Judicial Conference in a Nutshell

I always enjoy the Court of International Trade Judicial Conference, and the most recent edition was no exception. Granted, a lot of the personal enjoyment comes from having the opportunity to see friends and colleagues. But, there is plenty of substance to be absorbed as well.

For whatever reason, the conference skewed somewhat to trade-related discussions over customs this time around. From a customs lawyer's perspective, it would appear that the single most vexing issue facing the trade bar is the issue of Commerce's policy of publishing liquidation instructions within 15 days of a final agency determination. This causes problems because the parties have 30 days in which to challenge the determination by filing a summons. In the ordinary case, the plaintiff gets to Court and asks for an injunction against liquidation to prevent that from happening.  Sometimes, Customs and Border Protection liquidates entries prior to the filing of a summons and request for an injunction. Once the entries liquidate, the case is moot and the potential plaintiff has lost the opportunity to seek judicial review. Everyone seems to agree that the best solution is some kind of automatic stay or injunction against liquidation for the 30 days.

In the midst of this discussion, the question was raised about the role of importers in trade cases. The question, which I asked, had to do with the situation in which the importer wants the entries liquidated at the prevailing rate (whether that is the deposit rate or the assessment rate) without waiting for the respondent and petition to fight it out in court. If you think about, this is the one area of trade law where the importer is at the mercy of the exporter. Yet it is the importer who pays the duties. Importers often complain when they receive a liquidation notice five or more years after the date of entry because the liquidation was suspended pending litigation in which the importer was not even involved. Someone else in the audience suggested that this question raises fifth amendment taking issues. That is a topic that might be worth a law review article.

On the customs front, there was some interesting discussion about the standard for pleading facts in a complaint. The Supreme Court has recently required that the facts plead lead to a "plausible" conclusion that the plaintiff is entitled to relief. According to the panel where this was discussed, this should not be difficult to accomplish, but plaintiffs need to be aware. Otherwise, they might be looking down the barrel of a Rule 12 motion to dismiss.

All in all, it was a good conference. The location at the Trump in Soho was very nice too. Congratulations to everyone on the planning committee.

If you are interested, the papers from the conference are posted here.

Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance topic. So, let's
Read more

Precious Tritium

Image
One thing I have learned as a customs lawyer who does a lot of classification work is that there are millions of odd items moving in international trade the existence of which I am completely ignorant. Such is the case of the gaseous tritium light sources used in, among other things, firearm sights. These things use tritium sealed in a glass that has been coated in phosphor. The radioactive tritium decays, releasing beta particles, which interact with the phosphor causing it to emit light. In other words, it creates light with no external power source. Pretty cool.  Tritium is, of course, a real thing. It is an isotope of hydrogen. We know this from the excellent documentary "Spider-Man." This comes up in relation to the Court of International Trade decision in Trijicon, Inc. v. United States  in which the importer challenged the tariff classification of several versions of the gaseous tritium light sources ("GTLS"). The plaintiff uses them to make gun sights. The
Read more