No Amended Complaint in Evasion Case Since Window to Challenge Denied Protest Lapsed, US Says
Dr. Bronner's Magic Soaps should not be allowed to amend its complaint since the case cannot be amended to claim jurisdiction over a denied protest after the 180-day window to file a challenge has lapsed, the Justice Department said in a March 18 reply brief at the Court of International Trade. The U.S. also contested Dr. Bronner's motion since it sought to only amend the complaint and not the summons (All One God Faith v. United States, CIT Consol. #20-00164).
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The case concerns CBP's Enforce and Protect Act evasion investigation which found that Dr. Bronner's evaded antidumping and countervailing duties on xanthan gum from China, falsely declaring its imports as being of Indian origin. The DOJ has already moved to dismiss the case, arguing that the xanthan gum entries had already liquidated, and, seeing as the company did not make a timely appeal, it lost jurisdiction at CIT (see 2108050068).
Dr. Bronner's then moved for leave to file an amended complaint or supplement its complaint in order to explicitly contest CBP's denial of the protests it filed to fight CBP's liquidations of the xanthan gum entries. The U.S. took issue with this. "This Court should deny Dr. Bronner’s motion because – even if granted – the motion cannot cure Dr. Bronner’s fatal jurisdictional flaw," the brief said. "Specifically, the United States Court of Appeals for the Federal Circuit has held that – in order to assert jurisdiction over entries subject to a protest denied by CBP – the initial pleading (i.e. the summons) must specifically identify the protest that was the subject of the notice of denial under Section 515 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1515.
"And, importantly, the Federal Circuit has also held that a summons may not be amended to cure such a defect after the jurisdictional 180-day requirement has lapsed. ... Because CBP’s denial of the protests is “final and conclusive” and Dr. Bronner’s failed to timely appeal that denial to this Court, no remedy remains for Dr. Bronner’s."