United States Court of International Trade

Protest Not Approved Until Entry Reliquidated, CIT Says

In a case of first impression, the United States Court of International Trade has ruled that a protest is not “allowed” until the protested entries have been reliquidated and refunds granted.

In Erwin Hymer Group, f/k/a Roadtrek Motorhomes, Slip Op. 17-151, an importer challenged Customs decision to liquidate certain entries of imported motorhomes without an HTS subheading 9802.00.50 “repairs or alterations” allowance. Customs at the port of Detroit “approved” the protest, and sent notice of allowance to both the importer and the broker. However, Customs refused to reliquidate the entries or pay duty refunds, claiming that it had placed the entry in “suspended” status, while awaiting the outcome of a case being litigated before the United States Court of Appeals for the Federal Circuit.

The importer brought suit, invoking the CIT’s “residual” jurisdiction, and challenging Customs’ refusal to pay the refunds. Once the protest is allowed or denied, the importer argued, Customs has to take a second, implementing action which is non-discretionary – reliquidating the entry and issuing refunds in the case of an allowance, or sending notice of denial if the protest if denied.

The CIT agreed that the importer’s suit was properly commenced under the Administrative Procedure Act, and that the Court had jurisdiction over it. However, the Court held that the protest is not “allowed” until the entry reliquidated. So the entry remains in the curious status of being “approved” but “suspended”.