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US Further Defends Bid to Toss Suit Against Protest Decision, Cites Importer's Insufficient Pleadings

Importer Under the Weather's response to the U.S. motion to dismiss its customs suit on backpacking tents "rests on legal misunderstandings and a pleading standard that was abrogated over a decade ago," the government said in a Nov. 16 reply brief at the Court of International Trade. The U.S. said the issue in the case is not whether it is "theoretically possible for a claim to exist" but whether Under the Weather plausibly alleged that a one-sentence approval from an import specialist was the "functional equivalent of a protest review" (Under the Weather v. United States, CIT # 21-00211).

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The importer's complaint failed to allege its claim with sufficient particularity as required by the Supreme Court in its Iqbal ruling, the U.S. argued. The pleading test asks whether the complaint "plausibly states a claim for relief" after ignoring all conclusory statements. The "mere possibility that" CBP's deliberations gave rise to a "Center-level protest approval, that might somehow be interpretive," is the heart of Under the Weather's claim, and as such, does not clear modern pleading requirements.

Under the Weather argued that it imported its tents designed for backpacking under Harmonized Tariff Schedule subheading 6306.22.1000, free of duty, as backpacking tents, until CBP reclassified them under subheading 6306.22.9030. This subheading covers "other" tents, dutiable at 8.8%. The importer filed a protest arguing that the tents satisfy all the criteria for backpacking tents. CBP granted the protest in 2019, then told the importer the next year its goods fit under subheading 6306.22.9030 though it didn't address the prior protest. Another protest followed, which CBP denied and then issued an HQ ruling on the tents and finding that the prior protest was not a decision. The present suit followed (see 2306260025).

The U.S. said in its motion to dismiss that the standard used to review interpretive rulings cannot be applied here since the ruling at issue was a one-sentence determination from an import specialist and not meant to apply to other products. In reply, Under the Weather says that interpretive decisions other than protest review decisions must be revoked but need not be published.

The government said this is "wrong on both fronts." Congress required CBP to abide by its published rulings unless modified or revoked via notice-and-comment procedures, making it "contrary to the plain text and legislative history to suggest that" Congress gave CBP permission to avoid these procedures by just calling an interpretive decision anything other than a "protest review decision," the brief said. "But that is precisely what Under the Weather suggests in arguing that some interpretive decisions must be revoked, but not published."