Importer Amends Complaint After DOJ Raises Jurisdiction Issues on Summons Deadline

An importer’s lawsuit claiming it should have been assessed AD duties at a lower import-specific antidumping duty rate has run into jurisdictional issues, and a recently filed amended complaint from the importer that was accepted by the Court of International Trade on June 9 aims to clear them up.

Optima Steel International filed its summons in February and its original complaint a month later, claiming CBP incorrectly liquidated its entries “as entered” at the all others rate, even though the producer of the goods, which were subsequently sold to Optima through a middleman, obtained its own AD rate in the administrative review that covered the entries, and even though the Commerce Department directed the exporter’s entries to be liquidated at an importer-specific rate.

In a June 2 motion to extend a filing deadline, the Department of Justice questioned whether the summons had been filed in time. “Although we are still in the process of investigating the facts and issues alleged in the complaint, we recently discovered that there may be jurisdictional issues that will impact the case,” DOJ had said. "For instance, based on the information gathered so far, jurisdiction under 28 U.S.C. 1581(a) may be inappropriate because the summons may have been filed untimely (i.e., not within 180 days of protest denial).”

Optima’s original March 8 complaint had said the protest had been denied in April 2020, after which Optima requested “reconsideration,” which was in turn denied that October.

In its amended complaint, Optima now says its attorney was in discussions with CBP about the protest denial, and was told the issue needed to be “re-reviewed,” so Optima filed a void denial request May 4. Just one day later, on May 5, CBP’s ACE system indicated that the void denial request had been rejected. After Optima’s attorney objected, the status of Optima’s protest in ACE was changed that same day to “suspended,” and CBP went on to deny the protest in October 2020, the amended complaint said.

“The Amended Complaint details that the protest at issue in this appeal was actually denied on October 16, 2020 (rather than April 2020) and thus the summons filed in this action was timely,” Optima said in its June 9 motion seeking permission to file the amended complaint. “The Amended Complaint sets for[th] specific facts and references Defendant’s own documents that, taken together, make clear that the Customs and Border Protection ('CBP') actually denied the protest at issue in October 2020.”