532 F.Supp.3d 1379
Ct. Int'l Trade2021Background
- In July 2018 Bilstein submitted a section 232 exclusion request that listed a non‑existent 10‑digit HTSUS number and the wrong importer; Commerce approved that request (Exclusion 25363) in September 2018.
- VoestAlpine imported the subject steel, entered it as dutiable (HTSUS 7208.39.0090 and 9903.80.01), paid the 25% section 232 duty, and CBP liquidated the entries in October 2019.
- Plaintiffs (VoestAlpine and Bilstein) sued in November 2020 seeking reliquidation and a refund based on the claim that Commerce’s approval used an invalid HTSUS code; they invoked 28 U.S.C. § 1581(i).
- In December 2020/January 2021 Commerce granted Bilstein a corrected exclusion (Exclusion 155507) and made it retroactive to the original July 10, 2018 submission date.
- The Government moved to dismiss for lack of subject‑matter jurisdiction (arguing availability of §1581(a) protest jurisdiction) and, alternatively, mootness because Commerce had already provided the corrected, retroactive exclusion; the court found the claim moot and dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper jurisdictional vehicle | Challenge is to Commerce’s approval of a flawed exclusion (agency action) — §1581(i) appropriate | True nature is a challenge to CBP’s duty assessment at liquidation; §1581(a) (protest) was available and thus §1581(i) unavailable | Court: §1581(i) governs this challenge to Commerce (agency action); (a) was not the proper route because Customs had no protestable decision here |
| Whether a protest was required | Protest would have been futile because Customs lacked authority to fix Commerce’s exclusion error | Plaintiffs could have protested liquidation to preserve remedies and litigated if protest denied | Court: Protest would have been manifestly inadequate to correct Commerce’s error; Customs had no authority to alter exclusions |
| Mootness after Commerce’s corrective action | Court can order reliquidation notwithstanding final liquidation; case not moot | Commerce’s corrected, retroactive exclusion (Exclusion 155507) provides all relief the court could grant, so the case is moot | Court: Claim is moot because Commerce already granted the corrected, retroactive exclusion and no additional appropriate relief (e.g., reliquidation) is available |
| Appropriateness of reliquidation as remedy | Plaintiffs seek reliquidation and refund despite final liquidation | Government: reliquidation inappropriate because plaintiffs failed to preserve remedies or act diligently | Court: Reliquidation is not appropriate here—Plaintiffs failed to timely pursue available administrative steps and therefore cannot obtain additional relief |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional limits; court must have subject‑matter jurisdiction)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (dismissal required when court lacks subject‑matter jurisdiction)
- U.S. Shoe Corp. v. United States, 523 U.S. 360 (Customs’ merely ministerial actions are not protestable)
- Shinyei Corp. of Am. v. United States, 355 F.3d 1297 (CIT may order reliquidation in appropriate circumstances)
- Sunpreme Inc. v. United States, 892 F.3d 1186 (plaintiff invoking §1581(i) must show other subsections unavailable or manifestly inadequate)
- Thyssenkrupp Steel N. Am., Inc. v. United States, 886 F.3d 1215 (distinguishing ministerial vs. non‑ministerial Customs actions)
- Indus. Chems., Inc. v. United States, 941 F.3d 1368 (§1581(a) review limited to denial of a timely, valid protest)
- Nasatka v. Delta Scientific Corp., 58 F.3d 1578 (mootness doctrine: court cannot grant effectual relief if events moot claim)