Slip Op. 23-129
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 21-00005
AM/NS CALVERT LLC,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 21-00015
CALIFORNIA STEEL INDUSTRIES, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 21-00027
VALBRUNA SLATER STAINLESS, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: M. Miller Baker, Judge
OPINION AND ORDER
[In three APA suits challenging Commerce’s denials of
Section 232 duty exclusions, the court (1) denies
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 2
Defendant’s motions to dismiss on mootness grounds
as to finally liquidated entries; (2) treats Defendant’s
alternative motions to dismiss for failure to state a
claim and for judgment on the pleadings as motions for
partial summary judgment as to such entries, which
the court denies; and (3) grants Defendant’s motions
for voluntary remand, subject to conditions.]
Dated: September 6, 2023
Ann C. Motto, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice of
Washington, DC, for Defendant in all three matters.
With her on the briefs were Brian M. Boynton, Acting
Assistant Attorney General; Jeanne E. Davidson, Di-
rector; Tara K. Hogan, Assistant Director; Stephen C.
Tosini, Senior Trial Counsel; and Kyle S. Beckrich,
Trial Attorney. Of counsel on the papers for Defendant
in all three matters was Kimberly Hsu, Office of Chief
Counsel for Industry & Security, U.S. Department of
Commerce of Washington, DC.
Paul C. Rosenthal, Kelley Drye & Warren LLP of
Washington, DC, for Plaintiff AM/NS Calvert LLC in
Court No. 21-00005. With him on the briefs were
R. Alan Luberda, Joshua Morey, and Julia A. Kuelzow.
Sanford Litvack, Chaffetz Lindsey LLP of New York,
NY, for Plaintiff California Steel Industries, Inc., in
Court No. 21-00015. With him on the briefs were An-
drew L. Poplinger, R. Matthew Burke, and Rebecca
Meyer.
Craig A. Lewis, Hogan Lovells US LLP of Washington,
DC, for Plaintiff Valbruna Slater Stainless, Inc., in
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 3
Court No. 21-00027. With him on the briefs were
H. Deen Kaplan, Maria A. Arboleda, Nicholas W.
Laneville, and Molly B. Newell.
Baker, Judge: Invoking this court’s residual juris-
diction, three domestic importers bring Administra-
tive Procedure Act challenges to the Department of
Commerce’s refusal to exclude certain steel products
from national security tariffs and seek court-ordered
refunds of duties that they paid. Defendant moves for
voluntary remand without confessing error, represent-
ing that the Department’s reconsideration might af-
ford Plaintiffs the relief they seek and make adjudica-
tion of their APA claims unnecessary.
Plaintiffs object, pointing to recent litigation in
which the government argued that no relief is availa-
ble as a matter of law for entries that have finally liq-
uidated. They explain that under the government’s
theory, remand would be pointless as to most of their
entries at issue, which so liquidated after Commerce
denied their exclusion requests.
To resolve that threshold issue, the court ordered
the parties to address whether any relief is available
as to Plaintiffs’ finally liquidated entries. In response,
the government argues that these cases are largely, if
not entirely, moot because the court lacks authority to
order reliquidation (refunds) as to such entries as a
matter of law or at least on these facts. The govern-
ment belatedly acknowledges that under its theory, re-
mand—whether voluntary without confessing error or
court-ordered after a finding of an APA violation—
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 4
would not provide any practical relief to Plaintiffs as
to their finally liquidated entries.
As explained below, Defendant’s challenge to the
court’s authority to order reliquidation is not a moot-
ness question but instead goes to the merits. Viewing
that challenge as a motion for partial summary judg-
ment, the court denies it. Upon a finding of unlawful
agency action in a case properly brought under the
CIT’s residual jurisdiction, the APA authorizes injunc-
tive relief requiring reliquidation of finally liquidated
entries because no “other statute . . . expressly or im-
pliedly forbids” such relief. 5 U.S.C. § 702. The govern-
ment also fails to show how ordinary equitable princi-
ples bar such relief here.
Finally, the court grants Defendant’s requested vol-
untary remands, subject to certain conditions. One of
them is that if Commerce issues the requested exclu-
sions, it must make Plaintiffs whole. To do so, the De-
partment must instruct U.S. Customs and Border Pro-
tection to honor the exclusions as to any entries that
had not finally liquidated when those requests were
originally denied. The court imposes this condition to
prevent Defendant from using voluntary remand to
dodge relief that Plaintiffs could obtain by successfully
litigating their APA claims.
I
A
Federal law requires Customs to classify all im-
ported merchandise under the Harmonized Tariff
Schedule of the United States (HTSUS), 19 U.S.C.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 5
§ 1202. See 19 U.S.C. § 1500(b) (requiring Customs to
“fix the final classification and rate of duty applicable
to [imported] merchandise”). Customs’s classification
“is critical because the applicable duty, or tariff, can
vary considerably depending on which HTSUS sub-
heading applies.” ARP Materials, Inc. v. United States,
520 F. Supp. 3d 1341, 1346 (CIT 2021), aff’d, 47 F.4th
1370 (Fed. Cir. 2022).
To assist Customs with classification, the regula-
tory scheme requires an importer to file a statement—
an “entry”—declaring the “value, classification[,] and
rate of duty applicable to the merchandise.” 19 U.S.C.
§ 1484(a)(1)(B). Concurrent with making an entry,
“the importer must deposit estimated duties and fees
with Customs” based on the information supplied in
the declaration. ARP, 520 F. Supp. 3d at 1347.
Later, “Customs ‘liquidates’ the entry to make a fi-
nal computation or ascertainment of duties owed on
that entry of merchandise.” Id. (cleaned up) (citing
19 C.F.R. § 159.1 and 19 U.S.C. § 1500). Liquidation is
a true-up process following which “Customs either col-
lects any additional amounts due, with interest, if the
importer’s deposit was lower than the final assess-
ment or refunds any excess deposit, with interest, if
the deposit was higher than the final assessment.” Id.
(citing 19 U.S.C. § 1505(b)).
If Customs does not liquidate an entry, liquidation
occurs after one year by operation of law. See 19 U.S.C.
§ 1504(a)(1) (providing that an entry “shall be deemed
liquidated at the rate of duty, value, quantity, and
amount of duties asserted by the importer of record”
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 6
unless, within one year of entry, Customs liquidates
the entry, or liquidation is either extended 1 or sus-
pended 2).
If an importer believes Customs erred in liquidat-
ing an entry or that a deemed liquidation was incor-
rect, the importer must file a protest within 180 days,
see 19 U.S.C. § 1514(c)(3)(A), or else lose the right to
challenge the liquidation results, see id. § 1514(a). As
used in this opinion, “finally liquidated” means a liq-
uidated entry that was not timely protested.
A timely “protest challenging classification may
lead to ‘reliquidation.’ ” ARP, 520 F. Supp. 3d at 1347.
“[R]eliquidation is the re-calculation [by Customs] of
the duties . . . accruing on an entry.” Shinyei Corp. of
Am. v. United States, 355 F.3d 1297, 1310 n.8 (Fed.
Cir. 2004) (cleaned up). If that re-calculation deter-
mines that the importer overpaid duties, Customs re-
funds them. See 19 U.S.C. § 1520(a)(1).
1 Customs may “extend the period in which to liquidate an
entry” in certain circumstances, including when an im-
porter “requests such extension and shows good cause
therefor.” 19 U.S.C. § 1504(b)(2); see also 19 C.F.R.
§ 159.12(a)(1)(ii) (providing that an importer shows “good
cause” for extending the liquidation period upon demon-
strating “that more time is needed to present to [Customs]
information which will affect the pending action, or there
is a similar question under review by [Customs]”).
2 Suspension stops the liquidation clock until “remov[ed]”
by the relevant agency or “a court with jurisdiction over the
entry.” 19 U.S.C. § 1504(d). Suspension occurs only when
“required by statute or court order.” Id.; see also 19 U.S.C.
§ 1504(a)(1) (same).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 7
On the other hand, if Customs denies a timely pro-
test, an importer’s only recourse is to timely bring an
action in this court. See 19 U.S.C. § 1514(a) (authoriz-
ing suit in the CIT to challenge protest denials);
28 U.S.C. § 2631(a) (same).
B
Section 232 of the Trade Expansion Act of 1962 au-
thorizes the President to restrict imports of goods “so
that such imports will not threaten to impair the na-
tional security.” 19 U.S.C. § 1862(c)(1)(A)(ii). The Pres-
ident exercised that authority in 2018 to impose a
25 percent tariff on imports of certain steel products.
See Proclamation 9705 of March 8, 2018, Adjusting
Imports of Steel into the United States, 83 Fed. Reg.
11,625 (Mar. 15, 2018).
Proclamation 9705 also directs the Secretary of
Commerce to exclude imports from the tariff if they
meet certain criteria. Id. at 11,627 cl. 3. Such relief
may be granted “only after a request for exclusion is
made by a directly affected party located in the United
States.” Id.
The President later amended Proclamation 9705 to
make granted exclusions retroactive to entries made
on or after “the date the request for exclusion was
posted for public comment.” Proclamation 9711 of
March 22, 2018, Adjusting Imports of Steel into the
United States, 83 Fed. Reg. 13,361, 13,364 cl. 7
(Mar. 28, 2018). He also amended Proclamation 9705
to make such retroactive relief available only for en-
tries “with respect to which liquidation is not final.”
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 8
Proclamation 9777 of August 29, 2018, Adjusting Im-
ports of Steel into the United States, 83 Fed. Reg.
45,025, 45,028 cl. 5 (Sept. 4, 2018).
Commerce duly issued an interim final rule allow-
ing U.S. importers to request an exclusion from Sec-
tion 232 duties for imports satisfying criteria set by
the President. Requirements for Submissions Request-
ing Exclusions from the Remedies Instituted in Presi-
dential Proclamations Adjusting Imports of Steel into
the United States and Adjusting Imports of Aluminum
into the United States; and the Filing of Objections to
Submitted Exclusion Requests for Steel and Alumi-
num, 83 Fed. Reg. 12,106, 12,110 (Dep’t Commerce
Mar. 19, 2018); see 15 C.F.R. Pt. 705, Supp. 1. When
the Department approves an exclusion request under
this rule, “[c]ompanies are able to receive retroactive
relief on granted requests dating back to the date of
the request’s submission on unliquidated entries.”
15 C.F.R. Pt. 705, Supp. 1 (h)(2)(iii)(A).
Exclusions are not self-executing, because Com-
merce “does not provide refunds on tariffs.” 15 C.F.R.
Pt. 705, Supp. 1 (h)(2)(iii)(B). Instead, the Department
assigns a product exclusion number, which an im-
porter can “rely” upon to seek relief from Customs ef-
fective five business days after the grant of an exclu-
sion. 15 C.F.R. Pt. 705, Supp. 1 (h)(2)(iii)(A).
Armed with an exclusion number, an importer
must “provide any information that may be required,
and in such form, as is deemed necessary by [Cus-
toms].” Proclamation 9705, Annex (U.S. Note 16(d)),
83 Fed. Reg. at 11,630 cl. 16(d); see 15 C.F.R. Pt. 705,
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 9
Supp. 1 (h)(3)(ii). This information enables Customs
“to determine whether an import is within the scope of
an approved exclusion request.” 15 C.F.R. Pt. 705,
Supp. 1 (h)(3)(ii).
Customs advises an importer with exclusion num-
bers to submit a post-summary correction 3 “to request
a refund on applicable previous imports of excluded
products,” so long as the relevant entry has not liqui-
dated. U.S. Customs and Border Protection, Cargo
Systems Messaging Service, 4 CSMS #18-000378—UP-
DATE: Submitting Imports of Products Excluded from
Duties on Imports of Steel or Alumin[um] (June 12,
2018). 5 “If the entry has already liquidated, importers
may protest the liquidation.” Id. Customs also ex-
plains that exclusions may be used only for “unliqui-
dated entries and for entries that are liquidated but
where the liquidation is not final and the protest
3 Customs explains that a post-summary correction allows
the importer “to electronically correct entry summaries
prior to liquidation.” U.S. Customs and Border Protection,
Post Summary Corrections, https://www.cbp.gov/trade/
programs-administration/entry-summary/post-summary-
correction. Thus, an importer that successfully obtains a
Section 232 exclusion from Commerce may submit a post-
summary correction to Customs amending the applicable
HTSUS heading assigned at entry.
4 According to the government, “[t]he CSMS is a messaging
system that [Customs] uses to inform subscribing members
of the trade community about technical news and updates
on [Customs]’s automated systems used to process mer-
chandise entered into the United States.” Case 21-5,
ECF 62, at 7 n.2.
5 https://content.govdelivery.com/accounts/USDHSCBP/bulletins/1f6cce3.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 10
period has not expired.” U.S. Customs and Border Pro-
tection, Cargo Systems Messaging Service, CSMS
#42566154—Section 232 and Section 301—Extensions
Requests, PSCs, and Protests (May 1, 2020). 6
Four features of this scheme are salient here. First,
Customs has a purely ministerial role except as to de-
termining whether a given entry “is within the scope
of an approved exclusion request.” 15 C.F.R. Pt. 705,
Supp. 1 (h)(3)(ii). Second, an importer cannot seek re-
lief from Customs for Section 232 duties until Com-
merce grants an exclusion, because the importer needs
an exclusion number to either present a post-summary
correction (as to unliquidated entries) or file a protest
(as to liquidated entries where the 180-day protest pe-
riod has not yet run). Third, after the Department de-
nies an exclusion request, an importer has no admin-
istrative means to prevent an entry’s liquidation from
becoming final pending litigation challenging that de-
nial. 7 Finally, Customs will not honor an exclusion as
6 https://content.govdelivery.com/accounts/USDHSCBP/bulletins/289820a.
7 Although Customs will extend the liquidation period at
an importer’s request for “good cause,” see above note 1, in
the context of litigation challenging duties imposed by the
United States Trade Representative under Section 301 of
the Trade Act of 1974, 19 U.S.C. § 2411(a)(1), Customs ad-
vised importers that “pending litigation . . . is not sufficient
to show good cause.” U.S. Customs and Border Protection,
Cargo Systems Messaging Service, CSMS #50264295—
Guidance for Liquidation Extension Requests and Protests
Based on Pending Section 301 Litigation In re Section 301
Cases, Court of International Trade No. 21-00052 (Dec. 2,
2021), https://content.govdelivery.com/accounts/USDHSCBP/bulletins/2fef8e7.
The government has not suggested that Customs would
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 11
to entries that have finally liquidated by the time an
importer seeks relief.
II
Plaintiffs, three domestic importers that paid Sec-
tion 232 tariffs, allege that Commerce violated the
APA in denying their exclusion requests by not consid-
ering relevant factors and evidence and by not provid-
ing adequate explanations for its decisions. See
Case 21-5, ECF 2, at 17–19 (Calvert); Case 21-15,
ECF 2, at 16–20 (California Steel); Case 21-27, ECF 4,
at 21–22 (Valbruna).
For relief, Plaintiffs seek either a declaration that
Commerce’s exclusion denials violated the APA and an
order requiring that Commerce instruct Customs to
refund the Section 232 tariffs covered by the exclu-
sions or a remand to the Department for further pro-
ceedings. See Case 21-5, ECF 2, at 19 (Calvert); Case
21-15, ECF 2, at 20 (California Steel); Case 21-27,
ECF 4, at 23 (Valbruna).
Soon after Plaintiffs brought these suits, the gov-
ernment moved for voluntary remands without con-
fessing error. Case 21-5, ECF 46; Case 21-15, ECF 44;
Case 21-27, ECF 30. Plaintiffs opposed. Case 21-5,
ECF 50; Case 21-15, ECF 47; Case 21-27, ECF 39.
apply any different policy in the context of litigation chal-
lenging Commerce’s denials of Section 232 exclusions. Cf.
19 C.F.R. § 159.51 (“Liquidation of entries shall not be sus-
pended simply because issues involved therein may be be-
fore the [CIT] in pending litigation, since the importer may
seek relief by protesting the entries after liquidation.”).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 12
They observed that the government recently reversed
its long-held position that in cases within the CIT’s re-
sidual jurisdiction, the court has authority to order re-
liquidation of finally liquidated entries. According to
Plaintiffs, if the government’s new theory is correct,
any remand for reconsideration would be futile as to
such entries. 8 They therefore asked the court to re-
solve that threshold question before entertaining the
government’s remand motions. See Case 21-5, ECF 50,
at 13–14 (Calvert); Case 21-15, ECF 47, at 26–27 (Cal-
ifornia Steel); Case 21-27, ECF 39, at 21–27 (Val-
bruna).
8 The extent to which the entries at issue have finally liq-
uidated is neither alleged in the pleadings nor indicated in
the agency record. According to admissions in Plaintiffs’
supplemental briefing, all of Calvert’s and California
Steel’s entries at issue have finally liquidated. See
Case 21-5, ECF 64 and ECF 70; Case 21-15, ECF 75. Many,
but not all, of Valbruna’s entries at issue have also finally
liquidated. See Case 21-27, ECF 68. It appears that most,
if not all, of Plaintiffs’ entries that are finally liquidated did
so after Commerce denied their exclusion requests.
Although in APA cases the court is ordinarily confined to
considering facts in the agency record, see Axiom Res.
Mgmt., Inc. v. United States, 564 F.3d 1374, 1379–80 (Fed.
Cir. 2009), Plaintiffs’ admissions bear on the relief that the
court may order and thus may be considered for that lim-
ited purpose. See CW Gov’t Travel, Inc. v. United States,
110 Fed. Cl. 462, 483–84 (2013) (explaining that in APA
cases “evidence [respecting relief] is admitted, not as a sup-
plement to the administrative record, but as part of this
court’s record” for purposes of determining whether equita-
ble relief is appropriate).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 13
The court then directed the government to address
whether injunctive relief is available as to finally liq-
uidated entries and whether remand serves any pur-
pose if such relief is not available. Case 21-5, ECF 51. 9
In response, the government asserted that “the rem-
edy of reliquidation is not available in these case[s] un-
der the relevant statutory framework.” ECF 54, at 6.
The government further suggested that it is “not
aware of what real-world value or practical benefit a
plaintiff might derive from a granted exclusion, in the
absence of any unliquidated entries that an importer
could seek to apply the exclusion against.” Id. at 20.
After an unsuccessful referral to mediation, the
court ordered the parties to address whether these
cases are moot as to Plaintiffs’ finally liquidated en-
tries. ECF 61. The government responded that such
claims are moot, see ECF 62, at 15, which Plaintiffs
disputed, see ECF 63. The court heard oral argument
and received supplemental briefing on the relevant im-
plications, if any, of Voestalpine USA Corp. v. United
States, 578 F. Supp. 3d 1263 (CIT 2022). See ECF 77
(Plaintiffs), ECF 78 (government).
III
Defendant’s supplemental briefing, which the court
treats as motions to dismiss for lack of subject-matter
jurisdiction, see USCIT R. 12(b)(1), or for failure to
9 For the rest of this opinion, citations to documents iden-
tical on all three dockets refer only to the filing in Case
21-5.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 14
state a claim and for judgment on the pleadings, 10 see
USCIT R. 12(b)(6), USCIT R. 12(c), in effect raises two
questions: Are these cases moot as to finally liquidated
entries? If not, do Plaintiffs state a cognizable claim
for injunctive relief for those entries?
A
“Subject-matter jurisdiction” is “the courts’ statu-
tory or constitutional power to adjudicate the case.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89
(1998) (emphasis in original); see also ARP, 520 F.
Supp. 3d at 1354 n.25 (quoting Umanzor v. Lambert,
782 F.2d 1299, 1301 n.2 (5th Cir. 1986) (Gee, J.)
(“Whether there exists an Article III case or contro-
versy, and thus Constitutional subject-matter jurisdic-
tion, is analytically distinct from whether the perti-
nent . . . statutes confer statutory subject-matter juris-
diction.”)).
Although the government only contests whether a
case or controversy within the meaning of Article III
exists as to Plaintiffs’ finally liquidated entries, see
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“There is
thus no case or controversy, and a suit becomes moot,
when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the
10 The parties consent to treating the government’s supple-
mental briefing as motions for judgment on the pleadings
under USCIT R. 12(c) in Cases 21-5 and 21-15, where the
government has answered, and as a motion to dismiss un-
der USCIT R. 12(b)(6) in Case 21-27, where the govern-
ment has not answered. See ECF 77, at 10 (Plaintiffs);
ECF 78, at 2 (government).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 15
outcome.”) (cleaned up), the court nevertheless has an
independent duty to assure itself that it also has stat-
utory subject-matter jurisdiction. See Gonzalez v. Tha-
ler, 565 U.S. 134, 141 (2012) (“When a requirement
goes to subject-matter jurisdiction, courts are obli-
gated to consider sua sponte issues that the parties
have disclaimed or have not presented.”). Before turn-
ing to mootness, the court first considers its statutory
jurisdiction, a question that also bears on the merits
for reasons explained below.
1
Plaintiffs’ complaints invoke 28 U.S.C. § 1581(i) for
statutory subject-matter jurisdiction. 11 See Case 21-5,
11 Section 1581(i) provides in relevant part:
(1) In addition to the jurisdiction conferred upon the
[CIT] by subsections (a)–(h) of this section and subject
to the exception set forth in subsection (j) of this sec-
tion, the [CIT] shall have exclusive jurisdiction of any
civil action commenced against the United States, its
agencies, or its officers, that arises out of any law of the
United States providing for—
(A) revenue from imports or tonnage;
(B) tariffs, duties, fees, or other taxes on the impor-
tation of merchandise for reasons other than the rais-
ing of revenue;
(C) embargoes or other quantitative restrictions on
the importation of merchandise for reasons other
than the protection of the public health or safety; or
(D) administration and enforcement with respect to
the matters referred to in subparagraphs (A) through
(C) of this paragraph and subsections (a)–(h) of this
section.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 16
ECF 2, at 6 (Calvert); Case 21-15, ECF 2, at 6 (Califor-
nia Steel); Case 21-27, ECF 4, at 7 (Valbruna). This
provision facially confers jurisdiction, as Plaintiffs as-
sert claims that arise from Section 232 national secu-
rity duties, which the President imposed “on the im-
portation of merchandise for reasons other than the
raising of revenue.” 28 U.S.C. § 1581(i)(1)(B).
Section 1581(i), however, “is a jurisdictional grant
of last resort.” ARP, 520 F. Supp. 3d at 1356. “When
relief is prospectively and realistically available under
another subsection of 1581, invocation of subsection (i)
is incorrect. Where another remedy is or could have
been available, the party asserting § 1581(i) jurisdic-
tion has the burden to show that the remedy would be
manifestly inadequate.” Sunpreme, Inc. v. United
States, 892 F.3d 1186, 1191 (Fed. Cir. 2018).
Thus, to determine whether § 1581(i) jurisdiction
exists, the court must first “consider whether jurisdic-
tion under a subsection other than § 1581(i) [is] avail-
able.” ARP, 520 F. Supp. 3d at 1356 (quoting Erwin
Hymer Grp. N. Am., Inc. v. United States, 930 F.3d
1370, 1375 (Fed. Cir. 2019)). If such jurisdiction is
available, the court must then “examine whether the
remedy provided under that subsection is ‘manifestly
inadequate.’ If the remedy is not manifestly inade-
quate, then jurisdiction under § 1581(i) is not proper.”
Id. (quoting Erwin Hymer Grp., 930 F.3d at 1375).
The only other arguable basis for jurisdiction in
these cases is § 1581(a), which gives the CIT “exclusive
jurisdiction of any civil action commenced to contest
the denial of a protest, in whole or in part, under
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 17
section 515 of the Tariff Act of 1930.” 28 U.S.C.
§ 1581(a). Section 515 (19 U.S.C. § 1515), in turn, pro-
vides for administrative review of protests of “deci-
sions of the Customs Service.” 19 U.S.C. § 1514(a).
“[J]urisdiction under § 1581(a) turns on whether
Plaintiffs challenge an ‘actual Customs decision’ for
purposes of 19 U.S.C. § 1514(a)(2), or instead chal-
lenge a decision of . . . something else.” ARP, 520 F.
Supp. 3d at 1358 (citation and parentheses omitted)
(quoting United States v. U.S. Shoe Corp., 523 U.S.
360, 365 (1998)).
To determine whether a plaintiff challenges an ac-
tual Customs decision, the court must “discern the par-
ticular agency action that is the source of the alleged
harm . . . . This determination depends upon the at-
tendant facts asserted in the pleadings.” Id. at 1358–
59 (cleaned up; emphasis in original) (quoting Hutchi-
son Quality Furniture, Inc. v. United States, 827 F.3d
1355, 1360 (Fed. Cir. 2016)).
The facts asserted in the pleadings establish that
Commerce’s exclusion denials are the source of the al-
leged harm. See, e.g., Case 21-5, ECF 2 ¶¶ 13, 14 (al-
leging that Commerce “denied each of Calvert’s exclu-
sion requests with cursory” analysis and that conse-
quently the company “has paid millions of dollars in
duties on imports . . . covered by the exclusion re-
quests”); Case 21-15, ECF 2 ¶ 3 (alleging that Com-
merce, “in complete disregard of the record evidence
and of its own regulations, denied each of” California
Steel’s exclusion requests, “causing [it] to pay tariffs it
should not have had to pay”); Case 21-27, ECF 4 ¶¶ 13,
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 18
14 (alleging that Commerce “summarily denied [Val-
bruna’s] exclusion requests with . . . identical cursory
language” causing the company “to pay nearly ten mil-
lion dollars in Section 232 duties”).
Protesting Customs’s liquidation of their entries
and challenging the denial of those protests in a
§ 1581(a) case would have been futile because the
agency had to follow Commerce’s instructions impos-
ing Section 232 duties. See Gilda Indus., Inc. v. United
States, 446 F.3d 1271, 1276 (Fed. Cir. 2006) (holding
that § 1581(a) jurisdiction was inadequate where Cus-
toms had no authority to overturn or disregard duties
imposed by the United States Trade Representative
because “Customs would have no authority to grant re-
lief in a protest action challenging the imposition of
the duty”). 12 The court therefore concludes that
§ 1581(a) jurisdiction was unavailable or was “mani-
festly inadequate,” such that § 1581(i) provides statu-
tory jurisdiction over Plaintiffs’ challenges to Com-
merce’s exclusion denials.
12 In ARP, by contrast, because the plaintiffs challenged
classification decisions by Customs at liquidation applying
Section 301 duties that Commerce’s exclusion grants ren-
dered invalid, § 1581(a) jurisdiction attached because those
decisions were protestable. See 520 F. Supp. 3d at 1360–61.
Similarly, in Environment One Corp. v. United States,
where a plaintiff challenged Customs’s classification deci-
sion that failed to apply a Section 301 exclusion, “the source
of Plaintiff’s harm” was “Customs’ classification decision
and Plaintiff’s path to relief [was] to challenge [that] deci-
sion through the protest procedure.” 627 F. Supp. 3d 1349,
1361 (CIT 2023).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 19
2
A case is moot “when it is impossible for a court to
grant any effectual relief whatever to the prevailing
party.” Chafin, 568 U.S. at 172 (quoting Knox v. Serv.
Emps., 567 U.S. 298, 307 (2012)). The government ar-
gues that Plaintiffs’ claims as to their finally liqui-
dated entries are moot because the court may not or-
der Commerce to instruct Customs to reliquidate those
entries. See ECF 62, at 3; see also id. at 15–45.
A case is not necessarily moot, however, simply be-
cause “the District Court lacks the authority to [grant
relief] either under [the statute creating the cause of
action] or pursuant to its inherent equitable powers.”
Chafin, 568 U.S. at 174. “[T]hat argument—which goes
to the meaning of the [statute creating the cause of ac-
tion] and the legal availability of a certain kind of re-
lief—confuses mootness with the merits.” Id. Unless a
claim for relief can “be dismissed as so implausible
that it is insufficient to preserve jurisdiction,” id. (cit-
ing Steel Co., 523 U.S. at 89), the “prospects of success
are . . . not pertinent to the mootness inquiry.” Id.
Here, the government does not—nor could it—char-
acterize Plaintiffs’ claim that the court may order
Commerce to instruct Customs to reliquidate their fi-
nally liquidated entries as “immaterial and made
solely for the purpose of obtaining jurisdiction or . . .
wholly insubstantial and frivolous.” Steel Co., 523 U.S.
at 89 (quoting Bell v. Hood, 327 U.S. 678, 682–83
(1946)). As explained below, there is substantial au-
thority—far more than necessary under the permis-
sive standard of Bell—that the court possesses such
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 20
authority under the APA in cases properly brought un-
der § 1581(i).
Whatever questions may exist as to the court’s au-
thority under the APA to order reliquidation as to fi-
nally liquidated entries, cf. In re Section 301 Cases,
524 F. Supp. 3d 1355, 1366 (CIT 2021) (stating that
the Federal Circuit “has raised doubts about the CIT’s
authority” to do so), they do not render a claim for such
relief so insubstantial as to deprive the court of its con-
stitutional jurisdiction. Cf. Voestalpine, 578 F.
Supp. 3d at 1275 (concluding that a challenge to “re-
liquidation as a form of relief” is a merits question that
should not be viewed “through the lens of mootness”).
The court therefore denies Defendant’s motions to dis-
miss Plaintiffs’ claims for injunctive relief as to finally
liquidated entries for lack of subject-matter jurisdic-
tion.
B
Because the government’s argument that relief is
unavailable as to finally liquidated entries implicates
the merits, the court turns to Defendant’s motions (so
construed) to dismiss for failure to state a claim under
USCIT R. 12(b)(6) and for judgment on the pleadings
under USCIT R. 12(c). Since the parties rely on undis-
puted admissions outside the pleadings that some or
all of Plaintiffs’ entries at issue have finally liquidated
in each of these cases, see above note 8, the court treats
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 21
the motions as being for partial summary judgment
under USCIT R. 56. 13
1
The government argues that the court lacks author-
ity to order Commerce to instruct Customs to reliqui-
date entries in all cases brought under this court’s re-
sidual § 1581(i) jurisdiction. See ECF 62, at 16–34. The
government asserts that the Federal Circuit’s opinion
in Shinyei recognizing the availability of such relief
was wrongly decided and that later circuit precedent
calls that decision into doubt. Essentially, the govern-
ment contends that Shinyei should be confined to its
facts pending its overruling by the Federal Circuit,
which the government plainly intends to seek. The
13 When the court considers whether to grant equitable re-
lief in an APA action, it does so de novo, and thus does not
sit as an appellate court as it does when it reviews agency
action. Cf. CW Gov’t Travel, 110 Fed. Cl. at 483–84. In that
context, USCIT R. 56 (governing summary judgment in de
novo proceedings) rather than USCIT R. 56.1 (governing
judgment on the agency record in APA proceedings) neces-
sarily applies to challenges to the court’s authority to grant
equitable relief. Because the parties have presented “mat-
ters outside the pleadings,” the court “must” treat the gov-
ernment’s motions for failure to state a claim and for judg-
ment on the pleadings as being for partial summary judg-
ment under USCIT R. 56. See USCIT R. 12(d); cf. Travel
All Over the World, Inc. v. Kingdom of Saudi Arabia,
73 F.3d 1423, 1430 & n.6 (7th Cir. 1996) (a district court
that relies on admissions outside the pleadings in consid-
ering a motion to dismiss must treat the motion as one for
summary judgment).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 22
court first examines Shinyei and then considers how
the court of appeals has since treated it.
a
According to the government, the “rule of finality of
liquidation is not limited to protestable [Customs] de-
cisions” under 19 U.S.C. § 1514(a). Id. at 18. Relying
on Zenith Radio Corp. v. United States, which held
that in a § 1581(c) 14 action challenging antidumping or
countervailing duties the “statutory scheme has no
provision permitting reliquidation,” 710 F.2d 806, 810
(Fed. Cir. 1983), the government contends that “reliq-
uidation generally should not be available in a success-
ful [APA] challenge under section 1581(i) either.”
ECF 62, at 20.
The government argues that the deemed liquida-
tion provisions of 19 U.S.C. § 1504(a)(1) “broadly
codif[y] the rule of finality with respect to liquidations”
because the statute “ ‘has no provision permitting re-
liquidation after . . . liquidation . . . .’ ” Id. at 21 (quot-
ing Zenith, 710 F.2d at 810). The government asserts
that given this “rule of finality” in § 1504(a)(1), “Con-
gress’[s] decision to codify the rule of finality” in
§§ 1514(a) (governing protests of decisions of Customs)
and 1516a (antidumping and countervailing duty
cases) “should not be interpreted as limiting the rule
of finality only to those circumstances.” Id. at 22 (em-
phasis in original). Based on this reading of the
14 This provision confers exclusive jurisdiction on the CIT
“of any civil action commenced under section 516A
[(19 U.S.C. § 1516a)] or 517 [(19 U.S.C. § 1517)] of the Tar-
iff Act of 1930.” 28 U.S.C. § 1581(c).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 23
statutory scheme, the government contends that the
Federal Circuit’s opinion in Shinyei, though binding,
was “wrongly decided.” Id. at 26.
Shinyei arose out of an administrative review of an
antidumping order in which Customs, at Commerce’s
erroneous direction, liquidated certain entries at a
higher rate than set in the Department’s final deter-
mination and approved by the CIT’s final judgment.
See 355 F.3d at 1303. Shinyei filed a § 1581(i) action
under the APA 15 alleging that Commerce’s instruc-
tions violated 19 U.S.C. § 1675(a)(2)(C) and seeking re-
liquidation at the correct rate. See 355 F.3d at 1305
(observing that Shinyei’s cause of action was brought
under APA § 702).
15 Section 1581(i) merely confers residual jurisdiction on
the CIT; it does not create a cause of action. As Shinyei rec-
ognized, see 355 F.3d at 1305, plaintiffs properly invoking
§ 1581(i) challenge agency action under the cause of action
created by the APA’s general statutory review provisions.
See 28 U.S.C. §§ 2631(i) (authorizing “any person adversely
affected or aggrieved by agency action within the meaning
of section 702 of title 5” to bring a “civil action” under the
CIT’s residual § 1581(i) jurisdiction), 2640(e) (requiring the
CIT to apply the standard of review in 5 U.S.C. § 706 in
civil actions brought under § 1581(i)); see also 5 U.S.C.
§§ 701–06; 33 Wright & Miller, Federal Practice & Proce-
dure § 8302 (2d ed. Apr. 2023 update); Delano Farms Co. v.
Cal. Table Grape Comm’n, 655 F.3d 1337, 1344 (Fed. Cir.
2011) (explaining that the APA, inter alia, “creates a right
of judicial review, even in the absence of a review-author-
izing statute, for ‘final agency action’ for which there is no
other adequate remedy in a court”).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 24
The government conceded statutory subject-matter
jurisdiction 16 but contended that no relief was availa-
ble under APA § 702 because section 516A of the Tariff
Act as construed in Zenith and the protest statute
(§ 1514) barred the CIT “from granting the requested
relief.” Id. at 1306; see also id. (quoting 5 U.S.C § 702,
which precludes relief “if any other statute that grants
consent to suit expressly or impliedly forbids the relief
which is sought”) (emphasis in original).
The court of appeals rejected the government’s Zen-
ith argument, reasoning that an action challenging
Commerce’s “instructions on the ground that they do
not correctly implement” the results of an administra-
tive review “is not an action defined under section
516A of the Tariff Act.” Id. at 1309 (quoting Consol.
16 The Federal Circuit observed that Shinyei properly in-
voked the CIT’s residual jurisdiction because the only other
arguable bases for jurisdiction, §§ 1581(a) and 1581(c),
were inapplicable. Commerce, not Customs, made the chal-
lenged decision (thus foreclosing § 1581(a) jurisdiction),
and that decision was not a “reviewable determination” un-
der the antidumping and countervailing duty statute, sec-
tion 516A of the Tariff Act (thereby precluding § 1581(c)
jurisdiction). Id. at 1304–05. The CIT’s residual jurisdic-
tion therefore attached because Shinyei’s challenge to
Commerce’s liquidation instructions was a challenge to
“administration and enforcement” of the Department’s fi-
nal results in an antidumping proceeding. Id. at 1305
(quoting 28 U.S.C. § 1581(i)(4) (now § 1581(i)(1)(D)). The
government did “not argue that jurisdiction under section
1581(i) was improper,” id., but rather that the CIT’s “juris-
diction . . . was divested by liquidation of the subject en-
tries,” id., i.e., moot for purposes of constitutional subject-
matter jurisdiction.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 25
Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed.
Cir. 2003)). “Section 516A is limited on its face to the
judicial review of ‘determinations’ in countervailing
duty and antidumping duty proceedings” and “pro-
vides the injunction and liquidation remedies” ad-
dressed in Zenith. Id. That statutory scheme was “in-
applicable” to Shinyei’s “APA challeng[e]” to “Com-
merce instructions as in violation of section
1675(a)(2)(C).” Id.
The Federal Circuit similarly dispatched the gov-
ernment’s reliance on the protest statute, reasoning
that no provision in the Tariff Act “provides that liqui-
dations are final except within the narrow confines of
section 1514; the statute’s discussion of finality relates
to decisions of Customs.” Id. at 1311. Because nothing
“in the statute or legislative history . . . would support
such a reading,” the court further rejected “the sugges-
tion that the statute’s silence as to reliquidation in the
context of Commerce error can be construed as a pro-
hibition of reliquidation in such cases.” Id. at 1311–12.
Indeed, the legislative history “suggest[ed] quite the
opposite.” Id. at 1311 n.9.
Moreover, reading an implied prohibition of court-
ordered reliquidation into the statute would conflict
with the CIT’s “broad remedial powers.” Id. at 1312. 17
It would also “preclude enforcement of court orders as
17 See 28 U.S.C. §§ 2643(c)(1) (as relevant here, authorizing
the CIT to “order any other form of relief that is appropri-
ate in a civil action”), 1585 (stating that the CIT “shall pos-
sess all the powers in law and equity of, or as conferred by
statute upon, a district court”).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 26
to duty determinations as soon as entries subject to
those orders had liquidated, even where liquidation”
failed to “implement[ ] the court[’s] determinations.”
355 F.3d at 1312.
In sum, the court of appeals held that “[b]ecause the
[Tariff Act] does not ‘impliedly forbid the [reliquida-
tion] relief which [Shinyei] sought’ under the APA, the
action is not moot.” Id. (brackets omitted and empha-
sis added) (quoting 5 U.S.C. § 702). The court re-
manded for the CIT to “reach the merits . . . to deter-
mine if Shinyei is indeed entitled to the requested re-
lief.” Id. 18
Shinyei thus turned on its reading of APA § 702,
which “generally waives the Federal Government’s im-
munity from a suit ‘seeking relief other than money
damages and stating a claim that an agency or an of-
ficer or employee thereof acted or failed to act in an
official capacity or under color of legal authority.’ ”
Match-E-Be-Nash-She-Wish Band of Pottawatomi In-
dians v. Patchak, 567 U.S. 209, 215 (2012) (quoting
5 U.S.C. § 702). But that “waiver of immunity . . . does
not apply ‘if any other statute that grants consent to
suit expressly or impliedly forbids the relief which is
sought’ by the plaintiff.” Id. (quoting 5 U.S.C. § 702).
Thus, plaintiffs may not “exploit[] the APA’s waiver to
18 The Federal Circuit later extended its reasoning in Shin-
yei to entries deemed liquidated under 19 U.S.C.
§ 1504(a)(1). See Shinyei Corp. of Am. v. United States, 524
F.3d 1274, 1284 (Fed. Cir. 2008) (“Nothing in the deemed-
liquidation statute forbids [reliquidation] relief on the facts
as alleged.”).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 27
evade limitations on suit contained in other statutes.”
Id.
Like Shinyei, Patchak sought relief under the APA,
alleging that the Interior Department’s decision to
take title to certain land in trust on behalf of an Indian
tribe violated the Indian Reorganization Act. Id. at
211–12. The government contended that another stat-
ute, the Quiet Title Act (QTA), barred such relief. The
QTA waives the government’s sovereign immunity for
suits “asserting a ‘right, title, or interest’ in real prop-
erty that conflicts with a ‘right, title, or interest’ the
United States claims.” Id. at 215 (quoting 28 U.S.C.
§ 2409a(d)). But it also contains an exception, one that
restored the government’s immunity as to “trust or In-
dian lands.” Id. (quoting § 2409a(a)). The government
argued that this exception “satisfie[d] the APA’s carve-
out [in § 702] and so forb[ade] Patchak’s suit.” Id.
The Supreme Court disagreed, reasoning that the
“QTA’s ‘Indian lands’ clause does not render the Gov-
ernment immune because the QTA addresses a kind of
grievance different from the one Patchak advances.”
Id. at 217; see also id. at 216 (“When a statute ‘is not
addressed to the type of grievance which the plaintiff
seeks to assert,’ then the statute cannot prevent an
APA suit.”) (quoting H.R. Rep. No. 94–1656, p. 28
(1976), 1976 U.S.C.C.A.N. 6121, 6148 (May 10, 1976,
letter of Asst. Atty. Gen. A. Scalia)). Patchak’s suit
“lack[ed] a defining feature of a QTA action” because
he did not seek to possess the land in question. Id. at
220. Because his suit was not a “disguise[d]” QTA ac-
tion, “the QTA’s limitation of remedies ha[d] no
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 28
bearing,” and the “APA’s general waiver of sovereign
immunity instead applie[d].” Id. at 220–21.
Patchak vindicates Shinyei’s reading of APA § 702.
Because neither section 516A of the Tariff Act,
19 U.S.C. § 1516a, nor the protest statute, id. § 1514,
is “addressed to the type of grievance” that Shinyei as-
serted—Commerce’s issuance of erroneous liquidation
instructions—the APA authorized an injunction re-
quiring the Department to instruct Customs to reliq-
uidate the company’s entries. 19 See 5 U.S.C. § 703 (au-
thorizing “mandatory injuncti[ve]” relief in APA ac-
tions); see also 33 Wright & Miller, Federal Practice
and Procedure § 8385 (2d ed. Apr. 2023 update)
(“Plaintiffs using the [APA’s] scheme of general statu-
tory review to challenge agency action commonly seek
19 Although the government did not argue in Shinyei, as it
does here, that the liquidation provisions of 19 U.S.C.
§ 1504 preclude court-ordered reliquidation in APA actions,
Patchak forecloses that argument. Unlike § 1516a, which
as Shinyei noted allows for “judicial review of ‘determina-
tions’ in countervailing duty and antidumping duty pro-
ceedings,” 355 F.3d at 1309, and § 1514, which provides for
administrative protests of decisions of Customs, § 1504
does not create a judicial or administrative remedy and
thus does not address any grievance. Cf. 5 U.S.C. § 702
(“Nothing herein . . . confers authority to grant relief if any
other statute that grants consent to suit expressly or im-
pliedly forbids the relief which is sought.”) (emphasis
added). Rather than authorizing a remedy—much less lim-
iting any such remedy—for any “grievance,” § 1504 is a
mere administrative housekeeping provision that ensures
that liquidation is not delayed indefinitely by any failure of
Customs to liquidate an entry.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 29
injunctive and/or declaratory relief, as authorized by
§ 703 of the APA.”).
Along with vindicating Shinyei, Patchak’s logic nec-
essarily means that in all cases properly brought un-
der this court’s residual jurisdiction, equitable relief,
including an injunction requiring reliquidation, is
available under the CIT’s “broad remedial powers.”
Shinyei, 355 F.3d at 1312. That’s because when a
plaintiff properly invokes the CIT’s § 1581(i) jurisdic-
tion, no other statute can be “addressed to the type of
grievance” for which the plaintiff seeks relief. Patchak,
567 U.S. at 216. 20 Contrary to the government’s argu-
ment, see ECF 62, at 35–36, an order requiring Com-
merce to instruct Customs to reliquidate a plaintiff’s
entries, is available “as a garden variety remedy” in
any case properly brought under § 1581(i). Cf. Wein-
berger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)
(“Unless a statute in so many words, or by a necessary
and inescapable inference, restricts the court’s juris-
diction in equity, the full scope of that jurisdiction is to
be recognized and applied.”) (quoting Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946)).
20 Even if another statute speaks to “the same type of griev-
ance the plaintiff asserts in his suit,” for the APA § 702
carve-out to apply the statute must “deal ‘in particularity’
with the claim” and “afford the ‘exclusive remedy’ for that
type of claim/grievance.” Cambranis v. Blinken, 994 F.3d
457, 463 (5th Cir. 2021) (citing Patchak, 567 U.S. at 216).
When a case is properly brought under the CIT’s residual
§ 1581(i) jurisdiction, these additional requirements are ir-
relevant because no other statute can be addressed to the
same type of grievance the plaintiff asserts.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 30
But to say that equitable relief is available under
the APA in all § 1581(i) cases does not mean that such
relief is available as of right. Instead, such relief is
subject to ordinary equitable principles, no more and
no less. See Webster v. Doe, 486 U.S. 592, 604–05
(1988) (observing that “traditional equitable princi-
ples” govern “equitable remedies sought” in APA
cases) (citing Romero-Barcelo); see also 3 Koch & Mur-
phy, Administrative Law & Practice § 8:31 (3d ed.
2020) (“[I]njunctive relief under the APA is controlled
by principles of equity . . . .”); Nat’l Wildlife Fed’n v.
Espy, 45 F.3d 1337, 1343 (9th Cir. 1995) (same); cf.
Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939)
(“[W]hile the court must act within the bounds of the
statute and without intruding upon the administra-
tive province, it may adjust its relief to the exigencies
of the case in accordance with the equitable principles
governing judicial action.”).
As explained above, Plaintiffs here properly in-
voked § 1581(i) jurisdiction, necessarily meaning that
no other statute is “addressed to the type of grievance”
they assert. Under Patchak and Shinyei, Plaintiffs
therefore state a claim under the APA for injunctive
relief requiring reliquidation, subject to ordinary equi-
table principles. The court considers those principles
below.
b
The government contends that three later Federal
Circuit decisions “confirm that the scope and applica-
tion of Shinyei is unclear.” ECF 62, at 29. The govern-
ment primarily relies on Ugine & Alz Belgium v.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 31
United States, 452 F.3d 1289 (Fed. Cir. 2006), an APA
case brought under the CIT’s residual § 1581(i) juris-
diction. There, the plaintiff sought a preliminary in-
junction to prevent Customs from liquidating entries
according to Commerce’s allegedly erroneous instruc-
tions. Id.
In response to the argument that preliminary relief
was unnecessary because Shinyei permitted reliquida-
tion, the Federal Circuit equivocated: “It is unclear . . .
whether the rule of Shinyei” applies when a plaintiff
asserts any APA claim other than “a violation of
19 U.S.C. § 1675(a)(2)(C) . . . .” Id. at 1296. The court
of appeals then contrasted Shinyei with the facts be-
fore it, where the plaintiffs “did not cite section
1675(a)(2)(C),” but rather asserted a different viola-
tion. Id. “The difference between the two cases—and
the possibility that Shinyei will not be interpreted to
encompass the sort of claim at issue here—raises
doubt whether [plaintiff] will have the opportunity to
obtain reliquidation once its entries are liquidated
. . . .” Id.
Because neither the CIT nor the plaintiff addressed
the issue of Shinyei relief, and because the govern-
ment would not take a position on its availability, the
Federal Circuit reversed the denial of a preliminary
injunction, reasoning that it was “not clear at this
juncture that Shinyei would provide an adequate vehi-
cle for [plaintiff] to litigate its claims before” the CIT.
Id. at 1297. Rather than decide the issue with less
than full briefing, the court reserved the question until
it could be “litigated by the parties and decided by the
trial court.” Id.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 32
As it did not reach the merits, Ugine does not call
into doubt the availability of Shinyei relief, properly
understood. Shinyei holds that in APA cases, equitable
relief is available to remedy unlawful agency action so
long as some other statute “does not ‘impliedly forbid’ ”
such relief. 355 F.3d at 1312 (brackets omitted) (quot-
ing 5 U.S.C. § 702). If the plaintiff in Ugine properly
invoked the CIT’s § 1581(i) jurisdiction—a question
the Federal Circuit did not address—no other statute
could have been “addressed to the type of grievance”
for which the plaintiff sought relief, Patchak, 567 U.S.
at 216, much less “impliedly forbid” such relief. 21 In
that case, reliquidation would have been available,
subject to the application of ordinary equitable princi-
ples. As the government would have it, Shinyei is on
life support, but Patchak instead confirms that Shin-
yei is alive and well. 22
21 Thus, the distinction between the alleged APA violations
in Shinyei and in Ugine is no more relevant than the dis-
tinction between the imports at issue in those two cases.
What matters under Shinyei is not the nature of the al-
leged APA violation, but whether any other statute “ ‘im-
pliedly forbid[s]’ ” reliquidation as a remedy for that viola-
tion. 355 F.3d at 1312 (quoting 5 U.S.C. § 702).
22 The government contends that American Signature, Inc.
v. United States, 598 F.3d 816 (Fed. Cir. 2010), and Su-
mecht NA, Inc. v. United States, 923 F.3d 1340 (Fed. Cir.
2019), also cast doubt on Shinyei. ECF 62, at 32–34. In
American Signature, a § 1581(i) case challenging liquida-
tion instructions, the Federal Circuit followed Ugine and
without any further explanation found that the “uncer-
tain[ty]” of Shinyei relief supported a finding of irreparable
harm for purposes of a preliminary injunction barring
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 33
2
The government further argues that “regardless of
Shinyei’s scope,” ECF 62, at 26, “its holding does not
extend to the facts presented in these cases for three
reasons,” id. at 34. The court considers each in turn.
a
The government first contends “that in light of Zen-
ith, ‘so-called Shinyei relief’ is best understood as relief
that is necessary to protect a judgment of this Court.”
Id. (citing Shinyei, 355 F.3d at 1312). “Alternatively,”
the government argues, “ ‘Shinyei relief’ could be un-
derstood as limited to circumstances where Commerce
issues liquidation instructions that are clearly incon-
sistent with its final determination.” Id. at 35 (citing
19 U.S.C. § 1675(a)(2)(C) and Ugine, 452 F.3d at 1296).
liquidation. 598 F.3d at 828–29. Like Ugine, American Sig-
nature simply declined to address the scope of Shinyei re-
lief. More importantly, Patchak eliminates any uncertainty
about such relief.
In Sumecht, the Federal Circuit observed that neither
Ugine nor American Signature “is a model of clarity for es-
tablishing when Shinyei relief may be unavailable in
§ 1581(i) actions . . . .” 923 F.3d at 1348. Even so, the court
did not read those two decisions “as creating a presumption
that, in the preliminary injunction context, Shinyei relief
is uncertain for purposes of irreparable harm in § 1581(i)
actions because such a presumption runs counter to Shin-
yei’s holding that the CIT has ‘broad remedial powers,’ in-
cluding the ability to order reliquidation.” Id. (quoting
Shinyei, 355 F.3d at 1312). If anything, Sumecht only rein-
forces Shinyei. In any event, Patchak supersedes the lack
of clarity in Ugine and American Signature.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 34
The government ignores Shinyei’s “reasoning—its
ratio decidendi—that allows it to have life and effect
in the disposition of future cases.” Ramos v. Louisiana,
140 S. Ct. 1390, 1404 (2020). Shinyei’s holding—that
ordering reliquidation to remedy Commerce’s errone-
ous liquidation instructions is “not barred by the stat-
ute, in particular sections 516A and 1514,” 355 F.3d at
1312, rests on its reading of APA § 702. Under that
provision, relief is available unless “any other statute
that grants consent to suit expressly or impliedly for-
bids the relief which is sought.” Id. at 1306 (emphasis
in original) (quoting 5 U.S.C. § 702); see also id. at 1312
(stating that the court’s holding was “[b]ecause the
statute does not ‘impliedly forbid[ ] the relief which is
sought’ under the APA”) (emphasis added, brackets in
original) (quoting 5 U.S.C. § 702). That reasoning ap-
plies with equal force here because, as Plaintiffs argue,
“Congress has not in any way constrained [the CIT]’s
ability to exercise its remedial powers” in any case
properly brought under the court’s residual § 1581(i)
jurisdiction. ECF 63, at 10.
b
Second, the government argues that “regardless of
Shinyei’s scope, the equitable relief afforded” in that
case “does not apply here.” ECF 62, at 37. Relying on
Mukand International, Ltd. v. United States, 412 F.
Supp. 2d 1312 (CIT 2005), aff’d, 502 F.3d 1366 (Fed.
Cir. 2007), the government asserts that Plaintiffs
should have filed these suits immediately after learn-
ing that Commerce denied their exclusion requests,
“and obtained injunctive relief against liquidation be-
fore Customs liquidated their entries.” ECF 62, at 39–
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 35
40 (brackets omitted) (quoting Mukand, 412 F. Supp.
2d at 1318). According to the government, Plaintiffs
needed to seek such preliminary relief because “there
is a ‘strong presumption against reliquidation of en-
tries.’ ” Id. at 40 (quoting Mukand, 412 F. Supp. 2d
at 1319). By not doing so, the government charges,
Plaintiffs slept on their rights. See id. at 40–41.
The court disagrees with Mukand’s suggestion that
in actions properly brought under § 1581(i) there is a
“presumption” against reliquidation of entries. 23 As
explained above, in such actions there is no statutory
limitation on the CIT’s authority to grant equitable re-
lief to remedy APA violations. The court may not apply
judicially divined presumptions to deny relief other-
wise authorized by the APA and consistent with ordi-
nary equitable principles. Cf. Grupo Mexicano de De-
sarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 322
(1999) (rejecting a judicially created “default rule” be-
yond “the broad boundaries of traditional equitable re-
lief”); Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 128 (2014) (“Just as a court cannot
apply its independent policy judgment to recognize a
cause of action that Congress has denied, it cannot
limit a cause of action that Congress has created
merely because ‘prudence’ dictates.”) (citation omit-
ted); Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.
23 The court observes that in affirming Mukand, the Fed-
eral Circuit did not endorse the proposition that there is
any “presumption” against reliquidation in actions pro-
perly brought under § 1581(i). See 502 F.3d 1366.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 36
663, 667 (2014) (“[C]ourts are not at liberty to jettison
Congress’s judgment . . . .”). 24
As explained above, injunctive relief under the APA
is subject to ordinary equitable principles, no more and
no less. See Romero-Barcelo, 456 U.S. at 313. The gov-
ernment makes no contention that Plaintiffs fail to
state a claim for such relief under those principles—
that (1) they will suffer an irreparable injury absent
reliquidation, i.e., loss of duties paid; (2) that Plaintiffs
have no adequate remedy at law for that loss; (3) that,
considering the balance of hardships between both
sides, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
injunction. See eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006) (outlining requirements for per-
manent injunctive relief).
Instead, in substance the government invokes—
though it shrinks from using the technical term—
laches, “a defense developed by courts of equity . . . .”
Petrella, 572 U.S. at 678. That defense, however, is not
a free-floating doctrine allowing us to deny at will eq-
uitable relief authorized by Congress by merely
24 In any event, Mukand is also distinguishable. In that
case, the plaintiff waited over a year to seek mandamus re-
lief after Commerce failed to issue a required scope deter-
mination in an administrative review, and the plaintiff
could have sought such relief earlier. See 502 F.3d at 1369.
Here, Plaintiffs do not seek mandamus relief, and as dis-
cussed below there was no alternative remedy available be-
cause in cases properly brought under the CIT’s § 1581(i)
jurisdiction, liquidation is not irreparable injury because of
the court’s authority to order reliquidation.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 37
pronouncing a plaintiff guilty of “sleeping on its rights”
or declaring such relief vaguely not “appropriate.” Cf.
28 U.S.C. § 2643(c)(1) (authorizing the CIT to award
“any other form of relief that is appropriate in a civil
action”) (emphasis added).
For this court to properly apply laches or otherwise
withhold injunctive relief as not “appropriate,” it must
ground its decision in the specific “requirements of eq-
uity practice with a background of several hundred
years of history.” Hecht Co. v. Bowles, 321 U.S. 321,
329 (1944); cf. Antonin Scalia, The Rule of Law as a
Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989)
(“Only by announcing rules do we hedge ourselves
in.”). In the case of the laches defense, those require-
ments mean satisfying its elements.
The first element of the laches defense is “delay by
the claimant” that is “unreasonable and unexcused.”
Cornetta v. United States, 851 F.2d 1372, 1377–78
(Fed. Cir. 1988). Plaintiffs have not unreasonably de-
layed, as seeking preliminary injunctive relief would
have been futile due to the absence of irreparable in-
jury. See Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary
injunction must establish,” inter alia, “that he is likely
to suffer irreparable harm in the absence of prelimi-
nary relief . . . .”). As explained above, Patchak’s logic
establishes that reliquidation is available in cases
properly brought under § 1581(i) if such relief adheres
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 38
to ordinary equitable principles. 25 Because “[t]he law
does not require a vain and useless thing,” McMicking
v. Schields, 238 U.S. 99, 103 (1915), Plaintiffs were not
required to first seek a preliminary injunction to pre-
vent liquidation from becoming final.
Even if the government had shown that Plaintiffs
had unreasonably delayed in seeking injunctive relief,
it would still have to demonstrate prejudice, the sec-
ond element of the laches defense. See Abbott Labs. v.
Gardner, 387 U.S. 136, 155 (1967) (stating in APA ac-
tion for declaratory and injunctive relief that “[t]he de-
fense of laches could be asserted if the Government is
prejudiced by a delay”), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977). “[T]he burden
of proving prejudice rests with the defendant.” Cor-
netta, 851 F.2d at 1380.
“There are two types of prejudice that may stem
from delay in filing suit.” Cornetta, 851 F.2d at 1378.
The first, “defense prejudice,” is some impairment to
the government’s ability to mount a defense. Id. The
second, “economic prejudice, centers on consequences,
primarily monetary, to the government should the
claimant prevail.” Id. Such prejudice “may arise where
25 As late as 2020, the government acknowledged that un-
der Shinyei, the CIT possesses the authority to order reliq-
uidation in § 1581(i) cases. See J. Conrad LTD v. United
States, 457 F. Supp. 3d 1365, 1379 (CIT 2020). In May
2021, however, the government for the first time an-
nounced it had “taken a close look at the issue of the avail-
ability of reliquidation under Shinyei” and reconsidered its
position. See In re Section 301 Cases, Case 21-52-3JP, ECF
304, at 36 (CIT May 14, 2021).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 39
a defendant and possibly others will suffer the loss of
monetary investments or incur damages which likely
would have been prevented by earlier suit.” A.C.
Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d
1020, 1033 (Fed. Cir. 1992) (en banc), abrogated on
other grounds by SCA Hygiene Prods. Aktiebolag v.
First Quality Baby Prods., LLC, 580 U.S. 328 (2017).
Because the government has not carried its burden of
showing either type of prejudice, its laches defense
fails even if Plaintiffs unreasonably delayed in seeking
injunctive relief.
c
Finally, the government contends that “an order di-
recting [Customs] to reliquidate entries is beyond the
scope of relief available in this cause of action.”
ECF 62, at 42. Although it acknowledges that the court
can require Commerce to reconsider Plaintiffs’ exclu-
sion requests, the government argues that so doing
would be of little practical value as to entries that have
finally liquidated. 26 The government explains that the
Department’s scheme for administering Section 232
only permits Customs to apply exclusions to entries
that have not so liquidated at the time an importer
seeks a refund, which the importer cannot seek until
Commerce grants an exclusion. See id. at 41–45; ECF
78, at 3–8. According to the government, because the
Department has structured its administrative scheme
26 Apart from Plaintiffs’ admissions, the government notes
that it believes that “most or all of the entries of merchan-
dise that are the subject of plaintiffs’ claims” had finally
liquidated when it sought remand. Id. at 14.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 40
this way, if the court remands after finding an APA
violation it is nevertheless powerless to also order
Commerce to direct Customs to apply any granted ex-
clusions to entries that have finally liquidated. ECF
62, at 41–45; ECF 78, at 3–8.
The government relies on Voestalpine, in which the
plaintiffs challenged Commerce’s grants of defective
Section 232 exclusions that Customs would not honor.
See 578 F. Supp. 3d at 1269–70, 1276. Even though the
Department nominally granted the requested exclu-
sions, they were worthless—the administrative equiv-
alent of bounced checks. By the time the plaintiffs de-
tected the errors and obtained corrected exclusions,
the entries in question had finally liquidated. Id. at
1266. Under Commerce’s administrative scheme, Cus-
toms would not apply the corrected exclusions to the
plaintiffs’ entries. Id. at 1277–78.
Voestalpine held that a court-ordered “remand to
[Commerce] is unnecessary” because the Department
“provided all the relief it could when it issued the re-
vised exclusions.” Id. at 1277. The court further held
that “court-ordered reliquidation” was not “an appro-
priate remedy.” Id. In so holding, the court distin-
guished Shinyei, reasoning that the plaintiff’s claim in
that case arose out of 19 U.S.C. § 1675(a)(2)(C). Id. at
1278 (citing Shinyei, 355 F.3d at 1303, 1306). By con-
trast, the Voestalpine plaintiffs’ “claims relate[d] to the
Section 232 exclusion process established by the Exec-
utive Branch.” Id. at 1277.
The court disagrees with Voestalpine. To repeat:
The relevant question under Shinyei is not whether a
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 41
plaintiff’s APA claim is founded on an alleged violation
of 19 U.S.C. § 1675(a)(2)(C), but instead whether some
other statute “ ‘impliedly forbid[s]’ ” the reliquidation
relief sought. Shinyei, 355 F.3d at 1312 (quoting 5
U.S.C. § 702); see also above note 21. In neither
Voestalpine nor Shinyei did any statute forbid the re-
lief sought, for as explained above, in any APA case
properly brought under this court’s residual § 1581(i)
jurisdiction, no other statute can be “addressed to the
type of grievance which the plaintiff seeks to assert.”
Patchak, 567 U.S. at 216.
Voestalpine further found that injunctive relief in
the form of an order requiring reliquidation was not
“appropriate,” 578 F. Supp. 3d at 1277, but failed to
tether that conclusion to the applicable equitable prin-
ciples governing such relief. See eBay, 547 U.S. at 391.
It appears to the court that injunctive relief was ap-
propriate in Voestalpine because (1) the plaintiffs
there were threatened with irreparable injury absent
reliquidation, i.e., loss of duties paid, see id.; (2) they
had no adequate remedy at law for that loss, see id.;
(3) considering the balance of hardships, a remedy in
equity was warranted, see id.; and (4) the public inter-
est would not have been disserved by such relief, see
id.
In short, injunctive relief was available to the
Voestalpine plaintiffs if Commerce’s issuance of defec-
tive exclusions violated the APA. 27 As Plaintiffs here
27 The court expresses no opinion on whether the Voestal-
pine plaintiffs stated a cognizable APA claim, especially
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 42
argue, see ECF 63, at 38, Commerce may not structure
its scheme to administer Section 232 exclusions to
thwart effectual judicial review of unlawful agency ac-
tion.
“[O]ur Government ‘has been emphatically termed
a government of laws, and not of men. It will certainly
cease to deserve this high appellation, if the laws fur-
nish no remedy for the violation of a vested legal
right.’ ” Franklin v. Gwinnett County Pub. Schs., 503
U.S. 60, 66 (1992) (quoting Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163 (1803) (Marshall, C.J.)). Thus,
“where legal rights have been invaded, and a federal
statute provides for a general right to sue for such in-
vasion, federal courts may use any available remedy to
make good the wrong done.” Id. (cleaned up, emphasis
added) (quoting Bell, 327 U.S. at 684). This presump-
tion is rebutted only when there is “clear direction to
the contrary by Congress.” Id. at 70–71.
In the APA context, that means that a district court
is “justified in fashioning equitable relief that would
ensure the vindication of plaintiffs’ rights.” Cobell v.
Norton, 240 F.3d 1081, 1108 (D.C. Cir. 2001); cf.
United States v. Morgan, 307 U.S. 183, 190–95 (1939)
(holding that after an agency takes new action follow-
ing a court challenge, a district court has the equitable
authority to make injured parties whole even if the
agency itself lacks authority to do so); Benten v. Kess-
ler, 799 F. Supp. 281, 291 (E.D.N.Y. 1992) (“In cases
given that their own negligence contributed to Commerce’s
issuance of the defective exclusions. See 578 F. Supp. 3d
at 1270.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 43
where administrative misuse of procedure has delayed
relief, the courts have the equitable power to order re-
lief tailored to the situation . . . .”) (citing Ford, 305
U.S. at 373).
Thus, if the court determines that the challenged
exclusion denials violated the APA, it may order Com-
merce—insofar as the Department issues any exclu-
sions on remand 28—to instruct Customs to make
Plaintiffs whole by restoring them to the positions they
28 “[M]ak[ing] good the wrong” does not ordinarily mean
“directing how [the agency] shall act” after its action is set
aside. Norton v. S. Utah Wilderness All., 542 U.S. 55, 64
(2004) (emphasis in original and quoting Attorney Gen-
eral’s Manual on the Administrative Procedure Act 108
(1947)). If agency action violates the APA, “the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
Here, any exercise of the court’s equitable powers to make
Plaintiffs whole depends on the Department granting the
exclusions upon reconsideration.
The principle that upon a finding of unlawful agency ac-
tion a court should remand for reconsideration has “limita-
tions.” Greene v. Babbitt, 943 F. Supp. 1278, 1287 (W.D.
Wash. 1996). Where it would serve no valid purpose, a
court “is not obligated to remand. Rather than subjecting
the party challenging the agency action to further abuse, it
may put an end to the matter by using its equitable powers
to fashion an appropriate remedy.” Id. at 1288. Thus, in
Voestalpine, Commerce’s issuance of corrected exclusions
meant that remand was pointless. If the CIT determined
the Department’s issuance of defective exclusions violated
the APA, see above note 27, the court could have ordered
Commerce to direct Customs to honor the corrected exclu-
sions without remanding.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 44
would have occupied had their original requests been
granted. 29 The court thus rejects the government’s
Voestalpine argument that even if Plaintiffs prevail on
their APA challenges, Commerce’s administrative
scheme renders the court helpless to “make good the
wrong.” Franklin, 503 U.S. at 66 (quoting Bell, 327
U.S. at 684).
IV
“Having reached the end of what seems like a long
front walk,” Steel Co., 523 U.S. at 102, the court finally
turns back to Defendant’s motions for voluntary re-
mand. In so moving “without confessing error,” Case
21-5, ECF 46, at 7, the government states that Com-
merce “proposes, on remand, to reconsider the exclu-
sion requests by engaging in new and independent re-
view,” id. at 8. In such a review, the Department “will
issue new determinations to either: (1) grant the re-
quests excluding some or all of these products from the
scope of the Section 232 measure on steel imports; or
(2) deny the exclusion requests.” Id. at 1–2.
29 Any relief the court might issue must be limited to en-
tries that had not finally liquidated by the fifth business
day following the Department’s denial of any given exclu-
sion—the first day Plaintiffs could have sought relief from
Customs if Commerce had granted their requests. See
15 C.F.R. Pt. 705, Supp. 1 (h)(2)(iii)(A). As described above,
even if the Department had issued the exclusions, under
the administrative scheme Customs would have denied re-
funds for entries that had finally liquidated before the im-
porter sought relief.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 45
The government offers three reasons for a volun-
tary remand. First, in JSW Steel (USA) Inc. v. United
States, the court reviewed an administrative record
the government characterizes as “similar in reasoning
and scope of analysis” to the records here and found
Commerce’s denial of exclusion requests to be “devoid
of explanation and [to] frustrate judicial review.” 466
F. Supp. 3d 1320, 1330 (CIT 2020); see also Case 21-5,
ECF 46, at 7 (government’s discussion of JSW). The
government states that “Commerce wishes to recon-
sider the exclusions and to provide additional reason-
ing or explanation, as necessary.” Case 21-5, ECF 46,
at 7.
Second, the government expresses concern that the
absence of documentation of Commerce’s ex parte com-
munications with interested parties means that “the
Court may . . . conclude that the existing record is in-
complete.” Id. at 7–8. The Department therefore pro-
poses to conduct “a new and independent review of a
record limited to: (1) the original exclusion request;
(2) the parties’ original objections, rebuttals[,] and sur-
rebuttals[;] and (3) any other information that the de-
cision-maker considers, which will be documented in
the record.” Id. at 8. The government contends that
such a procedure would mitigate any concern about
what materials the Department considered and any
claims that it relied on ex parte communications. Id.
Third, the government notes that because Plaintiffs
seek to overturn Commerce’s denials of their exclusion
requests, and on remand the Department might grant
some or all of those requests, “remanding for reconsid-
eration now essentially expedites relief that [the
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 46
plaintiffs] seek[ ] and may obviate the necessity for re-
mand (or, perhaps, any proceedings) later.” Id. at 9
(quoting Borusan Mannesmann Pipe U.S. Inc. v.
United States, Ct. No. 20-00012, Slip Op. 20-90, at 11,
2020 WL 3470104, at *4 (CIT June 25, 2020)).
When the government “request[s] a remand (with-
out confessing error) in order to reconsider its previous
position,” this court “has discretion over whether to re-
mand.” SKF USA Inc. v. United States, 254 F.3d 1022,
1029 (Fed. Cir. 2001). “A remand may be refused if the
agency’s request is frivolous or in bad faith. . . . Never-
theless, if the agency’s concern is substantial and le-
gitimate, a remand is usually appropriate.” Id.
Setting aside for the moment whether voluntary re-
mand on the government’s terms would deny Plaintiffs
any meaningful relief as to finally liquidated entries,
the government’s remand requests are otherwise “sub-
stantial and legitimate.” See Borusan, Slip Op. 20-90,
at 9, 2020 WL 3470104, at *4. Commerce points to the
need to provide additional explanation and the possi-
bility that its original decisions may have been influ-
enced by undocumented ex parte communications or
other extra-record considerations. Case 21-5, ECF 46,
at 7–8.
Plaintiffs, moreover, do not seriously dispute that
remand is inevitable even if they prevail. The ordinary
remedy for unlawful agency conduct is a remand for
reconsideration. See Hill Dermaceuticals, Inc. v. FDA,
709 F.3d 44, 46 n.1 (D.C. Cir. 2013) (per curiam) (“Usu-
ally, where a district court reviews agency action un-
der the APA, it acts as an appellate tribunal, so the
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 47
appropriate remedy for a violation is simply to identify
a legal error and then remand to the agency.”) (cleaned
up); see also above note 28. The court, at least at this
early stage where it has not previously remanded
these matters to the Department, therefore has no
power to affirmatively order Commerce to grant the
requested exclusions.
Thus, Plaintiffs’ primary objection to voluntary re-
mand is that it threatens to deny them any meaningful
relief as to finally liquidated entries, hence their re-
quest for the court to first address that question. As
the government belatedly admits, voluntary remand
on the terms it proposes would indeed prejudice Plain-
tiffs by denying them the real-world relief they seek as
to finally liquidated entries—refund of their Section
232 duties. Even if Commerce granted the exclusions
on voluntary remand, Customs would not honor them
as to finally liquidated entries. 30
That prejudice—denying Plaintiffs the real-world
relief that they could get from the court after
30 Following the Department’s grant of any exclusions on
unconditional voluntary remand, the court would appear to
be powerless to instruct Customs to honor those exclusions
as to finally liquidated entries, for at that point there would
be no legal “wrong” to “make good.” Franklin, 503 U.S. at
66 (quoting Bell, 327 U.S. at 684); cf. Hedges v. Dixon
County, 150 U.S. 182, 192 (1893) (“[E]quity follows the law
. . . .”); see also Toni M. Fine, Agency Requests for “Volun-
tary” Remand: A Proposal for the Development of Judicial
Standards, 28 Ariz. St. L.J. 1079, 1107 (1996) (observing
that a court forgoes any opportunity for “shaping actions
taken by the agency in the remanded proceedings . . . when
agency requests for remand are unqualifiedly ordered”).
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 48
prevailing on the merits—justifies denying remand on
the government’s requested terms. Cf. Lutheran
Church-Mo. Synod v. F.C.C., 141 F.3d 344, 349 (D.C.
Cir. 1998) (Silberman, J.) (denying voluntary remand
where the agency “has not confessed error” and pro-
posed agency action on remand would not grant relief
to plaintiff); Util. Solid Waste Activities Grp. v. Env’t
Prot. Agency, 901 F.3d 414, 436 (D.C. Cir. 2018) (stat-
ing that voluntary remand may be denied when it
“would unduly prejudice the non-moving party”); Lim-
nia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 386
(D.C. Cir. 2017) (Kavanaugh, J.) (noting that volun-
tary remand should not be granted when it “may in-
stead function . . . as a dismissal of a party’s [APA]
claims”); Joshua Revesz, Voluntary Remands: A Criti-
cal Reassessment, 70 Admin. L. Rev. 361, 365 (2018)
(“[V]oluntary remands—which give agencies carte
blanche to proceed without judicial supervision—are
an administrative law remedy uniquely at risk of
abuse.”).
Critically, however, the court’s remand to an
agency is an exercise of its equitable powers. See Ford,
305 U.S. at 373 (“The jurisdiction to review the orders
of [an agency] is vested in a court with equity powers
. . . .”); see also Keltner v. United States, 148 Fed. Cl.
552, 557 (2020) (“The early case law recognized that
the power of the courts to remand a challenged agency
action back to the agency for review was equitable in
nature.”). Cf. Ronald M Levin, “Vacation” at Sea: Ju-
dicial Remedies and Equitable Discretion in Adminis-
trative Law, 53 Duke L.J. 291, 323 (2003) (“For more
than sixty years, courts have drawn upon the tradi-
tions of equity to support a broad understanding of the
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 49
remedial powers of federal courts in administrative
law cases . . . .”).
As an exercise of its equitable powers, when re-
manding a court can “adjust its relief to the exigencies
of the case” to protect the interests of the agency in
reconsidering its position, the parties and the court in
judicial economy, and the plaintiffs in obtaining the
ultimate relief they seek. Ford, 305 U.S. at 373; cf.
Hecht, 321 U.S. at 329–30 (“The qualities of mercy and
practicality have made equity the instrument for nice
adjustment and reconciliation between the public in-
terest and private needs as well as between competing
private claims.”).
In this context, that flexibility allows the court to
condition remand on requiring Commerce, if it grants
any exclusions on reconsideration, to instruct Customs
to restore Plaintiffs to the same positions they would
have occupied had the Department originally granted
their requests, even if the relevant entries have since
finally liquidated. 31 Cf. Cook Inletkeeper v. U.S. EPA,
400 F. App’x 239, 241 (9th Cir. 2010) (granting volun-
tary remand with conditions). In doing so, the court
31 The court acknowledges that the predicate for imposing
this condition is its conclusion that if Plaintiffs prevailed
on the merits of their APA claims, the court could order
Commerce to require Customs to honor exclusions even for
entries that have finally liquidated since the Department
denied Plaintiffs’ requests. If the government’s contrary ar-
gument were correct, then the court could not impose such
a condition under its equitable powers, because Plaintiffs
would not suffer any prejudice from unconditional re-
mands.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 50
can ameliorate the prejudice Plaintiffs would other-
wise suffer from remands on the government’s pro-
posed terms.
Beyond Plaintiffs’ concern with being denied any ef-
fective remedy, they object to the duration of the gov-
ernment’s proposed remands. 32 They also seek to bar
agency officials involved in the Department’s chal-
lenged decisions from participating in reconsideration
of the exclusion requests.
“Absent constitutional constraints or extremely
compelling circumstances the administrative agencies
should be free to fashion their own rules of procedure
and to pursue methods of inquiry capable of permit-
ting them to discharge their multitudinous duties.” Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
Inc., 435 U.S. 519, 543 (1978) (cleaned up). “Accord-
ingly, absent such constraints or circumstances, courts
will defer to the judgment of an agency regarding the
development of the agency record. To do otherwise
would run the risk of propelling the courts into the do-
main which Congress has set aside exclusively for the
administrative agency.” PSC VSMPO-Avisma Corp. v.
United States, 688 F.3d 751, 760 (Fed. Cir. 2012)
(cleaned up) (citing Fed. Power Comm’n v. Transcon.
Gas Pipe Line Corp., 423 U.S. 326, 333 (1976)).
32 The government seeks 225 days in Calvert, see Case 21-5,
ECF 46, proposed order at 1–2; 250 to 325 days in Califor-
nia Steel, see Case 21-15, ECF 44, proposed order at 2; and
360 days in Valbruna, see Case 21-27, ECF 30, proposed
order at 2.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 51
Moreover, the presumptions of regularity and good
faith to which an administrative agency’s decision-
makers are entitled are not limited to retrospective re-
view of an agency’s original decision. “The possibility
that some individuals working on new determinations
may have worked on prior determinations in the same
case is not enough to overcome the presumption of a
decision-maker’s honesty and integrity.” NLMK Pa.,
LLC v. United States, 558 F. Supp. 3d 1401, 1406 (CIT
2022) (citing FTC v. Cement Inst., 333 U.S. 683, 700–
03 (1948)). Therefore, the court will not require the De-
partment to exclude certain officials from involvement
in reconsideration of Plaintiffs’ requests. Cf. id. at
1407 n.7 (“Plaintiff’s proposal seems to invite the court
to supervise and thus co-author the determination
with Commerce and then review that determination.
The court declines the invitation.”).
That said, at argument the court asked the govern-
ment’s counsel whether “you’re in agreement with re-
stricting and confining the record to the existing rec-
ord without expanding it.” Case 21-5, ECF 76, at 25:1–
4. Counsel did agree: “That’s right. Commerce has no
intention of reopening the record.” Id. at 25:5–6. The
court accepts that representation as sufficient to bind
Defendant.
Finally, the review period for new exclusion re-
quests is normally 106 days. 15 C.F.R. Pt. 705, Supp.
1(h)(3)(i). The government characterizes Commerce’s
efforts on remand as “engaging in a new and indepen-
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 52
dent review.” Case 21-5, ECF 46, at 8. 33 Taking the
government at its word, therefore, and given the gov-
ernment’s representation that Commerce will limit
the scope of the remand to the existing administrative
record, the court can see no reason why a “new and
independent review” should be subject to anything
other than the standard period prescribed by the reg-
ulations. Therefore, the court grants the Department
106 days to issue its remand determinations. 34
* * *
For the reasons explained above, the court DE-
NIES Defendant’s motions to dismiss Plaintiffs’
claims for injunctive relief as to finally liquidated
33 An agency has two options on remand. First, it may offer
a more complete explanation of the reasoning it employed
at the time of its action. “This route has important limita-
tions. When an agency’s initial explanation indicates the
determinative reason for the final action taken, the agency
may elaborate later on that reason (or reasons) but may not
provide new ones.” Dep’t of Homeland Sec. v. Regents of
Univ. of Cal., 140 S. Ct. 1891, 1907–08 (2020) (cleaned up).
Second, “the agency can deal with the problem afresh by
taking new agency action. An agency taking this route is
not limited to its prior reasons but must comply with the
procedural requirements for new agency action.” Id. at
1908 (emphasis in original) (cleaned up).
34 The government represents that concurrent with any re-
mand, the government will allow Plaintiffs to confer with
Customs as necessary to resolve HTSUS “administrability
issue[s]” in connection with certain requests by submitting
new HTSUS codes to Commerce. See Case 21-5, ECF 46, at
10; see also Case 21-27, ECF 30, at 11. The court therefore
also includes that condition in its remand order.
Ct. Nos. 21-00005, 21-00015, 21-00027 Page 53
entries for lack of jurisdiction, DENIES Defendant’s
motions for partial summary judgment as to those
claims, and GRANTS Defendant’s motions for volun-
tary remand, subject to the conditions outlined in a
separate judgment. See USCIT R. 58(a). 35
Dated: September 6, 2023 /s/ M. Miller Baker
New York, NY Judge
35 Although a remand is ordinarily interlocutory, the con-
dition that Plaintiffs be made whole if Commerce grants
their exclusion requests appears to render the court’s order
a “final decision” for purposes of 28 U.S.C. § 1295(a)(5). See
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).
As required by Rule 58(a), the court therefore enters the
remand order as a separate judgment.