Defendant argues that Plaintiff is precluded from challenging the results of the antidumping determination because, although it qualified as an interested party, it did not participate in the administrative proceedings. The government's position in this case is similar to the claim it made in Xerox Corp. v. United States, 118 F. Supp.2d 1353, 1354 (CIT 2000) ("Xerox I"). In Xerox I. the government claimed that the only method for parties to determine whether their goods were part of antidumping investigation was through a scope determination.
Xerox Corporation appeals the judgment of the Court of International Trade dismissing its appeal from a formal protest with the U.S. Customs Service for lack of subject matter jurisdiction. Xerox Corp. v. United States, 118 F.Supp.2d 1353 (Ct. Int'l Trade 2000). Because ministerial errors by the Customs Service in its administration of antidumping duty orders may be proper subjects of Customs protests and jurisdiction was proper, we reverse and remand.
The Federal Circuit explained that . . . "the . . . misapplication of the order by Customs was properly the subject of a protest" under 19 U.S.C. § 1514(a)(2) and reviewable by the CIT under 28 U.S.C. § 1581(a). . . . Thus, misapplication of an antidumping order or the erroneous imposition of antidumping duties by Customs may be protested and suit brought before the court pursuant to § 1581(a). In fact, it was the undersigned's opinion in Xerox Corp. v. United States, 24 CIT 1145, 118 F.Supp.2d 1353 (2000), to the opposite effect that was reversed and remanded by the court of appeals. Accepting this appellate enlightenment makes it now difficult to conclude that plaintiffs' procedural posture herein amounts to unequivocal irreparable harm.
Sandvik Steel Co. v. United States, 164 F.3d 596, 601 (Fed. Cir. 1998), citing Nichimen America, Inc. v. United States, 938 F.2d 1286 (Fed. Cir. 1991); Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). As this court stated in Xerox Corp. v. United States, 24 CIT 1145, 1147, 118 F. Supp.2d 1353, 1356 (2000), rev'd on another ground, 289 F.3d 792 (Fed. Cir. 2002), "what the plaintiff would in effect now have is a judicial determination ab initio of the scope of the ITA's order, but Congress has not authorized such an approach for this court any more than it has for the Customs Service." Having failed to take advantage of and to exhaust its administrative remedies, the plaintiff cannot now obtain judicial relief.