Dixon Ticonderoga Co. v. United States, 468 F.3d 1353 (Fed. Cir. 2006). · Go Syfert
Dixon Ticonderoga Co. v. United States, 468 F.3d 1353 (Fed. Cir. 2006). Cases Citing This Book View Copy Cite
24 citation events (24 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Cited for
At page 1356 Assessing prejudice from failure to provide notice5 citing cases“it is true that the cdsoa is intended to protect domestic producers”2 citing courts quote it
  • Canadian Lumber Trade All. v. United States, 517 F.3d 1319 (Fed. Cir. 2008).published 2 cites
    When reviewing a decision of the Court of International Trade in a suit brought pursuant to 28 U.S.C. § 1581 (i), we apply the standard of review set forth by the Administrative Procedure Act, and will "hold unlawful and set aside [Customs…
  • Canadian Lumber Trade All. v. United States, 517 F.3d 1318 (Fed. Cir. 2008).published 2 cites
    When reviewing a decision of the Court of International Trade in a suit brought pursuant to 28 U.S.C. § 1581 (i), we apply the standard of review set forth by the Administrative Procedure Act, and will “hold unlawful and set aside [Customs…
  • Tianjin Magnesium Intern. Co. v. United States, 533 F. Supp. 2d 1327 (Ct. Intl. Trade 2008).published
    Cf. PAM, S.p.A. v. United States, 463 F.3d 1345, 1349 (Fed.Cir.2006) (in action based on a domestic producer's failure to serve a request for administrative review on respondent foreign exporter PAM, emphasizing that "the total amount of a…
  • Sumecht NA, Inc. v. United States, 2019 CIT 118 (Ct. Intl. Trade 2019).published
    Intercargo, 83 F.3d at 396 ; see also Dixon Ticonderoga Co. v. United States, 468 F.3d 1353, 1356 (Fed. Cir. 2006).
  • United States v. Great Am. Ins. Co. of Ny, 791 F. Supp. 2d 1337 (Ct. Intl. Trade 2011).published
    To determine the consequence of Customs’ procedural error in failing to notify a surety of the suspension of liquidation, the court applies principles of “harmless error” or the “rule of prejudicial error.” AHA 2011 WL 1882635 at *5 (holdi…
At page 1355 Agency failure to provide notice and prejudice requirement3 citing cases“holding that failure to timely comply with the notice requirement of 19 c.f.r. 353.25 (d) did not deprive the department of commerce of the authority to commence an administrative review where the antidumping review was noticed by the agency after the regulatory deadline”1 citing court quotes it
  • Hartford Fire Ins. Co. v. United States, 254 F. Supp. 3d 1333 (Ct. Intl. Trade 2017).published
    Ins., 738 F.3d at 1329 (quoting Brock v. Pierce Cty., 476 U.S. 253, 260 , 106 S.Ct. 1834 , 90 L.Ed.2d 248 (1986)); Dixon Ticonderoga Co. v. United States, 468 F.3d 1353, 1355 (Fed.
  • Suntec Indus. Co. v. United States, 857 F.3d 1363 (Fed. Cir. 2017).published
    (denying remedy where party did not show that it was prejudiced by agency’s failure to provide notice at time required by regulation)
  • Specialty Merch. Corp. v. United States, 477 F. Supp. 2d 1359 (Ct. Intl. Trade 2007).published
    Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 , 90 S.Ct. 1288 , 25 L.Ed.2d 547 (1970); see also Dixon Ticonderoga Co. v. United States, 468 F.3d 1353, 1355 (Fed.Cir.2006), and PAM S.p.A. v. United States, 463 F.3d 1345, 1348 (F…
At page 1354 Applying the administrative procedure act standard of review3 citing cases“will set aside Customs’ denial of offset distribution only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”1 citing court quotes it
  • Canadian Lumber Trade All. v. United States, 517 F.3d 1319 (Fed. Cir. 2008).published 2 cites
    When reviewing a decision of the Court of International Trade in a suit brought pursuant to 28 U.S.C. § 1581 (i), we apply the standard of review set forth by the Administrative Procedure Act, and will "hold unlawful and set aside [Customs…
  • Canadian Lumber Trade All. v. United States, 517 F.3d 1318 (Fed. Cir. 2008).published 2 cites
    When reviewing a decision of the Court of International Trade in a suit brought pursuant to 28 U.S.C. § 1581 (i), we apply the standard of review set forth by the Administrative Procedure Act, and will “hold unlawful and set aside [Customs…
  • SKF USA Inc. v. United States, 502 F. Supp. 2d 1325 (Ct. Intl. Trade 2007).published
    “will set aside Customs’ denial of offset distribution only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”
At page 1357 Reversing judgment for lack of showing of prejudice1 citing caseThe regulation itself does not function to protect domestic producers from foreign dumped products. Finally, the Court of International Trade concluded that…opening of page *1357 (no citing court says what it cites this page for)
  • United States v. UPS Customhouse Brokerage, Inc., 714 F. Supp. 2d 1296 (Ct. Intl. Trade 2010).published
    Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 , 90 S.Ct. 1288 , 25 L.Ed.2d 547 (1970); Dixon Ticonderoga Co. v. United States, 468 F.3d 1353, 1357 (Fed.Cir.2006); PAM, S.p.A. v. United States, 463 F.3d 1345, 1349 (Fed.Cir.2006)…
Other citing cases3 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
DIXON TICONDEROGA COMPANY, Plaintiff-Appellee,
v.
UNITED STATES, Defendant-Appellant, and Musgrave Pencil Company, Rosemoon Pencil Company and General Pencil Company, Defendants-Appellants
06-1042, 06-1143.
Court of Appeals for the Federal Circuit.
Nov 6, 2006.
Published opinion
468 F.3d 1353
2006 U.S. App. LEXIS 27458
2006 WL 3333790
Daniel E. Traver, Gray Robinson, PA, of Orlando, FL, argued for plaintiff-appellee. On the brief was Guy S. Haggard., David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director, of Washington, DC. Of counsel on the brief was Charles Steuart, Attorney, Office of Chief Counsel, United States Customs and Border Protection, of Washington, DC., George W. Thompson, Neville Peterson LLP, of Washington, DC, argued for defendants-appellants Musgrave Pencil Company, et al. With him on the brief were Curtis W. Knauss and John M. Peterson, of New York, NY.
Michel, Archer, Linn.
Cited by 17 opinions  |  Published
ARCHER, Senior Circuit Judge.

The government and Musgrave Pencil Company, Rosemoon Pencil Company, and General Pencil Company (“the pencil companies”) appeal the United States Court of International Trade’s judgment granting Dixon Ticonderoga Company’s (“Dixon”) motion for judgment on the administrative record. Dixon Ticonderoga Co. v. United States Customs & Border Prot., 366 F.Supp.2d 1352 (Ct. Int’l Trade 2005). Because the record contains no evidence that Dixon was substantially prejudiced by the United States Customs and Border Protection’s (“Customs”) failure to timely publish a notice of intention to distribute assessed duties as required by 19 C.F.R. § 159.62(a), we reverse.

I

The Continued Dumping and Subsidy Offset Act (“CDSOA”) provides that assessed duties received from antidumping orders, countervailing duty orders, or findings under the Antidumping Act of 1921 be distributed to “affected domestic producers” for certain qualifying expenditures. 19 U.S.C. § 1975c (2003). As a part of the CDSOA distribution process, Customs is statutorily required to publish a Notice of Intent to Distribute (“Notice”) at least 30 days before the distribution of a continued dumping and subsidy offset and to make distributions within 60 days after the fiscal year. Id. § 1975c(c), (d)(2). In implementing the statute, Customs is required by regulation to publish the Notice at least 90 days before the end of the fiscal year. 19 C.F.R. § 159.62(a) (2003). This is generally done in the Federal Register. Claimants seeking a share of the distribution then have 60 days from the date of publication of the Notice to file the certifications required to receive offset distributions. 19 C.F.R. § 159.63(a) (2003).

In 2003, Customs published the Notice on July 14 (“the 2003 Notice”), 78 days prior to the end of the fiscal year and[*1355] twelve days after the regulatory deadline. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 68 Fed.Reg. 471,597 (July 14, 2003). Dixon filed its application to receive a portion of the relevant assessed duties for Fiscal Year 2003 102 days after Customs’ publication of the 2003 Notice. Customs denied Dixon’s application, and Dixon appealed this denial to the Court of International Trade. Dixon argued to the Court of International Trade (and to us) that Customs’ failure to provide notice as required by 19 C.F.R. § 159.62(a) caused it, as well as other domestic pencil manufacturers, to file late.

The Court of International Trade concluded that the timing requirements of 19 C.F.R. § 159.62(a) were merely procedural aids in applying the CDSOA and thus Customs did not lose its authority to administer the CDSOA when it failed to meet its own regulatory timing requirements. Id. at 1355. The court also held, however, that Dixon was prejudiced by this regulatory violation. Accordingly, the court granted Dixon’s motion and entered judgment in favor of Dixon. Id. at 1356.

The government and the pencil companies appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

II

When reviewing decisions by the Court of International Trade pursuant to 28 U.S.C. § 1581(i), we apply the standard of review set forth in 5 U.S.C. § 706. Consol. Bearings Co. v. United States, 348 F.3d 997, 1004 (Fed.Cir.2003). Thus, we “will set aside Customs’ denial of offset distributions only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” See Candle Corp. of Am. v. U.S. Int’l Trade Comm’n, 374 F.3d 1087, 1091 (Fed.Cir.2004) (quoting 5 U.S.C. § 706).

Ill

An agency is generally required to comply with its own regulations. See Kemira Fibres Oy v. United States, 61 F.3d 866, 871 (Fed.Cir.1995). However, simple failure of an agency to follow a procedural requirement does not void subsequent agency action. [1] See id. at 868, 875 (holding that failure to timely comply with the notice requirement of 19 C.F.R. § 353.25(d) did not deprive the Department of Commerce of the authority to commence an administrative review where the antidumping review was noticed by the agency after the regulatory deadline); Brock v. Pierce County, 476 U.S. 253, 260, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986). Rather, in order to prevail, Dixon must establish that it was substantially prejudiced by Customs’ noncompliance with 19 C.F.R. § 159.62(a). See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970) (“[I]t is always within the discretion of ... an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of [an agency] in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.”).

We recently discussed the issue of prejudice in the context of failure to comply[*1356] with a notice regulation. In PAM, S.p.A. v. United States, 463 F.3d 1345 (Fed.Cir.2006), a domestic producer violated 19 C.F.R. § 351.303(f)(3)(ii) by failing to give a foreign exporter, PAM, notice of a request for further administrative review of several companies, including PAM, that were under antidumping duty orders. Following the request for further review, the Department of Commerce (“Commerce”), as required by statute, published notice of its initiation of this review in the Federal Register listing the companies involved, including PAM. Id. at 1346. This was the first time PAM learned of the request for further review. There was a 17-day lag between the time that the domestic producer should have served notice of its request for review on PAM and the time that Commerce published notice of the initiation of review. Id. at 1346 n. 2. Ultimately, PAM was given a 29-day extension to file its response to the questionnaires subsequently provided by Commerce. In concluding that PAM had not demonstrated that it was substantially prejudiced, we noted that “the total amount of additional time Commerce granted to PAM ... far exceeded the 17 days PAM lost due to the lack of service” by the domestic producer. Id. at 1349. We further observed that “PAM neither claim[ed] or attempted] to show that [the domestic company’s] failure to serve it impeded its ability to respond to and defend its interests in the administrative review.” Id.

The only discernable difference between the present case and PAM is that in PAM the party asserting prejudice was ultimately given several extensions to complete its response to Customs’ questionnaire. Here, Dixon was not given more than 60 days from the date of the Notice to file its certification request; however, no extension was requested. Indeed, Dixon has not asserted that this time period was insufficient either to determine whether it wished to request a disbursement or to actually request a disbursement.

In fact, Dixon has provided no evidence, or even an allegation (other than attorney argument), that the cause of its failure to file a timely application was Customs’ late publication of the Notice. Additionally, there is no indication in the record as to why Dixon failed to monitor the Federal Register past the publication deadline of 19 C.F.R. § 159.62(a), as it had the previous year.

Dixon argues that a statement in Inter-cargo Insurance Co. v. United States, 83 F.3d 391 (Fed.Cir.1996), supports the Court of International Trade’s finding of prejudice here. Intercargo explained that “prejudice” in this context “means injury to an interest that the statute, regulation, or rule in question was designed to protect.” Id. at 396. Dixon asserts that because the Antidumping Act was enacted to protect U.S. industries from reduced-price foreign products and Dixon is a domestic producer, these facts alone demonstrate that it was prejudiced under Intercargo. This argument ignores the fact that the regulation violated here is one governing notice to domestic producers regarding Customs’ intention to distribute duties under the CDSOA, not the Antidumping Act itself. While it is true that the CDSOA is intended to protect domestic producers, see CDSOA, Pub.L. No. 106-387, § 1(a), 114 Stat. 1549 (2000), the purpose of 19 C.F.R. § 159.62(a) is simply to provide notice to the domestic producers that disbursements pursuant to the CDSOA are available for a given year. As discussed above, Dixon has failed to present any evidence that such an interest was injured.[*1357] The regulation itself does not function to protect domestic producers from foreign dumped products.

Finally, the Court of International Trade concluded that Customs’ failure to timely publish the 2003 Notice harmed domestic producers, such as Dixon, who assume agency compliance with § 195.62(a) and are prejudiced by noncompliance because they receive no other indication of Customs’ intent to distribute an offset or the deadline within which to file for a share of the offset. Dixon, 366 F.Supp.2d at 1358. The flaw in this analysis is that it simply assumes prejudice without requiring a showing thereof. For example, under the Court of International Trade’s rationale, any domestic producer eligible for disbursements under the CDSOA is prejudiced whenever Customs is late in publishing its distribution notice regardless of whether the domestic producer actually seeks disbursements. Such a result is illogical. In fact, the Court of International Trade’s holding would effectively eliminate the prejudice requirement. As a result, any time an agency misses a statutory or regulatory deadline, its subsequent action could be challenged (and voided) indefinitely.

TV

Because the administrative record contains no evidence that Dixon was prejudiced by Customs’ late publication of the 2003 Notice, we reverse the judgment of the Court of International Trade.

REVERSED.

1

. No party challenges the Court of International Trade's determination that the timing requirements of 19 C.F.R. § 159.62(a) are merely procedural aids in applying the CDSOA.