CIT Dismisses Importer Complaint on CBP Untimely Issuance of Protest Number

The Court of International Trade has dismissed All Tools’ complaints in All Tools, Inc. v. U.S., in which All Tools argued the deadline for filing its lawsuit seeking an order to reclassify certain paint brushes was “equitably tolled” because U.S. Customs and Border Protection had not issued a protest number in a timely manner.

Importer Told by CBP That Its China Brushes Were Subject to 352% AD Duty

In August 2003, All Tools’ entry summary classified certain brushes from China under HTS 9603.40.4040 as natural bristle brushes. CBP informed the importer that such brushes were subject to antidumping (AD) duties of 351.92%.

Did Not Submit Non-Reimbursement Statement, AD Duties Then Doubled

CBP also directed All Tools’ attention to the need to file a non-reimbursement statement for entries subject to AD duties or face being charged duties a second time. Hearing nothing, CBP sent a Notice of Action advising All Tools that duties of 703.84% would be assessed. Again hearing nothing, CBP liquidated the entry.

Importer Filed Two Protests, CBP Took 10-Months to Assign 2nd Protest Number

All Tools filed a protest (untimely), contending that the brushes should have been classified under HTS 9603.40.4060, as they were made of synthetic filaments. CBP denied the protest as untimely. All Tools later filed a mistake of fact claim, which CBP also denied, stating the errors were not clerical. All Tools then filed a second protest to contest the denial of its mistake of fact claim, which was also denied. After denial of the second protest, CBP took approximately 10 months to assign a number to the second protest, despite several requests to do so from All Tools.

With Lawsuit, All Tools Sought Reclassification, AD Duty Refund Etc.

In its lawsuit, All Tools sought: (i) an order reclassifying its paint brushes; (ii) an order that the dumping duties cannot be doubled in this case; (iii) the reliquidation of its merchandise at the “at entered” rate because deemed liquidation had occurred on August 26, 2004; and (iv) an order “approving” a second protest and ordering CBP to refund the duties.

CBP Said Lawsuit Not Timely, but Importer Said Filing Deadline Was “Tolled”

CBP moved for summary judgment in this case on the basis that All Tools failed to timely file its lawsuit. CBP noted that the suit was filed some 896 days after the denial of the importer’s first protest and 274 days after the statutorily-prescribed time for appealing the denial of the second protest. All Tools opposed the motion for summary judgment, arguing that its lawsuit was timely filed because the deadline for filing the summons was “equitably tolled” until CBP issued a number for All Tools’ second protest.

Court Said Case Not “Tolled” by CBP’s Delay, Dismissed Case as Untimely Filed

The Court found that All Tools was not prevented from filing its case, either by CBP’s inaction or otherwise, and therefore, equitable tolling was not available to it. While it is clear that Customs failed in its duty to supply the protest number, it is equally clear that, because All Tools could have filed its lawsuit, it was not induced by Customs’ misconduct “into allowing the filing deadline to pass” and, as a result, the filing deadline was not tolled.

The Court dismissed the case as some of the counts in the complaint were untimely filed and others raised issues generally not found in a timely protest.

(Slip Op. 10-114, issued 10/05/10)