SEIA Says US Can't Reliquidate Entries Liquidated in Violation of CIT Injunction
It's unclear if the Court of International Trade has the authority to order reliquidation on imports to "increase duties to the detriment of importers," the Solar Energy Industries Association argued in a post-argument brief at the Court of International Trade. SEIA said the trade court should look "skeptically" on the government's request seeking such liquidation, and "require a compelling case based on the equities for granting such relief" (Solar Energy Industries Association v. United States, CIT # 20-03941).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
No such compelling case has been made, the brief added.
SEIA's case was initially brought in 2021 to contest the decision by President Donald Trump in his first term to revoke a tariff exclusion for bifacial solar panels. The trade court suspended liquidation of the entries at issue in the case before finding that the exclusion revocation was not allowed under the relevant statute (see 2111160032). The Federal Circuit reversed that decision, sustaining the president's decision.
The U.S. then told the trade court that it inadvertently liquidated hundreds of entries in violation of the injunction, though it didn't provide a specific list of the entries at issue (see 2208120055). The present dispute emerged after the U.S. asked the court for an order leaving the many entries that were properly assessed the Section 201 duties undisturbed but ordering reliquidation of a "basket" of 174 entries that weren't hit with the tariffs. The court held oral argument earlier this month on whether to reliquidate the entries at issue (see 2502130056).
During the oral argument, the government said CBP likely already has the power to reliquidate the entries at issue, since they were erroneously liquidated in violation of the court's injunction. In its post-argument submission, SEIA said the U.S. is wrong to suggest this. The U.S. Court of Appeals for the Federal Circuit "has indicated that power to rectify a liquidation that violates a court order is equitable in nature," the brief said.
And while the trade court has suggested that liquidations in violation of a court order are "void ab initio, those decisions are not binding and arose in a different context," SEIA said. Both cases in which the court suggested as much involved injunctions obtained by third parties whose interests were "harmed when the government liquidated the entries."
SEIA added that the equities don't support reliquidation. "To the extent that the Government does not obtain the full benefit of that injunction, it is because of its own repeated violations of the Court’s order," the brief said, adding that the "statutory scheme" importers rely on creates an "expectation that once CBP liquidates an entry, any further liability is extinguished."