CIT Dismisses Challenge of Entry Refusal, says Not a Protestable Offense
The Court of International Trade dismissed for lack of jurisdiction Sunshine International Trading’s challenge of CBP’s refusal of an entry of women’s apparel. Sunshine said the refusal was a protestable exclusion, and the company’s argument was bolstered by CBP’s mistaken denial, rather than rejection, of the subsequent protest. But CIT ruled that the refusal wasn’t a protestable final action, so the case couldn’t be tried under 28 USC 1581(a) denied protest jurisdiction. Sunshine’s valuation challenge was also dismissed because valuation can only be protested after liquidation, and the court found an error in the dates listed on the entry rejection to be an irrelevant clerical error.
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Sunshine filed its CF 3451 (Entry/Immediate Delivery) on May 17, 2012, to enter a shipment of women’s apparel into the Port of Los Angeles. CBP refused the entry, saying the valuation of the merchandise was incorrect, and the invoice didn’t contain all required information. CBP also requested a live entry secured by a single transaction bond. CBP’s refusal was dated May 1, over two weeks before the entry documentation was submitted, although the entry number was correctly identified.
Sunshine protested the refusal of its entry, arguing that the refusal was invalid because it was dated before the entry at issue. It also argued the entry shouldn’t have been refused in any case because Sunshine’s valuation and invoices were correct, it said. Rather than reject the protest as non-protestable, a CBP import specialist checked the box for denial of the protest, and listed the reason as “filed in error.”
The government argued that CIT lacked jurisdiction to hear the case under 19 USC 1581(a) protest denial jurisdiction. Sunshine said the case should be heard under Section 1581(a) as a protest of an exclusion, but the government argued that it gave Sunshine the opportunity to resubmit its entry, and was not a final action.
Turning to prior case law, the court found that CBP entry refusals are not rejections and are not protestable final actions. As such, the court lacked Section 1581(a) jurisdiction to hear the case, because a valid protest was not denied. The valuation dispute behind the refusal couldn’t be challenged either, because valuation challenges need to wait until an entry is liquidated, CIT said. Finally, the date of the refusal notice was not a protestable event, and Sunshine in any case didn’t claim that it was injured by the clerical error.
(Sunshine Int'l Trading, Inc. v. United States, Slip Op. 13-25, dated 02/26/13, Judge Barzilay)
(Attorneys: Elon Pollack of Stein Shostak for plaintiff Sunshine International Trading, Inc.; Barbara Williams for defendant U.S. government.)