Rimco Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
RIMCO INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2079
______________________
Appeal from the United States Court of International
Trade in No. 1:21-cv-00537-MAB, Chief Judge Mark A.
Barnett.
______________________
Decided: April 8, 2024
______________________
J OHN M. P ETERSON, Neville Peterson LLP, New York,
NY, argued for plaintiff-appellant. Also represented by
P ATRICK K LEIN; RICHARD F. O'N EILL , Seattle, WA.
BEVERLY A. F ARRELL , Commercial Litigation Branch,
Civil Division, United States Department of Justice, New
York, NY, argued for defendant-appellee. Also represented
by BRIAN M. BOYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY , J USTIN REINHART MILLER; F ARIHA K ABIR ,
YELENA SLEPAK, Office of Assistant Chief Counsel, Bureau
of Customs and Border Protection, United States Depart-
ment of Homeland Security, New York, NY; I AN ANDREW
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RIMCO INC. v. US 2
MCI NERNEY , Office of the Chief Counsel for Trade Enforce-
ment and Compliance, United States Department of Com-
merce, Washington, DC.
______________________
Before P ROST , T ARANTO, and HUGHES , Circuit Judges.
HUGHES , Circuit Judge.
Importer Rimco Inc., appeals the United States Court
of International Trade’s dismissal for lack of subject matter
jurisdiction over an action seeking judicial review of a de-
nied protest. Rimco asserts the Court of International
Trade’s exclusive subject-matter jurisdiction to review de-
nial of protests pursuant to 28 U.S.C. § 1581(a), or alterna-
tively, residual jurisdiction pursuant to 28 U.S.C. § 1581(i).
Because Customs and Border Protection’s assessment of
countervailing and antidumping duties is not a protestable
decision, and because jurisdiction under 28 U.S.C.
§ 1581(c) would have been available if Rimco had not failed
to exhaust the appropriate administrative remedies, we af-
firm the CIT’s dismissal for lack of subject matter jurisdic-
tion.
I
A
Antidumping duties (AD) and countervailing duties
(CVD) work to remedy domestic injuries caused by goods
imported at unfair prices or receiving countervailable sub-
sidies from foreign governments. Guangdong Wireking
Housewares & Hardware Co. v. United States, 745 F.3d
1194, 1196 (Fed. Cir. 2014). The U.S. Department of Com-
merce and the U.S. International Trade Commission are
the agencies charged with conducting CVD and AD inves-
tigations. 19 U.S.C. §§ 1671, 1673. During these investiga-
tions, Commerce determines whether, and to what extent,
merchandise imported into the United States is being sold
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RIMCO INC. v. US 3
at prices below fair value, or benefits from countervailable
foreign subsidiaries. 19 U.S.C. §§ 1671d, 1673d.
After concluding an investigation, Commerce deter-
mines the appropriate AD and CVD rates required to ad-
dress any domestic injuries or unfair practices related to
certain foreign exporters, producers, or governments. 19
U.S.C. §§ 1671d(c)(1), 1673d(c)(1). These rates can be es-
tablished for specific entities or on a country-wide basis de-
pending on the source and extent of the harm. 19 U.S.C.
§§ 1671d(c)(1)(B), 1673d(c)(1)(B). Congress has supplied
Commerce with a statutory scheme that provides methods
for establishing AD and CVD rates for individually and
non-individually investigated entities, as well as an “all-
others” rate based on multiple considerations, including
facts available. See 19 U.S.C. §§ 1671d(c)(5), 1673d(c)(5),
1677e.
This court has recognized that Commerce has “broad
authority to interpret . . . and carry out th[is] statutory
mandate.” Sigma Corp. v. United States, 117 F.3d 1401,
1405 (Fed. Cir. 1997). However, its methodology must nev-
ertheless be reasonable. See Yangzhou Bestpak Gifts &
Crafts Co. v. United States, 716 F.3d 1370, 1373 (Fed. Cir.
2013) (quoting “reasonable method” requirement contained
in 19 U.S.C. § 1673d(c)(5)(B)).
After Commerce makes final AD and CVD determina-
tions, it publishes the rates in a final order. In accordance
with rulemaking under the Administrative Procedure Act
(APA) § 3, 5 U.S.C. § 553, Commerce then provides notice
of opportunity for interested parties, such as importers, to
request and/or participate in administrative review of the
final orders. At the close of the notice of opportunity period,
Commerce issues liquidation instructions, directing the
U.S. Customs and Border Protection (Customs) to assess
entries subject to the orders at the final published respec-
tive rates.
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RIMCO INC. v. US 4
B
On March 28, 2019, after completing CVD and AD in-
vestigations, Commerce published final CVD and AD de-
terminations on certain steel wheels from China. See
generally Certain Steel Wheels From the People’s Republic
of China: Final Affirmative Countervailing Duty Determi-
nation, 84 Fed. Reg. 11,744 (Dep’t Commerce Mar. 28,
2019) (Final CVD Determination); Certain Steel Wheels
From the People’s Republic of China: Final Determination
of Sales At Less-Than-Fair-Value, 84 Fed. Reg. 11,746
(Dep’t Commerce Mar. 28, 2019) (Final AD Determination).
In its Final CVD Determination, Commerce established an
entity rate of 457.10 % for two mandatory respondents
based on total adverse facts available, as authorized under
19 U.S.C. § 1677e(b), and an all-others rate of 457.10 %, as
authorized under 19 U.S.C. § 1673d(c)(5)(A). See Certain
Steel Wheels From the People’s Republic of China: Final Af-
firmative Countervailing Duty Determination, 84 Fed. Reg.
at 11,745. Because no companies participated in the AD in-
vestigation, Commerce established a China-wide entity
rate of 231.08 % for the Final AD Determination. See Cer-
tain Steel Wheels From the People’s Republic of China: Fi-
nal Determination of Sales At Less-Than-Fair-Value, 84
Fed. Reg. at 11,747.
On May 24, 2019, Commerce issued the AD and CVD
orders in a single publication. Certain Steel Wheels From
the People’s Republic of China; Antidumping and Counter-
vailing Duty Orders, 84 Fed. Reg. 24,098–24,100 (Dep’t
Commerce May 24, 2019).
On May 1, 2020, Commerce published a notice of op-
portunity to allow requests for administrative review of the
AD order and CVD order for the periods August 31, 2018,
through December 31, 2019, and October 30, 2018, through
April 30, 2020, respectively. See Antidumping or Counter-
vailing Duty Order, Finding, or Suspended Investigation;
Opportunity to Request Administrative Review, 85 Fed.
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RIMCO INC. v. US 5
Reg. 25,394, 25,396 (Dep’t of Commerce May 1, 2020). This
notice provided interested parties, with an opportunity to
participate in the administrative review process to ensure
that their entries from the reviewable time periods were
assessed at the proper rates during liquidation. As is rele-
vant to this appeal, Rimco, a North Dakota-based importer
and reseller of wheels subject to the orders, is an interested
party to which the notice applied. See 19 U.S.C. 1677(9)(A)
(defining “interested party” to include “the United States
importer[] of subject merchandise”). Yet, neither Rimco,
nor any other interested party, requested administrative
review of any transactions covered by the respective peri-
ods of review.
Because no interested party requested administrative
review of the AD or CVD orders, Commerce issued liquida-
tion instructions directing Customs to assess entries sub-
ject to the orders at the final published rates. During
liquidation, Customs then applied the instructed rates
when assessing goods subject to the respective orders.
Rimco made various consumption entries of goods subject
to liquidation in accordance with the AD and CVD orders.
On March 16, 2021, Rimco filed a protest challenging
Customs’ assessment of AD and CVD on its imported goods
as “‘excessive fines’ in contravention of the Eighth Amend-
ment.” Appellant’s Br. at 5. On March 30, 2021, Customs
denied the protest on the basis that “19 U.S.C. [§] 1514
does not authorize protests or petitions against Commerce
calculations or findings.” Appellee’s Br. at 8. Rimco then
filed an action before the U.S. Court of International Trade
(CIT), seeking judicial review of Customs’ denial of protest.
Rimco asserted the CIT’s exclusive jurisdiction under 28
U.S.C. § 1581(a), or alternatively, 28 U.S.C. § 1581(i).
The Government moved to dismiss Rimco’s action for
lack of subject matter jurisdiction and failure to state a
claim. On July 8, 2022, the CIT granted the Government’s
motion on jurisdictional grounds and dismissed the action
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RIMCO INC. v. US 6
with prejudice.1 J.A. 1. The CIT held that it lacked juris-
diction under § 1581(a) because Customs’ ministerial ap-
plication of AD and CVD rates, pursuant to Commerce’s
liquidation instructions, was not a protestable decision.
J.A. 10–12. Instead, the CIT found that the true nature of
Rimco’s action was “a challenge to the countervailing and
antidumping duty rates set by Commerce in the respective
orders . . . .” J.A. 19. Therefore, the CIT concluded that it
lacked jurisdiction under § 1581(i) “because jurisdiction
pursuant to section 1581(c) was available and would not
have been manifestly inadequate” had Rimco sought ad-
ministrative review of Commerce’s AD and CVD determi-
nations. J.A. 13.
Rimco appeals the CIT’s dismissal. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(5).
II
We review a dismissal granted by the CIT for lack of
subject-matter jurisdiction de novo as a question of law.
Hutchinson Quality Furniture, Inc. v. United States, 827
F.3d 1355, 1359 (Fed. Cir. 2016).
The burden of establishing jurisdiction is on the party
invoking it. Norsk Hydro Can., Inc. v. United States, 472
F.3d 1347, 1355 (Fed. Cir. 2006). The well-pleaded factual
allegations of the complaint are accepted as true, and all
reasonable inferences are drawn in favor of the claimant.
Hutchinson, 827 F.3d at 1359.
III
The CIT’s general jurisdiction is statutorily defined un-
der 28 U.S.C. § 1581. Norcal/Crosetti Foods, Inc. v. United
States, 963 F.2d 356, 358 (Fed. Cir. 1992). The “particular
1 Because the CIT dismissed the action for lack of sub-
ject-matter jurisdiction, it did not reach the motion to dis-
miss for failure to state a claim. J.A. 3 n.1.
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RIMCO INC. v. US 7
laws over which the Court of International Trade may as-
sert jurisdiction” are further specified in each subsection of
§ 1581. Nat’l Corn Growers Ass’n v. Baker, 840 F.2d 1547,
1555 (Fed. Cir. 1988). Relevant to this appeal are subsec-
tions (a), (c), and (i).
Section 1581(a) of title 28 grants the CIT “exclusive ju-
risdiction [over] any civil action commenced to contest the
denial of a protest, in whole or in part, under [19 U.S.C.
§ 1515].” Section 1515 of title 19 governs Customs’ review
of “a protest . . . filed in accordance with section 1514 of
this title.” Importantly, § 1514 provides a limited list of
seven circumstances in which a party may file a “protest
against decisions of Customs.” 19 U.S.C. § 1514(a)(1)–(7).
Because “[s]ection 1514(a) applies exclusively to Customs
decisions . . . [it] does not embrace decisions by other agen-
cies.” See Mitsubishi Elec. Am., Inc. v. United States, 44
F.3d 973, 976 (Fed. Cir. 1994) (emphasis added and inter-
nal quotations omitted).
Section 1581(c) provides the CIT with “exclusive juris-
diction [over] civil actions commenced under [19 U.S.C.
§ 1516a].” Section 1516a specifically governs judicial re-
view of Commerce’s determinations in antidumping and
countervailing duty proceedings.
Section 1581(i), commonly referred to as the CIT’s “re-
sidual” grant of jurisdiction, “may not be invoked when ju-
risdiction under another subsection of § 1581 is or could
have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.”
Sunpreme Inc. v. United States, 892 F.3d 1186, 1191 (Fed.
Cir. 2018) (citing Fujitsu Gen. Am., Inc. v. United States,
283 F.3d 1364, 1371 (Fed. Cir. 2002)). The party asserting
§ 1581(i) jurisdiction has the burden to show that such al-
ternative remedy would be manifestly inadequate. Id.
Claimants seeking judicial review by the CIT may not
“ignore the precepts of subsection 1581 and attempt[] to
circumvent” Congress’ clear statutory procedures and
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RIMCO INC. v. US 8
safeguards. Nat’l Corn Growers, 840 F.2d at 1556. Simi-
larly, claimants are prohibited from using creative plead-
ing to expand the CIT’s statutory jurisdiction. Norsk Hydro
Can., 472 F.3d at 1355. Thus, when asserting § 1581 juris-
diction, “mere recitation of a basis for jurisdiction, by either
a party or a court, cannot be controlling.” Id. Instead, we
must look at the facts asserted in the pleadings and deter-
mine the true nature of the action. See Hutchinson, 827
F.3d at 1360. This factual inquiry requires our court to
identify the particular agency action underlying the
claimed harm, so that we may determine which subsection
of § 1581 provides the CIT with proper jurisdiction. Id.
A
Rimco asserts that the CIT has exclusive jurisdiction
under § 1581(a), and argues the CIT erred in finding “that
there was no ‘decision’ by [Customs] against which a pro-
test would lie.” Appellant’s Br. at 29. In support of its posi-
tion, Rimco alleges that Customs’ “liquidation decision is
protestable, even if it [is] . . . carried out ministerially.” Ap-
pellant’s Br. at 29. We disagree.
Contrary to Rimco’s assertion, when Customs’ role is
purely ministerial, liquidation of entries subject to AD and
CVD orders is “not a ‘decision’ under § 1514(a).”
Thyssenkrupp Steel N. Am., Inc. v. United States, 886 F.3d
1215, 1224 (Fed. Cir. 2018) (internal citation omitted). A
protestable decision under § 1514(a) requires Customs to
have “engage[d] in some sort of decision-making process.”
Indus. Chems., Inc. v. United States, 941 F.3d 1368, 1371
(Fed. Cir. 2019) (quoting U.S. Shoe Corp. v. United States,
114 F.3d 1564, 1569 (Fed. Cir. 1997), aff’d, 523 U.S. 360
(1998)). Conversely, this court has consistently held that
“‘merely ministerial’ actions are not protestable under
[§] 1514.” Id. (quoting Mitsubishi, 44 F.3d at 977). This is
because unlike typical § 1514(a) decisions that involve sub-
stantive determinations, Customs lacks discretion when
“merely follow[ing] Commerce’s [liquidation] instructions.”
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RIMCO INC. v. US 9
Mitsubishi, 44 F.3d at 977; see also ARP Materials, Inc. v.
United States, 520 F. Supp. 3d 1341, 1358 (Ct. Int’l Trade
2021), aff’d, 47 F.4th 1370 (Fed. Cir. 2022) (“Customs’ role
in collecting those duties was ministerial rather than a de-
cision under section 1514(a).” (internal quotations omit-
ted)). Because Customs cannot “modify . . . [Commerce’s]
determinations, their underlying facts, or their enforce-
ment,” its liquidation of entries subject to AD and CVD or-
ders cannot be protested. Mitsubishi, 44 F.3d at 977
(cleaned up).
While this court has recognized a limited range of cir-
cumstances in which Customs’ underlying liquidation pur-
suant to AD or CVD orders may be subject to protest, we
find no such circumstance here. See, e.g., Koyo Corp. of
U.S.A. v. United States, 497 F.3d 1231, 1239 (Fed. Cir.
2007) (holding that deemed liquidation under 19 U.S.C.
§ 1504(d) is subject to protest when Customs fails to exe-
cute liquidation instructions); Cemex, S.A. v. United States,
384 F.3d 1314, 1324 (Fed. Cir. 2004) (concluding that Cus-
toms made a particular “decision” when it erroneously rec-
ognized a deemed liquidation at an “as entered” rate
instead of applying the final rate). Rimco has not alleged
that Customs made any substantive determinations or un-
dertook any discretionary actions that would constitute
§ 1514(a) decisions. Instead, Rimco asserts that Customs
was “required by law to go through the liquidation process”
and simply acted on Commerce’s liquidation instructions
that it was “bound by statute to carry out.” Appellant’s Br.
at 29.
Accordingly, because Customs’ role in liquidating en-
tries subject to the AD and CVD orders was merely minis-
terial and required no substantive determinations, the CIT
properly determined that there was no protestable decision
under § 1514(a). Therefore, the CIT lacks § 1581(a) juris-
diction over Rimco’s action.
B
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RIMCO INC. v. US 10
Rimco alternatively argues that the CIT erred in find-
ing that it lacked residual jurisdiction under § 1581(i).
Whether a party may properly invoke § 1581(i) is a two-
step inquiry. See Erwin Hymer Grp. N. Am., Inc. v. United
States, 930 F.3d 1370, 1375 (Fed. Cir. 2019). First, we de-
termine whether jurisdiction under a different subsection
of § 1581 could have been available, and second, if such ju-
risdiction was available, we ask whether the provided rem-
edy would have been manifestly inadequate. Id.
Because the availability of jurisdiction under other
subsections of § 1581 depends on the particular type of
agency action challenged, we must first determine the true
nature of an action. See Hartford Fire Ins. Co. v. United
States, 544 F.3d 1289, 1293 (Fed. Cir. 2008) (affirming the
trial court’s decision to look to the true nature of the action
in determining jurisdiction). The CIT concluded that the
true nature of Rimco’s action was to challenge Commerce’s
AD and CVD rate determinations. We agree.
Although Rimco contends that this suit “is not a chal-
lenge to . . . any Commerce determination,” Appellant’s Br.
at 30, this conclusory statement directly contradicts
Rimco’s own argument. Rimco’s opening brief explicitly
states that “[its] claims that the CVD and AD[] rates as-
sessed against it are unconstitutional ‘excessive fines’ re-
sults from Commerce’s decision to base the rates on
[adverse facts available].” Appellant’s Br. at 10–11 (empha-
sis added). Rimco also posits that some of Commerce’s final
determinations were not based on “lawful calculated
rate[s].” Id. at 14. Further, most of Rimco’s factual allega-
tions relate to Commerce’s AD and CVD investigations and
subsequent final rate determinations. Thus, in view of the
totality of Rimco’s allegations, the true nature of its action
is to challenge Commerce’s AD and CVD rate determina-
tions.
Interested parties are directed to raise challenges to
Commerce’s AD and CVD determinations via
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RIMCO INC. v. US 11
administrative review proceedings governed by § 1516a of
title 19. Subsequent judicial review of such proceedings is
available under the CIT’s § 1581(c) exclusive jurisdiction.
Rimco alleges that it would have lacked standing to pursue
§ 1581(c) jurisdiction because it was not a party to Com-
merce’s earlier AD and CVD investigations. Appellant’s
Br. at 14–15. But this argument provides no explanation
as to why, in light of Commerce’s notice of opportunity,
Rimco failed to seek administrative review of the orders.
Because Rimco, as an interested party, had the opportunity
to seek administrative review of Commerce’s AD and CVD
determinations, jurisdiction under § 1581(c) would have
been available but for Rimco’s own failure to pursue the
proper administrative remedy.
C
Because jurisdiction was available under § 1581(c), the
CIT’s residual jurisdiction under § 1581(i) is unavailable
unless Rimco can show that the remedy afforded by subsec-
tion (c) would be manifestly inadequate. A remedy is not
inadequate simply because a party believes such remedy is
unavailable. Hartford Fire Ins. Co. 544 F.3d at 1294. Ra-
ther, a manifestly inadequate remedy requires “an exercise
in futility, or ‘incapable of producing any result; failing ut-
terly of the desired end through intrinsic defect; useless,
ineffectual, vain.’” Id. (quoting Oxford English Dictionary
(2d ed. 1989).
Rimco contends that the CIT’s proposed administrative
pathway is not a workable option for importers to raise con-
stitutional claims. Appellant’s Br. at 10. In an attempt to
frame the § 1581(c) remedy as inadequate, Rimco alleges
that Commerce “lacks institutional competence to judge
the constitutionality of its own determinations” and there-
fore argues that it was not required to exhaust its admin-
istrative remedies. Appellant’s Br. at 16. We disagree with
this argument for two reasons.
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RIMCO INC. v. US 12
First, Commerce is required to review the statutory ap-
propriateness of its AD and CVD rates, including those
based on adverse facts available. During the administra-
tive review process, Commerce would have considered facts
to determine whether its rates were proportional to the
harm they were intended to address and “necessary to
serve the purpose of deterrence.” See BMW of N. Am. LLC
v. United States, 926 F.3d 1291, 1300 (Fed. Cir. 2019) (not-
ing that because rates based on adverse facts available
(AFA) work to incentivize cooperation, “an unusually high
rate is permissible when it is ‘necessary to serve the pur-
pose of deterrence”). Furthermore, because the test for ex-
cessiveness turns on a proportionality determination, see
United States v. Bajakajian, 524 U.S. 321, 334 (1998)
(“[t]he touchstone of the constitutional inquiry under the
Excessive Fines Clause is the principle of proportionality”),
Commerce could typically dispose of the constitutional is-
sue by reviewing the rates for statutory compliance (i.e.,
finding the rates not excessive). See KYD, Inc. v. United
States, 607 F.3d 760, 768 (Fed. Cir. 2010) (“[A]n AFA
[anti]dumping margin determined in accordance with the
statutory requirements is not a punitive measure, and the
limitations applicable to punitive damages assessments
therefore have no pertinence to duties imposed based on
lawfully derived margins such as the margin at issue in
this case.”). Rimco itself concedes “that a correctly calcu-
lated CVD or AD[] rate would not be susceptible to consti-
tutional challenges under the Eighth Amendment.”
Appellant’s Br. at 14 n.10. And when “an administrative
proceeding might leave no remnant of the constitutional
question, the administrative remedy plainly should be pur-
sued.” Pub. Utils. Comm’n of State of Cal. v. United States,
355 U.S. 534, 539–40 (1958). Therefore, because Commerce
could have removed the constitutional issue by addressing
the statutory appropriateness of its rate determinations,
administrative review was the proper remedy.
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RIMCO INC. v. US 13
Second, this court has rejected the argument that it
would necessarily be futile to seek administrative remedies
when an agency is unable to make constitutional findings.
See Bowling v. McDonough, 38 F.4th 1051, 1057–59 (Fed.
Cir. 2022) (holding that it would not have been futile to
raise constitutional challenges before an agency, even if the
agency could not address the constitutional issue). As we
explained in Bowling, this is because the agency will nev-
ertheless serve its immensely useful record-development
and fact-finding functions. See Bowling, 38 F.4th at 1059;
see also Parisi v. Davidson, 405 U.S. 34, 37 (1972) (“The
basic purpose of the exhaustion doctrine is to allow an ad-
ministrative agency to perform functions within its special
competence—to make a factual record, to apply its exper-
tise, and to correct its own errors so as to moot judicial con-
troversies.”). So even if there were a scenario, however
unlikely, where a calculated rate might comply with statu-
tory reasonableness but nonetheless violate the excessive
fines component of the Eighth Amendment, administrative
exhaustion would still be required. Because administrative
review could have established an invaluable record as to
the factual basis for Commerce’s AD and CVD determina-
tions, irrespective of the constitutionality issue, it would
not have been futile for Rimco to seek such remedy.
Rimco could have sought § 1516a administrative re-
view to sufficiently challenge Commerce’s AD and CVD de-
terminations. Had Rimco been dissatisfied with
Commerce’s administrative review determination, it could
have rightfully sought judicial review on the record under
the CIT’s exclusive jurisdiction. This is the exact statutory
process outlined by Congress in § 1581(c). As discussed
above, it is neither unworkable, nor futile.
Because Rimco has failed show that the available rem-
edy provided by § 1581(c) would have been manifestly in-
adequate, § 1581(i) jurisdiction is improper. As noted by
the CIT, “Rimco failed to pursue the administrative avenue
available to it and thereby missed its opportunity to
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RIMCO INC. v. US 14
challenge the rates set by Commerce. It cannot avoid the
consequences of that failure through the exercise of the
court’s section 1581(i) jurisdiction.” J.A. 19.
IV
Because Customs’ ministerial assessment of antidump-
ing and countervailing duties is not a protestable decision,
and because jurisdiction under 28 U.S.C. § 1581(c) would
have been available and not manifestly inadequate if
Rimco had not failed to exhaust administrative remedies,
we affirm the Court of International Trade’s dismissal for
lack of subject matter jurisdiction.
AFFIRMED
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