US Says CAFC's Cemex Decision Doesn't Stop CIT From Effectuating Judgments

The Court of International Trade wouldn't be able to "effectuate its judgment" without the authority to order reliquidation past the applicable 90-day time frame, the U.S. told the U.S. Court of Appeals for the Federal Circuit in a Dec. 15 reply brief. Defending the trade court's dismissal of retail giant Target's suit against a court-ordered reliquidation of Target entries that erroneously received a favorable antidumping duty rate, the U.S. distinguished the spat from Cemex v. U.S., in which the Federal Circuit barred reliquidation (Target Corp. v. United States, Fed. Cir. # 23-2274).

In Cemex, an antidumping duty proceeding led to a higher dumping rate than the mark set for cash deposits. However, a group of entries was deemed liquidated at the lower cash deposit rate and there was no reliquidation within 90 days of this development. Reliquidation was sought in the courts, but the Federal Circuit denied the request, finding liquidation to be "final and conclusive."

Target's case comes from a matter previously settled by the trade court and the Federal Circuit, Home Products v. U.S., in which the appellate court upheld CIT's order to reliquidate the ironing table imports. In that case, CBP erroneously liquidated 224 of the entries, 40 of which were Target's. CBP alerted the court to the error and was granted a redo despite the 90-day reliquidation being closed. Target wasn't allowed to intervene in the Home Products suit, and so brought its own case, arguing that Cemex barred reliquidation.

CIT said reliance on Cemex was "misplaced" (see 2307200049). At the Federal Circuit, Target said it wasn't CIT's right to disregard a binding appellate court decision, regardless of whether it understands it or not (see 2310030054).

In its reply, the government differentiated Cemex from the present dispute. Cemex involved erroneous deemed liquidations "that occurred under circumstances distinct" from the present case. While Target characterizes these facts as irrelevant, they instead "undergird the respective legal analyses in each case, both of which involved considerations with necessarily different outcomes," the government said.

The procedural deficiencies in Cemex, including the Commerce Department's decision to email CBP "ambiguous, untimely, and non-public" liquidation instructions after failing to publish a notice of amended AD final results in the Federal Register after CIT's opinion, are not present in this case, the brief said. In addition, the law doesn't stop CIT from enforcing its judgments, the government argued.

Courts "are not free to disregard clear and unambiguous statutory restrictions enacted by Congress," the U.S. claimed. Essentially, Target says that CIT's Article III remedial parties are bound by the 90-day time frame to reliquidate. "Target is wrong," the U.S. said, adding that Target "ignores the scope and purposes of these provisions." The laws establishing the 90-day window authorize CBP to voluntarily reliquidate entries within 90 days and don't restrain the court's authority to enforce its own judgment by telling CBP to reliquidate beyond this period "when the agency inadvertently fails to comply with the trial court's judgment in an initial liquidation."

CIT's ruling here also compares with Cemex, since the "procedural facts" in Home Products and this case, as compared with Cemex, "led to outcomes that were appropriate and justified in the respective actions."