US Tells Appeals Court CBP Made No Protestable Decision in Target Reliquidation Case
Court-ordered reliquidations aren't actions taken by CBP and can't be protested, the government said in oral arguments held Dec. 6 before the U.S. Court of Appeals for the Federal Circuit. As a result, the Federal Circuit doesn't have jurisdiction to hear Target's appeal of a liquidation ordered by CIT, the U.S. said (Target v. U.S., Fed. Cir. # 23-2274).
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Target, as an importer, brought its case in 2023 challenging the Court of International Trade’s decision to order reliquidation of a number of its erroneously liquidated metal-top ironing tables entries at the higher antidumping duty rate that had been subsequently calculated for them (see 2310030054). Target entered its merchandise paying a 9.47% cash deposit. CBP then accidentally liquidated it at that cash deposit rate even as an administrative review found that the products should have actually been hit with a 72.29% AD. On behalf of domestic producers, CIT ordered reliquidation even though the usual 90-day reliquidation deadline had passed.
In its briefings for the case, and in oral argument, Target argued that CIT’s reliquidation order went directly against earlier CAFC precedent defined in Cemex v. United States. In that case, just as in Target’s, an importer’s entries were accidentally liquidated at a lower cash deposit rate rather than a higher AD review-derived rate. But CAFC held in that case that because the 90-day deadline for reliquidation had passed, the liquidation at the lower rate was final.
But because CBP was just carrying out CIT’s orders when it reliquidated Target’s merchandise, the agency hadn’t actually made a decision -- CIT had, government attorney Alexander Vanderweide argued. That meant CAFC lacked jurisdiction to hear the case, he said.
Liquidations only count as decisions when CBP, “at the administrative level,” is making the final calls as to an entry’s classification, rate, and so on, the U.S. argued.
He distinguished Cemex, arguing that CBP had chosen in that case to treat the entries in controversy as “de-liquidated,” thus making a decision that could have been protested. And he denied that CBP making an error when interpreting instructions from the Commerce Department counted as a decision, calling that a “clerical error.”
“There’s no interpretive function there,” he said, responding to apparent skepticism from CAFC. “Customs doesn’t have the authority to change Commerce’s instructions.
In turn, Zachary Simmons, the attorney for Target, said that CIT had acted “flatly contrary” to Cemex when it claimed to be using its equitable power to order reliquidation of Target’s entries. He called the facts of the case a “little bit insane” and said that the trade court didn’t have the power to overturn CAFC’s ruling, nor to go against the statute of limitations set by law.
He acknowledged a potential conflict with the final parts of the Cemex opinion; in that case, CAFC noted that a domestic producer could have had the higher liquidation rate enforced if it had turned to CIT faster. Instead, Cemex’s domestic producer waited five years. But the domestic producer hadn’t done so in this case.
“At the end of the day, that did not happen,” he said. “I don’t think the decision hinges on speed.”