CIT Rules Broker Should Have Filed for Accelerated Disposition of Protests even if Expected "Deemed Denial"

On February 10, 2011, in Norman G. Jensen, Inc., v. U.S., the Court of International Trade ruled that it lacks jurisdiction to compel U.S. Customs and Border Protection to rule on protests of liquidation, and that plaintiffs seeking a prompt CBP ruling on such protests should use available administrative procedures, such as filing a request for accelerated disposition, instead of seeking action through the CIT.

Jensen Filed Protests in 2007 as CBP Did not Adjust AD/CV Deposits Prior to Liq

Under the 2006 U.S.-Canada Softwood Lumber Agreement (SLA), the U.S. agreed to refund all antidumping and countervailing cash deposits on subject entries of Canadian softwood lumber, including Jensen's. Importers receiving refunds were obligated to pay a certain percentage of the refunded amounts to the Canadian government. In 2007, Jensen, a U.S. and Canadian customs broker, filed 308 protests with CBP, claiming that it overpaid AD/CV duty deposits on 1,529 liquidated entries of softwood lumber from Canada as CBP did not adjust the deposit rates on its entries prior to liquidation. Jensen was therefore obligated to pay the Canadian government a percentage of the overpaid deposits.)

Jensen Filed CIT Action After Waiting 2 Years for CBP to Act on Protests

In 2009, after the two year statutory time frame during which CBP must allow or deny a protest, CBP had not provided Jensen with the status of its protests. In 2010, Jensen commenced action with the CIT, seeking a writ of mandamus to compel CBP to rule on its protests.

CBP Says Jensen Should Have Asked for Accelerated Disposition During 2 Year Period

CBP moved to dismiss Jensen's action, arguing that the CIT lacks jurisdiction over this matter because Jensen could have obtained a CBP ruling on its protests by following the administrative procedure of filing a request for accelerated disposition. CBP claims that if Jensen followed this statutory procedure, it could have received an allowed or a denied protest within 30 days after the filing of its request. CBP argues that Jensen had not demonstrated that such a procedure was not available to it or was manifestly inadequate.

Jensen Said Accelerated Disposition Request Would Inevitably Result in Denial

Jensen stated it was not trying to circumvent the statutory scheme of requesting an accelerated disposition for a more rapid decision, arguing that an accelerated disposition request would inevitably result in a deemed denial. Therefore, Jensen stated that it sought an actual ruling from the CIT and not a deemed denial.

CIT Rules Jensen Needed to Pursue Accelerated Disposition, Not Sue

The CIT ruled that Jensen had a clear path to having its protests promptly decided by CBP with the accelerated disposition procedure, which the CIT states, will not necessarily result in a deemed denial.

The CIT states that a deemed denial only results if CBP fails to actually allow or deny the protest within 30 days, and that the CIT will not assume that CBP would have failed in that respect. Therefore, the CIT holds that it has no jurisdiction over this action and grants CBP's motion to dismiss Jensen's complaint.

(Slip Op. 11-15, dated 02/10/11)