CIT Says Liquidation of Entries Under Injunction Occurs After Final Judgment
Injunctions preventing liquidation may be dissolved when the Court of International Trade enters final judgment, and not necessarily when the issues surrounding the specific entry are resolved, said CIT in a decision issued Oct. 28 (here). Though all issues surrounding a given entry may be decided by a CIT opinion and order, an injunction that remains in effect until final judgment means that CBP may only liquidate covered entries after all issues in the entire case are decided and final judgment is entered, said CIT.
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Held liable by CBP for antidumping duties after an importer it bonded defaulted on payment, American Home Assurance Company (AHAC) argued the 23 relevant entries had deemed liquidated, mostly at the zero percent cash deposit rate originally declared by the importer. The entries had been subject to an injunction against liquidation since 2003, while CIT considered a challenge of the administrative review covering the period when the merchandise was entered. In September 2007, CIT issued an opinion and order sustaining a 233.01% AD duty rate for the 23 entries.
However, the case continued until September 2008, when CIT sustained the rate assigned to an unrelated exporter in the review, and entered final judgment. The Commerce Department issued amended final results in the case in November 2008, and CBP subsequently liquidated one of the 23 entries in January 2009, and the rest in April 2009.
AHAC contended the liquidations came too late. CBP must liquidate entries subject an injunction within six months of the injunction’s removal. The injunction was removed when the two-month period expired for an appeal of the opinion and order that decided the rates of the 23 entries, said the surety. The entries thus deemed liquidated in May 2008, well before CBP purported to liquidate them at the high 233.01% rate, said AHAC.
CIT disagreed, holding that the injunction was not dissolved until CIT issued final judgment after deciding all aspects of the case. The injunction covering the 23 entries provided that it would remain in effect until “the final court decision in this action before the United States Court of International Trade,” said CIT. In this case, CIT did “not enter final judgment when it issued the Opinion and Order, and it issued no other order ending the injunction against liquidation of the companies’ entries,” it said. Instead, the actual final judgment was issued in September 2008. The six-month period for liquidation did not actually begin until December 2008, when Commerce published its notice amending the final results in accordance with the decision. “This notice, although not published within the 10-day period required by the statute, was nonetheless the first notice alerting Customs of the removal of the injunction against liquidation,” said CIT. As liquidation occurred within six months of Commerce’s notice, the entries did not deem liquidated, said the court.
(U.S. v. Am. Home Assurance Co., Slip Op. 15-120, CIT # 10-00179, dated 10/28/15, Judge Eaton)
(Attorneys: Edward Kenny for plaintiff U.S. government; Herbert Shelley of Steptoe & Johnson for defendant American Home Assurance Company)