CIT Judge Shoots Down Request for Interlocutory Appeal in Customs Case

The Court of International Trade denied a motion by Midwest-CBK that asked the court to have two issues appealed to the U.S. Court of Appeals for the Federal Circuit, in a Sept. 7 order from Judge Jennifer Choe-Groves. The order said that the issues at hand did not meet the requirements for an interlocutory appeal because they involved questions of fact, not purely law (Midwest-CBK, LLC v. United States, CIT Consol. #17-00154).

The first issue brought by Midwest-CBK was whether a post-importation sale may serve as the basis of a “sale for exportation to the U.S.” for purposes of the transaction value. The question is not simply a matter of law as required by the statute, Choe-Groves ruled. Instead, "sales for exportation to the U.S." are "based on ... fact-specific inquir[ies] and case-by-case analys[es]," she said.

The second issue, whether CBP has any discretion to extend liquidation of entries after it has received all information needed to render appraisement determination, is also not simply a matter of law, the judge ruled. The application of the relevant statute is a discretionary decision by CBP. Therefore, any analysis of that process requires the court to determine whether it abused its discretion, which is a factual question, she said. Factual matters are generally barred from interlocutory appeal because "they require the appellate court to review the facts of the case," Choe-Groves noted. Appellate courts must be able to "decide quickly and cleanly without having to study the record,” she said.

Midwest-CBK filed the underlying motion in June after Choe-Groves ruled in a May 20 opinion that sales from a Canadian warehouse to U.S. customers are "sales for export to the U.S." rather than "domestic sales" (see 2205200032). The opinion granted a Nov. 19 motion for summary judgment by DOJ (see 2111220057) that argued plaintiff Midwest-CBK's sales were exports to the U.S. at the time of sale.

"We had thought it would be tidier to take the issues to the Court of Appeals for resolution," said John Peterson, attorney for Midwest-CBK. "We are going to have to proceed to trial or some determination ... and I expect we will ultimately file an appeal," he said.