Rulings, remedies and court proceedings for customs and trade professionals

Target Tells CAFC US Failed to Distinguish 'Cemex' in Case Against CIT Order

Target Corp. told the U.S. Court of Appeals for the Federal Circuit that the U.S. failed to distinguish the court's opinion in Cemex v. U.S. from Target's case, in which the retail giant is contesting a court-ordered reliquidation of its entries that erroneously received a favorable antidumping duty rate. Target said that no "amount of legal legerdemain and reference to" distinguishable case law can "mask the vacuity of" the "attempted distinctions" (Target Corp. v. United States, Fed. Cir. # 23-2274).

In Cemex, an antidumping duty proceeding led to a higher dumping rate than the mark set for cash deposits. However, a group of entries was deemed liquidated at the lower cash deposit rate and there was no reliquidation within 90 days of this development. Reliquidation was sought in the courts, but the Federal Circuit denied the request, finding liquidation to be "final and conclusive."

Target's case comes from a matter previously settled by the Federal Circuit, Home Products v. U.S., in which the court upheld CIT's order to reliquidate ironing table imports. In the case, CBP erroneously liquidated 224 of the entries, 40 of which were Target's. CBP told the court about the error and was granted a redo despite the 90-day reliquidation window being closed. Target wasn't allowed to intervene in the Home Products suit, and so brought its own case, arguing that Cemex barred reliquidation.

CIT said reliance on Cemex was "misplaced" (see 2307200049). At the Federal Circuit, Target said it wasn't CIT's right to disregard a binding appellate court decision (see 2310030054). The government differentiated Cemex from the present dispute, claiming Cemex involved erroneous deemed liquidations "that occurred under circumstances distinct" from the present case (see 2312150050).

In its reply, Target dubbed these "irrelevant factual distinctions" that don't create a basis for distinguishing the present case. The distinguishing facts pertain to whether the court had jurisdiction under Section 1581(i), the court's "residual" jurisdiction, and Section 1581(a), which gives the court jurisdiction for customs cases. "This is not an issue in this case," the brief said, noting that the court clearly has jurisdiction under Section 1581(a).

The retail giant noted the court's equitable authority to "legally enforce its judgments," arguing that there is "no question that the Court has powers in equity as well as as powers in law." These equitable powers give the court the power to "enforce its judgment in a way that is consistent with the law," though they do not give the court power to "use its equitable powers to disregard the law," the brief said. While not binding, Target cited CIT Judge Mark Barnett's dissent in the massive Section 301 case, which said that Congress set "specific statutory provisions" that bar "the court from awarding relief" where liquidation is "final and conclusive."

Target also said the government "attempts to lift itself by its own bootstraps" in relying on the trade court's ruling in Home Products by arguing that the decision is "etched in stone." Target said it is "not asking this Court to revisit its decision on the merits in" Home Products since this court never reviewed that decision. "As we have consistently argued, that decision flies in the face of the Cemex case, and if this Court agrees, there is nothing left to support defendant-appellee’s position," the brief said.