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CIT Decision Calls Finality of Liquidation Into Question for Non-CBP Cases, Law Firm Says

Liquidation may not be final in cases where CBP is "acting at the behest of another agency," law firm Neville Peterson said in a Sept. 13 blog post commenting on the Court of International Trade's ruling in AM/NS Calvert v. U.S. In that decision, the trade court entries subject to Section 232 steel and aluminum duties may not be final, given that the case contests the applications of product-specific exclusions granted by the Commerce Department and not by CBP (see 2309070037).

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Neville Peterson attorneys said the case could be used to find relief may be granted to the plaintiff in an Administrative Procedure Act case where liquidation has been made final "even though the legal remedy of protest is foreclosed." Previously, CIT has consistently ruled that the finality of liquidation precludes relief where a protest has not been filed. That's based on the Tariff Act of 1930, which says liquidation is final unless it is reliquidated or protested.

What potentially could separate the AM/NS Calvert case is that it is not an appeal of a CBP decision but of a Commerce one. "While the APA does not provide for the award of money damages, it does allow courts to provide the equitable remedy of 'restitution' of funds unlawfully taken as the result of any APA violation," the blog post said.

A similar dilemma can be seen in the massive Section 301 litigation, which is seeking to reverse the finality of liquidation on goods subject to Section 301 duties via an APA challenge. Neville Peterson said "finality of liquidation is truly final when Customs is making the decisions entrusted to it by law. But when Customs is acting at the behest of another agency, liquidation status may not matter."