CIT Says No More Section 232 Refunds for Importer After Exclusion Request Fix, as No Protest Filed

The Court of International Trade on Aug. 26 dismissed a steel importer's and purchaser's bid to reliquidate two entries subject to Section 232 steel and aluminum tariffs, saying the plaintiffs had already received the relief available to them from the Commerce Department in the form of a product exclusion but failed to preserve their ability to receive a refund by way of an extension of liquidation or a protest.

Bilstein Cold Rolled Steel, the steel purchaser, had submitted a flawed exclusion request to Commerce's Bureau of Industry and Security. The exclusion request was approved, despite including the wrong Harmonized Tariff Schedule subheading and importer of record. The proper importer of record, Voestalpine USA, then brought in two steel entries that were liquidated with the Section 232 duties.

At the time, the plaintiffs said they “sought advice” from CBP and BIS over the errors in the approved exclusion request. To get retroactive relief, the agencies said, the plaintiffs must file an exclusion request identical to the original one except with the correct information. If it is granted, then the plaintiffs can contact the 232 Help Desk to attempt to open a resubmission case. Bilstein followed those steps, but BIS said that the agency wouldn't accept a resubmission of the exclusion request unless the protest period for the entries hadn't expired.

The plaintiffs then filed their cases at CIT. Despite its initial rejection, BIS then granted the second exclusion request, making it retroactive to the original exclusion request. Failing to file a protest of the liquidation of Voestalpine's two entries, the plaintiffs never sought to extend the approved exclusion to the two entries and thus did not receive a refund of the Section 232 duties paid on them. Bilstein and Voestalpine then sought the reliquidation of these entries in court.

The first question before the court was one of jurisdiction. The U.S. argued that CIT did not have jurisdiction over the case under 28 USC 1581(i), the court’s “residual” jurisdiction for trade challenges, but rather under 28 USC 1581(a), the trade court’s jurisdiction for hearing challenges to denied protests. Barnett disagreed, saying the action contests the “administration and enforcement” of the Section 232 exclusion process.

With jurisdiction established, Barnett then turned to the question of the case's validity. The judge said that the plaintiffs had received all the relief available to them under Section 1581(i). Commerce had done all it could for the plaintiffs in approving the exclusion resubmission and making it retroactive to the first exclusion request. Bilstein and Voestalpine's problem was that they didn't exhaust their administrative remedies when seeking the Section 232 refunds, the judge said. Barnett said the plaintiffs' “clear lack of diligence” meant they held at least some responsibility for failing to get the exclusion for the two subject entries.

“Plaintiffs failed either to request an extension of liquidation or to protest administratively the liquidation of the subject entries in order to prevent finality of liquidation while they sought to work with BIS to resolve the error,” Barnett said. “Plaintiffs’ failure to pursue its available administrative remedies renders reliquidation an inappropriate form of relief, obviating Plaintiffs’ claims against mootness. Plaintiffs’ claim is moot because the court could not provide any relief beyond that already obtained from Commerce and the case must be dismissed.”

(Voestalpine USA Corp., et al. v. United States, Slip Op. 21-108, CIT Consol. # 20-03829, dated 08/26/21, Chief Judge Barnett. Attorneys: Lewis Leibowitz of the Law Office of Lewis E. Leibowitz for plaintiffs Bilstein and Voestalpine; Aimee Lee for defendant U.S. government)