DOJ's Statute of Limitations Argument Too Late in Section 232 Case, Exporters Argue

The Department of Justice's argument claiming that the Voestalpine USA Corp. and Bilstein Cold Rolled Steel case in the Court of International Trade is beyond the statute of limitations was made improperly and should be disregarded, the importers said in a May 17 surreply to DOJ's motion to dismiss. DOJ made its statute of limitations argument for the first time in its reply brief and not in the motion to dismiss, and in any case a question over the statute of limitations of its argument is not relevant to the court's subject matter jurisdiction counsel for Voestalpine and Bilstein argued (Voestalpine USA Corp. et al v. United States, CIT # 20-03829).

The brief was filed as part of a case brought over an exclusion granted by the Commerce Department's Bureau of Industry and Security to certain products subject to the Section 232 steel and aluminum tariffs. Voestalpine and Bilstein claim that BIS's exclusion was originally published with a Harmonized Tariff Schedule subheading that did not exist. The correct heading is 7208.39.0090, but even after discovering the error, BIS still denied the plaintiffs the exclusion. DOJ, after filing its motion to dismiss the case, argued that cause of the lawsuit accrued more than two years before the complaint was filed, thus violating the statute of limitations.

Voestalpine and Bilstein argue that the cause of the lawsuits did not begin at the outright denial of the exclusion, as DOJ suggests. "Should this Court choose to examine the merits of Defendants’ arguments, Plaintiffs point out that the consolidated complaints, taken as true for purposes of a motion to dismiss, allege that the cause of action first accrued, at the earliest, on the date of entry of the steel products involved, but more likely accrued later," they said.