Miller & Co. v. United States

824 F.2d 961, 9 I.T.R.D. (BNA) 1001
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 29, 1987
DocketNo. 87-1083
StatusPublished
Cited by196 cases

This text of 824 F.2d 961 (Miller & Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller & Co. v. United States, 824 F.2d 961, 9 I.T.R.D. (BNA) 1001 (Fed. Cir. 1987).

Opinion

MARKEY, Chief Judge.

Appeal from a decision of the United States Court of International Trade, 648 F.Supp. 9 (1986), dismissing the complaint of Miller & Company (Miller). We affirm.

BACKGROUND

On April 4, 1980, the International Trade Administration (ITA) of the United States Department of Commerce published a countervailing duty order, 19 U.S.C. § 1303, on pig iron from Brazil. 45 Fed. Reg. 23,045 (1980). On July 7, 1983, the ITA announced its intent to conduct an administrative review of that countervailing duty order for the period of January 1, 1981 through December 31, 1981, as 19 U.S.C. § 1675(a)(1) then required. 48 Fed. Reg. 31,280 (1983). The ITA published its preliminary results on November 30, 1983, inviting comments and requests for hearings from “interested parties.” 48 Fed. Reg. 54,091 (1983). The ITA published its final results on March 16, 1984, and directed the Customs Service to assess countervailing duties in excess of the cash deposits already paid on 1981 imports of Brazilian pig iron. 49 Fed.Reg. 9,923 (1984).

Miller, an importer, did not participate in the proceedings in the ITA. After the ITA published its final determination, Miller filed an action in the Court of International Trade challenging that determination and seeking to enjoin its implementation. Miller alleged that, because the ITA did not complete its review within the statutory time period, it lacked authority to enforce its final determination. Miller initially alleged jurisdiction under 28 U.S.C. § 1581(i), but sought to amend its summons to in-elude an assertion of jurisdiction under 28 U.S.C. § 1581(c). The government filed alternative motions for dismissal or summary judgment.

On November 21, 1984, the Court of International Trade denied Miller’s motion to amend because Miller had not participated in the proceedings in the ITA, a requirement for judicial review of a countervailing duty order determination under 28 U.S.C. § 1581(c). 598 F.Supp. 1126, 1128-29 (C.I.T.1984) (Miller I). The court did not decide at that time whether jurisdiction existed under 28 U.S.C. § 1581(i). The court concluded that 28 U.S.C. § 1581(i) could serve as an avenue of relief “if the ITA’s actions were patently ultra vires [so that] it would be inappropriate to require [Miller] to appear before it as a prerequisite to judicial review.” 598 F.Supp. at 1131. The court reserved decision on the government’s motions pending briefing on the “patent violation” question. Id.

On October 24, 1986, citing Ambassador Div. of Florsheim Shoes v. United States, 748 F.2d 1560 (Fed.Cir.1984) and Philipp Bros., Inc. v. United States, 630 F.Supp. 1317 (Ct.Int’l Trade 1986), appeal dismissed, No, 86-1122 (Fed.Cir. July 18, 1986), the Court of International Trade ruled that the ITA had not acted beyond its authority in issuing its final determination after the statutory time period. Having thus exercised its jurisdiction in ruling on the merits of Miller’s claim, the court nonetheless concluded that it had no jurisdiction under 28 U.S.C. § 1581(i) and dismissed the action.

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Bluebook (online)
824 F.2d 961, 9 I.T.R.D. (BNA) 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-co-v-united-states-cafc-1987.