from the United States Court of International Trade in Nos.
1:14-cv-00304-DCP, 1:15-cv-00318-DCP, Judge Donald C. Pogue.
HUEI-MIN CHEN, Chen Law Group LLC, Rockville, MD, argued for
LEE, International Trade Field Office, Appellate Section,
International Trade Litigation, United States Department of
Justice, New York, NY, argued for defendant-appellee United
States. Also represented by CHAD A. READLER, JEANNE E.
DAVIDSON, REGINALD T. BLADES, JR.; JAMES HENRY AHRENS, II,
Office of the Chief Counsel for Trade Enforcement &
Compliance, United States Department of Commerce, Washington,
H. PRICE, Wiley Rein, LLP, Washington, DC, for
defendant-appellee Aluminum Extrusions Fair Trade Committee.
Also represented by ROBERT E. DEFRANCESCO, III, LAURA
EL-SABAAWI, DERICK HOLT.
Lourie, O'Malley, and Chen, Circuit Judges.
LOURIE, CIRCUIT JUDGE.
Sales & Services Ltd. ("Capella") appeals from
the decisions of the United States Court of International
Trade (the "Trade Court"), dismissing Capella's
two separate complaints under USCIT Rule 12(b)(6).
Capella Sales & Servs. Ltd. v. United States,
180 F.Supp.3d 1293, 1303-04 (Ct. Int'l Trade 2016)
("Decision I"); Capella Sales &
Servs. Ltd. v. United States, 181 F.Supp.3d 1255,
1263-64 (Ct. Int'l Trade 2016) ("Decision
II"). Because the Trade Court did not err in
dismissing Capella's complaints, we affirm.
United States Department of Commerce ("Commerce" or
"the Secretary") has authority, in certain
situations, to impose countervailing duties
("CVDs") on imported goods if it "determines
that the government of a country . . . is providing, directly
or indirectly, a countervailable subsidy with respect
to" an imported good. 19 U.S.C. § 1671(a)(1)
(2012). Capella challenges here the assessed CVD rate of
374.15% on four entries of aluminum extrusions that Capella
imported into the United States from the People's
Republic of China ("PRC"), arguing that it is
entitled to a lower rate obtained by several other importers
after they successfully challenged the 374.15% rate at the
Trade Court in a separate case.
determining whether and at what rates to assess CVDs,
Commerce may initiate an investigation. Id. §
1671a(a). Within a fixed time period following initiation of
an investigation, Commerce "shall make a final
determination of whether or not a countervailable subsidy is
being provided with respect to the subject merchandise."
Id. § 1671d(a)(1). If Commerce identifies such
a countervailable subsidy, then it shall determine either
"an estimated individual [CVD] rate for each exporter
and producer individually investigated, " or, if
permitted by § 1671d(c)(5), "an estimated
all-others rate for all exporters and producers not
individually investigated." Id. §
1671d(c)(1)(B)(i). If Commerce calculates an all-others rate,
Commerce must then order the "posting of a cash deposit,
bond, or other security . . . for each entry of the subject
merchandise" at that rate. Id. §
1671d(c)(1)(B)(ii). This rate is referred to as the cash
the posting of the cash deposit or bond at the cash deposit
rate, entries are "liquidated, " subject to certain
limitations. See 19 U.S.C. § 1504. Liquidation
is "the final computation or ascertainment of duties on
entries." 19 C.F.R. § 159.1 (2017). The general
rule is that "entries of merchandise . . . covered by a
determination of the Secretary . . . shall be liquidated in
accordance with the determination of the Secretary." 19
U.S.C. § 1516a(c)(1).
the statute contemplates several situations in which subject
entries might not be liquidated at the cash deposit rate
calculated in the final determination. First, if an affected
party challenges a final determination by Commerce covering
its entries in court, and the court enjoins liquidation of
the entries at Commerce's determined rate, then those
entries are instead "liquidated in accordance with the
final court decision in the action, " which could result
in a revised cash deposit rate. Id. § 1516a(e).
Second, subject entries not enjoined by the court must still
be liquidated according to the final court decision if the
entries are made "after the date of publication in the
Federal Register . . . of a notice of the court
decision." Id. § 1516a(e)(1). Such a
notice is called a "Timken notice, "
referring to Timken Co. v. United States, 893 F.2d
337, 341 (Fed. Cir. 1990). Commerce may also initiate
administrative review of entries "if a request for such
review has been received, " 19 U.S.C. § 1675(a)(1),
and then calculate a new rate that forms "the basis for
the assessment of [CVDs] . . . and for deposits of estimated
duties, " id. § 1675(a)(2)(C).
initiated a CVD investigation of imports of certain aluminum
extrusions from the PRC in 2010. As a result of the
investigation, Commerce published a final determination
setting the all-others rate on entries of aluminum extrusions
from the PRC at 374.15%, see Aluminum Extrusions
from the [PRC]: Final Affirmative Countervailing Duty
Determination, 76 Fed. Reg. 18, 521, 18, 522 (Apr. 4, 2011)
(the "final determination"), and issued a CVD order
on May 26, 2011, directing United States Customs and Border
Protection ("CBP") to assess CVDs on subject
merchandise as calculated in the final determination,
see Aluminum Extrusions from the [PRC]:
Countervailing Duty Order, 76 Fed. Reg. 30, 653, 30, 655 (May
26, 2011). Capella imported its four entries of subject
aluminum extrusions from the PRC between November 2011 and
several other aluminum importers challenged Commerce's
final determination at the Trade Court, resulting in the
MacLean-Fogg litigation. The MacLean-Fogg
litigation resulted in court decisions holding the 374.15%
all-others rate unlawful, MacLean-Fogg Co. v. United
States, 853 F.Supp.2d 1336, 1342-43 (Ct. Int'l Trade
2012), and affirming a lower rate determined by Commerce,
MacLean-Fogg Co. v. United States, 885 F.Supp.2d
1337, 1342-43 (Ct. Int'l Trade 2012). Commerce published
a Timken notice, effective December 10, 2012,
notifying the public that the latter MacLean-Fogg
decision was "not in harmony with" Commerce's
final determination. Aluminum Extrusions from the [PRC]:
Notice of Court Decision Not in Harmony With Final
Determination, 77 Fed. Reg. 74, 466, 74, 466-67 (Dec. 14,
2012) (the "Timken notice"). Ultimately,
the MacLean-Fogg litigation ...