DOJ Opposes Surety Associations' Amicus Brief Filing Attempt in Case Over 11-Year Old Unpaid Duties

A group of surety trade associations' attempt to file an amicus curiae brief in support of American Home Assurance Company in the Court of International Trade hit a snag when the Department of Justice opposed their filing. Though DOJ said it does not normally oppose such requests as an amicus brief, it nonetheless moved to block the brief, arguing it was untimely filed, in a May 19 memo. The surety groups consist of the Customs Surety Association, the Customs Surety Coalition, the International Trade Surety Association, the National Association of Surety Bond Producers, Inc. and the Surety & Fidelity Association of America.

The case stems from unpaid antidumping duties for entries of canned mushrooms from China brought in between 2001 and 2002. Finding itself in court again in a second case on unpaid antidumping duties on different entries of the same product in the same period of review as the first, AHAC says the government is spinning a new theory: that sureties have a unique liability to pay the unpaid duties and that the government did not have a chance to litigate this theory in either CIT or the U.S. Court of Appeals for the Federal Circuit (see 2105170036). AHAC contends that the government had ample time to make its new case and that this case is barred under the statute of limitations for the duty collection.

In its proposed amicus brief, the surety trade groups seek to add on AHAC's arguments by claiming that "acceptance by this Court of the position advanced by CBP would render the statute of limitations provision meaningless as CBP would have total control of when a right of action would accrue." The brief says CBP's legal action would drastically alter the state of the customs surety bond system. "CBP's re-interpretation of the six-year statute of limitations has been adopted without prior notice and without providing any opportunity for sureties to ameliorate the damages it would predictably cause." Six years after liquidation, the surety should have no unasserted exposures, the groups argue.