Appeals from the United States Court of International Trade
in No. 1:15cv00315CRK, Judge Claire R. Kelly.
Noonan, Arent Fox, LLP, Washington, DC, argued for
plaintiffappellee. Also represented by John M. Gurley, Diana
Reinhart Miller, International Trade Field Office, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, New York, NY, argued for defendantappellant
United States. Also represented by Chad A. Readler, Jeanne E.
Davidson, Reginald T. Blades, Jr.; Paula S. Smith, Office of
the Assistant Chief Counsel, United States Bureau of Cus toms
and Border Protection, United States Department of Homeland
Security, New York, NY.
Maureen E. Thorson, Wiley Rein, LLP, Washington, DC, argued
for defendantappellant SolarWorld Americas, Inc. Also
represented by Timothy C. Brightbill, Stephanie Manaker Bell,
Tessa V. Capeloto, Laura ElSabaawi, Derick Holt, Usha
Neelakantan, Adam Milan Teslik, .
Newman, Lourie, and Reyna, Circuit Judges.
America Inc. and the United States appeal from the judgment
of the United States Court of International Trade in favor of
Sunpreme Inc., concluding that the United States Customs and
Border Protection exceeded its authority in reaching a
determination that certain products imported by Sunpreme are
covered by the scope of antidumping and countervailing duty
orders on U.S. imports of solar cells from the People's
Republic of China. Because the Court of International Trade
lacked jurisdiction to hear Sunpreme's claims, we
trade laws provide that "American industries may
petition for relief from imports that are sold in the United
States at less than fair value . . ., or which benefit from
subsidies provided by foreign governments."
Allegheny Ludlum Corp. v. United States, 287 F.3d
1365, 1368 (Fed. Cir. 2002) (citing 19 U.S.C. § 1675b
(2000)). This relief is sought by filing an antidumping or
countervailing duty petition before the U.S. Department of
Commerce ("Commerce") and the U.S. International
Trade commission("Trade Commission"). Following the
filing of such a petition, Commerce determines whether sales
of the investigated merchandise have been made at less than
fair value ("dumping") or whether a countervailable
subsidy has been provided. 19 U.S.C. §§ 1673,
1671(a)(1). The Trade Commission determines whether the
imported merchandise materially injures or threatens to
materially injure the relevant domestic industry.
Id. §§ 1673d(b)(1), 1671d(b)(1). If
Commerce's and the Trade Commission's determinations
are affirmative, Commerce issues an appropriate antidumping
or countervailing duty order. Id. §§
is charged with writing antidumping and countervailing duty
orders that "include a description of the subject
merchandise, in such detail as the administering authority
deems necessary." Id. §§ 1673e(a)(2),
1671e(a)(2). The orders also provide the antidumping and
countervailing duty margins that have been established in the
course of the investigations. Id. §§
1673d(c)(1)(B), 1673e(a)(1), 1671d(c)(1)(B), 1671e(a)(1).
Commerce issues an antidumping or counterivailing duty order,
the United States Customs and Border Protection
("Customs") applies and enforces the duty orders
through the assessment and collection of antidumping and
countervailing duties on imports of the investigated
merchandise. 19 C.F.R. §§ 159.41, 159.47, 351.211.
When Customs determines a duty order covers entered
merchandise, it suspends liquidation and notifies the
importer of "determined or estimated" duties.
Id. § 159.58(a), (b). "Liquidation"
is defined as "the final computation or ascertainment of
duties on entries for consumption or drawback entries."
Id. § 159.1.
the publication of the duty orders, if a question arises as
to whether merchandise is encompassed by an order, an
interested party may request a scope inquiry by Commerce to
determine if a particular type of merchandise is within the
class or kind of merchandise described in an existing duty
order. See 19 C.F.R. § 351.225. Commerce has
the express authority to conduct a scope inquiry and to
clarify the scope of an unclear order pursuant to 19 C.F.R.
§ 351.225(a), and "should in the first instance
decide whether an antidumping order covers particular
products, " because "the order's meaning and
scope are issues particularly within the expertise of that
agency." Xerox Corp. v. United States, 289 ...