CIT Lacks Jurisdiction Over Customs Case Due to Premature Protest, DOJ Says

The Court of International Trade should dismiss an importer's challenge of CBP's deemed exclusion of its apparel imports because the protest was filed the day before the apparel was actually deemed excluded, the Department of Justice said in a July 19 brief backing the motion to dismiss. Due to this premature filing, DOJ said the court lacks Section 1581(a) jurisdiction on the matter (Alive Distributor Inc. v. United States, CIT #21-00236).

The case arose from Alive Distributor's shipment of 1,108 cartons of apparel that were entered March 11. CBP picked this shipment for examination and required Alive Distributor to send it to a centralized examination station (CES) operated by a private contractor. The importer did so March 22, and the shipment was examined March 26. A CBP officer issued an exclusion notice April 23. Alive Distributor had filed a protest the previous day challenging what it thought at the time was a deemed exclusion.

However, since the goods were not presented for examination until March 26, the 30-day timeline after which goods are deemed excluded did not begin until March 26 as opposed to March 22 -- the date Alive Distributor dropped off the goods. “Consistent with CBP regulations and case law, the date on which merchandise is presented for examination is the date that the last covered container is delivered to the CES, its contents have been unloaded by the private contractor, and CBP has received the relevant documents that it needs to perform the examination,” the brief said.

“Plaintiff erred in measuring the 30-day period from the date that the container arrived at the CES on March 22, 2021, instead of on the date that the merchandise was presented for examination on March 26, 2021,” DOJ said. “Consequently, plaintiff prematurely filed its protest on April 22, 2021, which is before any deemed exclusion would have occurred and before CBP made an admissibility decision to exclude the merchandise on April 23, 2021.”