Trade Court Says Target's Reading of CAFC's Cemex Opinion Would Strip Court of Key Power

The Court of International Trade in a July 20 opinion refused to invalidate its past order instructing CBP to reliquidate Target Corp.'s metal-top ironing tables, saying that doing so would "turn the clock back over 40 years" prior to the Customs Courts Act's passage and "again call into question whether a party before the Court could obtain full and complete relief." Reversing the order as Target requests would "elevate the principle of finality" of liquidation "over the inherent power" of the trade court under Article III of the Constitution, Judge Leo Gordon said.

Target grounded its case in the U.S. Court of Appeals for the Federal Circuit's ruling in Cemex v. U.S., wherein the court affirmed CIT's decision to deny domestic producers' motion to reliquidate and said liquidation became final and conclusive under 19 U.S.C. Section 1514. The big box retailer said "Cemex is on all fours with this case" and requires the court to reverse its decision to allow CBP to reliquidate the entries it erroneously liquidated at the original 9.47% dumping rate instead of the 72.29% rate.

Gordon said this argument is unavailing since the court previously distinguished Cemex from the present case in a past opinion in a different case on the same entries. The judge held that the actions of the domestic industry in Cemex are "simply not comparable to those" of Target's. In Cemex, the entries were "deemed liquidated" unlike the present case, adding that the Federal Circuit case did not concern a violation of an affirmative judgment and instead was merely a failure by CBP to follow the Commerce Department's instructions.

Target's case is related to a matter previously resolved by CIT and the Federal Circuit, Home Products v. U.S., in which the appellate court upheld the order to reliquidate the ironing table imports. In Home Products, a case Target was denied the right to intervene in, CBP erroneously liquidated 224 of the entries at play, 40 of which were Target's. CBP informed the court of the error and asked for a re-do, which the court granted even though the 90-day deadline for voluntary reliquidation had passed. Target claimed that Cemex precluded this move.

Gordon ruled that the reliance on Cemex "is simply misplaced," since Target's interpretation would place finality of liquidation above the court's powers. "To do so would render this Court powerless to enforce its orders and judgments," the opinion said. The retailer also said the 90-day voluntary reliquidation provision barred reliquidation by the court. The judge again disagreed since this law simply limits the time within which CBP can act to voluntarily correct its own mistake.

The court said Target "points to no language in the statute or its legislative history to support its argument," since the statute does not govern CIT's authority to grant relief from an unlawful liquidation taken from its jurisdiction over the entries at issue and its powers as an Article III court. "It is a matter of basic logic and common sense that Court of International Trade (and the Court of Appeals), not Customs, has the 'final' say about entries in a trade action," the opinion said.

(Target Corp. v. United States, Slip Op. 23-106, CIT #21-00162, dated 07/20/23; Judge: Leo Gordon; Attorneys: Patrick Gill of Sandler Travis for plaintiff Target; Alexander Vanderweide for defendant U.S. government)