Acquisition 362, LLC v. United States

Slip Op. No. 21-120
UNITED STATES COURT OF INTERNATIONAL TRADE
ACQUISITION 362, LLC DBA
STRATEGIC IMPORT SUPPLY,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Stephen Alexander Vaden,
Judge
Court No. 1:20-cv-03762
OPINION AND ORDER
[Denying Plaintiff’s Motion for Reconsideration and Leave to Amend Its Complaint.]
Dated6HSWHPEHU
Heather L. Marx, Cozen O’Connor, of Minneapolis, MN, for Plaintiff Acquisition 362,
LLC DBA Strategic Import Supply. With her on the brief were Thomas G. Wallrich
and Cassandra M. Jacobsen.
Hardeep K. Josan, Trial Attorney, International Trade Field Office, Civil Division,
Commercial Litigation Branch, U.S. Department of Justice, of New York, NY for
Defendant United States. With him on the brief were Jeffrey Bossert Clark, Acting
Assistant Attorney General, Jeanne E. Davidson, Director, Commercial Litigation
Branch and Offices of Foreign Litigation and International Legal Assistance, Aimee
Lee, 	Assistant 	Director, 	Commercial 	Litigation 	Branch 	and 	Offices 	of 	Foreign
Litigation and International Legal Assistance, and Justin R. Miller, Attorney-In-
Charge, International Trade Field Office. Of Counsel was Paula S. Smith, Office of
the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and
Border Protection.
Vaden, Judge: On May 19, 2021, Plaintiff Acquisition 362, LLC, doing
business as Strategic Import Supply, filed a motion under USCIT Rule 59(a)(1)(B) for
reconsideration 	of 	the 	Court’s 	April 	21, 	2021 	decision 	and 	the 	accompanying
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judgment that dismissed Plaintiff’s case for lack of subject matter jurisdiction. 	See
Acquisition 362, LLC v. United States, 517 F.Supp.3d 1318 (Ct. Int’l Trade 2021)
(Acquisition 362 I). 	In that decision, the Court found that the precondition for the
Court’s 28 U.S.C. § 1581(a) jurisdiction, a valid protest under 19 U.S.C. § 1514, was
absent; and the Court therefore lacked subject matter jurisdiction. In its Motion for
Reconsideration, Plaintiff cites newly discovered evidence that it argues merits
reconsideration of the Court’s order dismissing its action. See Pl.’s Mot. for Recons.
(Pl.’s Mot.) at 4, ECF No. 31. Plaintiff also seeks leave of the Court to amend its
complaint to assert jurisdiction under 28 U.S.C. § 1581(i).1 Pl.’s Mot. at 5, ECF No.
31. Defendant filed a response to Plaintiff’s Motion on June 23, 2021. Def.’s Resp. in
Opp’n to Pl.’s Mot. for Recons. (Def.’s Resp.), ECF No. 33. Defendant argues that
Plaintiff’s evidentiary arguments are without merit and that Plaintiff’s request to
amend its complaint is both procedurally inappropriate and futile. See id. Plaintiff
filed a reply brief on July 14, 2021, and the Motion is ripe for consideration. Pl.’s
Reply in Supp. of Mot. for Recons. (Pl.’s Reply), ECF No. 34. For the reasons that
follow, Plaintiff’s Motion is denied.
BACKGROUND
The Court presumes familiarity with the facts of this case as set forth in its
previous opinion, see Acquisition 362 I, 517 F.Supp.3d at 1320-22, and recounts those
1 Plaintiff improperly seeks leave to amend its complaint via a Rule 59 motion for reconsideration
rather than a Rule 15 motion to amend pleadings. Nonetheless, the Court will consider Plaintiff’s
request because, even if properly filed, it would fail for futility.
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facts relevant to the disposition of this Motion. Plaintiff imported tires from China on
several occasions throughout 2016. Compl. ¶ 7, ECF No. 5; Pl.’s Mem. of Law in Opp’n
to Def.’s Mot. to Dismiss (Pl.’s Mem.) at 2, ECF No. 27. These tire imports were subject
to a 2015 countervailing duty order issued by the U.S. Department of Commerce
(Commerce). 	Consequently, 	Plaintiff 	deposited 	payment 	at 	the 	then-current
countervailing duty rate – 30.61%. Pl.’s Mem. at 2, ECF No. 27. U.S. Customs and
Border Protection (Customs) liquidated Plaintiff’s entries between October 19, 2018
and November 9, 2018, at the 30.61% countervailing duty rate. Compl. ¶ 11, ECF No.
5; Summons, ECF No. 1-1. On June 17, 2019, Commerce concluded an administrative
review, initiated by other parties, determining that the applicable countervailing
duty amount for tires from China should be nearly cut in half – from 30.61% to
15.56%. See Countervailing Duty Order on Certain Passenger Vehicle and Light Truck
Tires from the People’s Republic of China: Amended Final Results of Countervailing
Duty Administrative Review; 2016, 84 Fed. Reg. 28,011 (June 17, 2019); Pl.’s Mem. at
2, ECF No. 27.
In Acquisition 362 I, Plaintiff, claiming jurisdiction under 28 U.S.C. § 1581(a),
sought to protest Customs’s failure to assess the amended countervailing duties on
Plaintiff’s 2016 entries. Pl.’s Mem. at 1, ECF No. 27; Compl. ¶ 2, ECF No. 5. Despite
acknowledging filing its protests outside the required 180-day post-liquidation time
period, Plaintiff urged this Court to identify an alternative starting point for the 180-
day clock. See Pl.’s Mem. at 7, ECF No. 27. Specifically, Plaintiff argued this Court
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should recognize the date Customs received amended countervailing duty rates from
Commerce as the starting date for the 180-day time period to file a valid protest. Id.
at 7.
Defendant argued that the alleged decision Plaintiff sought to protest was not
a Customs decision for which Plaintiff could assert a valid protest. See Def.’s Reply in
Supp. of Mot. to Dismiss (Def.’s Reply) at 9, ECF No. 28. Further, because the Plaintiff
failed to file its protests within 180-days of a recognized Customs decision, Defendant
argued Plaintiff failed to meet the jurisdictional prerequisites necessary to bring a
successful challenge before this Court under 28 U.S.C. § 1581(a). See Def.’s Mot. to
Dismiss (Def.’s Mot.) at 12, ECF No. 25.
On April 21, 2021, the Court granted Defendant’s Motion to Dismiss. See
generally Acquisition 362 I, 517 F.Supp.3d 1318. In its decision, the Court found that
the Plaintiff’s challenge failed for two reasons. Id. First, Plaintiff invoked the wrong
jurisdictional statute to challenge the actual decision with which it took issue – the
countervailing duty rate determined by Commerce rather than by Customs. Id. at
1322-24. Second, even if Plaintiff’s protests were permissible, because they were filed
outside the required 180-day time period, they would be untimely and thus deprive
the Court of jurisdiction. Id. at 1324. Plaintiff subsequently moved on May 19, 2021,
for this Court to reconsider its decision in Acquisition 362 I. Pl.’s Mot., ECF No. 31.
Plaintiff 	argues 	that 	newly-discovered, 	previously-unavailable 	evidence
warrants reconsideration of the Court’s Order. Pl.’s Mot. at 4, ECF No. 31. Plaintiff’s
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newly-discovered evidence consists of a protest filed with Customs that is allegedly
similar to the protests in Acquisition 362 I yet was decided differently. Decl. of
Heather Marx in Supp. of Pl.’s Mot. for Recons. (Decl.), ECF No. 32. On May 1, 2020,
Customs liquidated one of Plaintiff’s entries from December 2015. Decl., ECF No. 32-
1 at 2. On August 5, 2020, less than 180 days later, Plaintiff filed a protest with
Customs on the same grounds argued in the protests at issue in Acquisition 362 I. Id.
Nine days after this Court issued its opinion in Acquisition 362 I, Customs issued a
decision regarding Plaintiff’s August 2020 protest, assessing a lower countervailing
duty rate of 15.53%.2 Decl., ECF No. 32-2 at 2.
The Government opposes Plaintiff’s Motion. See Def.’s Resp., ECF No. 33. It
argues that Plaintiff’s alleged newly-discovered evidence fails to show that the Court
erred in dismissing this case for lack of subject matter jurisdiction. Id. at 3. Unlike
the protests at issue in Acquisition 362 I, Plaintiff’s August 2020 protest was timely
filed – within 180 days of liquidation. Id. Therefore, the Government argues, this
newly-discovered evidence fails to undermine the Court’s rationale for dismissing
Plaintiff’s original challenge for lack of subject matter jurisdiction. Id.
The Government also opposes the Plaintiff’s request for leave to amend its
complaint to assert jurisdiction under 28 U.S.C. § 1581(i) for two reasons. Def.’s Resp.
2 This rate differs from the 15.56% rate listed in Commerce’s 2019 final order establishing a reduced
duty. Cf. Amended Final Results of Countervailing Duty Administrative Review, 84 Fed. Reg. at 28,012.
The discrepancy of 0.03% is not explained in the materials before the Court; however, it is immaterial
to the disposition of the Motion.
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at 4, ECF No. 32. First, the Government argues the Plaintiff’s amendment to its
complaint would improperly create jurisdiction by alleging an entirely new claim
based on events after Plaintiff’s filing suit. Id. Second, any amendment alleging
jurisdiction under 28 U.S.C. § 1581(i) would be futile because such jurisdiction is not
available in this case. Def.’s Resp. at 5, ECF No. 32.
STANDARD OF REVIEW
Plaintiff moves the Court to reconsider, alter, or amend its prior decision under
USCIT Rule 59(a)(1)(B), which is a mechanism for requests for reconsideration in the
Court of International Trade.3 See United States v. UPS Customhouse Brokerage, Inc.,
714 F. Supp.2d 1296, 1300 (Ct. Int’l Trade 2010). Under USCIT Rule 59(a)(1)(B), “The
court may, on motion, grant a new trial or rehearing on all or some of the issues –
and to any party… after a nonjury trial, for any reason for which a rehearing has
heretofore been granted in a suit in equity in federal court.” USCIT Rule 59(a)(1)(B).
The grant of a motion for reconsideration is within the sound discretion of the Court.
UPS Customhouse Brokerage, Inc., 714 F.Supp.2d at 1300 (citing Yuba Nat. Res., Inc.
v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990)).
3 Despite the plain text of Rule 59 referring to “actions which have been tried and gone to judgment,”
longstanding decisions of this Court identify Rule 59 as allegedly broad enough to include “rehearing
of any matter decided by the court without a jury.” Nat’l Corn Growers Ass’n v. Baker, 623 F.Supp.
1262, 1274 (Ct. Int’l Trade 1985). Regardless of whether USCIT Rule 59 or USCIT Rule 60 is the more
textually appropriate basis for Plaintiff’s Motion, this Court has the power to reconsider its prior
opinion. Compare USCIT Rule 59(a)(1)(B) (invoked by Plaintiff here and providing for rehearing “for
any reason for which a rehearing has heretofore been granted in a suit in equity in federal court”),
with USCIT Rule 60(b) (providing that the Court “may relieve a party or its legal representative from
a final judgment, order, or proceeding” for any of the listed reasons (emphasis added)).
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Reconsideration or rehearing of a case is proper when “a significant flaw in the
conduct of the original proceeding” exists. Union Camp Corp. v. United States, 963
F.Supp. 1212, 1213 (Ct. Int’l Trade 1997) (quoting Kerr-McGee Chem. Corp. v. United
States, 14 CIT 582, 583 (1990)). Examples include:
(1) an error or irregularity in the trial; (2) a serious evidentiary flaw; (3)
a discovery of important new evidence which was not available even to
the diligent party at the time of trial; or (4) an occurrence at trial in the
nature of an accident or unpredictable surprise or unavoidable mistake
which impaired a party’s ability to adequately present its case[,] and
must be addressed by the Court.
Id. at 1213 (quoting United States v. Gold Mountain Coffee, Ltd., 601 F.Supp. 212,
214 (Ct. Int’l Trade 1984)).
The purpose of a Rule 59 motion is not to allow the losing party to reargue its
case. Peerless Clothing Int’l, Inc. v. United States, 991 F.Supp.2d 1335, 1337 (Ct. Int’l
Trade 2014). The Court should not disturb its prior decision unless it is manifestly
erroneous. Papierfabrik August Koehler SE v. United States, 44 F.Supp.3d 1356, 1357
(Ct. Int’l Trade 2015).
DISCUSSION
Plaintiff requests that the Court reconsider its decision in Acquisition 362 I.
See Pl.’s Mot., ECF No. 31. Plaintiff submits as new evidence a successful protest filed
with Customs that Plaintiff argues is identical to the protests at issue in Acquisition
362 I. See Decl., ECF No. 32. Both the protest submitted as new evidence in this
Motion and the protests at issue in Acquisition 362 I relate to the Plaintiff’s assertion
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that the countervailing duties assessed against it should have been reduced following
Commerce’s administrative review. Compare Protests, ECF Nos. 11-21, 24, with
Decl., ECF. No 32. Customs denied the protests in Acquisition 362 I as untimely;
therefore, no reduction in countervailing duties resulted. Protests, ECF Nos. 11-21,
24. Conversely, Customs granted the protest submitted by Plaintiff as new evidence;
and Plaintiff received a reduction in the countervailing duties assessed. Decl. at 13,
ECF No. 32. To the Plaintiff, the difference in results between these protests indicates
Customs was incorrect in denying the original protests adjudicated in Acquisition 362
I.
Defendant opposes Plaintiff’s Motion, arguing the Plaintiff’s new evidence fails
to satisfy the burden for reconsideration. Def.’s Resp. at 3, ECF No. 33. Without
addressing the issues raised by the Plaintiff in each protest, the Defendant notes the
important timeline differences between the original protests and the August 2020
protest submitted as new evidence. Id. Defendant argues the timeline differences
alone are enough to reject Plaintiff’s Motion. Id. The Defendant also objects to
Plaintiff’s belated attempt to assert jurisdiction under 28 U.S.C. § 1581(i). Id.
Plaintiff’s claims failed in Acquisition 362 I not because of substance but
because of procedure. The law requires any protest of a Customs decision to be filed
within 180 days of that decision. See 19 U.S.C. § 1514(c). The decision at issue was
Customs’s liquidations of Plaintiff’s entries. Acquisition 362 I, 517 F.Supp.3d at 1324.
Filing 	a 	timely 	protest 	is 	a 	mandatory 	prerequisite 	to 	invoking 	this 	Court’s
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jurisdiction to review Customs’s protest decision. See 19 U.S.C. § 1514(a) (providing
that Customs’s liquidation “shall be final and conclusive upon all persons . . . unless
a protest is filed” timely); U.S. JVC Corp. v. United States, 15 F.Supp.2d 906, 909 (Ct.
Int’l Trade 1998) (“[A] protest must have been timely filed under 19 U.S.C. §
1514(c)(3) for this Court to obtain jurisdiction over a suit that contests its denial.”).
Plaintiff frankly acknowledged it filed its protests more than 180 days following the
entries’ liquidation. Pl.’s Mem. at 9, ECF No. 27. Thus, it matters not that Customs
applied the “wrong” rate; this Court lacks jurisdiction to hear Plaintiff’s suit to contest
the error because Plaintiff waited too long to protest.
Not so with the August 2020 protest. Customs liquidated the entry at issue on
May 1, 2020. Decl., ECF No. 32-1 at 2. Ninety-six days later, Plaintiff filed its protest
on August 5, 2020, well within the 180-day deadline. 	See id. Having filed both a
timely protest and a valid protest, Plaintiff received the lower rate it sought. Decl.,
ECF No. 32-2 at 2. The lesson is both clear and stark: Don’t sit on your rights. See
JVC Corp., 15 F.Supp.2d at 909. 	That Plaintiff later filed a timely protest of a
different liquidation cannot grant the Court jurisdiction to review previous, untimely
protests. Plaintiff’s Motion for Reconsideration is denied.
Regarding Plaintiff’s request to amend its complaint to state a new claim under
Section 1581(i), Section 1581(i) embodies a “residual” grant of jurisdiction and may
not be invoked when jurisdiction under another subsection of § 1581 is or could have
been available. Sunpreme, Inc. v. United States, 892 F.3d 1186, 1191 (Fed. Cir. 2018)
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(quoting Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1371 (Fed. Cir. 2002)).
Plaintiff had at least one clear route to properly invoke this Court’s jurisdiction. Had
Plaintiff filed its protest within 180 days of Customs’s liquidation of the challenged
entries, this Court would have had jurisdiction to review Customs’s decision.4 See
JVC Corp., 15 F.Supp.2d at 909. Because “another subsection of § 1581 is or could
have been available” and that remedy would not be “manifestly inadequate,” Section
1581(i) “may not be invoked.” Sunpreme, Inc., 892 F.3d at 1192 (quoting Int’l Custom
Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006)). 	Plaintiff’s
proposed complaint amendment would be of no use, and its Motion to do so is denied
as futile. See Foman v. Davis, 371 U.S. 178, 182 (1962).
CONCLUSION
Plaintiff has failed to identify a “significant flaw” in the Court’s opinion. 	Cf.
Union Camp Corp., 963 F.Supp. at 1213. 	It has also failed to provide a basis for
invoking this Court’s residual jurisdiction under Section 1581(i) via an amended
complaint. Plaintiff’s Motion is DENIED.
/s/ 	Stephen Alexander Vaden
Stephen Alexander Vaden, Judge
4 In addition to jurisdiction under Section 1581(a) to protest Customs’s actions, Plaintiff may also have
had resort to Section 1581(c) to contest Commerce’s determination of the duty rate if Plaintiff instead
wished to challenge that decision. See Acquisition 362 I, 517 F.Supp.3d at 1324.
Dated: September 20, 2021
New York, New York
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