Importers Vie for Jurisdiction in EAPA Suit at CAFC After Entries Had Liquidated

The Court of International Trade has the jurisdiction to hear an Enforce and Protect Act case even though the entries in question have liquidated, plaintiff-appellants Ascension Chemicals, UMD Solutions, Crude Chem Technology and Glob Energy told the U.S. Court of Appeals for the Federal Circuit in a Dec. 27 opening brief. "Absurd results would also surely follow if the CIT does not have jurisdiction over liquidated entries," the plaintiff-appellants claimed while vying for jurisdiction for their EAPA case under Section 1581(c) (All One God Faith v. U.S., Fed. Cir. # 23-1078).

CBP found the plaintiff-appellants, along with plaintiff All One God Faith, doing business as Dr. Bronner's Magic Soaps, to have transshipped Chinese xanthan gum through India to avoid antidumping duties. The companies contested the evasion proceeding, filing suit at the trade court under Section 1581(c). But in the meantime, CBP had “evidently in error” liquidated the five entries subject to the customs agency’s evasion finding. While Dr. Bronner's and Glob Energy protested the liquidation, they did not challenge the denied protest, which CBP had denied “in light of the issuance of the initial EAPA determination” in March 2020.

As such, the trade court dismissed the action for lack of subject-matter jurisdiction (see 2208180045). CIT said liquidation is final and conclusive and that the court's jurisdiction for EAPA cases doesn't let it independently review the erroneous liquidation of goods subject to the evasion finding. "Rather, the court may only review a claim of erroneous liquidation where that liquidation has been timely protested and the denial of such protest appealed," the trade court said. The present appeal followed.

In their opening brief, the plaintiff-appellants said Section 1581(c) was the correct jurisdiction. If "errors in the calculations of assessment rates do not form part of final determinations," a party looking to challenge the assessment of the rates would have to wait until liquidation instructions were issued, then challenge them under Section 1581(i), the court's "residual" jurisdiction. "It is only logical for the Court of International Trade to consider any alleged errors in the assessment rates when challenges to the dumping margins are also being considered because assessment rates are affected by dumping margin calculations," the brief said.

The brief further said CIT has a remedy for entries that have already liquidated, seeing as "the deadline is inapplicable if reliquidation is ordered by a court," as established in Shinyei v. U.S., and "there is no law that directs the traffic to ensure that entries can reflect the outcome of a CIT judicial review of EAPA." The companies said the trade court failed to recognize its authority in this matter, as laid out in various precedential opinions, and the "parallelism of section 1516a and section 1517 actions."

It would be "illogical to expect an importer to protest an entry before investigation and administrative review processes have concluded with the hopes that CBP does not follow ambiguous liquidation instructions brought on by Commerce or the statute itself, which could preclude any remedy," the brief said. "For entries where plaintiffs are successful in defending against evasion claims but have not / could not file a separate 19 U.S.C. § 1581(a) actions, the U.S. Department of Justice would have to bring collection litigation in the CIT against unfounded allegations."