All One God Faith, Inc., Dba Dr. Bronner’s Magic Soaps v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ALL ONE GOD FAITH, INC., DBA DR. BRONNER’S
MAGIC SOAPS,
Plaintiff
GLŌB ENERGY CORP., ASCENSION CHEMICALS
LLC, UMD SOLUTIONS LLC, CRUDE CHEM
TECHNOLOGY LLC,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
CP KELCO U.S., INC.,
Defendant
______________________
2023-1078, 2023-1081
______________________
Appeals from the United States Court of International
Trade in Nos. 1:20-cv-00160-GSK, 1:20-cv-00161-GSK,
1:20-cv-00162-GSK, 1:20-cv-00163-GSK, 1:20-cv-00164-
GSK, Judge Gary S. Katzmann.
______________________
Decided: February 27, 2025
______________________
K YL J OHN K IRBY , Kyl J. Kirby, Attorney and Counselor
at Law, PC, Fort Worth, TX, argued for plaintiffs-
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ALL ONE GOD FAITH , INC. v. US 2
appellants.
ASHLEY AKERS , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee United States. Also rep-
resented by CLAUDIA BURKE, P ATRICIA M. MCCARTHY ,
L OREN MISHA P REHEIM , ANTONIA R AMOS SOARES , BRETT
SHUMATE; S HAE WEATHERSBEE , Office of Chief Counsel,
United States Customs and Border Protection, United
States Department of Homeland Security, Washington,
DC.
______________________
Before M OORE, Chief Judge, HUGHES and C UNNINGHAM ,
Circuit Judges.
HUGHES , Circuit Judge.
Appellants appeal the decision of the United States
Court of International Trade affirming determinations by
Customs and Border Protection that Appellants trans-
shipped xanthan gum from the People’s Republic of China
through India to evade antidumping duties imposed by an
antidumping order issued by the United States Depart-
ment of Commerce.
Appellants challenge two aspects of the trial court’s de-
cision. First, regarding evasion determinations over which
the trial court exercised jurisdiction, they argue that the
trial court improperly concluded that Customs’ evasion de-
terminations were in accordance with law and supported
by substantial evidence. Second, they contend that the trial
court improperly dismissed for lack of subject matter juris-
diction certain claims seeking review of evasion determina-
tions because those claims concerned entries that had been
finally liquidated. We conclude that the trial court did have
jurisdiction over these claims. Nonetheless, because Cus-
toms’ other evasion determinations were in accordance
with law and not an abuse of discretion, and the trial court
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ALL ONE GOD FAITH , INC. v. US 3
indicated it would find evasion regarding the finally liqui-
dated entries for the same reasons if it had jurisdiction, we
affirm.
I
This current appeal addresses whether GLōB Energy
Corporation, Ascension Chemicals LLC, UMD Solutions
LLC, Crude Chem Technology LLC (collectively, Appel-
lants) improperly transshipped1 xanthan gum from the
People’s Republic of China (PRC) through India in an effort
to evade antidumping (AD) duties imposed by the United
States Department of Commerce. We begin with an expla-
nation of the scope of the statutory scheme under which AD
determinations are reached and reviewed. We then sum-
marize the case’s procedural history before turning to the
merits.
A
In 2013, in accordance with 19 U.S.C. § 1673e, Com-
merce issued AD Order No. A-570-985 on xanthan gum
from China. See Xanthan Gum From the People’s Republic
of China: Amended Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order, 78 Fed.
Reg. 43,143 (Dep’t of Commerce July 19, 2013) (AD Order).
That order set forth the AD duties to be collected on im-
ports of xanthan gum from China.
In 2016, the President signed into law the Trade Facil-
itation and Trade Enforcement Act of 2015 (TFTEA). Pub.
L. No. 114-125, 130 Stat. 122 (2016). Title IV, Section 421
of the TFTEA is the Enforce and Protect Act of 2015
1 Transshipment occurs when goods originating in a
country subject to antidumping or countervailing duty or-
ders are exported to a third country prior to importation
into the United States in an effort to obscure the country of
origin and evade payment of duties.
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ALL ONE GOD FAITH , INC. v. US 4
(EAPA), which empowers Customs to investigate allega-
tions that an importer has evaded AD or countervailing du-
ties (CVD). 19 U.S.C. § 1517.
Under the EAPA, the Customs Commissioner has fif-
teen business days to initiate an investigation after receipt
of an allegation or referral that “reasonably suggests that
covered merchandise has been entered into the customs
territory of the United States through evasion.” 19 U.S.C.
§ 1517(b)(1). Within 90 calendar days of initiating an in-
vestigation, the Commissioner must decide whether there
is “reasonable suspicion” that covered merchandise entered
the customs territory of the United States through evasion
that warrants imposition of interim measures. 19 U.S.C.
§ 1517(e). If the Commissioner determines there is such
reasonable suspicion, the Commissioner shall take the fol-
lowing interim measures: (1) “suspend the liquidation of
each unliquidated entry of such covered merchandise that
entered on or after the date of the initiation of the investi-
gation;” (2) “extend the period for liquidating each unliqui-
dated entry of such covered merchandise that entered
before the date of the initiation of the investigation” (pur-
suant to her authority under § 1504(b)); and (3) “take such
additional measures as the Commissioner determines nec-
essary to protect the revenue of the United States, includ-
ing requiring a single transaction bond or additional
security or the posting of a cash deposit with respect to
such covered merchandise” (pursuant to her authority un-
der § 1623). Id. These interim suspensions dissolve once
the Customs investigation terminates.
The Commissioner then has 300 calendar days after in-
itiating the investigation to “make a determination, based
on substantial evidence, with respect to whether such cov-
ered merchandise was entered into the customs territory of
the United States through evasion.” 19 U.S.C.
§ 1517(c)(1)(A). “If the Commissioner finds that a party or
person . . . has failed to cooperate by not acting to the best
of the party or person’s ability to comply with a request for
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ALL ONE GOD FAITH , INC. v. US 5
information, the Commissioner may, in making a determi-
nation . . . , use an inference that is adverse to the interests
of that party or person in selecting from among the facts
otherwise available to make the determination.” 19 U.S.C.
§ 1517(c)(3)(A).
A party determined to have brought covered merchan-
dise into the customs territory of the United States has 30
business days to file an appeal with the Commissioner for
de novo review. 19 U.S.C. § 1517(f)(1). A party whose ap-
peal to the Commissioner fails has 30 business days to seek
review by the Court of International Trade (trial court or
CIT). 19 U.S.C. § 1517(g)(1). A party seeking judicial re-
view of an EAPA determination can seek a preliminary in-
junction to prevent liquidation during the litigation.
Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375,
1378 (Fed. Cir. 2009) (“In international trade cases, the
CIT has authority to grant preliminary injunctions barring
liquidation in order to preserve a party’s right to challenge
the assessed duties.”).
B
In December 2018 and March 2019, CP Kelco U.S., a
domestic producer of xanthan gum, submitted letters to
Customs alleging that xanthan gum from China subject to
the AD Order was being transshipped by Appellants
through India to evade AD duties. See J.A. 314–19 (Ascen-
sion December 2018 allegation); J.A. 343–49 (Crude March
2019 allegation); J.A. 353–59 (GLōB March 2019 allega-
tion); J.A. 363–69 (Ascension March 2019 allegation); J.A.
373–78 (UMD March 2019 allegation). Based on these let-
ters, Customs initiated an investigation under 19 U.S.C.
§ 1517(b)(1). The AD rate applicable to merchandise from
Chinese companies that did not receive their own rates, i.e.,
those that are determined to be part of the China-Wide En-
tity, is 154.07%. AD Order at 43,144.
After evaluating CP Kelco’s EAPA allegations concern-
ing evasion, Customs’ Trade Remedy Law Enforcement
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ALL ONE GOD FAITH , INC. v. US 6
Directorate (TRLED) in the Office of Trade initiated sepa-
rate investigations of each importer on May 7, 2019.
TRLED specifically noted that “CP Kelco has submitted
documentation reasonably available to it that suggests
xanthan gum is not produced in India, and that Chinese-
origin xanthan gum is being sourced through India for
transshipment to the United States with India the declared
country of origin.” J.A. 37, 41, 45, 49. TRLED thus con-
cluded that “the allegation reasonably suggests that cov-
ered merchandise has entered into the customs territory of
the United States by means of evasion, and that [Appel-
lants] may have been importing such merchandise.” Id.
On August 12, 2019, Customs notified Appellants that
it would consolidate the investigations. Customs also pro-
vided notice that it was imposing interim measures pursu-
ant to 19 U.S.C. § 1517(e), including that Customs would
adjust unliquidated entries of covered merchandise by the
investigation “to reflect that they are subject to the anti-
dumping order on xanthan gum from China and cash de-
posits will be owed,” suspend liquidation for entries that
entered on or after May 7, 2019, the date Customs initiated
its investigation, and extend the period for liquidation for
all unliquidated entries that were entered before May 7,
2019. J.A. 404.
On August 19, 2019, Customs sent Appellants addi-
tional requests for information, to which they responded on
September 13, 2019. J.A. 50–93. In these responses, Appel-
lants each indicated that their merchandise was manufac-
tured by a common supplier, Chem Fert Chemicals. Id. On
August 20, 2019, Customs sent requests for information to
Chem Fert; Chem Fert responded on September 3, 2019.
See J.A. 523–29 (Chem Fert response). The parties submit-
ted additional information and written arguments to Cus-
toms.
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ALL ONE GOD FAITH , INC. v. US 7
1
After the investigation, Customs determined Appel-
lants, along with several other importers who are not par-
ties to this appeal, had improperly imported Chinese origin
xanthan gum into the United States by transshipment
through India without disclosing the true country of origin.
In its March 9, 2020 Final Determination, Customs is-
sued its affirmative determination of evasion covering the
period of investigation from April 16, 2019 to March 9,
2020. J.A. 183–84. Customs explained that the EAPA stat-
ute outlines three elements for Customs to address in
reaching an evasion determination: “1) whether the entries
in question [we]re covered merchandise (i.e., merchandise
that is subject to an AD/CVD order) when they entered into
the customs territory of the United States; 2) whether such
entry was made by a material false statement or act or ma-
terial omission; and 3) whether there was a resulting re-
duction or avoidance of applicable AD/CVD cash deposits
or other security.” J.A. 187.
Based on information collected during its investigation,
Customs determined there was substantial evidence
demonstrating that the xanthan gum at issue was of Chi-
nese origin and “[wa]s subject to the China-wide entity rate
for the AD order on xanthan gum from China.” J.A. 201.
Customs also concluded that because “merchandise was
misidentified as of Indian origin” and free of duties at the
time of entry, no cash deposits had been collected on the
entries, and there was therefore a resulting reduction or
avoidance of applicable AD duties. J.A. 187, 194, 196, 198.
In its affirmative evasion finding, Customs rejected argu-
ments by the importers that there was no evasion because
the merchandise in the entries at issue was manufactured
in and exported from China by entities for which the cash
deposit rate has been 0.00 percent. J.A. 187, 194, 196, 198.
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ALL ONE GOD FAITH , INC. v. US 8
Regarding Appellants, Customs stated that they, along
with their purported manufacturer, Chem Fert, had not co-
operated “to the best of their abilities,” and that “[n]either
Chem Fert nor the [Appellants] provided requested produc-
tion documentation related to the actual xanthan gum im-
ported into the United States that could have enabled
[Customs] to determine the country of origin.” J.A. 187–88
(regarding Ascension); see also J.A. 194–95 (regarding
UMD), J.A. 196 (regarding Crude), J.A. 198 (regarding
GLōB). Customs therefore determined it would apply an
adverse inference on the question of who manufactured the
merchandise at issue, inferring that the foreign manufac-
turer had not manufactured the imported xanthan gum,
and would make a determination based on available record
information. J.A. 200.
2
Pursuant to 19 U.S.C. § 1517(f), the importers sought
administrative review of the Final Determination. On
July 16, 2020, after de novo review, the Customs’ Office of
Regulations and Rulings (ORR) issued a Decision affirming
Customs’ Final Determination. In its decision, ORR deter-
mined that the goods at issue were “covered merchandise”
transshipped from China to India for export and that the
Appellants had engaged in evasion of the AD Order be-
cause they had imported Chinese-origin xanthan gum but
falsely identified India as the country of origin. ORR also
found that the importers had falsely identified their entries
as not being subject to AD duties at the time of entry, which
resulted in no cash deposits being applied to the merchan-
dise. Additionally, ORR rejected arguments that there was
no evasion because the errors in entry documents were
clerical errors, noting that “[a]t the time of entry, the [Ap-
pellants] consciously declared the merchandise as of Indian
origin . . . [and] that the declarations were (even if unwit-
tingly) based on false facts, does not make them the result
of clerical error.” J.A. 280.
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ALL ONE GOD FAITH , INC. v. US 9
In its Decision, ORR also dismissed arguments from
Appellants that CP Kelco—the domestic entity that had
submitted the initial complaint to Customs—was not pro-
ducing oilfield grade xanthan gum in the United States and
that this fact detracted from the weight of the evidence.
J.A. 278–80. According to Appellants, this constituted
“changed circumstances that could remove oilfield grade
xanthan gum from the antidumping order.” J.A. 278. In re-
jecting these arguments, ORR found that the argument did
not relate to the “narrow” question in an EAPA investiga-
tion of whether merchandise that is subject to an AD Order
“entered by means of a material falsehood or omission re-
sulting in the non-payment or reduction of AD duties.” J.A.
279.
3
Appellants then each separately sought judicial review
of Customs’ evasion determinations before the trial court.
The trial court consolidated these cases into the present ac-
tion. After consolidation, each of the Appellants filed mo-
tions for judgment on the agency record; the government
responded in opposition. The government simultaneously
moved to dismiss the claims of importer Dr. Bronner’s for
lack of subject matter jurisdiction, since these claims con-
cerned entries that had been finally liquidated. The trial
court granted the Government’s motion to dismiss Dr.
Bronner’s claims and applied the same reasoning to also
dismiss GLōB’s claims regarding finally liquidated entries.
The trial court then denied the remaining Appellants’ mo-
tions for judgment on the agency record, thus affirming
Customs’ EAPA evasion determinations.
II
We review legal holdings, such as granting a motion to
dismiss for lack of subject matter jurisdiction, de novo. Bell
BCI Co. v. United States, 570 F.3d 1337, 1340 (Fed. Cir.
2009); JCM, Ltd. v. United States, 210 F.3d 1357, 1359
(Fed. Cir. 2000).
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ALL ONE GOD FAITH , INC. v. US 10
When reviewing the Customs’ EAPA determinations or
administrative review decisions, we apply the same “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law” standard that the trial court ap-
plied in reviewing the Customs’ determinations. J.A. 14;
19 U.S.C. § 1517(g)(2); see also BMW of N. Am. LLC v.
United States, 926 F.3d 1291, 1300 (Fed. Cir. 2019).
III
With respect to the twelve entries over which the trial
court determined that it had jurisdiction and evaluated the
arguments on the merits, Appellants appeal Customs’ de-
termination as resting on two alleged errors: they argue
that Customs (1) “fail[ed] to consider whether there was a
‘change in circumstances affecting the industry’ such that
entries were not covered merchandise” and (2) erroneously
applied an adverse inference. J.A. 19.
For these entries, the trial court concluded that Cus-
toms’ evasion determinations were not arbitrary, capri-
cious, nor an abuse of discretion. The trial court also
concluded that Customs’ evasion determinations were in-
dependently supported by substantial evidence. We agree
with the trial court on both determinations.
A
“If the domestic industry truly no longer has any inter-
est in maintaining the antidumping duty order . . . , then
the proper procedure is to institute a ‘changed circum-
stances’ administrative review pursuant to 19 U.S.C.
§ 1675(b) and 19 C.F.R. § 353.25(d).” Nitta Indus. Corp. v.
United States, 997 F.2d 1459, 1464 (Fed. Cir. 1993). A
party subject to a final affirmative determination resulting
from an AD evasion determination is an interested party
that may challenge the AD order by showing such changed
circumstances that the domestic industry will not be in-
jured if the AD order is modified or revoked. Where
“changed circumstances sufficient to warrant a review
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ALL ONE GOD FAITH , INC. v. US 11
exist,” Commerce, not Customs, must conduct the review
of the alleged changed circumstances. 19 U.S.C.
§ 1675(b)(1)(C).
Appellants argued before the trial court that because
“evidence on the record demonstrated that it is possible or
even likely that CP Kelco is not subject to material injury
by oilfield xanthan produced in China, [Customs] was thus
required to refer the matter to [Commerce] for a changed
circumstances review.” J.A. 19 (internal quotation marks
omitted) (second alteration in original). Specifically, Appel-
lants argued Customs erred by failing to refer to Commerce
the question of whether CP Kelco—the domestic entity that
had submitted the initial complaint to Customs which
prompted the relevant investigations of Appellants—un-
derwent a “corporate strategy shift” “that could remove oil-
field grade xanthan gum from the antidumping order.” J.A.
170, 212. According to Appellants, CP Kelco was no longer
producing oilfield grade xanthan gum in the United States.
Appellants argued before the trial court that “it is possible
or even likely that CP Kelco is not subject to material in-
jury by oilfield xanthan produced in China,” and thus, that
xanthan gum should not be covered merchandise under the
AD Order. J.A. 19, 21.
The trial court disagreed and clarified that the evi-
dence Appellants relied upon—“a single email chain”—
failed to show with any certainty that CP Kelco was no
longer producing oilfield xanthan gum in the United
States. J.A. 20. Indeed, the trial court noted that, in the
emails cited by Appellants, “CP Kelco expressly states that
it is manufacturing substantial quantities of ZANFLO [Oil-
field Xanthan Gum].” J.A. 20. The trial court concluded Ap-
pellants did not identify any record evidence “which
plausibly supports their contention that changed circum-
stances review would be appropriate.” J.A. 21. This conclu-
sion is consistent with the statutory requirement that
matters be referred to Commerce only where “changed
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ALL ONE GOD FAITH , INC. v. US 12
circumstances sufficient to warrant a review” exist.
19 U.S.C. § 1675(b)(1)(C) (emphasis added).
Additionally, because Appellants did not argue that
any change of circumstances would apply retroactively, the
trial court concluded that the issue was not relevant to
Customs’ present evasion determinations. J.A. 21. The
trial court cited ORR’s statement that any possible change
in circumstances that may result in Commerce modifying
the scope “at a later date does not change the fact that, at
the time of entry, the xantha[n] gum was covered merchan-
dise.” J.A. 21. Thus, because any alleged changed in cir-
cumstance was only relevant to future modifications, “such
review was not essential to [Customs’] determination of
evasion” in the present case. J.A. 21. Accordingly, we agree
with the trial court and hold it was not an abuse of discre-
tion for Customs to decline to refer Appellants’ request for
review by Commerce where it reasonably concluded
changed circumstances sufficient to warrant a review did
not exist.
B
Appellants further argue that Customs’ application of
adverse inferences against them based on the failure of Ap-
pellants’ manufacturers to cooperate with requests for in-
formation was arbitrary, capricious, an abuse of discretion,
not in accordance with law, and not supported by substan-
tial evidence. We disagree.
The statute governing procedures for investigating
claims of evasion of AD orders provides that Customs
“may . . . use an inference that is adverse to the interests
of that party or person in selecting from among the facts
otherwise available to make the determination” against an
interested party, importer, foreign producer, foreign ex-
porter, or foreign government who “has failed to cooperate
by not acting to the best of [its] ability to comply with a
request for information.” 19 U.S.C. § 1517(c)(3)(A). Such
adverse inferences may be used “without regard to whether
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ALL ONE GOD FAITH , INC. v. US 13
another person involved in the same transaction or trans-
actions under examination has provided the information
sought by the Commissioner, such as import or export doc-
umentation.” 19 U.S.C. § 1517(c)(3)(B).
Here, it is undisputed that “the claimed manufacturers
either did not respond to [Customs’] [requests for infor-
mation], or failed to provide most of the information re-
quested in the [request for information].” J.A. 200. That the
manufacturers were uncooperative is clear from the record:
Appellants themselves admitted in their briefing before the
trial court that they had to sue the manufacturers to obtain
documentation relevant to the EAPA determination. J.A.
22–23. In its EAPA Determination, Customs applied ad-
verse inferences against the manufacturers, and “infer[red]
that the claimed foreign manufacturers did not manufac-
ture the imported xanthan gum,” instead determining that
the alleged Indian-origin xanthan gum was transshipped
Chinese-origin xanthan gum. J.A. 200–01.
Appellants argue that because they themselves cooper-
ated with Customs’ requests for information to the best of
their ability, it was improper for Customs to apply this ad-
verse inference against the manufacturers. Appellants do
not cite any law or precedent to support their position that
adequately cooperative conduct by an importer should pre-
vent an adverse inference against the manufacturer.
As the trial court noted, “these adverse inferences [sic]
were not applied to [Appellants], but rather to the alleged
foreign manufacturers—the same manufacturers the [Ap-
pellants] state they were forced to sue in order to ‘obtain
documentation’ relevant to the EAPA investigation.” J.A.
22–23. Because it is uncontroverted that the alleged man-
ufacturers were not cooperative, Customs properly applied
an adverse inference against the manufacturer as author-
ized by statute, irrespective of the conduct of other inter-
ested parties like Appellants. See 19 U.S.C. § 1517(c)(3)(B).
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ALL ONE GOD FAITH , INC. v. US 14
Thus, we agree with the trial court that Customs’ applica-
tion of the adverse inference was in accordance with law.
Regardless of the adverse inference, Customs’ infer-
ence that the foreign manufacturers did not manufacture
the imported xanthan gum and determination that the al-
leged Indian-origin xanthan gum was transshipped Chi-
nese-origin xanthan gum were supported by substantial
evidence. The trial court noted that Customs’ determina-
tion that China produced the subject goods, rather than In-
dia (i.e., the adverse inference fact), was also
“independently supported by the record.” J.A. 23. Appel-
lants do not dispute that the goods transshipped from India
originated in China. Data from the International Trade
Commission stated that “xanthan gum is made in China,
Austria, France, and the United States, with no reference
to India”; “large and rising volumes of imports into India
from China of the category of merchandise including xan-
than gum, while the volumes from other xanthan-gum pro-
ducing countries (i.e., Austria, France, and the United
States) are minimal”; and there is a “history of attempted
circumvention of the xanthan gum AD order by various
companies.” J.A. 200–01; see also J.A. 348. This evidence
far exceeds the “mere scintilla” of “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion” needed to withstand substantial evidence re-
view. Nippon Steel Corp. v. United States, 337 F.3d 1373,
1379 (Fed. Cir. 2003) (internal citation omitted). Customs’
determination of evasion is supported by substantial evi-
dence.
IV
Appellants also argue that the trial court erred in hold-
ing that it lacked jurisdiction over Appellant GLōB’s chal-
lenges to Customs’ liquidation of the disputed merchandise
because the relevant entries were finally liquidated before
the trial court rendered its decision. We agree. But because
the trial court noted it would deny GLōB’s motion for
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ALL ONE GOD FAITH , INC. v. US 15
judgment on the agency record for the same reasons stated
for denying the motion for judgment on the agency record
of the other Appellants’ entries, we nonetheless affirm the
trial court with respect to GLōB’s finally liquidated entries.
As an interim measure during its investigation, Cus-
toms should have suspended liquidation for entries that
were entered on or after the date on which separate inves-
tigations of the Appellants were initiated—May 7,
2019—and extended the period for liquidation for all
unliquidated entries that were entered before May 7, 2019.
See J.A. 403–04; 19 U.S.C. § 1517(e). Of the seventeen en-
tries subject to this appeal, the twelve entries discussed
above were properly suspended during the investigation;
however, five were liquidated, as conceded by the Govern-
ment, “evidently in error.” J.A. 17. GLōB, the importer of
two of the five entries which were not suspended, protested
the erroneous liquidations. J.A. 14, 17. But after Customs
denied the protests, GLōB failed to appeal the denials. J.A.
17. The trial court found that, because of this failure to
timely appeal the protest denials, “those liquidations
bec[ame] final and conclusive,” regardless of the error. J.A.
18 (quoting United States v. Am. Home Assur. Co., 789 F.3d
1313, 1323 (Fed. Cir. 2015)); see also 19 U.S.C. § 1514(a).
Thus, the trial court concluded it did not have subject mat-
ter jurisdiction to review Customs’ determinations as to
those finally liquidated entries. J.A. 18–19.
The trial court had earlier advised GLōB of an alter-
nate avenue to preserve its rights: by timely filing an action
under 28 U.S.C. § 1581(a) contesting Customs’ denial of its
protest. J.A. 18 n.7, 530–31. The trial court has limited ju-
risdiction to review timely protested denials under
28 U.S.C. § 1581(a); see also 19 U.S.C. §§ 1514(a), 1514(c).
Section 1514(a) of Title 19 provides a statutory remedy for
erroneously liquidated entries during an investigation,
stating “any clerical error, mistake of fact, or other inad-
vertence . . . adverse to the importer” regarding “the liqui-
dation or reliquidation of an entry . . . shall be final and
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ALL ONE GOD FAITH , INC. v. US 16
conclusive . . . unless a protest is filed . . . or unless a civil
action contesting the denial of a protest . . . is commenced”
before the trial court. Here, GLōB properly protested the
erroneous liquidations to Customs. But after Customs de-
nied those protests on March 9, 2020, GLōB failed to timely
appeal or contest the denial of these protests. J.A. 17. The
statutorily authorized 180-day deadline to appeal the de-
nial of protest passed during the pendency of this case be-
fore the trial court. J.A. 17; see also 28 U.S.C. § 2636(a)(1).
The erroneous liquidations thus became “final and conclu-
sive” under 19 U.S.C. § 1514(a), such that GLōB can no
longer bring a claim under § 1581(a). To the extent GLōB
is challenging the evasion determination to attain reliqui-
dation of its finally liquidated entries, its only avenue for
attaining that relief was under § 1581(a). That avenue is
now foreclosed due to GLōB’s failure to timely appeal the
denial of its protest of liquidation and the subsequent final
liquidation of those entries.
Most of the caselaw raised by Appellants in support of
finding jurisdiction over the finally liquidated entries is un-
availing. For example, both Shinyei Corporation of Amer-
ica v. United States, 355 F.3d 1297 (Fed. Cir. 2004), and
American Signature, Inc. v. United States, 598 F.3d 816
(Fed. Cir. 2010), address how to apply 19 U.S.C. § 1514 in
the context of liquidations where Customs is acting in a
ministerial capacity implementing allegedly erroneous in-
structions from Commerce. Shinyei Corp., 355 F.3d at
1311–12; Am. Signature, 598 F.3d at 829. Moreover, in a
later case determining an importer was not entitled to
mandamus to compel a refund of AD duties on entries that
had been finally liquidated, we clarified the importance
that “in Shinyei the importer diligently pursued its rights
throughout by, among other things, filing a mandamus ac-
tion before its entries were liquidated.” Mukand Int’l, Ltd.
v. United States, 502 F.3d 1366, 1370 (Fed. Cir. 2007). Im-
porter Mukand was not entitled to mandamus compelling
a refund of AD duties on finally liquidated entries where
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ALL ONE GOD FAITH , INC. v. US 17
“adequate alternative remedies [were] available to it[,] but
[it] did not take advantage of those remedies in a timely
fashion.” Id. Like Mukand, GLōB had ample time to appeal
its protest denials of the liquidated entries. The trial court
even alerted GLōB of an alternate avenue to appeal the de-
nial of its protest under 28 U.S.C. § 1581(a) after it failed
to timely appeal the denial under 19 U.S.C. § 1514. J.A.
531. Accordingly, even under the caselaw cited by Appel-
lants, GLōB’s failure to preserve its rights by timely filing
an appeal barred the trial court’s jurisdiction under
§ 1581(a) to review the finally liquidated entries.
After the trial court issued its decision and during the
pendency of this appeal, this court recognized the availa-
bility of jurisdiction under a separate provision, 28 U.S.C.
§ 1581(c), to review the propriety of an evasion determina-
tion by Commerce irrespective of whether the entries sub-
ject to the determination had been finally liquidated. See
Royal Brush Mfg., Inc. v. United States. 75 F.4th 1250
(Fed. Cir. 2023). Royal Brush acknowledged the general
principle that “once liquidation occurs the trial court is
powerless to order the assessment of duties at any different
rate.” Id. at 1256 (citing SKF USA, Inc. v. United States,
512 F.3d 1326, 1328 (Fed. Cir. 2008), and Zenith Radio
Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983)).
Nonetheless, Royal Brush concluded that the trial court
had jurisdiction under § 1581(c) to review the evasion de-
termination itself even where the merchandise subject to
the determination had been finally liquidated. Id. That de-
cision, rendered after the trial court’s decision here, is bind-
ing and mandates a conclusion that jurisdiction in this case
would have been proper under § 1581(c) (but still unavail-
able under § 1581(a)).
In Royal Brush, the question was one of mootness:
whether the importer’s failure to protest liquidation of en-
tries rendered its challenge to the evasion determinations
of finally liquidated entries moot. Id. Under the facts of
that case, we found that mootness had not been
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ALL ONE GOD FAITH , INC. v. US 18
established. But in doing so, we clarified the nature of the
challenge brought by importer Royal Brush: “Royal Brush
did not bring a challenge to a liquidation determination; it
brought a challenge to an evasion determination pursuant
to the statute specifically authorizing such challenges.
That statute does not require a liquidation protest as a con-
dition of review.” Id. We thus declined to find Royal Brush’s
case moot with regard to the evasion determinations, de-
spite the claims raised involving finally liquidated entries.
Id. That distinction between a challenge to the evasion de-
termination itself under § 1581(c) and the final liquidation
decision under § 1581(a) is central to Royal Brush’s holding
because, as it and our prior precedent recognize, courts do
not possess jurisdiction under § 1581(a) to order reliquida-
tion of already finally liquidated entries. Thus, while the
trial court properly concluded that it did not have jurisdic-
tion under § 1581(a) to review Customs’ evasion determi-
nations concerning entries that had been finally liquidated,
it erred because it did not consider § 1581(c).
Despite that error, we need not remand this case. The
trial court itself noted that to the extent it possessed juris-
diction, GLōB’s motion for judgment on the agency record
would also be denied for the same reasons stated for deny-
ing the motion for judgment on the agency record of the
other Appellants’ entries. J.A. 19 n.9. We thus affirm the
trial court with respect to GLōB’s finally liquidated entries
for the same reasons we affirmed the trial court’s affir-
mance of Customs’ decisions regarding the non-finally liq-
uidated entries: Customs’ evasion determinations were in
accordance with law and were independently supported by
substantial evidence.
V
We have considered the remainder of Appellants’ argu-
ments and find them unpersuasive. Because we conclude
that the trial court had jurisdiction to review the evasion
determinations of all entries at issue in this appeal, did not
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ALL ONE GOD FAITH , INC. v. US 19
act arbitrarily, capriciously, nor abuse its discretion, and
properly found substantial evidence support for all of Cus-
toms’ evasion determinations, we affirm.
AFFIRMED
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