DOJ Attacks Importer's Motion to Reconsider Customs Case Due to CBP Granting Identical Protest

A customs case from importer Strategic Import Supply should not be reconsidered in light of new evidence since it is merely an attempt by the plaintiff to "relitigate arguments already raised," the Department of Justice said in a June 23 response to SIS's motion to reconsider the case. The plaintiff failed to satisfy the high burden for reconsideration, DOJ said in the Court of International Trade, and also is not entitled to amend its complaint to change the jurisdictional grounds of its claim (Acquisition 362, LLC v. United States, CIT #20-03762).

Judge Stephen Vaden originally dismissed the case after finding that the 180-day protest deadline for entries runs from the date of liquidation, not the date of antidumping/countervailing duty instructions from the Commerce Department (see 2104210066). SIS brought in shipments of tires in 2016 that were subject to a 30.61% countervailing duty rate set in the final results of an administrative review. Commerce then amended those final results after discovering errors, cutting the rate in half to 15.56%, and instructed CBP to liquidate relevant entries at the new rate. Though its entries had already liquidated more than 180 days prior, SIS filed a protest with CBP, arguing that its protest was valid since it was filed within 180 days of Commerce's instructions to CBP to liquidate the relevant entries at the lower rate.

But CBP subsequently granted a protest filed by SIS over the same issue, which SIS relied on as the basis for its motion for reconsideration (see 2105200053). DOJ countered in its June 23 brief by saying that the fact that CBP found that separate protests were timely filed means nothing for the protests at issue in the current CIT case. "In contrast to the protests at issue in this case, the protest that CBP granted and that plaintiff relies upon, was timely filed -- i.e., within 180 days after the entry was liquidated," the brief said.

DOJ also took exception to SIS's attempt to shift the jurisdiction of its claim from 1581(a), a customs case, to 1581(i), a challenge to the residual jurisdiction afforded to CIT. First, creating jurisdiction by alleging a new claim based on later events is not allowed, DOJ said. And second, since an adequate remedy option was available under 1581(a), no other jurisdiction should be considered. "Even if the Court were to entertain an amendment to the complaint, which it should not, it would be futile because jurisdiction under 28 U.S.C. § 1581(i) would be unavailable over such a claim," the brief said.