US Says CIT Right to Toss EAPA Suit for Lack of Jurisdiction Given That Entries Had Liquidated

The Court of International Trade correctly dismissed appellant Glob Energy's claims for lack of jurisdiction in an Enforce and Protect Act case in which CBP said the company and others were transshipping Chinese xanthan gum through India to avoid antidumping duties, the U.S. said in a reply brief at the U.S. Court of Appeals for the Federal Circuit. CBP liquidated Glob's entries and the company did not appeal the liquidations "through channels that would permit the trial court to exercise jurisdiction over those entries," and as a result, the liquidations become final and unreviewable, the brief said (All One God Faith v. United States, Fed. Cir. # 23-1078).

While the appellants, led by Glob, claim that CBP abused its discretion in making the evasion finding, the companies do not dispute that the goods originated in China, "notwithstanding that entry documents filed with CBP identified India as the country of origin," the brief said. CIT properly found that CBP legally declined to refer a scope ruling on the xanthan gum to the Commerce Department "as a result of an alleged change in the availability of oilfield xanthan gum by the domestic industry," Glob said. The appellants added that CIT was correct in upholding CBP's use of adverse inferences given the appellants' and Chem Fert's failure to provide information on who made the goods.

Glob, along with Ascension Chemicals, UMD Solutions and Crude Chem Technology, contested the evasion finding at CIT under Section 1581(c). But during litigation, CBP erroneously liquidated the five entries at issue, and since the liquidations were not protested, the trade court tossed the suit for lack of subject-matter jurisdiction (see 2208180045). In their opening brief at the Federal Circuit, the appellants said CIT has jurisdiction because it can order reliquidation and there is "no law that directs the traffic to ensure that entries can reflect the outcome of a CIT judicial review of EAPA."

In its reply, the government said that because the protest was not challenged, the case must be tossed. Because Glob "protested the liquidation of its entries but did not file a complaint challenging the denial of that protest within the 180-day deadline, CBP’s decision on that protest became final and the liquidation of the entries also became final and conclusive," the brief said. The government added that Glob is attempting to "shoehorn a challenge to CBP's denial of a protest into this litigation."

The U.S. also noted that Glob had time to file a suit under Section 1581(a), and that the EAPA statute "has no provision permitting the reliquidation of entries or the changing of duties after liquidation." As a result, once liquidation occurs, a later decision by CIT on EAPA claims "can have no effect on the duties assessed on the entries," the brief said.

Turning to Glob's merit claims, the U.S. said CBP has no obligation to refer a question to Commerce "where CBP determined that the merchandise is 'covered merchandise' under the relevant antidumping order" under the EAPA statute. "Plaintiffs-Appellants avoid discussing whether the merchandise at issue was 'covered merchandise' within the meaning 19 U.S.C. § 1517(a)(3), as there is no dispute that the merchandise is subject to the AD Order," the brief said. "As such, CBP did not abuse its discretion or act in a manner inconsistent with law in not referring a question as to whether the merchandise at issue was 'covered merchandise[.]'"