578 F.Supp.3d 1263
Ct. Int'l Trade2022Background
- The President imposed 25% section 232 steel tariffs (Proclamation 9705) and authorized Commerce/BIS to grant narrowly tailored, retroactive exclusions; refunds are implemented by CBP.
- BIS’s exclusion process required a 10‑digit HTSUS number; BIS erroneously approved exclusion requests containing an invalid/nonexistent 10‑digit subheading.
- Plaintiffs (Bilstein and VoestAlpine) had entries that were liquidated (final) before CBP had applied any corrected, retroactive exclusions; Plaintiffs seek court-ordered reliquidation and refunds of section 232 duties.
- The court initially dismissed Court No. 20‑3829 as moot, but on reconsideration vacated that portion, found jurisdiction under 28 U.S.C. § 1581(i), and allowed amendment in Court No. 21‑290.
- The court held that BIS had in fact corrected the exclusions with retroactive effect, but ultimately granted the Government’s motions to dismiss both actions under Rule 12(b)(6), finding Plaintiffs failed to plead a plausible basis for court-ordered reliquidation; leave to amend 20‑3829 was denied as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / Reconsideration of prior dismissal | BIS correction did not moot the claim because court can order reliquidation; relief still available | BIS’s revised exclusions moot any challenge to original approvals | Court vacated prior mootness dismissal (reconsidered); jurisdiction exists, but merits remain to be decided under Rule 12(b)(6) |
| Article III standing / §1581(i) jurisdiction | Plaintiffs have injury (loss of refund) and can seek relief under §1581(i) | Any relief is functionally unavailable or precluded by liquidation rules | Court found jurisdiction/standing under §1581(i) for both cases |
| Appropriateness of court-ordered reliquidation | Court may order reliquidation (citing Shinyei); BIS correction is an intervening legal development meriting reliquidation | Reliquidation is not automatic; exclusion regime limits retroactive refunds to unliquidated or nonfinal entries and CBP (not BIS) controls refunds; Plaintiffs failed to use administrative mechanisms | Court held Plaintiffs failed to state a plausible claim entitling them to reliquidation and refunds; BIS’s corrective action was the maximal relief it could provide |
| Pleading sufficiency under Rule 12(b)(6) | Alleged unlawful final agency action: BIS wrongly approved invalid exclusions and failed to provide a remedy | Complaints lack legal theory or unlawful final action that would require reliquidation; plaintiffs’ inaction contributed to final liquidation | Dismissed: complaints do not plausibly show a legal basis for court-ordered relief beyond BIS’s corrections; Twombly/Iqbal standard applied |
| Leave to amend (20‑3829 and 21‑290) | Plaintiffs sought to amend to add facts and remove an entry | Govt opposed amendment in 20‑3829 as futile; consented in 21‑290 | Court granted consented amendment in 21‑290; denied contested amendment in 20‑3829 as futile |
Key Cases Cited
- Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652 (2019) (mootness standard is demanding; requires that no effectual relief be possible)
- Friends of the Earth, Inc. v. Laidlaw Env't Servs., 528 U.S. 167 (2000) (case-or-controversy framework governs standing and mootness)
- Rhone Poulenc, Inc. v. United States, 880 F.2d 401 (Fed. Cir. 1989) (distinguishes subject-matter jurisdiction from a court’s equitable remedial powers)
- Shinyei Corp. of Am. v. United States, 355 F.3d 1297 (Fed. Cir. 2004) (CIT may retain jurisdiction to order reliquidation where appropriate)
- ThyssenKrupp Steel N. Am. v. United States, 886 F.3d 1215 (Fed. Cir. 2018) (intervening legal change can justify relief when CBP failed to apply new law to timely protest)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard under Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Rule 12(b)(6) requires factual plausibility)
- Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933 (Fed. Cir. 1990) (CIT authority to remand under 28 U.S.C. § 2643(c)(1))