US Says Importer's Tariff Exclusion Request Denial Case Blocked by 2-Year Statute of Limitations
The U.S. Dec. 16 supported its motion to dismiss the amended complaint of aluminum rod importer Prysmian Cables and Systems, saying that the importer’s arguments failed to state a claim, aren’t subject to the “continuing violation doctrine” and don’t have a six-year statute of limitations (Prysmian Cables and Systems v. U.S., CIT # 24-00101).
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Prysmian is one of several importers who have brought challenges recently against the Commerce Department for denials of their Section 232 steel tariff exclusion requests (see 2406120057, 2406200047 and 2405100067). The importer claims first, under 5 U.S.C. 706(1), that Commerce failed to "perform certain mandatory and discrete actions in responding" to the importer’s exclusion requests. Second, it argues, under Section 706(2), that the exclusion request denials were arbitrary and capricious.
The U.S. sought to dismiss this case in October (see 2410310054), arguing that the importer’s claims were untimely and unactionable because all but the final two exclusion request denials occurred more than two years ago and “because Prysmian does not allege that Commerce failed to take a discrete action” that the department is required to take -- the importer acknowledges that Commerce took an action in denying the requests, it claimed.
Prysmian claimed in its response to the dismissal that the U.S. was conflating its two claims (see 2412040019), but “[w]e conflate the two because they are one and the same,” the government said.
The importer alleges that Commerce “failed” to “apply mandatory criteria to the facts presented in Prysmian’s exclusion requests,” to prepare a responsive decision memo to the requests, and to notify CBP that Prysmian was entitled to an exclusion, it said. But this isn’t “inaction,” it said. It said Prysmian “does not actually allege that Commerce failed to take action, but rather that its action was wrong.”
If Prysmian was right, “every challenge to agency action under section 706(2) could also be made under section 706(1),” it said.
The government also again said 15 of Prysmian’s 17 challenges were untimely because they had been filed under 28 U.S.C. 1581(i), which carries a two-year statute of limitations. The importer cited the “continuing violation doctrine,” saying that “Commerce’s ‘unlawful conduct continues today,’” but that was a fundamental misunderstanding of the doctrine, it said.
The only event needed for each of those 15 claims to have been made was Commerce’s denial of an exclusion request, it said, and all of those denials had already occurred more than two years before the beginning of the present litigation. Just because those denials resulted in “continued ill effects later on” didn’t mean each claim could be “broken down into a series of independent and distinct events or wrongs, each having its own associated damages,” it said.
And the Supreme Court doesn’t allow programmatic challenges under the continuing claims doctrine, it said.