CIT Dismisses Importers' Deemed Liquidation Challenges on Wooden Bedroom Furniture From China
The Court of International Trade on June 9 dismissed two cases brought by importers challenging the allegedly late liquidation of entries subject to antidumping duties on wooden bedroom furniture from China. Hutchison Quality Furniture (here) and P.F. Stores (here) argued their entries should have deemed liquidated because CBP missed the six-month window for liquidating entries affected by a court decision. The companies said the error was the result of Commerce’s liquidation instructions. In two separate decisions from Judge Claire Kelly, CIT ruled that liquidation is CBP’s responsibility, and can only be challenged by filing a protest, paying the required duties, and bringing a case against the denied protest at CIT.
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Both companies imported wooden bedroom furniture in 2007 from Chinese exporters that were later participants in a court case challenging the final results of the 2007 AD duty administrative review. CIT made its final decision in the case in February 2013. Liquidation of both companies’ entries was suspended pending the outcome. Some of the Chinese exporters participating in the case appealed, but not the exporters of the merchandise imported by Hutchison and P.F. Stores. Commerce issued instructions to CBP in June to liquidate Hutchison’s and P.F. Stores’ entries, after the relevant exporters were severed from the ongoing case. CBP finally liquidated the entries in September.
P.F. Stores and Hutchison argued their entries should have deemed liquidated six months after the final court decision in February. They each blamed the failure to liquidate the entries on time on Commerce’s liquidation instructions. They challenged Commerce’s liquidation instructions under CIT’s residual jurisdiction provision, 28 USC 1581(i), which is only available when other forms of jurisdiction, including denied protest grounds under 28 USC 1581(a), are unavailable. Although both had filed protests, Hutchison’s had only challenged whether its merchandise was covered by duties, and P.F. Stores was unable to pay the $190,000 in duties required to bring a case under Section 1581(a).
CIT found that the only way P.F. Stores and Hutchison could get the liquidation issue into court is through a denied protest challenge, dismissing the case because jurisdiction under Section 1581(i) was unavailable. Although CBP can act based on Commerce’s directions, liquidation is purely a CBP function, said CIT. CBP could have liquidated the entries six months after CIT issued its court decision in February 2013, but did not, said the court. By law, all challenges to liquidation must be challenged in protests, said CIT, and any denied protests must be challenged in court under Section 1581(a) jurisdiction.
(P.F. Stores, Inc. v. U.S., Slip Op. 15-54, #14-00200, Judge Kelly)
(Hutchison Quality Furniture, Inc. v. U.S., Slip Op. 15-55, #14-00248, Judge Kelly)
(Attorneys: Josh Levy of the law offices of Peter Herrick for plaintiff P.F. Stores; John Peterson of Neville Peterson for plaintiff Hutchison Quality Furniture; Douglas Edelschick for defendant U.S. government in the P.F. Stores case; Stephen Tosini for defendant U.S. government in the Hutchison case; Michael Taylor of King & Spalding for defendant-intervenors American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company in the P.F. Stores case)