UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 25-41

Before the Court in Under the Weather, LLC v. United States, Court No. 21-00211, Slip Op. 25-41 (April 15, 2025) was Plaintiff’s motion to amend its complaint to add an amended Count Two, which asserts a claim for relief under Section 625(c)(2) of the Tariff Act of 1930, which the U.S. Court of International Trade ultimately denied. Under the Weather, an importer of pop-up tents, filed its original complaint in this action asserting two claims for relief: that the classification of its tents in protest review decision HQ H311492 by U.S. Customs and Border Protection (“Customs”) under subheading 6306.22.9030, Harmonized Tariff Schedule of the United States (“HTSUS”), was incorrect and that the tents are classifiable instead as “backpacking tents” under 6306.22.1000, HTSUS. In Count Two, Plaintiff asserted that Customs’ violated Section 625(c)(2) of the Tariff Act of 1930 when it issued the classification in HQ H311492 without providing notice and comment, which is prohibited by the statute. Plaintiff alleged specifically that an earlier decision by Customs to approve Plaintiff’s protest with respect to an earlier entry of identical tents (“protest ‘919”) — and which resulted in the classification of Plaintiff’s tents under its desired subheading — was a “prior decision” for purposes of the statute. According to Under the Weather, the protest denial that gave rise to the instant action “effectively revoked” the prior protest approval contrary to law without following the notice and comment requirements of the statute. The United States filed a partial motion to dismiss, asserting that Plaintiff failed to state a claim on which relief can be granted, which the Court granted in 2024 (Under the Weather, LLC v. United States (“Under the Weather I”), 48 CIT __, __, 728 F. Supp. 3d 1337, 1341 (2024). In Under the Weather I, the Court noted that plaintiff asserted for the first time at oral argument that Section 625(c)(2) as an alternative basis for relief but failed to do so in the original complaint. Even if it had, the Court held that the facts as alleged in the complaint would not have supported such a claim. Plaintiff filed motion for leave to amend its complaint at the beginning of 2025 and defendant opposed the motion shortly after.

The Court reviewed the motion for leave to amend pursuant to its 28 U.S.C. § 1581(a) jurisdiction, and reviewed USCIT Rule 15, which governs amended and supplemental pleadings, and allows a party may amend its pleadings once as a matter of course “no later than” 21 days after serving the complaint, or “if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” For all other amendments, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” USCIT R. 2 15(a)(2). The Rule specifies that “[t]he court should freely give leave when justice so requires.” The Court reviewed Section 625(c)(2) of the Tariff Act of 1930, as amended [19 U.S.C. §1625(c)(2)], which requires that a proposed interpretive ruling or decision that would modify the treatment previously accorded by the  Customs Service to substantially identical transactions be published on the Customs Bulletin and interested parties given at least 30 days to comment “on the correctness of the proposed ruling or decision.” Plaintiff contended that its motion was timely and did not prejudice the government because the additional claim for relief arose from the same transaction and events as the original complaint, and that Count Two provided the defendant with reasonable notice as to the claims now raised. Additionally, the Plaintiff alleged that its proposed amended complaint is not futile, as it was plausible that Customs consistently accorded the claimed treatment on a national basis for far more than a two-year period preceding the Plaintiff’s claims of treatment.

The Court, however, disagreed finding that the proposed amended complaint was filed after undue delay because Plaintiff appeared to have been aware for five years after filing its protest, 19 months after filing its original complaint, and seven months after oral argument, five months after this court dismissed plaintiff’s initial claim, and two months before the original deadline for fact discovery of the factual allegations now claimed. The Court found that raising this issue now prejudiced the defendant because the amended complaint would significantly expand the scope of fact discovery and require the government to unearth decades-worth of entries that internal communication previously not at issue, for the periods August 5, 1986 and October 20, 2020). Lastly, the Court held that the proposed complaint is futile because “to be eligible for the protection afforded under 19 U.S.C. § 1625(c)(2), [a] person must be able to make a showing that Customs took a conscious, intentional and knowledgeable action that created an impression that could give rise to an expectation as regards future action by Customs.” Administrative Rulings, 67 Fed. Reg. at 53,491. Plaintiff failed to show this requirement because when Customs approved protest 919, it did so after the relevant two-year period, so Plaintiff could not have relied on this protest approval when it began importing under its desired tariff subheading the entries relevant to the instant action because Customs had not yet issued the approval in protest 919. Plaintiff’s reliance on the two alleged examinations of its merchandise by Customs was also rejected by the Court because the examinations were routine and not in connection to Plaintiff’s classification determination of the subject pop-up tents that liquidated under subheading 6306.22.1000. Finally, although plaintiff imported its tents under its desired tariff subheading from 2010 to 2018, the touchstone of the treatment is the consistency with Customs decisions with respect to the specific merchandise in question. On these findings, the Court denied Plaintiff’s motion for leave to file a proposed amended complaint.