US Says CBP Can’t Be Sued for Just Following Commerce’s Orders

Answering a question put forth to both parties by the Court of International Trade (see 2405230059), the U.S. said June 12 that CBP had made only a ministerial decision to liquidate a tire importer’s entries after being told to do so by the Commerce Department; and ministerial decisions, it argued, are not protestable and thus can't be litigated under 28 U.S.C. 1581(a) (Acquisition 362 v. U.S., CIT # 24-00011).

The importer, Acquisition 362, brought its case this year against the government, saying CBP illegally liquidated several of its entries even though they had been the subject of ongoing litigation. But the U.S. argues that Acquisition has failed to state a claim for which relief can be granted (see 2404180054). Specifically, it claims a Commerce liquidation enjoinment instruction cited by the importer didn’t actually apply to it -- the instruction only stopped liquidation of tire entries for another importer.

There is no jurisdiction under Section 1581(a) letting the courts hear cases contesting CBP’s ministerial decisions, the U.S. said. To have standing, a case must involve “any clerical error, mistake of fact, or other inadvertence” made by CBP, it said. It said that, because CBP was only following Commerce’s instructions, it couldn’t have done any of those things.

The importer is wrong that CBP “chose” not to extend its liquidation injunction instruction to Acquisition, the government said, because doing so would be “extend[ing]” the instruction in a way CBP wasn’t allowed to.

It said CBP properly liquidated the entries as ordered.