Aspects Furniture International, Inc. v. United States

Slip Op. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
ASPECTS FURNITURE
INTERNATIONAL, INC.,
Plaintiff,
and
IMSS, LLC,
Consolidated Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Mark A. Barnett, Chief Judge
Consol. Court No. 18-00222
OPINION
[Granting Defendant’s motion for summary judgment as to all subject entries and
denying Plaintiff’s and Consolidated Plaintiff’s cross-motion for summary judgment.
Denying as moot Defendant’s motion for a protective order and Consolidated Plaintiff’s
motion to compel.]
Dated: April 9, 2021
Robert W. Snyder and Laura A. Moya, Law Offices of Robert W. Snyder, of Irvine, CA,
argued for Plaintiff and Consolidated Plaintiff.
Marcella Powell, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, argued for Defendant. With her on the brief
were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, Justin R. Miller, Attorney-in-Charge, International Trade Field Office, Aimee
Lee, Assistant Director, and Hardeep K. Josan, Trial Attorney. Of counsel on the brief
was Paula Smith, Office of the Assistant Chief Counsel, International Trade Litigation,
U.S. Customs and Border Protection.
Barnett, Chief Judge: In this consolidated action, Plaintiff Aspects Furniture
International, Inc. (“AFI”) and Consolidated Plaintiff IMSS, LLC (“IMSS”) (together,
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 1 of 43

Consol. Court No. 18-00222 	Page 2
“Consolidated Plaintiffs”) contest the denial of their respective protests challenging U.S.
Customs and Border Protection’s (“CBP” or “Customs”) allegedly untimely assessment
of antidumping duties on the entries associated with those protests. The matter is
before the court on Defendant’s (“the Government”) motion for summary judgment
pursuant to U.S. Court of International Trade (“USCIT” or “CIT”) Rule 56 and
Consolidated Plaintiffs’ cross-motion for summary judgment. See Def.’s Mot. for Summ.
J., and accompanying Mem. in Supp. of its Mot. for Summ. J. in the Consol. Action
(“Gov’t’s Mot. Summ. J.”), ECF No. 73; [Consol. Pls.’] Cross-Mot. for Summ. J. and
Opp’n to [the Gov’’s] Mot. for Summ. J., and accompanying Mem. in Supp. of Their
Cross-Mot. for Summ. J. and in Opp’n to [the Gov’t’s] Mot. for Summ. J. (“Consol. Pls.’
Cross-Mot. & Opp’n”), ECF No. 79.
For the reasons discussed herein, the court will grant the Government’s motion
for summary judgment as to all subject entries and deny Consolidated Plaintiffs’ cross-
motion for summary judgment.
BACKGROUND
I. 	Facts Not in Dispute
The party seeking summary judgment must show that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” USCIT Rule 56(a). Movants should present material facts as short and concise
statements, in numbered paragraphs, USCIT Rule 56.3(a), and cite to “particular parts
of materials in the record” as support, USCIT Rule 56(c)(1)(A). In responsive papers,
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 2 of 43

Consol. Court No. 18-00222 	Page 3
the opponent “must include correspondingly numbered paragraphs responding to the
numbered paragraphs in the statement of the movant.” USCIT Rule 56.3(b).
In this case, Parties submitted a joint statement of undisputed material facts and
a joint statement of undisputed facts except as to their materiality. See Jt. Stmt. of
Undisputed Mat. Facts (“JSMF”), ECF No. 74 at ECF pp. 1–5; Jt. Stmt. of Undisputed
Facts, Except as to Their Materiality (“JSF”), ECF No. 74 at ECF pp. 5–6. Consolidated
Plaintiffs submitted additional facts they assert are material and not subject to genuine
dispute, to which the Government has responded. See [Consol. Pls.] Rule 56.3 Stmt. of
Add’l Mat. Facts as to Which There are no Genuine Issues to be Tried (“Consol. Pls.’
SMF”), ECF No. 79; Def.’s Resp. to Pls.’ Rule 56.3 Stmt. of Add’l Mat. Facts (“Gov’t’s
Resp. to Consol. Pls.’ SMF”), ECF No. 80.
Upon review of Parties’ statements of facts (and supporting exhibits), the court
finds there is no dispute regarding the following facts that are material to resolving the
substantive issues in this case or relevant to the arguments presented. 1
1 Citations are provided to the relevant paragraph number of the joint statements of
undisputed facts; Parties’ citations to supporting documents generally have been
omitted. Citations to the record are provided when a fact, though not admitted by both
parties, is uncontroverted by record evidence. See USCIT Rule 56(c)(3)(“The court
need consider only the cited materials, but it may consider other materials in the
record.”).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 3 of 43

Consol. Court No. 18-00222 	Page 4
A. The Underlying Administrative Review
The imported merchandise at issue in this case consists of wooden bedroom
furniture from the People’s Republic of China. JSMF ¶ 1. 2 On April 11, 2016, the U.S.
Department of Commerce (“Commerce”) published the final results of its tenth
administrative review of the antidumping duty order on wooden bedroom furniture from
China. Id. ¶ 3; see also Wooden Bedroom Furniture From the People’s Republic of
China, 81 Fed. Reg. 21,319 (Dep’t Commerce Apr. 11, 2016) (final results and final
determination of no shipments, in part; 2014 admin. review) (“Final Results”)).
On April 26, 2016, the American Furniture Manufacturers Committee for Legal
Trade and Vaughan-Bassett Furniture Company, Inc. commenced an action challenging
the Final Results. JSMF ¶ 4 (citing Am. Furniture Mfrs. Comm. for Legal Trade, et al. v.
United States, Court No. 16-cv-00070 (CIT) (“the AFMC litigation”)). On April 27, 2016,
the court issued a statutory injunction to enjoin the liquidation of certain entries in the
AFMC litigation. Id. ¶ 5. On March 13, 2017, the court dismissed that lawsuit for lack of
subject matter jurisdiction. Id. ¶ 6 (citing, inter alia, Op. & J., Am. Furniture Mfrs. Comm.
for Legal Trade, et al. v. United States, Court No. 16-cv-00070 (CIT Mar. 13, 2017),
ECF Nos. 37–38 (“AFMC Op. & J.”)). Neither the court’s judgment in the AFMC
2 Consolidated Plaintiffs are the importers of record for their respective entries. AFI
made ten entries of wooden bedroom furniture on various dates in January, February,
July, and December of 2014. See Summons (schedule of protests), ECF No. 1. IMSS
made one entry on September 11, 2014. See Summons, IMSS, LLC v. United States,
Court No. 19-cv-00029 (CIT Mar. 11, 2019), ECF No. 1.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 4 of 43

Consol. Court No. 18-00222 	Page 5
litigation nor the court’s opinion referenced any removal of the suspension of liquidation
related to the statutory injunction. See generally AFMC Op. & J. 3
On March 29, 2017, CBP published the court’s opinion in the AFMC litigation in
its Customs Bulletin and Decisions Official Reporter. JSMF ¶ 7. “On May 12, 2017, the
March 13[, 2017] judgment issued in the AFMC [litigation] became final and conclusive.”
Id. ¶ 8.
B. Commerce’s Liquidation Instructions
Liquidation instructions concerning antidumping and countervailing duties “are
created and issued in CBP’s Automated Commercial Environment (ACE).” Id. ¶ 9.
Certain Commerce employees “have direct login access to ACE.” Id. ¶ 10. To issue
liquidation instructions, a Commerce employee logs into ACE, creates a message and
the content contained therein, and uploads that message into ACE. Id. ¶¶ 11–12. “ACE
automatically assigns the message an internal message number . . . .” Id. ¶ 13.
Customs personnel monitor ACE for new messages. Id. ¶ 14. When a new message
appears, it is “assigned to a CBP employee.” Id. ¶ 14. That employee “reviews the
message and ‘activates’ it in ACE.” Id. ¶ 15. “Upon activation, ACE assigns the
message a ‘Message Number.’” Id. ¶ 15. “CBP does not change the content of the
3 While Parties cited to the court’s opinion and judgment in the AFMC litigation, they did
not append copies of those documents to their statements of fact. In any event, judicial
notice of documents filed in the AFMC litigation for the purpose of recognizing the
adjudicative act is permissible here. See, e.g., Los Angeles Biomedical Research Inst.
at Harbor–UCLA Med. Ctr. v. Eli Lilly and Co., 849 F.3d 1049, 1062 n.6 (Fed. Cir. 2017)
(observing that the court “can properly take judicial notice of the records of related court
proceedings”); United States v. New-Form Mfg. Co., 27 CIT 905, 917 n.14, 277 F.
Supp. 2d 1313, 1325 n.14 (2003).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 5 of 43

Consol. Court No. 18-00222 	Page 6
message in any manner.” Id. ¶ 16. Upon activation, “CBP personnel can view and
implement the message.” Id. ¶ 17. Additionally, “[m]embers of the importing community
can . . . view any unrestricted messages in ACE.” Id. ¶ 17.
On May 2, 2016, CBP activated a message created by a Commerce employee in
ACE, and ACE designated the message as Message No. 6123302. JSF ¶ 1. Message
No. 6123302 pertained to the statutory injunction entered in the AFMC litigation on April
27, 2016 and noted that the injunction was effective as of April 27, 2016. Id. ¶¶ 2, 5.
On May 30, 2017, a Commerce employee created and uploaded another internal
message in ACE relevant to the AFMC litigation. JSMF ¶ 18. “CBP activated [that]
message in ACE on May 30, 2017 without change, and ACE assigned it Message No.
7150306.” Id. Message No. 7150306 stated that the injunction entered in the AFMC
litigation and to which Message No. 6123302 referred “dissolved on May 12, 2017.” Id.
¶ 19. Message No. 7150306 is dated May 30, 2017 and contained an effective date of
May 12, 2017. Id. ¶¶ 20–21. Message No. 7150306 is publicly accessible. See Gov’t’s
Mot. Summ. J., Ex. A., Decl. by Brad Dauble (“Dauble Decl.”), Ex. B (Message No.
7150306, designated as public), ECF No. 73-2.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 6 of 43

Consol. Court No. 18-00222 	Page 7
C. Liquidation of the Subject Entries
1. 	AFI’s Entries
There are ten entries at issue with respect to AFI. On November 24, 2017, CBP
liquidated nine of those entries (hereinafter, “AFI’s nine subject entries”). 4 JSMF ¶ 26.
The tenth entry, Entry No. W69-3327386-5 (hereinafter, “AFI’s tenth subject entry”),
liquidated by operation of law (alternately referred to as a “deemed liquidation”).
Consol. Pls.’ SMF ¶ 1; Gov’t’s Resp. to Consol. Pls.’ SMF ¶ 1. Customs did not provide
notice of the deemed liquidation. Consol. Pls.’ SMF ¶ 3; Gov’t’s Resp. to Consol. Pls.’
SMF ¶ 3. Documents CBP filed with the court state that AFI’s tenth subject entry was
“Liquidated” on December 1, 2017. JSMF ¶ 27.
A “final antidumping duty rate of 216.01 percent was assessed on [all ten AFI
entries] . . . pursuant to Message No. 7150306.” Id. ¶ 28. The court previously held
that AFI timely protested all ten liquidations before CBP “and CBP denied the protests.”
Id. ¶ 29 (citing Aspects Furn. Int’l, Inc. v. United States (“Aspects I”), 43 CIT ___, 392 F.
Supp. 3d 1317 (2019)).
2. 	IMSS’s Entry
At issue with respect to IMSS is Entry No. 201-3112876-0 (hereinafter, “IMSS’s
subject entry”). Id. ¶¶ 22–25. IMSS’s subject entry liquidated by operation of law. Id.
¶ 22. Customs did not provide notice of the deemed liquidation. Consol. Pls.’ SMF ¶ 5;
4 AFI’s nine subject entries consist of Entry Nos. W69-3325900-5, W69-3325953-4,
W69-3326026-8, W69-3329300-4, W69-3329302-0, W69-3329955-5, W69-3343109-1,
W69-3345392-1, and W69-3368746-0. JSMF ¶ 26.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 7 of 43

Consol. Court No. 18-00222 	Page 8
Gov’t’s Resp. to Consol. Pls.’ SMF ¶ 5. Customs reliquidated the entry “on February 28,
2018 at the final antidumping duty rate of 216.01 percent.” JSMF ¶ 23. That rate was
assessed on the entry “pursuant to Message No. 7150306.” Id. ¶ 24. IMSS “timely
protested the reliquidation and the protest was denied by operation of law.” Id. ¶ 25.
II. 	Procedural History of the Consolidated Cases
A. Lead Action, Court No. 18-00222
AFI timely commenced Court No. 18-00222 on October 27, 2018. See
Summons. On June 21, 2019, the court denied the Government’s partial motion to
dismiss for lack of subject matter jurisdiction. Aspects I, 392 F. Supp. 3d 1317. On
August 17, 2020, the court granted AFI’s motion for leave to file a first amended
complaint. Aspects Furn. Int’l, Inc. v. United States, 44 CIT ___, 469 F. Supp. 3d 1359
(2020). In that decision, the court denied as moot Defendant’s motion for judgment on
the pleadings and AFI’s cross-motion for partial judgment on the pleadings. See id.
B. Member Action, Court No. 19-000295
IMSS timely commenced Court No. 19-00029 on March 22, 2019. Summons.
On April 10, 2020, the court denied the Government’s motion for judgment on the
pleadings. Order (Apr. 10, 2020), ECF No. 34; Mem. (Apr. 13, 2020), ECF No. 36
(explaining the court’s rationale for its ruling). The court further lifted the stay on
discovery, Order (Apr. 10, 2020), ECF No. 35, and entered a scheduling order,
Scheduling Order (Apr. 17, 2020), ECF No. 38. On August 6, 2020, the Government
5 Citations in this subsection are to court filings in IMSS, LLC v. United States, Court No.
19-cv-00029 (CIT).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 8 of 43

Consol. Court No. 18-00222 	Page 9
moved for a protective order limiting the scope of discovery. Def.’s Mot. for a Protective
Order, ECF No. 39.
C. Consolidation and Summary Judgment Briefing
On August 25, 2020, the court consolidated the cases under lead Court No. 18-
00222 for purposes of discovery and briefing. Order (Aug. 25, 2020), ECF No. 67. The
court further stayed IMSS’s response to the Government’s motion for a protective order
until September 30, 2020; ordered Parties to confer on the formation of a joint statement
of material facts; and set November 12, 2020 as the deadline for dispositive motions.
Id.; see also Order (Oct. 8, 2020), ECF No. 71 (extending the stay on IMSS’s response
to the Government’s motion for a protective order until November 12, 2020).
On November 12, 2020, the Government filed its motion for summary judgment
and the Parties’ joint statements of facts. Gov’t’s Mot. Summ. J; JSMF; JSF. That day,
IMSS responded to the Government’s motion for a protective order and moved to
compel discovery. See [IMSS’s] Resp. in Opp’n to Def. United States’ Mot. for a
Protective Order and Mot. to Compel, ECF No. 75. 6 Thereafter, the court informed the
Parties that it would defer ruling on the motion for a protective order during briefing on
dispositive motions and stayed the Government’s response to IMSS’s motion to compel.
Ltr. from the Court (Nov. 30, 2020), ECF No. 77; Order (Dec. 2, 2020), ECF No. 78.
6 AFI also responded to the motion, though its reason for so doing is unclear. See
[AFI’s] Resp. in Opp’n to Def. United States’ Mot. for a Protective Order Filed in Consol.
Case No.: 19-00029, ECF No. 76.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 9 of 43

Consol. Court No. 18-00222 	Page 10
On December 17, 2020, Consolidated Plaintiffs cross-moved for summary
judgment and opposed the Government’s motion. See Consol. Pls.’ Cross-Mot. &
Opp’n. On January 21, 2021, the Government filed a combined opposition to
Consolidated Plaintiffs’ cross-motion and reply to Consolidated Plaintiffs’ opposition.
Def.’s Mem. in Opp’n to Pls.’ Cross-Mot. For Summ. J. and Reply in Further Supp. of
Def.’s Mot. For Summ. J. (“Gov’t’s Opp’n & Reply”), ECF No. 80. On February 11,
2021, Consolidated Plaintiffs filed a reply. [Consol. Pls.’] Reply in Further Supp. of their
Cross-Mot. for Summ. J. (“Consol. Pls.’ Reply”), ECF No. 81.
On March 5, 2021, the court ordered additional briefing with respect to AFI’s
tenth subject entry. Letter Order (Mar. 5, 2021) (“Ltr. Order”), ECF No. 82. On March
19, 2021, AFI filed its response. Pl. [AFI’s] Add’l Br. Regarding the Applicability of the
Principle of Harmless Error to the Liquidation of One of its Subject Entries (“AFI’s Suppl.
Br.”), ECF No. 83. On March 22, 2021, the Government filed its response. Def.’s Resp.
to the Court’s Mar. 5, 2021 Order Requesting Suppl. Briefing (“Gov’t’s Suppl. Br.”), ECF
No. 84. On March 29, 2021, the court heard oral argument in connection with the
supplemental briefing. Docket Entry, ECF No. 86; Oral Arg., https://www.cit.uscourts.
gov/sites/cit/files/032921-18-00222-MAB.mp3 (last accessed Apr. 9, 2021).
J URISDICTION AND S TANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2012). 7 The court
reviews denial of protest claims arising under 19 U.S.C. § 1515 de novo, and “make[s]
7 References to the United States Code are to the 2012 edition unless otherwise stated.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 10 of 43

Consol. Court No. 18-00222 	Page 11
its determinations upon the basis of the record made before [it].” 28 U.S.C.
§ 2640(a)(1). The court may grant summary judgment when “there is no genuine issue
as to any material fact” and “the moving party is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); USCIT Rule 56(a). 8
DISCUSSION
I. 	Legal Framework
When a statutory or court-ordered suspension of liquidation is lifted, Customs
shall liquidate the relevant entry “within 6 months after receiving notice of the removal
from [Commerce], [an]other agency, or a court with jurisdiction over the entry”;
otherwise the entry will be deemed liquidated “at the rate of duty, value, quantity, and
amount of duty asserted by the importer of record.” 19 U.S.C. § 1504(d). Thus, for an
entry to be deemed liquidated, “(1) the suspension of liquidation that was in place must
have been removed; (2) Customs must have received notice of the removal of the
suspension; and (3) Customs must not liquidate the entry at issue within six months of
receiving such notice.” Cemex, S.A. v. United States, 384 F.3d 1314, 1321 (Fed. Cir.
2004) (quoting Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir.
2002)). The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has
interpreted the statute to require notice that is unambiguous and public. See id.
8 When, as here, Parties have filed cross-motions for summary judgment, the court
generally must evaluate each party’s motion on its own merits, drawing all reasonable
inferences against the party whose motion is under consideration. See, e.g., JVC Co.
of Am., Div. of US JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed. Cir. 2000).
Here, however, the material facts are undisputed.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 11 of 43

Consol. Court No. 18-00222 	Page 12
An entry that liquidated by operation of law may, however, be voluntarily
reliquidated by CBP pursuant to 19 U.S.C. § 1501 within the time provided therein. The
version of section 1501 that was in effect at the time of importation provided that
[a] liquidation made in accordance with section 1500 [i.e., a manual
liquidation] or 1504 [i.e., a deemed liquidation] . . . may be reliquidated in
any respect by [Customs], notwithstanding the filing of a protest, within
ninety days from the date on which notice of the original liquidation is
given or transmitted to the importer, his consignee or agent. Notice of
such reliquidation shall be given or transmitted in the manner prescribed
with respect to original liquidations under section 1500(e) of this title.
19 U.S.C. § 1501. On February 24, 2016, Congress amended section 1501, inter alia,
to provide for reliquidation “within ninety days from the date of the original liquidation.”
Trade Facilitation and Enforcement Act of 2015, Pub. L. No. 114–125, § 911, 130 Stat.
122, 240 (2016). Thus, under the current version of the statute, the 90-day clock begins
to run on the date of the manual liquidation or the date on which an entry deemed
liquidated, not the date on which notice of such liquidation was provided. Compare 19
U.S.C. § 1501 (2012), with 19 U.S.C. § 1501 (2018).
II. 	The Parties’ Cross-Motions for Summary Judgment
The Government seeks summary judgment as to all entries at issue in the
consolidated actions. See Gov’t’s Mot. Summ. J. at 10–18. Consolidated Plaintiffs
counter that summary judgment is premature with respect to AFI’s nine subject entries
and IMSS’s subject entry pending further discovery. Consol. Pls.’ Cross-Mot. & Opp’n
at 15–22. In the alternative, Consolidated Plaintiffs seek summary judgment with
respect to AFI’s nine subject entries and IMSS’s subject entry. Id. at 22–28.
Consolidated Plaintiffs cross-move for summary judgment with respect to AFI’s tenth
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 12 of 43

Consol. Court No. 18-00222 	Page 13
subject entry. Id. at 8–15. The court first addresses the motions concerning AFI’s nine
subject entries and IMSS’s subject entry before turning to the cross-motions concerning
AFI’s tenth subject entry.
A. AFI’s Nine Subject Entries and IMSS’s Subject Entry
1. 	The Government’s Motion for Summary Judgment and Consolidated
Plaintiffs’ Request for Discovery Pursuant to USCIT Rule 56(d)
a. 	Parties’ Contentions
The Government contends that Commerce’s issuance of liquidation instructions
to CBP on May 30, 2017, ultimately designated by ACE as Message No. 7150306,
constituted the requisite notice of the lifting of suspension of liquidation and triggered
the start of the six-month liquidation period. Gov’t’s Mot. Summ. J. at 11. Thus, the
Government contends, CBP timely liquidated AFI’s nine subject entries on November
24, 2017, and those entries did not liquidate by operation of law. Id. at 12. The
Government further contends that CBP timely reliquidated IMSS’s subject entry on
February 28, 2018. Id. at 18.
Consolidated Plaintiffs contend that summary judgment for the Government is
premature pending discovery as to whether or when Customs was served with the
court’s judgment in the AFMC litigation. Consol. Pls.’ Cross-Mot. & Opp’n at 16–21; see
also Decl. of Robert W. Snyder in Supp. of [Consol. Pls.’] Rule 56(d) Request (“Snyder
Decl.”) ¶¶ 5–8, ECF No. 79-1; Consol. Pls.’ Reply at 15–16. Consolidated Plaintiffs also
contend that discovery is necessary to further understand a prior communication
system, referred to as OTO3, utilized by CBP and Commerce. Consol. Pls.’ Cross-Mot.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 13 of 43

Consol. Court No. 18-00222 	Page 14
& Opp’n at 21–22; see also Snyder Decl. ¶¶ 9–11; Consol. Pls.’ Reply at 16. This
discovery is necessary, Consolidated Plaintiffs contend, because judicial precedent
cited by the Government to support the argument that the six-month liquidation period
began on May 30, 2017 predates Customs’ use of ACE. Consol. Pls.’ Cross-Mot. &
Opp’n at 22. Consolidated Plaintiffs ascribe importance to whether, prior to ACE,
Commerce lacked “[the] same direct login access” that it has with ACE. Id.
The Government counters that Consolidated Plaintiffs’ requests for discovery
“should be rejected” as “irrelevant and immaterial” to the pending claims. Gov’t’s Opp’n
& Reply at 15. The Government contends that any service of the court’s judgment in
the AFMC litigation by the court on CBP cannot fulfill the statutory requirements for
notice; thus, discovery as to whether this occurred would be futile. Id. at 15–16. The
Government further contends that Consolidated Plaintiffs failed to explain the materiality
of facts concerning differences between the OTO3 and ACE communication systems.
Id. at 16. 9
9 The Government argues that Consolidated Plaintiffs failed to timely “move[] for a
continuance based on USCIT Rule 56(d).” Gov’t’s Opp’n & Reply at 14. Rule 56(d)
contains no such requirement. Rather, the rule requires the nonmovant to “show[] by
affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition.” USCIT Rule 56(d). When the court finds the submission
meritorious, the court may, inter alia, defer its consideration of the summary judgment
motion or order further discovery. USCIT Rule 56(d)(1)–(2). As discussed, however,
Consolidated Plaintiffs have not shown that discovery is necessary to establish facts
that are essential to justify their opposition.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 14 of 43

Consol. Court No. 18-00222 	Page 15
b. There is No Genuine Dispute that Customs Received Notice of the
Lifting of Suspension of Liquidation on May 30, 2017; Consolidated
Plaintiffs’ Request for Further Discovery Lacks Merit
Here, the undisputed facts establish that Customs received notice of the lifting of
suspension of liquidation of subject entries covered by the statutory injunction entered in
the AFMC litigation on May 30, 2017. On May 30, 2017, Commerce informed CBP,
through an internal message in ACE, that the statutory injunction had dissolved on May
12, 2017. JSMF ¶¶ 18–19. Customs activated the message “on May 30, 2017[,]
without change,” id. ¶ 18, thereby rendering Message No. 7150306 publicly available,
Dauble Decl., Ex. B; JSMF ¶ 17 (noting that “the importing community can view any
unrestricted messages in ACE”). Consolidated Plaintiffs do not dispute these facts.
Instead, Consolidated Plaintiffs continue to press for further discovery on alternative
theories of notice.
Consolidated Plaintiffs’ request for discovery concerning possible service of the
CIT’s March 13, 2017 judgment in the AFMC litigation on CBP by the court is, however,
unpersuasive. Notice of the removal of suspension must be unambiguous. Cemex,
384 F.3d at 1321. To the extent CBP received a copy of the judgment prior to May 12,
2017, such service would not constitute adequate notice. “Suspension of liquidation”
pursuant to 19 U.S.C. § 1516a(c)(2) “cannot be removed until the time for [filing an
appeal] expires.” Id. at 1320. Thus, “[t]he end of the suspension period . . . is a
prerequisite for valid notice.” Id. at 1320–21. To the extent CBP received a copy of the
judgment following the lifting of suspension on May 12, 2017, but before May 24, 2017,
the judgment alone would not constitute adequate notice because it provides no
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 15 of 43

Consol. Court No. 18-00222 	Page 16
indication of its finality or the corresponding removal of suspension. See id. at 1321
(explaining that one predicate for a deemed liquidation is unambiguous notice of the
removal of suspension); AFMC Op. & J. (both the court’s opinion and judgment in the
AFMC litigation are silent as to the removal of suspension); cf. Fujitsu, 283 F.3d at 1383
(finding that “publication of a court decision in a case does not necessarily result in
Customs’ receipt of notice that a suspension of liquidation that was in effect during the
case has been removed” and noting, by way of example, that the appellate court’s
decision in a related case “does not even mention the suspension of liquidation that was
ordered by the [CIT]”). 10 Because service of the court’s judgment in the AFMC litigation
10 Consolidated Plaintiffs’ attempts to dismiss the relevance of Fujitsu are unpersuasive.
Consol. Pls.’ Reply at 15. Consolidated Plaintiffs first argue that the Fujitsu court opined
on whether Commerce’s publication of notice of the court’s decision removing
suspension constituted notice, not service of the court’s decision by the court upon
Customs. Id. This is a distinction without a difference because 19 U.S.C. § 1504(d)
provides for CBP’s receipt of notice of the removal from Commerce or the court.
Consolidated Plaintiffs also argue that the Fujitsu court’s statement that publication of a
court ruling does not necessarily constitute notice to Customs is mere dicta. Consol.
Pls.’ Reply at 15. Fujitsu holds that Commerce’s publication of notice of a court
decision in the Federal Register resulted in Customs’ receipt of notice that suspension
of liquidation was removed because Commerce stated in the notice “that it would be
instructing Customs to liquidate the [subject] entries.” 283 F.3d at 1382. The Fujitsu
court declined, however, to find that a deemed liquidation occurred when Commerce
failed to publish the notice within the time provided by 19 U.S.C. § 1516a(e)(2). Id. at
1382–83. The appellate court reasoned that doing so would equate the notice
requirement in section 1504(d) with the publication requirement in section 1516a(e)(2)
and such an approach was disfavored because a court decision may not reference the
removal of suspension. See id. While the facts underlying Fujitsu are distinct, the
appellate court’s rationale is consistent with the requirement that notice to Customs
must be unambiguous regarding the removal of suspension and, in turn, supports this
court’s finding that any service of the court’s decision in the AFMC litigation by the court
on Customs would not constitute unambiguous notice because it does not reference the
removal of suspension. See AFMC Op. & J.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 16 of 43

Consol. Court No. 18-00222 	Page 17
by the CIT on CBP cannot, as a matter of law, fulfill the statutory notice requirements,
ascertaining such immaterial facts would be futile and, thus, discovery is not merited.
Consolidated Plaintiffs’ remaining arguments in this regard are also
unpersuasive. Consolidated Plaintiffs suggest that an unfavorable ruling threatens to
nullify the portion of the statute providing for notice from some “other agency” besides
Commerce or a “court with jurisdiction over the entry.” Consol. Pls.’ Cross-Mot. & Opp’n
at 19 (referring to CBP’s and Commerce’s “relentless[] attempt[s] to make such notice
come exclusively in the form of liquidation instructions”); see also 19 U.S.C. § 1504(d).
The court’s ruling does no such thing. It simply holds, consistent with the statute and its
interpretation by the Federal Circuit, that service of the CIT’s judgment alone would not
have constituted valid notice of the removal of suspension of liquidation and, thus,
discovery on this matter is unnecessary. This conclusion does not preclude the court or
another agency from issuing valid notice to CBP in another case presenting different
facts.
Consolidated Plaintiffs express concern that if the court determines that valid
notice was not provided until the liquidation instructions, such an interpretation of the
“public and unambiguous notice” requirement might enable “the Government . . . to
extend liquidation indefinitely.” Consol. Pls.’ Cross-Mot. & Opp’n at 19. Consolidated
Plaintiffs’ concern is speculative. There is no indication that Commerce routinely
delays—or, in the instant case, in which no Federal Register notice of the court decision
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 17 of 43

Consol. Court No. 18-00222 	Page 18
was necessary, delayed—issuing liquidation instructions. 11 In the event the date of
Customs’ publication of any liquidation instructions differs from the date of non-public
transmission from Commerce to CBP (and there is no earlier date on which notice was
transmitted), the court would need to identify the operative date of notice. This case
does not, however, require the court to resolve that issue. See JSMF ¶¶ 17–18
(referencing Commerce’s upload of the internal message to ACE on May 30, 2017 and
CBP’s activation of the message that same day); Dauble Decl., Ex. B (indicating that
Message No. 7150306 was publicly available upon activation).
Consolidated Plaintiffs’ reliance on International Trading Co. v. United States,
281 F.3d 1268, 1273, 1276 (Fed. Cir. 2002), and Fujitsu, 283 F.3d at 1378, as
disfavoring notice in the form of liquidation instructions, is misplaced. Consol. Pls.’
Cross-Mot. & Opp’n at 19–20. While in each case the Federal Circuit rejected the date
on which Commerce sent liquidation instructions to CBP as the operative date of notice,
the court did so because, on an earlier date, Commerce had published in the Federal
Register the final results or amended final results of an administrative review pursuant
to court review that provided notice to CBP that the suspension of liquidation had been
lifted. See Fujitsu, 283 F.3d at 1369, 1380; Int’l Trading, 281 F.3d at 1275–76. Here,
11 Indeed, several litigants have challenged Commerce’s policy, now rescinded, of
issuing liquidation instructions 15 days from publication of a final determination in
certain antidumping and countervailing duty proceedings as too soon. See, e.g., YC
Rubber Co. (N. Am.) LLC v. United States, 43 CIT ___, ___, 415 F. Supp. 3d 1240,
1246–48 (2019); Notice of Discontinuation of Policy To Issue Liquidation Instructions
After 15 Days in Applicable Antidumping and Countervailing Duty Proceedings, 86 Fed.
Reg. 3,995 (Dep’t Commerce Jan. 15, 2021).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 18 of 43

Consol. Court No. 18-00222 	Page 19
there is no Federal Register or other earlier notice implicated in the court’s resolution of
the case.
Lastly, Consolidated Plaintiffs argue that “Customs should be deemed to receive
the notice in cases such as this consolidated action, where the trial court’s decision is in
harmony with [Commerce’s determination].” Consol. Pls.’ Cross-Mot. & Opp’n at 21
(emphasis omitted). Consolidated Plaintiffs appear to argue that because “Customs is
deemed to receive . . . notice when it is done through the Federal Register” rather than
“direct notice,” id. at 20 (first emphasis added), Customs should be deemed to receive
notice of the lifting of suspension “through the publication or service of [the] court’s
decision” in the AFMC litigation, id. at 21. Consolidated Plaintiffs’ argument is
unpersuasive.
As previously noted, publication or receipt of “a court decision in a case does not
necessarily result in Customs’ receipt of notice that a suspension of liquidation that was
in effect during the case has been removed.” Fujitsu, 283 F.3d at 1383. Moreover,
“[t]he end of the suspension period . . . is a prerequisite for valid notice under section
1504(d).” Cemex, 384 F.3d at 1320–21. While CBP published the court’s decision in
the AFMC litigation on March 29, 2017, JSMF ¶ 7, the court-ordered suspension of
liquidation did not end until the court decision became final on May 12, 2017, id. ¶ 8;
see also 19 U.S.C. § 1516a(c)(2),(e) (providing for an injunction on liquidation pending
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 19 of 43

Consol. Court No. 18-00222 	Page 20
the possibility of a “final court decision” adverse to the original Commerce
determination”). 12
For these reasons, Consolidated Plaintiffs’ request for discovery concerning any
service of the court’s judgment in the AFMC litigation by the court on CBP is denied.
Consolidated Plaintiffs’ request for discovery concerning the OTO3
communication system likewise lacks merit. Consolidated Plaintiffs concede that the
OTO3 system “was not in place” during any events material to this action. Consol. Pls.’
Cross-Mot. & Opp’n at 22. Consolidated Plaintiffs also fail to identify the cases cited by
the Government that purportedly predate ACE or explain how the transition from OTO3
to ACE undermines the courts’ rulings in those cases. See id.; Consol. Pls.’ Reply at 16
(stating, without further elaboration, that differences in the ACE and OTO3 systems
render the need for discovery “even more apparent”). Simply put, Consolidated
Plaintiffs fail to explain why it makes any difference, let alone “an important difference,”
whether Commerce lacked direct login capability “prior to ACE.” Consol. Pls.’ Cross-
12 Consolidated Plaintiffs rely on language in section 1516a(e) providing for liquidation in
accordance with a final court decision when “the cause of action is sustained in whole or
in part” to suggest that the notice requirements should be interpreted differently when
the cause of action is dismissed. Consol. Pls.’ Cross-Mot. & Opp’n at 21. Subsection
(e) does not support Consolidated Plaintiffs’ argument. That statutory provision simply
provides for liquidation in accordance with the court’s decision—and not Commerce’s
original determination—when all or part of any challenge to that determination is
meritorious. See 19 U.S.C. § 1516a(e). When an interested party’s challenge wholly
fails, liquidation would proceed in accordance with Commerce’s determination. See id.
Section 1516a(e) has no bearing on what constitutes adequate notice pursuant to
section 1504(d).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 20 of 43

Consol. Court No. 18-00222 	Page 21
Mot. & Opp’n at 22. Thus, Consolidated Plaintiffs’ request for discovery in this regard
will be denied. 13
c. 	Summary
The foregoing discussion demonstrates that there is no genuine dispute that CBP
received notice of the lifting of suspension of liquidation on May 30, 2017, when
Commerce uploaded an internal message in ACE on May 30, 2017; Commerce’s notice
was unambiguous; and CBP made the notice publicly available. Consolidated Plaintiffs’
request to defer any ruling on the Government’s motion for summary judgment pending
further discovery will be denied. The court turns now to Consolidated Plaintiffs’
alternative cross-motion for summary judgment.
13 Consolidated Plaintiffs assert, without elaboration, that the notice contained in
messages that Commerce uploads to ACE is non-public and “not unambiguous.”
Consol. Pls.’ Cross-Mot. & Opp’n at 26. While Commerce’s message was internal to
ACE, Consolidated Plaintiffs do not dispute that Message No. 7150306 is publicly
available. JSMF ¶ 17; Dauble Decl., Ex. B. In their reply brief, Consolidated Plaintiffs
argue that messages—such as Message No. 7150306—cannot “be considered the
unambiguous notice required under section 1504(d)” because “a deeper inquiry is
required,” likely through litigation, “to ascertain when Customs received such
messages.” Consol. Pls.’ Reply at 16 (emphasis omitted); see also id. at 19 (asserting
that the absence of any statement concerning Customs’ date of receipt in the liquidation
instructions renders the instructions an ambiguous form of notice). Consolidated
Plaintiffs erroneously conflate the separate requirements of public and unambiguous
notice. Consolidated Plaintiffs also offer no authority for the notion that notice cannot be
unambiguous for purposes of section 1504(d) when the contents of the notice do not
publicly disclose the date on which Customs received such notice.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 21 of 43

Consol. Court No. 18-00222 	Page 22
2. 	Consolidated Plaintiffs’ Cross-Motion for Summary Judgment in the
Alternative as to AFI’s Nine Subject Entries and IMSS’s Subject Entry
a. 	Parties’ Contentions
Consolidated Plaintiffs contend they are entitled to summary judgment with
respect to AFI’s nine subject entries and IMSS’s subject entry because those entries
liquidated by operation of law on November 12, 2017. Consol. Pls.’ Cross-Mot. & Opp’n
at 22–26; Consol. Pls.’ Reply at 17–20. Consolidated Plaintiffs base this argument on
the inclusion of an effective date of May 12, 2017 in Message No. 7150306 and contend
that the six-month liquidation period thus began to run on that date. Consol. Pls.’
Cross-Mot. & Opp’n at 26; Consol. Pls.’ Reply at 19. Consolidated Plaintiffs further
contend they are entitled to summary judgment with respect to IMSS’s subject entry
because Customs failed to provide notice of the deemed liquidation prior to
reliquidation. Consol. Pls.’ Cross-Mot. & Opp’n at 26–28.
The Government contends that there is “no support for the notion” that the date
of notice is retroactive to May 12, 2017. Gov’t’s Opp’n & Reply at 7. Accepting that
position, the Government contends, would eliminate the requirement that CBP receive
notice of the removal of suspension, which is, by law, separate from the act of removal.
Id.14 The Government further contends that Customs’ failure to provide notice of the
deemed liquidation to IMSS prior to reliquidation does not invalidate the reliquidation
14 The Government asserts that Consolidated Plaintiffs impermissibly raised an untimely
challenge to CBP’s implementation of Commerce’s liquidation instructions. Gov’t’s
Opp’n & Reply at 7 n.1. Consolidated Plaintiffs subsequently clarified they are not
challenging the implementation. Consol. Pls.’ Reply at 18–19.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 22 of 43

Consol. Court No. 18-00222 	Page 23
both because IMSS failed to assert the claim in its complaint and because the amended
version of 19 U.S.C. § 1501 does not require such notice. Id. at 14.
Consolidated Plaintiffs counter that their claim concerning Customs’ failure to
provide notice of the deemed liquidation prior to reliquidation “is not independent from
[IMSS’s] untimely liquidation argument” because notice of the deemed liquidation
triggers the 90-day reliquidation period. Consol. Pls.’ Reply at 20. Thus, Consolidated
Plaintiffs contend, the argument is properly before the court. Id.
b. The Inclusion of an “Effective Date” in Message No. 7150306 Does
Not Change the Liquidation Period
The crux of Consolidated Plaintiffs’ argument is that the inclusion of an effective
date of May 12, 2017 in Message No. 7150306 means that the six-month liquidation
period began on that date. Consol. Pls.’ Cross-Mot. & Opp’n at 26; Consol. Pls.’ Reply
at 19. The statute is clear, however, that the liquidation period begins on the date CBP
“receiv[es] notice of the removal” of the suspension of liquidation, not on the date on
which suspension was lifted, to the extent those dates differ. 19 U.S.C. § 1504(d)
(emphasis added); see also Int’l Trading, 281 F.3d at 1275 (“Even if suspension has
been removed, section 1504(d) provides that the six-month period for deemed
liquidation does not begin to run until CBP receives notice from Commerce that the
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 23 of 43

Consol. Court No. 18-00222 	Page 24
suspension has been removed.”). 15 Consolidated Plaintiffs fail to reconcile their
position with the clear statutory language or the Federal Circuit’s interpretation of that
language.
Instead, Consolidated Plaintiffs base their arguments on generalized discussion
about the concept of “informed compliance” Congress implemented through passage of
the Customs Modernization Act (“Mod Act”) in 1993 16 and Customs’ purported failure to
apply that concept “in the context of the removal of suspension of liquidation.” Consol.
Pls.’ Cross-Mot. & Opp’n at 24. Consolidated Plaintiffs seek to demonstrate Customs’
inconsistent adherence to the principle of informed compliance through the submission
of declarations prepared by Customs’ personnel in 2007 for purposes of an unrelated
litigation. See id. at 24–25. 17 Consolidated Plaintiffs rely on the declarations to argue
15 The International Trading court further observed that
section 1504(d) applies not only to the removal of suspension that occurs
upon publication of the final results of an administrative review, but also to
. . . the removal of a court-ordered suspension of liquidation. In that
setting, the removal of suspension occurs as the result of court action, not
a Federal Register publication, and the required notice must be provided
by a separate mechanism. For that reason, it makes sense for section
1504(d) to refer separately to the acts of removal of suspension of
liquidation and notification of the removal.
281 F.3d at 1276 (emphasis added).
16 The Mod Act was enacted as Title VI to the North American Free Trade Agreement
Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993). “Informed
compliance” represents the idea “that importers have a right to be informed about
customs rules and regulations, as well as interpretive rulings, and to expect certainty
that [CBP] will not unilaterally change the rules without providing importers proper notice
and an opportunity for comment.” S. Rep. No. 103–189 at 64 (1993).
17 Consolidated Plaintiffs submitted declarations prepared by Dirik J. Lolkus and David
Genovese on November 16 and 26, 2007, respectively, and filed in Travelers Indemnity
Co. v. United States, Court No. 06-cv-00151 (CIT). See Consol. Pls.’ Cross-Mot. &
Opp’n, Ex. 4 (“Lolkus Decl.”), Ex. 5 (“Genovese Decl.”).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 24 of 43

Consol. Court No. 18-00222 	Page 25
that, when a message states the date on which suspension of liquidation lifted, Customs
equates the date of removal with the date of notice of removal. See id. at 24–26.
Consolidated Plaintiffs fail, however, to explain why the court should treat these
unrelated declarations as “Customs’ own interpretation” of Message No. 7150306 or
why the statements contained in the declarations should be considered “controlling.”
See id. at 26. Consolidated Plaintiffs aver that the court in Travelers Indemnity Co. v.
United States, 32 CIT 1057, 580 F. Supp. 2d 1330 (2008), gave effect to the statements
in the declarations in reaching its decision and the Government is acting inconsistently
in requesting the court to disregard the declarations. See Consol. Pls.’ Reply at 17–18.
Consolidated Plaintiffs’ arguments are not persuasive.
Travelers addressed whether “publication of a case in the Customs Bulletin
Weekly (‘the Bulletin’)” constituted “sufficient notice to [Customs]” pursuant to 19 U.S.C.
§ 1504(d). 32 CIT at 1057, 580 F. Supp. 2d at 1331–32. The Travelers court relied on
portions of the Lolkus and Genovese Declarations, among others, to conclude that
publication in the Bulletin did not constitute notice to CBP because CBP “employees
who are concerned with liquidation neither necessarily regularly read nor rely upon, the
contents of that publication.” Id. at 1064, 580 F. Supp. 2d at 1337; see also id. at 1064–
68, 580 F. Supp. 2d at 1337–40 (discussing four CBP declarations). The declarations
constituted—and were treated as—“factual information” material to the narrow question
before the court. Id. at 1064, 580 F. Supp. 2d at 1337. The court did not view the
declarations as legal authority regarding notice pursuant to section 1504(d) generally or
use them to make a finding regarding the date on which notice was provided in that
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 25 of 43

Consol. Court No. 18-00222 	Page 26
case. Moreover, the portions of the declarations that Consolidated Plaintiffs quote in
their brief appear nowhere in the court’s opinion. Compare Consol. Pls.’ Cross-Mot. &
Opp’n at 24–25 (quoting Lolkus Decl. ¶ 7, 18 Genovese Decl. ¶ 14), with Travelers, 32
CIT at 1065–67, 580 F. Supp. 2d at 1337–39. 19
Consolidated Plaintiffs also rely on what they perceive as an inconsistency
between Message No. 6123302 and Message No. 7150306. Consol. Pls.’ Cross-Mot. &
Opp’n at 25. Consolidated Plaintiffs argue that, although the effective date set forth in
Message No. 6123302 “is the operative date,” the same cannot be said with respect to
Message No. 7150306. Id. Consolidated Plaintiffs argue further that this inconsistency
appears to undermine the effectiveness of the court order that resulted in the lifting of
suspension of liquidation. See id. Consolidated Plaintiffs misapprehend the way the
different messages function and their concerns are misplaced.
Customs activated Message No. 6123302 on May 2, 2016. JSF ¶ 1. Message
No. 6123302 informed Customs personnel that the court had entered a statutory
injunction covering entries subject to the AFMC litigation on April 27, 2016 and that the
injunction was effective as of that date. Id. ¶¶ 2, 5. In other words, Customs was
enjoined from liquidating subject entries that remained unliquidated as of April 27, 2016.
18 Consolidated Plaintiffs emphasize, inter alia, Mr. Lolkus’s statement that “[a]n
instruction posted on the OTO3 bulletin board will now either tell us the date on which
suspension of liquidation was removed (that is, the date on which Customs received
notice), or the deadline by which liquidation must be accomplished.” Consol. Pls.’
Cross-Mot. & Opp’n at 24 (quoting Lolkus Decl. ¶ 7) (emphasis omitted).
19 While the Travelers court cites to paragraph 7 of the Lolkus Declaration, it does not
reproduce language from that paragraph or otherwise discuss it.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 26 of 43

Consol. Court No. 18-00222 	Page 27
See 19 U.S.C. § 1516a(c)(2). Message No. 7150306 had an effective date of May 12,
2017. JSMF ¶ 21. The suspension of liquidation thus, in fact, ended on that date.
The question before the court is not, however, on what date suspension was
removed, but on what date Customs received notice of the removal for purposes of
starting the six-month liquidation period. That the removal of suspension and notice of
that removal occurred on different dates does not mean, as Consolidated Plaintiffs
suggest, that the judgment in the AFMC litigation did not “produc[e] binding effects.”
Consol. Pls.’ Cross-Mot. & Opp’n at 25. It simply means that the time in which Customs
had to liquidate a subject entry before it liquidated by operation of law did not begin until
Customs received adequate notice that it could, in fact, liquidate the entry. 20
Accordingly, Consolidated Plaintiffs are not entitled to summary judgment with
respect to AFI’s nine subject entries or IMSS’s subject entry under a theory that the
entries liquidated by operation of law on November 12, 2017. However, resolving
Consolidated Plaintiffs’ motion as to IMSS’s subject entry, i.e., whether CBP was
required to convey notice of the deemed liquidation before reliquidating the entry,
20 Consolidated Plaintiffs also suggest that “Commerce’s and Customs’ practice . . .
invalidates the congressional intent behind section 1504(d).” Consol. Pls.’ Cross-Mot. &
Opp’n at 25. Consolidated Plaintiffs assert that “the main principle” underlying section
1504(d) is to preclude CBP or Commerce from “extend[ing] liquidation indefinitely.” Id.
at 19; see also id. at 18–19 (discussing amendments to section 1504(d) and associated
legislative history). Assuming Consolidated Plaintiffs’ characterization of the purpose
behind section 1504(d) is true, Consolidated Plaintiffs have not explained how that
intent was undermined with respect to AFI’s nine subject entries. Section 1504(d)
afforded Customs until November 30, 2017 to liquidate the entries, and Customs timely
liquidated the entries on November 24, 2017. JSMF ¶ 26. Thus, Consolidated
Plaintiffs’ concerns are without merit.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 27 of 43

Consol. Court No. 18-00222 	Page 28
depends on the version of section 1501 that applies to Customs’ reliquidation of IMSS’s
subject entry. The court now turns to that issue.
c. 	The Amended Version of Section 1501 Applies to the Reliquidation of
IMSS’s Subject Entry
The Supreme Court of the United States has recognized that “the presumption
against retroactive legislation is deeply rooted in our jurisprudence,” because
“individuals should have an opportunity to know what the law is and to conform their
conduct accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).
However, a statute is not impermissibly retroactive “merely because it is applied in a
case arising from conduct antedating the statute’s enactment, or upsets expectations
based in prior law. Rather, the court must ask whether the new provision attaches new
legal consequences to events completed before its enactment.” Id. at 269–70 (citations
omitted); see also Parkdale Int’l v. United States, 475 F.3d 1375, 1378 (Fed. Cir. 2007)
(quoting same). To that end, the court generally considers three Landgraf factors: “the
‘nature and extent of the change of the law,’ ‘the degree of connection between the
operation of the new rule and a relevant past event,’ and ‘considerations of fair notice,
reasonable reliance, and settled expectations.’” Parkdale, 475 F.3d at 1378–79
(quoting Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1364 (Fed. Cir. 2005));
see also Landgraf, 511 U.S. at 270. 21 The Federal Circuit has construed the second
21 This analysis is required when, as here, the statute does not expressly state its
temporal applicability and application of the rules of statutory construction likewise do
not indicate its temporal reach. See United States v. Great Am. Ins. Co. of NY, 41 CIT
___, ___, 229 F. Supp. 3d 1306, 1324 (2017).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 28 of 43

Consol. Court No. 18-00222 	Page 29
Landgraf factor as requiring inquiry into “the event that triggers application of [the
relevant statutory provision]” and the timing of that event in relation to the amendment.
Travenol Lab’ys, Inc. v. United States, 118 F.3d 749, 752 (Fed. Cir. 1997) (explaining
that “prior [case] law . . . has focused on the interrelationship between the new law and
past conduct” and, thus, the court “must evaluate the importing process in an effort to
find the event that triggers the application of [19 U.S.C. § 1505(c)]”). In United States
Tsubaki, Inc. v. United States, 512 F.3d 1332, 1334–35 (Fed. Cir. 2008), the Federal
Circuit dispensed entirely with the first and third Landgraf factors and focused solely on
identifying the date on which the event that triggered application of 19 U.S.C. § 1504(d)
occurred. Thus, if the conduct that triggers application of a statute follows an
amendment to that statute, such that the provision does not confer new legal
consequences to pre-amendment conduct, application of the amended statute to the
conduct is not (or very likely not) impermissibly retroactive. Accordingly, the court first
identifies the event that triggers application of 19 U.S.C. § 1501.
“While importers entering merchandise subject to an antidumping duty order are
required to make a cash deposit of estimated antidumping duties, this rate is not final
where an administrative review is initiated.” Parkdale, 475 F.3d at 1379. “This stems
from the fact that ‘the United States uses a “retrospective” assessment system under
which final liability for antidumping and countervailing duties is determined after
merchandise is imported.’” Id. (quoting 19 CFR § 351.212(a)). Thus, “in cases
involving importers’ challenges to the application of new laws based on retroactivity,”
liquidation often—but not always—constitutes “the paramount relevant ‘past event.’” Id.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 29 of 43

Consol. Court No. 18-00222 	Page 30
(citations omitted); see also Travenol, 118 F.3d at 753 (holding that the date of
liquidation or reliquidation determines what version of 19 U.S.C. § 1505(c) applies
because the provision, which governs the assessment of interest owing from the
underpayment or overpayment of duties, is only implicated upon liquidation (or
reliquidation)); cf. Tsubaki, 512 F.3d at 1335 (holding that “notice to Customs of the act
of lifting the suspension of liquidation is the correct trigger for the application of 19
U.S.C. § 1504(d)”).
Consolidated Plaintiffs attempt to distinguish Tsubaki by arguing that that section
1501 lacks “any express language suggesting such a triggering event.” Consol. Pls.’
Reply at 10. Consolidated Plaintiffs also argue, in a conclusory manner, that “the
triggering event cannot be the same as the subject matter of the statute” at issue, “i.e.,
liquidation and/or reliquidation.” Id.
Consolidated Plaintiffs are incorrect. Section 1501, like section 1504(d), explicitly
states the predicate event that begins the time period within which CBP may or must
act. In Tsubaki, Customs’ receipt of notice of the removal of suspension “impose[d] the
burden of prompt liquidation on the government” and thereby triggered the application of
the six-month liquidation period set forth in 19 U.S.C. § 1504(d). 512 F.3d at 1335.
Thus, the court identified when Customs received notice to determine the applicable
version of section 1504(d). See id. at 1337. Section 1501 provides that an original
liquidation of an entry, whether deemed or manual, triggers Customs’ authority to
reliquidate that entry within 90 days. 19 U.S.C. § 1501. Thus, the applicable version of
section 1501 depends on when IMSS’s subject entry liquidated by operation of law.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 30 of 43

Consol. Court No. 18-00222 	Page 31
IMSS’s subject entry liquidated by operation of law on November 30, 2017; on that date,
Customs’ authority to reliquidate the entry pursuant to 19 U.S.C. § 1501 arose.
Because application of the amended version of section 1501 did not assign new legal
consequences to pre-amendment conduct, the amended version of the statute applies
to the court’s examination of the validity of Customs’ actions with respect to the
liquidation or reliquidation of IMSS’s subject entry.
Consolidated Plaintiffs’ reliance on Great American to reach a contrary
conclusion is misplaced. Consol. Pls.’ Cross-Mot. & Opp’n at 14–15; Consol. Pls.’
Reply at 12–14. There, the court held that the amended version of section 1501 did not
apply to an entry made in made in 2006 when: the entry liquidated by operation of law in
February 2009; Customs posted a notice of the deemed liquidation in December 2009;
and, in January 2010, Customs reliquidated the entry. Great Am., 229 F. Supp. 3d at
1311–16, 1323–26. In reaching its decision, the court considered that all relevant CBP
conduct preceded the statutory amendment and concluded that it would be unfair to
CBP to measure the lawfulness of its conduct against a law that was not in effect when
the conduct occurred. See id. at 1325. The court’s decision was thus tailored to “the
facts of [that] case,” id. at 1325–26, which are distinct from the instant facts.
Consolidated Plaintiffs further attempt to align this case with Great American by
arguing that “there is a strong ‘degree of connection between operation of the new rule
and a relevant past event’” because “applying the 2016 version of section 1501 to the
(alleged) reliquidation at issue here, which occurred without notice, but within 90 days of
the deemed liquidation, would validate a reliquidation made without observance of a
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 31 of 43

Consol. Court No. 18-00222 	Page 32
legal requirement—providing notice—and subject [AFI] to increased duties.” Consol.
Pls.’ Reply at 13 (citing Great Am., 229 F. Supp. 3d at 1325) (emphasis added).
Consolidated Plaintiffs’ argument assumes the answer to the question before the court,
namely, that there was a legal requirement to provide notice of the deemed liquidation
before reliquidation. Whether that is true, however, turns on what version of section
1501 applies. More importantly, what counts as a “relevant past event” depends on
whether the event occurred prior to enactment of the new statutory provision. See
Landgraf, 511 U.S. at 269–70 (characterizing the inquiry into “the nature and extent of
the change in the law and the degree of connection between the operation of the new
rule and a relevant past event” as “whether the new provision attaches new legal
consequences to events completed before its enactment”) (emphasis added); Travenol,
118 F.3d at 754 (holding that “application of amended section 1505(c) to goods entered
before, but liquidated (or reliquidated) after, its effective date . . . does not constitute a
retroactive application of that provision”). As discussed above, Great American is
distinct because there, both the original liquidation and the reliquidation occurred
several years before Congress amended section 1501. 229 F. Supp. 3d at 1325.
To the extent the first and third Landgraf factors are implicated, they do not
change the outcome in this case. “[T]he ‘nature and extent of the change of the law’ is
significant because the amendment changes the starting point for computing the time
that CBP has to voluntarily reliquidate an entry from the date of notice to the date of the
liquidation.” Great Am., 229 F. Supp. 3d at 1325. Thus, this factor would disfavor
retroactivity.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 32 of 43

Consol. Court No. 18-00222 	Page 33
With respect to “familiar considerations of fair notice, reasonable reliance, and
settled expectations,” Landgraf, 511 U.S. at 270, Consolidated Plaintiffs argue that it
would be unfair and unreasonable to expect importers to stay informed about statutory
changes occurring after the time of entry and potentially affecting their entries, Consol.
Pls.’ Reply at 13–14. Consolidated Plaintiffs offer no persuasive argument or evidence,
however, that they reasonably relied on, or had any settled expectations concerning, the
notice requirement embedded in the pre-amendment version of section 1501 or lacked
notice of the statutory amendment. Cf. Princess Cruises, 397 F.3d at 1366 (holding that
a Customs ruling did not apply to pre-ruling conduct when it would have imposed “an
evidentiary presumption that [could not] possibly be met” and the plaintiff had relied on a
letter received from a Customs official indicating that the plaintiff would not be subject to
the liability imposed by the new ruling); Great Am., 229 F. Supp. 2d at 1325 (finding that
application of the 2016 amendment to Customs’ pre-amendment conduct would
“implicate[] fairness and reliance considerations” because, at the time of the
reliquidation, “[section] 1501 plainly afforded Customs 90 days from the date on which it
posted the bulletin notice to reliquidate the subject entry”).
In sum, the amended version of section 1501 applies to IMSS’s subject entry.
Thus, CBP was not required to give notice of the deemed liquidation prior to
reliquidating IMSS’s subject entry. Accordingly, Consolidated Plaintiffs are not entitled
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 33 of 43

Consol. Court No. 18-00222 	Page 34
to summary judgment as to this entry based on the lack of notice of the deemed
liquidation prior to reliquidation. 22
3. 	The Government is Entitled to Summary Judgment Regarding AFI’s
Nine Subject Entries and IMSS’s Subject Entry
In addition to establishing May 30, 2017, as the date that started the six-month
liquidation period, see supra p. 21, the undisputed facts demonstrate that Customs
timely liquidated AFI’s nine subject entries on November 24, 2017, JSMF ¶ 26, and,
thus, those entries did not liquidate by operation of law, 19 U.S.C. § 1504(d).
Accordingly, the court will enter summary judgment for the Government with respect to
AFI’s nine subject entries and deny Consolidated Plaintiffs’ alternative cross-motion.
The court further finds it undisputed that IMSS’s subject entry liquidated by
operation of law, JSMF ¶ 22, and that the deemed liquidation occurred on November
30, 2017 (six months from May 30, 2017). Because CBP’s reliquidation on February
28, 2018 coincided with precisely the 90th day thereafter, see JSMF ¶ 23, and CBP was
not required to give notice of the deemed liquidation prior to reliquidation, the
reliquidation was valid and timely pursuant to section 1501, as amended. Accordingly,
the court will enter summary judgment for the Government with respect to IMSS’s
subject entry and deny Consolidated Plaintiffs’ alternative cross-motion. Additionally,
22 Because the court finds that CBP was not required to give notice of the deemed
liquidation before reliquidating IMSS’s subject entry, the court need not address the
Government’s contention that IMSS’s argument concerning CBP’s failure to provide
notice amounts to an impermissible attempt to assert a new claim. Gov’t’s Opp’n &
Reply at 13–14.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 34 of 43

Consol. Court No. 18-00222 	Page 35
the court will deny as moot the Government’s motion for a protective order as to IMSS
and IMSS’s motion to compel.
B. The Parties’ Cross-Motions for Summary Judgment as to AFI’s Tenth
Subject Entry
1. 	Parties’ Contentions
The Parties do not dispute that AFI’s tenth subject entry liquidated by operation
of law or that Customs did not provide notice of the deemed liquidation. Consol. Pls.’
SMF ¶¶ 1, 3; Gov’t’s Resp. to Consol. Pls.’ SMF ¶¶ 1, 3. Rather, the Parties dispute
whether Customs’ assessment of duties on December 1, 2017 constituted an untimely
liquidation or a valid reliquidation pursuant to 19 U.S.C. § 1501. Compare Gov’t’s Mot.
Summ. J. at 12–13, and Gov’t’s Opp’n & Reply at 8, 13, with Consol. Pls.’ Cross-Mot. &
Opp’n at 8–10, and Consol. Pls.’ Reply at 4–9. The Parties also dispute what version of
section 1501 applies to AFI’s tenth subject entry. Compare Gov’t’s Mot. Summ. J. at
14–18, and Gov’t’s Opp’n & Reply at 9–12, with Consol. Pls.’ Cross-Mot. & Opp’n at 14–
15, and Consol. Pls.’ Reply at 9–14.
The Government seeks summary judgment on the basis that CBP timely
reliquidated AFI’s tenth subject entry on December 1, 2017 and, pursuant to the
amended version of section 1501, was not required to provide notice of entry’s
liquidation by operation of law prior to reliquidation. Gov’t’s Mot. Summ. J. at 12–13, 18;
Gov’t’s Opp’n & Reply at 11–13. Consolidated Plaintiffs seek summary judgment on the
basis that Customs could not have performed a voluntary reliquidation pursuant to
section 1501 absent “knowledge and awareness of the error sought to be corrected.”
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 35 of 43

Consol. Court No. 18-00222 	Page 36
Consol. Pls.’ Cross-Mot. & Opp’n at 11. Accepting the Government’s position,
Consolidated Plaintiffs contend, would reward Customs “with an automatic 90-day
‘grace period’ in which to liquidate entries.” Id. at 12.
The court requested supplemental briefing as to whether “the principle of
harmless error recognized by the . . . Federal Circuit in Intercargo Ins. Co. v. United
States, 83 F.3d 391 (Fed. Cir. 1996), and its progeny, appl[ies] to the court’s
consideration of AFI’s claim.” Ltr. Order. Additionally, the court instructed AFI to
explain “what, if any, cognizable harm” AFI suffered “as a result CBP’s assessment of
antidumping duties pursuant to an alleged ‘liquidation’ of the entry within the time
otherwise permitted by 19 U.S.C. § 1501, as amended, to ‘reliquidate’ the entry
inclusive of antidumping duties?” Id.23
In their supplemental filings, the Parties agreed that 19 U.S.C. § 1504(d) is not
amenable to a harmless error analysis because the statute states a clear consequence
for noncompliance—deemed liquidation. AFI’s Suppl. Br. at 3–6; Gov’t’s Suppl. Br. at 2.
However, the Parties were unclear concerning their respective positions on whether 19
U.S.C. § 1501—the operative statute for purposes of resolving AFI’s claim—is
amenable to a harmless error analysis. Notwithstanding that lack of clarity, AFI did
argue that validating CBP’s action would cause harm in the form of expanding the reach
of section 1501 to encompass “automatic reliquidation by operation of law” and, thus,
23 For purposes of supplemental briefing, the court instructed Parties to assume that the
amended version of section 1501 applied, “such that CBP was not required to give
notice of the original liquidation by operation of law prior to reliquidation.” Ltr. Order.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 36 of 43

Consol. Court No. 18-00222 	Page 37
permit CBP to extend the time for liquidation under 19 U.S.C. § 1504(d) by an additional
90 days. AFI’s Suppl. Br. at 7–8. The Government countered that that AFI has failed to
demonstrate any “legally cognizable injury” with respect to CBP’s “liquidation” within the
90-day timeframe for reliquidation accorded by section 1501. Gov’t’s Suppl. Br. at 3–4
(noting that “AFI has not identified anything it would have done differently had CBP
‘reliquidated’ . . . the entry” and AFI has not “identified any deprivation of rights or
actual prejudice it suffered”).
In order to clarify the Parties’ positions, the court heard oral argument on this
issue. 	At the hearing, AFI sought to limit the applicability of a harmless error analysis
to regulatory errors and argued that upholding CBP’s action would “obviate” the six-
month deadline for liquidation contained in section 1504(d). Oral Arg., 5:10–26:15
(approximate time stamp from recording). 24 The Government argued that a harmless
error analysis is not limited to regulations; CBP’s “liquidation” was the “functional
equivalent” of a “reliquidation”; and any error was harmless because AFI “clearly had
notice” of CBP’s assessment of antidumping duties and protested the assessment. Id.,
26:21–29:12.
24 AFI relied on Torres v. Oakland Scavenger Co., 487 U.S. 312, 318 (1988), for the
proposition that a harmless error analysis is improper with respect to statutory
violations. Oral Arg., 24:33–26:23. Torres is inapposite for that purpose. 487 U.S. at
317–18 (finding the specificity requirement of Federal Rule of Appellate Procedure 3(c)
to be “jurisdictional” and non-waivable for “good cause”). Moreover, Intercargo
contemplates the application of a harmless error analysis to statutes. 83 F.3d at 396
(noting that, “[p]rejudice, as used in this setting, means injury to an interest that the
statute, regulation, or rule in question was designed to protect”) (emphasis added).
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 37 of 43

Consol. Court No. 18-00222 	Page 38
2. 	The Government is Entitled to Summary Judgment as to AFI’s Tenth
Subject Entry
As previously noted, the Parties do not dispute that AFI’s tenth subject entry
liquidated by operation of law. Thus, resolution of the cross-motions addressed to AFI’s
tenth subject entry turns on whether Customs ran afoul of the requirements of section
1501 when it assessed antidumping duties on the entry on December 1, 2017. To that
end, as noted, the Parties also dispute what version of section 1501 applies to the
court’s examination of Customs’ action.
The court dispenses with the latter issue first. The prior analysis concerning
what version of section 1501 applies to Customs’ reliquidation of IMSS’s subject entry
pertains equally to Customs’ reliquidation of AFI’s tenth subject entry. Customs’
authority to reliquidate AFI’s tenth subject entry pursuant to 19 U.S.C. § 1501 arose
when the entry liquidated by operation of law on November 30, 2017. Consol. Pls.’
SMF ¶ 1; Gov’t’s Resp. to Consol. Pls.’ SMF ¶ 1; see also Consol. Pls.’ Cross-Mot. &
Opp’n at 14 (stating that “the only justifiable inference that the [c]ourt can make with
respect to the liquidation status of [AFI’s tenth subject entry] is that, on November 30,
2017, such entry deemed liquidated, pursuant to 19 U.S.C. § 1504(d)”). Thus, the
amended version of section 1501 did not assign new legal consequences to pre-
amendment conduct and is the operative version. Accordingly, section 1501 did not
require Customs to give notice of the deemed liquidation to AFI before reliquidating the
entry and Consolidated Plaintiffs are not entitled to summary judgment based on the
lack of notice.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 38 of 43

Consol. Court No. 18-00222 	Page 39
As to whether the December 1, 2017 event constituted a liquidation or a valid
reliquidation, the Government does not dispute the factual record wherein CBP marked
the event as a “liquidation.” JSMF ¶ 27. The Government nevertheless argues that any
liquidation within the 90-day period following a deemed liquidation is, as a matter of law,
a timely reliquidation pursuant to 19 U.S.C. § 1501. See Gov’t’s Mot. Summ. J. at 13.
Consolidated Plaintiffs counter that use of the term “voluntary” in the title to section
1501 and in Customs’ implementing regulation,19 C.F.R. § 173.3, 25 “requires Customs’
knowledge and awareness of the error sought to be corrected” for the reliquidation to be
valid, Consol. Pls.’ Cross-Mot. & Opp’n at 11. Consolidated Plaintiffs seek summary
judgment based on the entry documentation on the record in which CBP marked the
event as a liquidation. See id. at 8–10. 26
This case does not require the court to address whether section 1501 or
Customs’ implementing regulation require the relevant Customs official to be aware of
25 The regulation provides, inter alia, that Customs
may reliquidate on [its] own initiative a liquidation or a reliquidation to
correct errors in appraisement, classification, or any other element
entering into the liquidation or reliquidation, including errors based on
misconstruction of applicable law. A voluntary reliquidation may be made
even though a protest has been filed, and whether the error is discovered
by [Customs] or is brought to [its] attention by an interested party.
19 C.F.R. § 173.3. Subsection (a) of Customs’ regulation was amended in 2017 to
provide for reliquidation by the “Center director” rather than the “port director,” but
otherwise remains unchanged from the version in effect when the entries were made.
See Regulatory Implementation of the Ctrs. of Excellence and Expertise, 81 Fed. Reg.
92,978, 92,999 (CBP Dec. 20, 2016) (interim final rule; eff. Jan. 19, 2017).
26 Consolidated Plaintiffs also seek to rely on the Government’s original Answer.
Consol. Pls.’ Cross-Mot. & Opp’n at 9. However, as Consolidated Plaintiffs
acknowledge, that Answer has since been superseded by the Government’s Answer to
AFI’s Amended Complaint. Id.; see also Ans. to First Am. Compl., ECF No. 72.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 39 of 43

Consol. Court No. 18-00222 	Page 40
the prior liquidation in order to implement a valid voluntary reliquidation. Assuming,
arguendo, that the statute and regulation contain such a requirement, as discussed
more fully below, the court finds that CBP committed a nonactionable error by
liquidating an entry that CBP was, instead, permitted to reliquidate notwithstanding the
deemed liquidation. 27 In either case, the effect of Customs’ action is (or would have
been) the same: the assessment of applicable antidumping duties. Consolidated
Plaintiffs do not argue otherwise and, thus, have failed to establish any cognizable injury
from Customs’ alleged error.
“It is well settled that principles of harmless error apply to the review of agency
proceedings.” Intercargo, 83 F.3d at 394. Agency action will be “set aside ‘only for
substantial procedural or substantive reasons.’” Id. (quoting Sea–Land Serv., Inc. v.
United States, 14 CIT 253, 257, 735 F. Supp. 1059, 1063 (1990), aff’d and adopted, 923
F.2d 838 (Fed. Cir. 1991)). When “neither the statute nor the regulation specifies the
consequence of noncompliance” with a procedural requirement, the party seeking relief
must demonstrate that it suffered substantial prejudice as a result of the contested
action. Cummins Engine Co. v. United States, 23 CIT 1019, 1032–33, 83 F. Supp. 2d
27 The court does not need to address the extent of the factual record concerning CBP’s
awareness of the prior deemed liquidation (or lack thereof). The record merely
establishes that Customs labeled the event as a “liquidation” in the entry documentation
filed with the court. JSMF ¶ 27. AFI bases its motion for summary judgment on the
notion that the erroneous label on the entry documentation establishes CBP’s lack of
awareness; AFI does not seek further discovery on this issue and the Parties have not
addressed the extent of any factual dispute concerning the degree of knowledge held by
the responsible CBP official. Nevertheless, as discussed, AFI is not entitled to relief
even if the court adopts AFI’s interpretation of the statute and all inferences in its favor.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 40 of 43

Consol. Court No. 18-00222 	Page 41
1366, 1378 (1999); see also PAM S.p.A. v. United States, 463 F.3d 1345, 1346 (Fed.
Cir. 2006) (CIT erred in ordering Commerce to rescind a completed administrative
review of the plaintiff based on a lack of service of the domestic parties’ request for
review of the plaintiff absent a showing of substantial prejudice); Intercargo, 83 F.3d at
396 (reversing the CIT’s grant of summary judgment for the plaintiff when the court was
“unable to discern any prejudice” arising from Customs’ defective notice of extension of
liquidation).
Here, to the extent section 1501 requires CBP to be aware of an original
liquidation pursuant to 19 U.S.C. §§ 1500 or 1504, the statute does not specify any
consequence flowing from a reliquidation made without such awareness. See 19
U.S.C. § 1501. Customs’ regulation, 19 C.F.R. § 173.3, likewise does not specify any
consequence for the Center Director’s lack of awareness of errors in the prior
liquidation. 28 Consolidated Plaintiffs further fail to identify any actionable prejudice
stemming from the fact that CBP performed a “liquidation” rather than a “reliquidation.”
“A party is not ‘prejudiced’ by a technical defect simply because that party will
lose its case if the defect is disregarded. Prejudice, as used in this setting, means injury
28 AFI argues that “procedural requirements should be liberally construed only when
they are ‘mere technicalities,’ i.e., when the agency has essentially complied with the
rule in a functionally equivalent manner.” AFI’s Suppl. Br. at 4 (quoting Foman v. Davis,
371 U.S. 178, 181 (1962)). While the facts underlying the Court’s decision in Foman
are distinct, the stated principle undermines—rather than supports—AFI’s position.
Here, CBP was within its discretion to assess antidumping duties on AFI’s tenth subject
entry within 90 days from the original deemed liquidation. Regardless of the label
attached to the action, the outcome pursuant to the alleged liquidation was the
functional equivalent of a reliquidation.
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 41 of 43

Consol. Court No. 18-00222 	Page 42
to an interest that the statute, regulation, or rule in question was designed to protect.”
Intercargo, 83 F.3d at 396. Consolidated Plaintiffs merely assert that accepting the
Government’s position would “mean that Customs has six months plus 90 days to
liquidate” an entry, such that “Customs would be rewarded with an automatic 90-day
‘grace period’ in which to liquidate entries without any negative implications.” Consol.
Pls.’ Cross-Mot. & Opp’n at 12; see also AFI’s Suppl. Br. at 7–8. That is not a
cognizable injury; rather, that is precisely the amount of time that sections 1501 and
1504(d), together, afford Customs to correctly assess the duties owed on an entry that
first liquidates by operation of law. Finding that CBP committed harmless error in this
case does not, therefore, obviate the timeframe set forth in section 1504(d). Absent a
showing of prejudice, Consolidated Plaintiffs are not entitled to avoid the applicable
antidumping duties that CBP was required to assess. Thus, the court will grant the
Government’s motion for summary judgment as to AFI’s tenth subject entry and deny
Consolidated Plaintiffs’ cross-motion.
CONCLUSION
In accordance with the foregoing, the court will grant the Government’s motion
for summary judgment with respect to all subject entries and deny Consolidated
Plaintiffs’ cross-motion. The court will further deny as moot the Government’s motion
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 42 of 43

Consol. Court No. 18-00222 	Page 43
for a protective order as to IMSS and IMSS’s motion to compel. Judgment will be
entered accordingly.
/s/ 	Mark A. Barnett
Mark A. Barnett, Chief Judge
Dated: April 9, 2021
New York, New York
Case 1:18-cv-00222-MAB Document 87 Filed 04/09/21 Page 43 of 43