Auto Liq Instructions are an ITA Action, Come Under 1581(i), says CIT; Denies Dismissal of Challenge
The Court of International Trade denied the government’s motion to dismiss, for lack of subject matter jurisdiction, an action brought by Michaels Stores challenging allegedly incorrect antidumping duty assessment instructions sent to CBP by the International Trade Administration. The government argued that Michaels is challenging CBP’s action, so the suit should have been filed under 28 USC 1581(a) customs protest denial jurisdiction. CIT said Michaels was instead challenging the International Trade Administration’s action, considering that the ITA issued the instructions, and said the suit was correctly filed under 28 USC 1581(i) residual jurisdiction as a challenge of the ITA’s administration and enforcement of trade laws.
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The assessment instructions at issue were sent as part of an automatic liquidation message for the AD duty order on cased pencils from China (A-570-827), because no administrative review was conducted for the period covering the entries. As the ITA did not conduct an administrative review, the government argued, the assessment rates were not from an ITA determination, but were simply “based on a statutory duty arising from the lack of an administrative review.” The suit couldn’t be filed under 28 USC 1581(i)(4), which provides for challenges of administration and enforcement of trade laws, because the ITA was not administering or enforcing, the government said. Instead, the challenge was to action taken by CBP, and should have been filed under 28 USC 1581(a), it said.
“This distinction, however, is irrelevant to 28 USC 1581(i)(4) jurisdiction,” said CIT. “However [the ITA] arrived at the instructions which were issued, it is [the ITA] that issued them, not Customs, the recipient.” As such, said CIT, Michaels’ challenge was indeed to ITA administration and enforcement of trade laws, and was correctly filed under 28 USC 1581(i).
(Michaels Stores, Inc. v. U.S., Slip Op. 12-161, dated 12/27/12, Judge Restani)
(Attorneys: Lewis Leibowitz of Hogan Lovells for plaintiff Michaels; Carrie Dunsmore for defendant U.S. government)