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Carbon Activated Corp. v. United States

United States Court of Appeals, Federal Circuit

June 26, 2015

CARBON ACTIVATED CORPORATION, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

Appeal from the United States Court of International Trade in No. 1:13-cv-00366-GWC, Judge Gregory W.Carman.

NANCY NOONAN, Arent Fox, LLP, Washington, DC, for plaintiff-appellant.

ANTONIA RAMOS SOARES, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee.

Also represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON, CLAUDIA BURKE; EDWARD N. MAURER, United States Bureau of Customs and Border Protection, United States Department of Homeland Security, New York, NY.

Before DYK, SCHALL, and TARANTO, Circuit Judges.

OPINION

Page 1313

DYK, Circuit Judge.

Carbon Activated Corp. (" Carbon" ) appeals a decision of the United States Court of International Trade (" Trade Court" ) dismissing for lack of subject matter jurisdiction Carbon's challenge to the U.S. Customs and Border Protection's (" Customs" ) liquidation of three entries of activated carbon. Because Carbon could have availed itself of the jurisdictional provision in 28 U.S.C. § 1581(a) by filing a timely protest under 19 U.S.C. § 1514, there is no jurisdiction under § 1581(i). We affirm.

Background

Carbon imported from the People's Republic of China (" China" ) three entries of activated carbon between June 5, 2007, and July 10, 2007. The entries were subject to an antidumping duty order from the Department of Commerce (" Commerce" ) covering activated carbon from China.[1] Pursuant to that order, Carbon deposited estimated antidumping duties for the entries at a rate of 67.14%.

An administrative review of the antidumping duty order for the period from October 11, 2006, to March 31, 2008, was commenced on June 4, 2008.[2] In that connection, Commerce instructed Customs to suspend liquidation of the entries imported during the period under review. Despite the suspension instruction, Customs liquidated Carbon's three entries between April and May 2008 at the cash deposit rate of 67.14%. The parties appear to agree that in light of Commerce's instructions Customs should not have liquidated the entries. Carbon allegedly was not aware of the liquidation and did not at that time protest the liquidations pursuant to 19 U.S.C. § 1514.

On November 10, 2009, Commerce published the final results of the administrative review. See First Administrative Review of Certain Activated Carbon from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 74 Fed.Reg. 57,995 (Dep't of Commerce Nov. 10, 2009). Several parties, including the exporter of Carbon's entries, Hebei Foreign Trade and Advertising Corp. (" Hebei" ), challenged the results at the Trade Court and obtained a preliminary

Page 1314

injunction suspending liquidation on unliquidated entries. As the parties agree, because the injunction was obtained after Carbon's three entries were already liquidated, the injunction ...


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