the Merchandise

should be suspended; and (2) deposits or bonds should be required

at a certain rate for future entries from all non-investigated

manufacturers, producers, and exporters, including the Six

Manufacturers. See Preliminary Determinations of Sales at Less

Than Fair Value: Antifriction Bearings (Other Than Tapered Roller

Bearings) and Parts Thereof From Japan, 53 Fed. Reg. 45,343;
Court No. 00-00130 Page 6

Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at 1351. This deposit

and bond rate was corrected by Commerce in the final determination.

See Final Determinations of Sales at Less Than Fair Value;

Antifriction Bearings (Other Than Tapered Roller Bearings) and

Parts Thereof From Japan (“Determination”), 54 Fed. Reg. 19,101

(May 3, 1989); see also Shinyei CIT, 27 CIT at 307, 248 F. Supp.

2d at 1352. On the basis of this Determination, Commerce published

an antidumping duty order. See Antidumping Duty Orders: Ball

Bearings, Cylindrical Roller Bearings, and Spherical Plain

Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904 (ITA

May 15, 1989); Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at

1352. 

During the second administrative review, Shinyei deposited

estimated antidumping duties on the entries at issue. See Shinyei

CIT, 27 CIT at 307, 248 F. Supp. 2d at 1352-53. On June 24, 1992,

Commerce published the final results of the second review in which

Commerce established specific antidumping duty deposit rates for

the merchandise manufactured by the Six Manufacturers. See Final

Results, 57 Fed. Reg. 28,360; Shinyei CIT, 27 CIT at 307, 248 F.

Supp. 2d at 1353. Consequently, Commerce issued instructions

ordering Customs to liquidate all merchandise of the type at issue

that was imported from Japan during the POR (except for the

products of certain manufacturers) at the rate designated in the
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Determination. Shinyei CIT, 27 CIT at 307, 248 F. Supp. 2d at

1353. The list of manufacturers exempted from the instructions

included the Six Manufacturers. See id. Moreover, on February 23,

1998, Commerce summarized the rulings of this Court over the course

of the antifriction bearing litigation when it published its

amended final results. See Amended Final Results of Antidumping

Duty Administrative Reviews of Antifriction Bearings (Other Than

Tapered Roller Bearings) and Parts Thereof From France, et. al.

(“Amended Final Results”), 63 Fed. Reg. 8908 (ITA Feb. 23, 1998);

Shinyei CIT, 27 CIT at 307-08, 248 F. Supp. 2d at 1353.

On October 22, 1998, Commerce issued final amended

instructions to Customs regarding the liquidation of all second

review entries of the merchandise at issue from Japan produced by

Nankai. See Shinyei CIT, 27 CIT at 308, 248 F. Supp. 2d at 1353.

On June 26, 1998, Commerce issued instructions to Customs regarding

the liquidation of all second review entries of [the merchandise at

issue] from Japan produced by Fujino. See id. 

Shinyei commenced this action on March 23, 2000, in order to

enforce the second review results and contest Commerce’s

instructions with respect to Nankai and Fujino. See Shinyei CIT,

27 CIT at 308-312, 248 F. Supp. 2d at 1353-56. Shinyei argued that

the Court had jurisdiction under both the Administrative Procedure

Act (“APA”)and 28 U.S.C. § 1581(i)(4). See id. Shinyei did not
Court No. 00-00130 Page 8

seek, and the Court did not issue, any injunction to suspend

liquidation of the entries at issue pending its final decision.

See Shinyei CIT, 27 CIT at 308, 248 F. Supp. 2d at 1353. On August

1, 2000, Commerce issued a clean-up instruction to Customs to

liquidate, as entered, all second review period entries of the

merchandise at issue from Japan that had not been liquidated under

previously-issued instructions. See id. The liquidation of these

entries, occurred between September 8, 2000, and February 9, 2001.

On November 1, 2000, Shinyei protested the no-change liquidation to

entry 032-0153132-8 (“032 Entries”), and Customs granted the

protest in part. See Def.’s Statement of Material Facts Not in

Dispute at 3. Customs proceeded to reliquidate the entry and

issued Shinyei a refund. See id. All but two of the entries were

liquidated before December 15, 2000. See Shinyei CIT, 27 CIT at

308, 248 F. Supp. 2d at 1353.

On September 25, 2002, this Court granted Shinyei’s motion for

leave of the Court to amend its complaint filed on March 23, 2000.

Shinyei limited its claim to Commerce’s error stating that Commerce

issued certain liquidation instructions to Customs to implement the

results of an antidumping administrative review and in violation

of 19 U.S.C. § 1675(a)(2), the instructions did not permit the

review results to be the basis for assessments of antidumping duty

on entries for which Shinyei was the importer of record. As a
Court No. 00-00130 Page 9

consequence, Shinyei argued, Customs liquidated the entries at

issue under other, inapplicable instructions resulting in a

substantial and erroneous assessments of excessive antidumping

duties on the entries at issue, as well as the attendant denial of

interest on excess deposits of antidumping duty that should have

been refunded. See Shinyei CIT, 27 CIT at 308-09, 248 F. Supp. 2d

at 1353-54. 

Shinyei specifically contested the Nankai and Fujino

instructions. With respect to the Nankai instructions, Shinyei

argued that Commerce did not advise Customs that Shinyei was the

importer of the entries at issue or that Kaisha acted as an

intermediary. With respect to the Fujino instructions Shinyei

argued that Commerce incorrectly omitted specific assesment rates

that were calculated in the second review for five other United

States customers. Shinyei further argued the Commerce failed to

advise Customs that Shinyei was the importer of the entries at

issue, or that Kaisha had once again acted as an intermediary. See

Shinyei CAFC, 355 F.3d at 1303-04.

Subsequently, Defendant, on October 8, 2002, moved to dismiss

this case pursuant to USCIT R. 12(b)(1) for lack of subject matter

jurisdiction and USCIT R. 12(b)(5) for failure to state a claim

upon which relief can be granted. See Shinyei CIT, 27 CIT at 309,

248 F. Supp. 2d at 1354. This Court granted Defendant’s motion to
Court No. 00-00130 Page 10

dismiss under USCIT R. 12(b)(1) for lack of jurisdiction on

February 14, 2003. Shinyei CIT, 27 CIT at 328, 248 F. Supp. 2d at

1361. On January 20, 2004, the CAFC reversed and remanded the case

for further proceedings on the merits. See Shinyei CAFC, 355 F.3d

at 1312.

In a letter from the Defendant dated May 27, 2004, this Court

was advised that both parties were discussing proposals to resolve

the case at bar. See Letter to the Hon. Nicholas Tsoucalas from

Mr. James A. Curley, May 27, 2004. A follow up letter, dated July

29, 2004, advised this Court that resolution was likely. However,

no resolution between the parties was achieved. See Letter to the

Hon. Nicholas Tsoucalas from Mr. James A. Curley, July 29, 2004.

On December 29, 2005 Shinyei filed its Motion for

Consolidation and for Leave to File Consolidated Complaint

(“Consolidation Motion”) along with a Consolidated Complaint. The

Government filed papers in opposition to Shinyei’s Consolidation

Motion on January 13, 2006. On January 26, 2006, the Court ordered

that Court Numbers 00-00130, 01-00707, 03-00688 and 04-00252 be

consolidated under Court Number 00-00130.

II. Contentions of the Parties

A. Shinyei’s Contentions

Shinyei contends that the main issue is whether the deemed
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liquidation of the Merchandise is valid. See Mem. Of Law in

Support of Pl.’s Mot. for Partial Summary Judg. (“Shinyei Mem.”) at

1. Shinyei states that it agrees “with the Government that

publication of the Commerce Notice removed the suspension of

liquidation of the Subject Entries and constituted notice to

Customs of such removal[.]” Shinyei Mem. at 8. Shinyei “further

agree[s] that Customs did not actually liquidate any of the Subject

Entries under 19 U.S.C. § 1500 within six months [of] February 23,

1998[.]” Id. at 9.

Shinyei, however, contends that Koyo Corp. v. United States,

(“Koyo”), 30 CIT ___, 407 F. Supp. 2d 1305 (2005) holds that 19

U.S.C. § 1504(d) cannot be read or applied so that entries are

deemed liquidated with antidumping duty assessed at the deposit

rate required at the time of entry, when that result is adverse to

the importer and contrary to lower antidumping duty assessment

rates determined in final court decisions and/or specified in

Commerce antidumping duty assessment instructions as such an

application of § 1504(d) would create an absurd, and therefore

impermissible, result. See Shinyei Mem. at 9. Shinyei clarifies

that it does not rely completely on Koyo “because its absurdity

holding assumes the Government’s [incorrect] position that an

importer has no post-liquidation remedies against an adverse deemed

liquidation[.] See Shinyei Mem. at 10-11. As such, Shinyei
Court No. 00-00130 Page 12

concludes that it accepts arguendo the Government’s contention that

the Subject Entries were deemed liquidated at the cash deposit rate

(“no-change”) on August 23, 1998, by operation of 19 U.S.C. §

1504(d). See id. at 11.

Shinyei further contends that the language of 19 U.S.C. § 1504

is procedural and not substantive in nature. See id. at 12-21.

Shinyei explains that deemed liquidation is affected by operation

of 19 U.S.C. § 1504, based on the pretense that Customs has decided

upon a no-change result by not acting within the prescribed time

period. See id. at 14. Shinyei contends that 19 U.S.C. § 1675

requires Commerce “to conduct a periodic review to determine, among

other things, antidumping duty assessment rates for the subject

goods.” Id. at 17. Shinyei further contends that under 19 U.S.C.

§ 1675(a)(2)(c) the final review results become the basis for the

liquidation of the suspended entries. See id. at 17. As such,

Shinyei argues that Customs has no decision-making authority

related to 19 U.S.C. § 1675 periodic reviews. See id. at 17.

Shinyei contends that Customs’ role is purely ministerial, as they

are merely required to liquidate entries in accordances with a

final review result or final court decision based on Commerce’s

instructions. See id. at 17-18.

Shinyei stresses that they disagree with the Government’s

interpretation of 19 U.S.C. § 1504(d), which requires prescribed
Court No. 00-00130 Page 13

no-change results to become the basis for liquidation instead of

Commerce’s final review results and/or a courts’ final decision.

See id. at 18. Shinyei contends that such an interpretation would:

1) impliedly nullify statutes and statutory determinations; 2)allow

an agency charged with implementing a party’s rights to destroy

those same rights by not implementing them properly; 3)undercut

Commerce’s authority in the assessment of antidumping duties;

4)allow Customs to vitiate its ministerial duty by refusing to take

any action. See Shinyei Mem. at 18-20.

Shinyei further contends that importers are entitled to the

same remedies under 19 U.S.C. § 1500 as under 19 U.S.C. § 1504(d).

See id. at 21. Shinyei specifies that although reliquidation under

19 U.S.C. § 1501 is limited to liquidations made pursuant to 19

U.S.C. § 1500, an importer’s right to protest under § 1514(a) is

not conditioned upon § 1500. See id. at 21-22. Shinyei contends

that the legislative history of § 1504(d) indicates that deemed

liquidation was created for the benefit of importers. See id. at

24. Congress did not intend the statute to curtail importers

remedies. See id. Shinyei asserts that Congress enacted § 1504(d)

in order to prevent Customs from imposing additional duties after

a prolonged period of time and to facilitate returns on deposits

made at the time of entry. See id. Referencing the legislative

history of 19 U.S.C. § 1504(d), Shinyei argues that “[i]nstead of
Court No. 00-00130 Page 14

being able merely to delay duty refunds indefinitely by delaying

actual liquidation under the prior law, [if a deemed liquidation is

not protestable] Customs could . . . deny duty refunds forever by

delaying actual liquidation for the specified time periods,

resulting in no-change deemed liquidations that cannot be reviewed

or reliquidated” Id. Shinyei further contends that the Customs

regulations themselves explicitly provide for the protesting of a

deemed liquidation. See id. at 25 (citing to 19 C.F.R. §§

159.9(c)(2)(i)-(iii)). Shinyei states that as Customs never

published bulletin notices of the deemed liquidations under 19

C.F.R. § 159.9(c)(2)(ii), Shinyei’s time to file a protest as

provided for in 19 C.F.R. § 159.9(c)(2)(iii), has not expired. See

id. at 33-34.

Shinyei further contends “that the Government’s position that

an importer has no post-liquidation remedy against an adverse

deemed liquidation suffers from two constitutional infirmities, and

so should be rejected.” Id. at 27. Shinyei proceeds to list those

“constitutional infirmities” as involving (1) due process and (2)

equal protection. Id. at 25-32. Under the due process claim,

Shinyei argues that barring an importer from contesting a deemed

liquidation amounts to a deprivation of property without due

process. See id. at 25-32 (citing to Logan v. Zimmerman Brush Co.

(“Logan”), 455 U.S. 422 (1982)). Shinyei interprets the majority
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opinion in Logan as holding that a state agency’s inaction does not

bar an employee’s claim or property interests. See Shinyei Mem. at

29 (citing to Logan, 455 U.S. at 424-38.) Under the equal

protection claim, Shinyei relies on the concurring opinion in Logan

which it interprets as stating that agency inaction is not

rationally related to any legitimate government purpose. See

Shinyei Mem. at 30-31 (citing to Logan, 455 U.S. at 438-42).

Finally, Shinyei asserts that to the extent that the

assessments were caused by Commerce Decisions, it has a cause of

action for direct judicial review of the assessments in this Court

under the APA and additionally has exclusive jurisdiction under 28

U.S.C. § 1581(i). See Shinyei Mem. at 30-31; citing to Shinyei

CAFC, 355 F.3d at 1304-10. Shinyei further argues that to the

extent that the assessments were caused by Customs Decisions, it

has a cause of action for judicial review of the assessment under

19 U.S.C. § 1514(a), over which the CIT has exclusive jurisdiction

pursuant to 28 U.S.C. § 1581(a). Shinyei claims that the Court has

exclusive jurisdiction because Shinyei timely filed protests with

Customs against the assessments made in the actual liquidations;

timely commenced civil actions in this court seeking judicial

review after Customs denied the protest; and timely paid all

duties, charges and fees assessed on the Subject Entries by the

actual liquidations. See Shinyei Mem. at 33-34.
Court No. 00-00130 Page 16

During Oral Argument held on October 26, 2006, Shinyei argued

that an Order signed by the Court on July 14, 1992 (“the Order”),

which the government had referred to as being a preliminary

injunction, was in fact not a preliminary injunction at all. See

Trans. Oral Arg of October 26, 2006 at 45-49. Shinyei specifically

refers to paragraph 3 of the Order, and claims that the language

indicates a mandatory injunction or a permanent mandatory

injunction. See id. at 45-49. Shinyei reaffirmed this point in a

letter to the Court dated November 3, 2006, in which Shinyei

attached the aforementioned Order. See Letter to the Hon. Nicholas

Tsoucalas from Mr. Charles H. Bayer, November 3, 2006 (“Nov.

Letter”). Paragraph 3 of the Order reads:

ORDERED that the entries shall be liquidated in

accordance with the final court decision as provided in

19 U.S.C. § 1516a(e), notwithstanding the provisions of

19 U.S.C. § 1504(d).

See Order, Federal-Mogul Corp. v. United States, Court No. 92-06-

00422, July 14, 1992. Shinyei argues that Paragraph 3 of the Order

“requires that all of the [Disputed Entries] be actually liquidated

at the final review rate notwithstanding any deemed liquidation,

whether they merit additional assessments or refunds.” Pl.’s Mem.

Law Reply Def’s Resp. Pl.’s Mot. Partial Summary Judgment (“Pl’s

Reply”) at 10.
Court No. 00-00130 Page 17

On December 15, 2006, Shinyei once again contacted this Court

via letter, this time advising the Court of the December 14, 2006

CAFC decision, Norsk Hydro Canada, Inc. v. United States (“Norsk”),

472 F.3d 1347 (Fed.Cir. 2006). See Letter to the Hon. Nicholas

Tsoucalas from Mr. Charles H. Bayer, December 15, 2006. (“Dec.

Letter”). In the Dec. Letter, Shinyei contends that the recent

CAFC decision supports its position that a deemed liquidation

adverse to an importer is protestable under 19 U.S.C. § 1514.

Shinyei further contends that the Norsk decision further holds that

Customs is required to give proper notice of liquidation whether

the liquidation is actual or deemed and that the publication of the

bulletin notice of liquidation is the actual trigger for deciding

the start of the protest period. See Dec. Letter at 2.

B. Defendant’s Contentions

The Government asserts that as Customs failed to liquidate the

Disputed Entries within the six month period as required by 19

U.S.C. § 1504(d), the entries were deemed liquidated by operation

of law on August 23, 1998, “at the rate and amount of duty

deposited by Shinyei at the time of entry.” Def’s Brief Opp’n Pl’s

Mot. Partial Sum. J. and in Support of Cross-Motion for Sum. J.

(“Gov’t Brief”) at 9. Accordingly, the Government argues that

Commerce’s publication of the amended final results in the Federal

Register on February 23, 1998, removed the suspension on the
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liquidation of the Disputed Entries. See id. at 8-9; (citing to

Fujitsu Gen. America, Inc. v. United States, 283 F.3d 1364, 1381-82

(Fed. Cir. 2002)). The Government’s main argument is that as the

Disputed Entries “were actually liquidated at the deemed liquidated

rate and amount of duties, Shinyei has failed to state a claim on

which relief can be granted. This action, therefore should be

dismissed.” Id. at 9-10.

The Government further asserts that the deemed liquidation of

the Disputed Entries was final. See id. at 11 (citing to United

States v. Cherry Hill Textiles, Inc. (“Cherry Hill”), 112 F.3d

1550, 1560 (Fed.Cir. 1997)). The Government contends that

“whenever the courts have determined that an entry was deemed

liquidated under § 1504(d), they have set aside Customs’ actual

liquidation and have treated the deemed liquidation as final.” Id.

at 12-13 (citing to NEC Solutions (Am.), Inc. v. United States, 411

F.3d 1340, 1343, 1346 (Fed. Cir. 2005)); Int’l Trading Co. v.

United States, 281 F.3d at 1270-71, 1276 (Fed. Cir. 2002); American

Int’l Chem., Inc. v. United States, 29 CIT ___, ___, 387 F. Supp 2d

1269-70 (2005).

The Government further argues that as the Disputed Entries

were deemed liquidated by operation of law, Customs did not make a

decision to liquidate, and as such, Shinyei has no right to protest

under 19 U.S.C. § 1514(a). See Gov’t Brief at 14. However, the
Court No. 00-00130 Page 19

Government then argues that “even if it is assumed, arguendo, that

a protest against the deemed liquidation could have been filed,

Shinyei did not file a timely protest or request for

reliquidation.” Id. at 15. The Government elaborates that as “the

Federal Circuit noted, ‘publication in the Federal Register is a

familiar manner of providing notice to parties in antidumping

proceedings.’” Id. at 15 (citing to Int’l Trading, 281 F.3d at

1275). According to the Government, “Commerce’s publication of the

amended final results and final court decision in the Federal

register on February 28, 1998,” was notice to both Customs and

Shinyei that suspension of liquidation was removed. Id. at 15.

Thus, the Government continues, Shinyei was on notice “that its

entries would be deemed liquidated if not actually liquidated by

Customs within six months, i.e., by August 28 1998.” Id. at 15-16.

The Government continues:

Shinyei did not request Customs, before August 28, 1998,

to liquidate its entries, nor did it bring an action in

the Court for writ of mandamus or for relief under the

[APA]. Instead Shinyei waited until March 2000 to

commence this action in which it sought a writ of

mandamus against Customs directing it to liquidate the

entries.

Id. at 16.

The Government then counters Shinyei’s absurdity claim by

asserting that 19 U.S.C. § 1504(d), as enacted in 1993, precludes

such an interpretation. See id. at 17. The Government asserts
Court No. 00-00130 Page 20

that 19 U.S.C. § 1504(d) “covers all entries, which necessarily

includes entries for which the rate asserted by Shinyei at the time

of entry (the deposit rate) was higher than the administrative

review rate[.]” Id. at 19. The Government further asserts that

Congress enacted 19 U.S.C. § 1504 “in an effort to increase

certainty and to bring finality to the liquidation process.” Id.

at 21 (citing to Int’l Trading, 281 F.3d at 1272; Cherry Hill, 112

F.3d at 1559). The Government further argues that its

interpretation of 19 U.S.C. § 1504(d) could not be deemed absurd,

as the CAFC has applied a previous version of the statute “to

entries that were deemed liquidated although the administrative

review rate was lower than the rate asserted by the importer at the

time of entry.” Id. at 23; citing to Rheem Metalurgica S/A v.

United States, 160 F.3d 1357, 1359 (Fed. Cir. 1998).

The Government further contends that despite Shinyei’s claim,

Customs is not required to give notice of deemed liquidation. See

id. at 26 (citing 19 U.S.C. § 1504(a)). Nonetheless, the

Government argues, Shinyei received notice that suspension of

liquidation was removed through Commerce’s publication in the

Federal Register of February 23, 1998. See id. at 26. The

Government further clarifies that “if Customs had actually

liquidated the [Disputed Entries] before August 23, 1998, it would

have posted bulletin notices of deemed liquidation. Because
Court No. 00-00130 Page 21

Customs did not post such a notice, Shinyei knew, or should have

known, that the entries were deemed liquidated on that date.” Id.

at 26. Consequently, the Government concludes, Shinyei had

reasonable notice, but simply failed to exercise its right to

protest the deemed liquidation. Id. Furthermore, the government

argues that the legislative history of § 1504 indicates Congress’

intent that notice of deemed liquidation was unnecessary as it

states that if an importer has not received notice of liquidation

before the six month notice period expires, then the statute itself

serves as notice of liquidation, and notification by Customs is

therefore not necessary. See id. at 27-28. Additionally, the

Government argues that as Shinyei had adequate remedies against

deemed liquidation, Customs had not acted arbitrarily or

capriciously in the case at bar, and as such, there has been no

denial of Shinyei’s equal protection rights. See id. at 28.

The Government then turns to its interpretation of Koyo.

Initially the Government distinguishes the case at bar from Koyo by

stating that in Koyo:

the importer’s entries were included in Commerce’s

instructions for liquidation at the lower administrative

review rate. However, Customs determined that the

importers’ entries were deemed liquidated, and then

actually liquidated the entries “no change” to reflect

the deemed liquidation rate. Here, Customs did not

determine that Shinyei’s entries were deemed liquidated,

and applied Commerce’s instructions to liquidate the

entries at the deposit rate.
Court No. 00-00130 Page 22

See Gov’t Brief at 29 (citing Koyo, 403 F. Supp. 2d at 1307). The

Government, however, further argues that the Koyo court ruled

contrary to the plain meaning of 19 U.S.C. § 1504(d), and

incorrectly assessed the remedies available to importers. See id.

at 29-30.

The Government concludes by arguing that it is entitled to

recover payment on a refund erroneously paid to Shinyei on Entry

No. 032-0153132-8. See id. at 31. Due to a protest filed by

Shinyei, Customs reliquidated the 032 Entries and paid Shinyei a

refund of $676.75, and interest of $827.50. See id. at 31. The

Government argues that as the 032 Entries were deemed liquidated by

operation of law at the amount of duty deposited by Shinyei at the

time of entry, no refund was thus necessary, and Customs therefore

erred in granting the refund. See id. at 31-32.

III. Analysis

The CAFC remanded the case at bar, ruling that the CIT did

have jurisdiction to determine whether Shinyei is entitled to

relief based on the merits of Shinyei’s case. See Shinyei CAFC,

355 F.3d at 1312. The CAFC stated:

The question for the [CIT] is whether Commerce’s

instructions with regard to Fujino and Nankai were not in

accordance with the Amended [Final] Results (as required

by sections 1675(a)(2)), or whether the error was in

Customs’ liquidation of the subject entries despite
Court No. 00-00130 Page 23

correct instructions. If it is the later, despite both

parties’ arguments to the contrary, Shinyei’s appropriate

avenue for relief would be under 19 U.S.C. § 1514.

Shinyei CAFC, 355 F.3d at 1302 n.2.

The CAFC found that the manufacturers in question were

indisputably within the scope of the Amended Final Results. See

Shinyei CAFC, 355 F.3d at 1302. Additionally, the CAFC reconfirms

that “both parties agree that section 1514 is inapplicable because

the alleged agency error was on the part of Commerce, not Customs.”

Shinyei CAFC, 355 F.3d at 1311.

A. Deemed Liquidation

The CAFC has already ruled that this Court has subject matter

jurisdiction over the case at bar under 28 U.S.C. § 1581(i)(4)and

through Shinyei’s filing of an APA cause of action. See Shinyei

CAFC, 355 F.3d at 1304-05. The introduction to the APA states:

[t]his chapter applies, according to the provisions thereof, except

to the extent that– 1) statutes preclude judicial review; or 2)

agency action is committed to agency discretion by law.” 5 U.S.C.

§ 701(a). Thus, a cause of action under the APA can be terminated

if a statute preclude[s] judicial review.

The CAFC has already stated that as “the parties concede that

the [S]ubject [E]ntries were actually liquidated, [the CAFC] do[es]
Court No. 00-00130 Page 24

 Though the CAFC references “Shinyei’s arguments 2

concerning the effect of deemed liquidation on the [CIT’s]

subject matter jurisdiction” this Court shall reference both

Shinyei’s and the Government’s arguments as they relate to deemed

liquidation and the motions filed. Shinyei CAFC, 355 F.3d at 1308

n.5.

 Shinyei additionally argues that this Court should reject 3

the Government’s deemed liquidation argument based on the

principles of judicial estoppel. See Pl.’s Reply at 31-33. The

CAFC, however, never decided the deemed liquidation issue. See

Shinyei CAFC, 355 F.3d at 1308 n.5.. As such, the deemed

liquidation issue is before this Court for decision and there is

no judicial estoppel.

not address Shinyei’s arguments concerning the effect of deemed

liquidation on the [CIT’s] subject matter jurisdiction, an issue

the trial court did not decide.” Shinyei CAFC, 355 F.3d at 1308 2

n.5. As both parties have raised the issue of deemed liquidation

in their briefs to this Court, and as this Court recognizes that

APA review can be statutorily precluded, the issue of deemed

liquidation is of primary concern in the case at bar. See 5 U.S.C.

§ 701(a). 19 U.S.C. § 1504(d) the statutory provision related to 3

deemed liquidation, states:

[W]hen a suspension required by a statute or court order

is removed, [Customs] shall liquidate the entry within 6

months after receiving notice of the removal from

[Commerce], other agency or a court with jurisdiction

over the entry. Any entry not liquidated by [Customs]

within 6 months after receiving such notice shall be

treated as having been liquidated at the rate of duty,

value, quantity, and amount of duty asserted at the time

of entry by the importer of record.
Court No. 00-00130 Page 25

 Though 19 U.S.C. § 1504(d) was amended in 1994, the 4

amendment does not apply to administrative reviews commenced

before January 1, 1995. See NEC Solutions (Am.). Inc. v. United

States, 27 CIT 1459, 277 F. Supp. 1340 n.11 (2003), aff’d, 411

F.3d 1340 (Fed.Cir 2005).

 Torrington Co. reviewed the challenges to the Disputed 5

Entries and to the Final Results published in the Federal

Register. See Torrington Co., 127 F.3d 1077; Final Results, 57

Fed. Reg. 28,360 (IA June 24, 1992).

19 U.S.C. § 1504(d) (1988 as amended 1993).4

In order for entries to be deemed liquidated, three conditions

must be satisfied: “(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.” Koyo Corp. of U.S.A. v. United States, 29 CIT __, __, 403

F. Supp. 2d 1305, 1308 (2005) (citing Fujitsu v. United States, 283

F.3d 1364, 1376 (Fed. Cir. 2002)).

The suspension of liquidation on the disputed entries was

removed once the judgment in Torrington Co. v. United States, 127

F.3d 1077 (Fed.Cir 1997) became final on January 13, 1998. Though 5

the CAFC issued its decision on Torrington Co. on October 15, 1997,

the judgment did not become final until the 90-day period to

petition the United States Supreme Court for a writ of certiorari

expired. See Torrington Co., 127 F.3d 1077; Sup.Ct. R. 13.
Court No. 00-00130 Page 26

On February 23, 1998, Customs received notice of the

suspension’s removal, when Commerce published the Amended Final

Results of the 1990-91 administrative review and notice of final

court decision in the Federal Register. See Fujitsu Gen. America,

Inc. v. United States, 283 F.3d at 1381-82; Amended Final Results,

63 Fed. Reg. 8908. Commerce therein stated that it would issue

appraisement instructions to Customs. See Amended Final Results,

63 Fed. Reg. at 8909.

In the six months following February 23, 1998, Customs did not

liquidate the disputed entries. Def. Statement of Material Facts

Not in Dispute at 2. As such, the disputed entries became deemed

liquidated on August 23, 1998. See 19 U.S.C. §1504(d). As the

disputed entries were deemed liquidated by operation of law, the

final duty asserted by Shinyei was the rate and amount of duty

deposited at the time of entry or withdrawal from warehouse, not

the rate of duty determined by the administrative review. See

Wolff Shoe Co. v. United States, 141 F.3d 1116, 1123-24 (Fed. Cir.

1998). When courts have determined that entries were deemed

liquidated under 19 U.S.C. 1504(d), they have previously set aside

Customs’ actual liquidation and have treated the deemed liquidation

as being final. See Cherry Hill, 112 F.3d at 1560; NEC Solutions

(Am.), Inc., 411 F.3d at 1343-46; Int’l Trading Co., 281 F.3d at

1270-71, 1276-77; American Int’l Chem., Inc., 29 CIT ___, ___, 387
Court No. 00-00130 Page 27

 Though Shinyei was not a party to the administrative 6

review, it is nonetheless a person whose entries were affected by

the notice published in the Federal Register.

F.Supp 2d at 1269-70.

B. Notification and Timing of Shinyei’s Possible Remedies

Though courts, as stated supra, have viewed deemed liquidation

as being final in nature, this Court is particularly troubled by

Shinyei’s delay in seeking relief. Though not given notice by

Custom’s directly on the deemed liquidation, Shinyei was given

notice, and Shinyei should have been aware of the inevitability of

deemed liquidation under the conditions set forth in 19 U.S.C. §

1504(d). Publication in the Federal Register “is sufficient to

give notice . . . to a person subject to or affected by it.” 44

U.S.C. § 1507 (1994). 44 U.S.C. § 1501 defines “person” as “an

individual, partnership, association, or corporation[.]” 44 U.S.C.

§ 1501 (1994); See International Trading Co. v. United States, 412

F.3d 1303, 1309-10 (Fed.Cir. 2005). Shinyei is a “person” that

would be “affected” by the notice published in the Federal

Register. Accordingly, publication in the Federal Register 6

provided Shinyei with notice.

Shinyei contends that Custom’s regulations as set forth in 19
Court No. 00-00130 Page 28

 In Norsk, Customs was aware of the deemed liquidation, and 7

thereby published notice. This differs significantly from the

case at bar. See Norsk, 472 F.3d at 1353.

C.F.R. § 159.9(c)(2) and the recent Norsk decision hold that 7

Customs is required to give proper notice of liquidation regardless

of whether the liquidation is actual or deemed and as such, the

posting of the bulletin notice of liquidation is the actual trigger

for deciding the start of the protest period. See Dec. Letter at

2; 19 C.F.R. § 159.9(c)(2). The purpose behind the deemed

liquidation statute is to “increase certainty in the customs

process[.]” Int’l Trading, 281 F.3d at 1272. In the instant

matter, Customs was not aware of the Deemed Liquidation, and

thereby could not post notice in the Bulletin. Certainty,

therefore could never be guaranteed in a situation in which Customs

was not aware of the deemed liquidation. As 19 U.S.C. § 1504 is

meant to “bring finality to the duty assessment process,” and as

allowing the notification regulations set forth in 19 C.F.R. §

159.9(c)(2) to supercede such a finality would run counter to the

statute, this Court rules that Customs is not bound by 19 C.F.R. §

159.9(c)(2) when it is not aware of the deemed liquidation at the

time of its occurrence. Cherry Hill, 112 F.3d at 1559; see 19

U.S.C. § 1504.

Although the Disputed Entries were deemed liquidated, and

Deemed Liquidation is final, Shinyei could have still taken action
Court No. 00-00130 Page 29

 In NSK, the plaintiff imported antifriction bearings 8

between May 1994 and February 1995 that were subject to an

antidumping order. Though the plaintiff attempted to gain

mandamus relief, the case was dismissed as a result of Customs’

actual liquidation of the plaintiff’s entries prior to the

mandatory deemed liquidation date. See Order, NSK Corp. v.

United States, Court No. 05-00670, December 28, 2005.

to protest the higher rate imposed on the Disputed Entries by the

deemed liquidation. Shinyei could have requested that Customs

liquidate the entries prior to the August 23, 1998 deemed

liquidation date, but it did not. Shinyei, however argues that it

“had no mandamus remedy to compel Customs to actually liquidate the

[Disputed Entries] before August 23, 1998.” Pl.’s Reply at 37.

Shinyei is incorrect. Indeed, Shinyei could have sought mandamus

to compel liquidation of the Disputed Entries. See Peer Chain Co.

v. United States, 28 CIT ___, ___,; 316 F. Supp.2d 1357, 1368

(2004). For example, in NSK Corp v. United States (“NSK”), Court

No. 05-00670, the importer sought a preliminary injunction that

would restrain Customs from liquidating its entries by operation of

law.8

C. Status of the Preliminary Injunction

Shinyei asserts that the injunction in Paragraph 3 of the

Order issued in Federal-Mogul is not a preliminary injunction, and

as it is still in place, it continues to prevent the deemed

liquidation of the Disputed Entries. See Shinyei’s Reply at 6-10;
Court No. 00-00130 Page 30

Trans. Oral Arg of October 26, 2006 at 45-49; Order, Federal-Mogul

Corp. v. United States, Court No. 92-06-00422, July 14, 1992. The

Order, however, is clearly introduced with the language, “[u]pon

consideration of plaintiff’s motion for a preliminary injunction .

. .” and continues, “ORDERED that plaintiff’s motion for a

preliminary injunction . . . is granted.” See Order, Federal-Mogul

Corp. v. United States, Court No. 92-06-00422, July 14, 1992. As

the language of the Order is viewed holistically, taking into

consideration the actual introduction of the Order, as well as the

language in paragraph 3 of the Order, this Court finds that

paragraph 3 of the Order is merely qualifying the preliminary

injunction in a manner that is usual in the issuance of such

injunctions. See Order, Federal-Mogul Corp. v. United States,

Court No. 92-06-00422, July 14, 1992. The Order restrained the

Government from liquidating the Disputed Entries “during the

pendency of this litigation.” Id. This Court entered its final

judgment in Federal-Mogul Corp. v. United States, Court No. 92-06-

00422, on October 25, 1996. See 20 CIT 1274 (October 25, 1996).

The judgment contained no continued injunctive provisions. See id.

Preliminary injunctions dissolve when a case becomes final. See

Cypress Barn, Inc. v. Wester Elec. Co., 812 F.2d 1363, 1364 (11th

Cir. 1987); Volume Footwear Retailers of America, 10 CIT 12,14

(1986). The preliminary injunction from the Order therefore

dissolved on October 25, 1996. As such, deemed liquidation was not
Court No. 00-00130 Page 31

suspended, and the Disputed Entries were liquidated by operation of

law.

D. Defendant’s Counterclaim

The Government filed an answer and counterclaim in the 01-

00707 case on February 26, 2003, “in which it sought repayment of

a refund erroneously paid to Shinyei on Entry No. 032-0153132-8.”

Def’s Brief at 31. As mentioned supra, the 01-00707 case has been

consolidated into the case at bar.

The 032 Entries are included within the Disputed Entries that

were deemed liquidated on August 23, 1998. See Decl’n of Edward N.

Maurer (“Maurer Dec.”) at ¶¶ 7-8; Entry Summary for Entry No. 032-

0153132-8 (Oct. 30, 1990). On October 13, 2000, Customs “actually”

liquidated the 032 Entries as a “no change” liquidation, though it

had already been deemed liquidated on August 23, 1998. See Maurer

Dec. at ¶ 8. Shinyei filed a protest on November 1, 2000, which

was allowed in part on June 22, 2001. See id. As a result,

Customs reliquidated the entry and paid a refund of $676.75, plus

interest of $827.50 on July 6, 2001. See id. As the 032 Entries

had already been liquidated by operation of law, and at the duty

rate deposited at the time of entry, over two years before Customs

had mistakenly “actually” liquidated the 032 Entries on October 13,

2000, Customs had erred in granting the refund to Shinyei. As
Court No. 00-00130 Page 32

such, the Government is entitled to recover the $676.75 erroneously

refunded to Shinyei, as well as the $827.50 paid in interest, for

a total of $1,504.25. Additional interest, if any, shall be added

to the total.

IV. Conclusion

Based on the foregoing, the Disputed Entries were deemed

liquidated on August 23, 1998. Shinyei failed to seek mandamus

relief prior to the deemed liquidation of the Disputed Entries. As

such, the deemed liquidation of the Disputed Entries is final.

Furthermore, the CAFC did not consider the effects of deemed

liquidation when they reversed and remanded this Court’s previous

decision. Accordingly, Shinyei’s motion for partial summary

judgement is denied and the Government’s motion for summary

judgement is granted. Judgment will be entered accordingly.

 /s/ Nicholas Tsoucalas 

NICHOLAS TSOUCALAS

 SENIOR JUDGE

DATED: April 20, 2007

New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

___________________________________

:

SHINYEI CORPORATION OF AMERICA, :

:

Plaintiff, :

: Consolidated

v. : Court No. 00-00130

:

UNITED STATES, :

:

Defendant. :

___________________________________:

JUDGMENT

This case having been duly submitted for decision and the

Court, after due deliberation, having rendered a decision herein;

now, in accordance with said decision, it is hereby

ORDERED that Plaintiff’s motion for partial summary judgment

is denied; and it is further

ORDERED that Defendant’s cross-motion for summary judgment is

granted; and it is further

ORDERED that Shinyei Corporation of America return the

erroneously refunded $676.75, as well as the $827.50 paid in

interest, along with any additional interest, if any; and it is

further

ORDERED that this case is dismissed.

 /s/ Nicholas Tsoucalas 

NICHOLAS TSOUCALAS

 SENIOR JUDGE

DATED: April 20, 2007

New York, New York