DOJ Argues for Dismissal of EAPA Challenge Filed Under Section 1581(c) Jurisdiction

A company challenging CBP's finding that it evaded antidumping and countervailing duties on xanthan gum should have its lawsuit tossed because it failed to appeal CBP's denial of its protest on the relevant entries, even though the importer filed its case under CIT's Section 1581(c) jurisdiction, which covers AD/CVD proceedings, the Department of Justice said in a Sept. 22 reply brief at the Court of International Trade (All One God Faith, Inc., et al. v. United States, CIT #20-00164).

In the underlying investigation, CBP found Dr. Bronner's Magic Soaps (the trade name of All One God Faith) misidentified its xanthan gum entries as having Indian origin. In its initial motion to dismiss, DOJ said that Dr. Bronners' xanthan gum entries had already liquidated, and, seeing as the company did not make a timely appeal, it lost jurisdiction at CIT (see 2108050068). Dr. Bronner's responded by arguing that since the Enforce and Protect Act, under which the evasion determination was made, is codified under 19 USC 1517, the proper jurisdiction for its challenge of an EAPA investigation is Section 1581(c) (see 2109080074).

DOJ said that this response "largely misses the point," since CIT cannot review a determination unless there is a remedy it can provide. "Put another way, if this Court were to consider Dr. Bronner’s assertions, hypothetically concluding that CBP’s determination was not supported by substantial evidence, yet was unable to order CBP to reliquidate the entries, what relief could the Court otherwise provide?" DOJ asked.

Dr. Bronner's also argued in its reply that it didn't need to file its case under Section 1581(a), appealing the CBP protest denial, since CBP's reliquidation of its entries subject to the EAPA investigation and denial of the protest are "direct implications of the EAPA Investigation and cannot and should not be artificially separated." This is the case since Section 1581(c) is the proper home for the action since it is broader and should include CBP decisions resulting from EAPA investigations, the plaintiff said.

"But this interpretation of this Court’s grant of jurisdiction is directly contradicted by the statute, which provides that this Court 'shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest' contesting a liquidation by CBP," DOJ said. "Dr. Bronner’s cites no authority for its proposition that subsection (c) also grants this Court authority to review the liquidation -- and, of course, even if (c) did grant this Court jurisdiction, Dr. Bronner’s failed to timely appeal the denial of the protest."