539 F.Supp.3d 1251
Ct. Int'l Trade2021Background
- Acquisition 362 (Strategic Import Supply) imported passenger tires from China in 2016; Customs liquidated several entries in Oct–Nov 2018 at a 30.61% countervailing duty rate.
- In June 2019 Commerce completed an administrative review reducing the countervailing duty to ~15.56% for the period at issue.
- Plaintiff filed protests to Customs challenging Customs’s continued assessment of the 30.61% rate, but those protests were filed more than 180 days after liquidation.
- The Court dismissed Plaintiff’s suit under 28 U.S.C. § 1581(a) for lack of subject-matter jurisdiction because timely protests (a statutory precondition) were not filed; the Court also explained Plaintiff had invoked the wrong forum to challenge Commerce’s rate.
- Plaintiff moved for reconsideration under USCIT Rule 59, submitting as “newly discovered” evidence a timely August 5, 2020 protest (filed within 180 days of a May 1, 2020 liquidation) that Customs granted, and also sought leave to amend to assert jurisdiction under § 1581(i).
- The Government opposed, arguing the new protest involved a different liquidation (so it does not cure prior untimeliness) and that amendment to invoke § 1581(i) would be procedurally improper and futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should reconsider its dismissal for lack of § 1581(a) jurisdiction based on newly discovered evidence | The August 2020 timely protest that obtained relief shows Customs’ prior denials were incorrect and warrants reconsideration | The August 2020 protest involves a different liquidation and was timely; it does not cure earlier protests that were untimely, so jurisdictional defect remains | Denied — new evidence does not remove the jurisdictional defect; prior protests were untimely and court lacks § 1581(a) jurisdiction |
| Whether Plaintiff may amend to invoke § 1581(i) residual jurisdiction | Permit amendment to assert § 1581(i) because court should hear the substantive wrong | Amendment is improper here and futile because other § 1581 remedies were available (timely protest or challenge to Commerce) | Denied as futile — § 1581(i) unavailable where another subsection could have been used; amendment would not salvage jurisdiction |
Key Cases Cited
- Acquisition 362, LLC v. United States, 517 F. Supp. 3d 1318 (Ct. Int'l Trade 2021) (prior opinion dismissing for lack of § 1581(a) jurisdiction)
- Sunpreme, Inc. v. United States, 892 F.3d 1186 (Fed. Cir. 2018) (§ 1581(i) is residual and unavailable where another § 1581 remedy exists)
- Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364 (Fed. Cir. 2002) (same principle limiting § 1581(i))
- U.S. JVC Corp. v. United States, 15 F. Supp. 2d 906 (Ct. Int'l Trade 1998) (timely protest is jurisdictional prerequisite for Court review of Customs protest denials)
- United States v. UPS Customhouse Brokerage, Inc., 714 F. Supp. 2d 1296 (Ct. Int'l Trade 2010) (standards and discretion for reconsideration motions)
- Union Camp Corp. v. United States, 963 F. Supp. 1212 (Ct. Int'l Trade 1997) (grounds for rehearing/reconsideration: significant flaw, new evidence, etc.)