CAFC Tells EAPA Appellee It May Be Dismissed From Case Over Lack of Reply Brief
The U.S. Court of Appeals for the Federal Circuit in a Feb. 13 text-only notice alerted appellee CP Kelco it has failed to file a response brief in an Enforce and Protect Act case. The court said failure to file such a brief could lead to "dismissal or other action as deemed appropriate by the court" (All One God Faith v. U.S., Fed. Cir. # 23-1078).
In the EAPA case, CBP found the plaintiff-appellants Ascension Chemicals, UMD Solutions and Crude Chem Technology, along with plaintiff All One God Faith, doing business as Dr. Bronner's Magic Soaps, transshipped Chinese xanthan gum through India to avoid antidumping duties. The companies contested the evasion proceeding, filing suit at the Court of International Trade under Section 1581(c). But in the meantime, CBP had “evidently in error” liquidated the five entries subject to the customs agency’s evasion finding. While Dr. Bronner's and Glob Energy protested the liquidation, they did not challenge the denied protest, which CBP had denied “in light of the issuance of the initial EAPA determination” in March 2020.
The trade court dismissed the action for lack of subject-matter jurisdiction (see 2208180045). CIT said liquidation is final and conclusive and the court's jurisdiction for EAPA cases doesn't let it independently review the erroneous liquidation of goods subject to the evasion finding.
In their opening brief, the plaintiff-appellants said Section 1581(c) was the correct jurisdiction (see 2212280024). Defendant-appellee CP Kelco U.S., which has filed an entry of appearance, failed to file its reply brief or a motion for an extension. The government filed for more time Feb. 13.