EAPA Process Not Unconstitutional Due to Lack of Protectable Interest, DOJ Says

A furniture importer's argument that the Enforce and Protect Act investigation finding it guilty of antidumping duty evasion was unconstitutional is not valid since the importer does not have a protectable interest, the Department of Justice said in a July 9 brief in the Court of International Trade. Since a protectable interest is necessary to claim a due process violation has been committed, Aspects Furniture International's constitutional arguments against the EAPA process fall flat, DOJ said (Aspects Furnitre International, Inc. v. United States, CIT #20-03824).

AFI filed its initial EAPA case on Nov. 4, challenging CBP's determination that it evaded antidumping duties on wooden bedroom furniture from China. The customs agency violated AFI's due process protections by failing to include a mechanism through which it could access the complete and unredacted record behind the evasion determination, the complaint said (see 2011160031). This due process claim is comparable to many others like it in various EAPA challenges in CIT.

AFI said that it did in fact have a protectable interest in the investigation since the duties it would owe if CBP were to make a positive finding of evasion is a property interest and that the importer has a "liberty interest in its professional reputation," in that it's at stake. Citing a 2015 Federal Circuit opinion, International Customs Products Inc. v. United States, DOJ said that the controlling precedent says that a company does not have a "constitutionally protected property interest in any rate of duty, an importation or even engaging in international trade."

DOJ also said that AFI did not argue that CBP published anything "false" -- another prerequisite to asserting a liberty interest under a due process claim. "Without establishing a constitutionally protected interest, AFI cannot claim that it is entitled to a particular form of procedure and, instead, AFI is entitled what the EAPA statute or regulations prescribe only," the brief said.

In addition, AFI had ample opportunity to submit information and arguments administratively after CBP imposed interim measures, DOJ said. AFI submitted written arguments to CBP's Trade Remedy and Law Enforcement Directorate, a response to the alleger's arguments and written arguments to CBP's Office of Regulations and Rulings. "Therefore, even if AFI would have had a protected interest (and it does not), the robust statutory and regulatory procedures provided AFI with notice and an opportunity to be heard. AFI fails to demonstrate that these procedures were inadequate," the brief said. "The Due Process clause requires no more."

In another argument common to due process EAPA challenges, AFI also alleged that Commerce did not provide sufficient access to business proprietary information in the review. "But AFI fails to demonstrate that anything in the confidential versions of the documents (to which AFI’s counsel now has access under the protective order) would have changed its arguments before Customs," DOJ said. "AFI’s opening brief largely repeats arguments that AFI made before Customs, and AFI’s arguments primarily are legal in nature and do not turn upon any particular factual material that was not made available previously in redacted form during the administrative process."