. 

NOTE: This disposition is nonprecedential 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

SHINYEI CORPORATION OF AMERICA, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-1178 

__________________________ 

Appeal from the United States Court of International 

Trade in consolidated case No. 00-CV-0130, Chief Judge

Jane Restani. 

___________________________ 

Decided: October 22, 2010 

___________________________ 

CHARLES H. BAYAR, Charles H. Bayar Law Office, of 

Scarsdale, New York, argued for plaintiff-appellant. 

MICHAEL P. GOODMAN, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 

and PATRICIA M. MCCARTHY, Assistant Director. Of 
SHINYEI CORP v. US 2

counsel was MICHAEL J. DIERBERG, Trial Attorney. Of 

counsel on the brief was EDWARD N. MAURER, Deputy 

Assistant Chief Counsel, United States Customs and 

Border Protection, of New York, New York. 

__________________________ 

Before NEWMAN, PROST, and MOORE, Circuit Judges. 

MOORE, Circuit Judge. 

Appellant Shinyei Corporation of America (Shinyei), 

appeals the final decision of the United States Court of 

International Trade denying an award of fees under the 

Equal Access to Justice Act (EAJA). Because the Court of 

International Trade abused its discretion by determining 

that the government’s position was substantially justified, 

we reverse and remand for a determination of fees. 

BACKGROUND

This is the third time this case has come to us on appeal. Because this is an EAJA case, the entire course of 

the government’s conduct—from the earliest Commerce 

decisions through the current appeal—is relevant. 

Commerce issued an antidumping order covering ball 

bearings from Japan and several other countries in 1989. 

Shinyei Corp of Am. v. United States, 524 F.3d 1274, 

1277-78 (Fed. Cir. 2008) (Shinyei II). Shinyei imported 

ball bearings between May 1, 1990 and April 30, 1991. 

Because the bearings were subject to antidumping duties, 

Shinyei made a cash deposit of antidumping duties of 

45.83% ad val. Id. at 1278. During this time period, 

Commerce performed its second administrative review in 

which it determined that the 45.83% duty rate was incorrect. The final rates determined appropriate by Commerce ranged from 1.8% to 16.71%. Antifriction Bearings 

(Other Than Tapered Roller Bearings) and Parts Thereof 
3 SHINYEI CORP v. US

from France; et al.; Final Results of Antidumping Duty 

Administrative Reviews, 57 Fed. Reg. 28,360, 28361 (Dep’t 

Commerce June 24, 1992), amended by 57 Fed. Reg. 

59,080 (Dep’t Commerce Dec. 14, 1992). 

In 1998, following the final rate determination, and a 

related judicial action, Commerce issued instructions to 

Customs to liquidate all entries during this period at the 

lower rates (1.8%-16.71%). The instructions inexplicably 

omitted Shinyei. There is no dispute over the merits, 

Shinyei was entitled to the lower rate determined by 

Commerce in the second administrative review – 1.8%-

16.71%. Commerce admits that it inadvertently left 

Shinyei off of the liquidation instructions to Customs. 

J.A. 626-27. As a direct result of this error, Shinyei 

remained subject to the 45.83% rate. 

On March 23, 2000, Shinyei filed suit in the Court of 

International Trade challenging Commerce’s 1998 instructions. Shinyei argued that Commerce erred by 

excluding it from these instructions and thus not properly 

implementing the result of the second administrative 

review. Shinyei argued it was entitled to the lower rates 

and that its merchandise should not be liquidated at the 

higher 45.83% rate which was rejected by Commerce in 

the second administrative review. On August 1, 2000, 

more than four months after Shinyei initiated a suit 

pointing out Commerce’s error, Commerce ordered Customs to actually liquidate the merchandise at issue at the 

incorrect 45.83% rate.1 

After this actual liquidation occurred, pursuant to 

Commerce’s order, the government argued that the Court 

 1 Shinyei also sought a writ of mandamus to direct 

Customs to liquidate the entries at issue at the rates 

determined in the second administrative review, the 

Customs-error case. 
SHINYEI CORP v. US 4

of International Trade did not have jurisdiction because 

Commerce actually liquidated the entries. The government argued that once entries are liquidated, their duty 

rate cannot be challenged in the Court of International 

Trade. On February 14, 2003, the Court of International 

Trade dismissed the litigation for lack of jurisdiction 

because of the actual liquidations. Shinyei appealed. We 

determined that because Shinyei challenged Commerce’s 

instructions under the APA, rather than its final determination under section 516A of the Tariff Act, the actual 

liquidations did not divest the Court of International 

Trade of jurisdiction. We reversed and remanded the case 

specifically for further proceedings on the merits of Shinyei’s APA claim. Shinyei Corp. of Am. v. United States, 

355 F.3d 1297, 1312 (Fed. Cir. 2004) (Shinyei I). 

On remand, the Commerce-error case and the Customs-error case were consolidated. The government 

argued that even though we held that the actual liquidation did not divest the Court of International Trade of 

jurisdiction, the entries were deemed liquidated2 in 1998 

and that this liquidation divested the Court of International Trade of jurisdiction. The parties filed crossmotions for summary judgment on the government’s 

 2 Here, the parties both agree that Shinyei’s entries 

were deemed liquidated. An entry is “deemed liquidated” 

if Commerce fails to actually liquidate the entry within 6 

months of the publication of final review results. 19 

U.S.C. § 1504(d). Shinyei received no notice of this 

deemed liquidation and it appears that the government 

only discovered it much later during litigation. See Shinyei II, 524 F.3d at 1284. If the government had been 

aware of the deemed liquidation, there would have been 

no reason for Commerce to order the actual liquidation in 

August 2000. Notice of a deemed liquidation is important 

because this notice starts the importer’s clock on the time 

to protest the liquidation. 
5 SHINYEI CORP v. US

deemed liquidation defense. The Court of International 

Trade granted the government’s motion for summary 

judgment and again dismissed the case for lack of jurisdiction. Shinyei Corp. of Am. v. United States, 491 F. 

Supp. 2d 1209, 1222 (Ct. Int’l Trade 2007). 

Again, Shinyei appealed this jurisdiction determination. The government argued that the deemed liquidation 

statute, 19 U.S.C. § 1675(a)(2)(C), forbids judicial review 

of Commerce instructions after deemed liquidation occurs. 

We held that the deemed liquidation statute is silent as to 

reliquidation and judicial review and that we would not 

read this as a blanket prohibition. Shinyei II, 524 F.3d at 

1283. Further, we relied on Koyo Corp. of U.S.A. v. 

United States, 497 F.3d 1231, 1242 (Fed. Cir. 2007). In 

Koyo, we determined that a deemed liquidation that does 

not comport with final administrative review results is 

invalid. 497 F.3d at 1242-43. In other words, “[a]ssuming 

that Shinyei’s entries were covered by the [results of the 

administrative review], their deemed liquidation at the 

deposit rate [of 45.83%] was unlawful.” Shinyei II, 524 

F.3d at 1284. Again, we reversed and remanded for the 

Court of International Trade to consider the merits of 

Shinyei’s claim. 

On remand, when finally faced with the merits of its 

case, the government agreed to reimburse Shinyei for the 

duties which had been incorrectly accessed. The parties 

agreed to a stipulated dismissal and a payment to Shinyei 

of over $2,000,000. J.A. 781-82. 

Following the entry of stipulated judgment, Shinyei 

applied for an award of attorney’s fees under EAJA. The 

Court of International Trade recognized that it must 

consider the government’s entire course of conduct including Commerce’s prelitigation conduct as well as the 

government’s litigation arguments. The Court of Interna-
SHINYEI CORP v. US 6

tional Trade dismissed Commerce’s prelitigation conduct 

as merely a “clerical” error and concluded that it could not 

render the government’s position unreasonable. Shinyei 

Corp. of Am. v. United States, 31 I.T.R.D. 2381 (Ct. Int’l 

Trade 2009) (Shinyei-EAJA). The Court of International 

Trade focused almost entirely on the government’s arguments during litigation. Id. It observed that in both 

appeals, the government supported its position with 

relevant case law. Id. Further, the Court of International 

Trade pointed out that in Shinyei II, we relied on intervening precedent. Id. 

Shinyei appeals the Court of International Trade’s 

denial of attorney’s fees under EAJA. We have jurisdiction under 28 U.S.C. § 1295(a)(5). 

DISCUSSION

Under EAJA, “a court shall award to a prevailing 

party other than the United States fees and other expenses . . . unless the court finds that the position of the 

United States was substantially justified or that special 

circumstances make an award unjust.” 28 U.S.C. 

§ 2412(d)(1)(A). A position is substantially justified if it is 

“justified to a degree that could satisfy a reasonable 

person” and has a “reasonable basis in law and fact.” 

Pierce v. Underwood, 487 U.S. 552, 565 (1988). The 

government’s “position” includes the underlying actions of 

any administrative agency as well as the government’s 

litigation arguments. Smith v. Principi, 343 F.3d 1358, 

1361-62 (Fed. Cir. 2003). Although the “position” of the 

government involves prelitigation conduct as well as the 

litigation itself, “only one threshold determination for the 

entire civil action is to be made.” Comm’r, Immigration & 

Naturalization Servs. v. Jean, 496 U.S. 154, 159 (1990). 

We review a trial court’s determination of substantial 

justification for abuse of discretion. Chiu v. United 
7 SHINYEI CORP v. US

States, 948 F.2d 711, 713 (Fed. Cir. 1991). “Only if the 

trial court erred in interpreting the law or exercised its 

judgment on clearly erroneous findings of material fact, or 

its decision represents an irrational judgment in weighing 

the relevant factors can its decision be overturned.” Id.

Shinyei argues that the Court of International Trade 

abused its discretion by not properly considering Commerce’s pre-litigation conduct as part of the government’s 

“position.” We agree. Regarding Commerce’s conduct, the 

Court of International Trade stated: 

Unless bad faith is established, a mere clerical error at the agency level does not automatically 

render the United States’ position unreasonable. 

Here, the record indicates that the United States 

attributed its mistake to inadvertence and neglect. Thus, this “negligence is but one part of the 

agency’s conduct” and is a nondeterminative factor. 

Shinyei-EAJA, 31 I.T.R.D. 2381 (citations omitted). The 

Court of International Trade failed to consider that the 

government, once notified of its error, chose not to remedy 

the error and provide a refund, until after more than nine 

years of litigation. The government was on notice of its 

error no later than March of 2000 when Shinyei initially 

filed suit. After being notified of this clear error, the 

government ordered the actual liquidation of the entries 

in August of 2000 at the incorrect rate.3 Then, the government argued that by actually liquidating at the incor-

 3 During oral argument, Shinyei argued that it had 

also notified the government repeatedly by letter and 

otherwise prior to the actual liquidation that Commerce’s 

1998 instructions to Customs to liquidate at the reduced 

rate should include Shinyei. It appears, however, that 

this evidence is not a part of the record before us, and 

therefore we do not consider it. 
SHINYEI CORP v. US 8

rect rate, it divested the Court of International Trade of 

jurisdiction. 

While Commerce’s 1998 instructions to Customs may 

have inadvertently omitted Shinyei and while this may 

have been “clerical” or “negligent” in nature, this must be 

viewed in combination with the government’s unwillingness to remedy the clear error after it was notified. Worse 

yet, the government ordered the actual liquidation at the 

higher 45.83% rate, several months after being notified of 

the error. This is unreasonable behavior and cannot be 

dismissed as merely a clerical error. In this case, there 

was not merely the clerical error, but the subsequent 

unwillingness to remedy that error even after notification. 

The Court of International Trade erred when it failed to 

consider this governmental conduct. The government 

does not, in this litigation which spans nearly ten years, 

argue that Shinyei’s entries were properly assessed at the 

duty rate of 45.83%. Rather the government’s litigation 

position amounts to the following: we erred when we 

inadvertently left Shinyei off the orders to liquidate at the 

reduced rate and then after being notified of this error by 

the filing of this lawsuit, we nonetheless ordered the 

liquidation of the entries at the incorrect much higher 

rate, and this liquidation deprives the court of jurisdiction 

over this case. 

In Shinyei I, we held that the court did have jurisdiction, that the actual liquidation did not deprive the court 

of jurisdiction over an APA challenge, and remanded the 

case for “proceedings on the merits.” 355 F.3d at 1312. 

On remand, the government again challenged jurisdiction, this time based on a deemed liquidation which it 

alleged had occurred. This jurisdictional argument paralleled its actual liquidation argument which had already 

been rejected. In Shinyei II, we held that this position 

was without merit. The government is correct that we 
9 SHINYEI CORP v. US

cited our intervening decision in Koyo. However, even 

after Koyo, which held that a deemed liquidation that 

does not comport with final administrative review results 

is invalid, the government did not acquiesce in the court’s 

jurisdiction. 

In Shinyei II, the government did ask for a remand in 

light of Koyo, because it was intervening precedent not 

considered by the Court of International Trade. The 

government requested remand to argue to the Court of 

International Trade that Koyo did not apply and that 

despite our decision in Koyo, the Court of International 

Trade still lacked jurisdiction following the deemed liquidation. Oral Arg. at 13:34-14:08, 16:18-26, Shinyei II, No. 

2007-1291 (Fed. Cir. Feb. 5, 2008). We concluded that 

remand was unnecessary and that Koyo’s core holding 

was equally applicable to Shinyei’s claim.4 

All of this conduct amounts to the government’s “position.” Smith, 343 F.3d at 1361-62. Viewing the government’s conduct in its entirety, we are convinced that the 

Court of International Trade abused its discretion when it 

concluded that the government’s conduct was substantially justified. We reverse and remand solely for a determination of the amount of fees Shinyei is entitled to 

under EAJA. 

 4 We likewise rejected the government’s arguments 

with regard to the Customs-error cases including its 

peculiar ripeness argument. The government argued that 

Shinyei cannot protest until Customs gives it notice of the 

deemed liquidation. The government then argued that 

because Customs has never given such bulletin notice, 

even now more than ten years after the deemed liquidation, Shinyei was without the ability to protest – its claim 

was not ripe. Under this logic, the government could 

simply decline to ever provide the notice, and then the 

importer would never have a right to protest. 
SHINYEI CORP v. US 10

REVERSED and REMANDED