Slip Op. 23-

UNITED STATES COURT OF INTERNATIONAL TRADE 

ROYAL BRUSH MANUFACTURING, 

INC., 

Plaintiff, 

v. 

UNITED STATES, 

 Defendant, 

and 

DIXON TICONDEROGA CO., 

 Defendant-Intervenor. 

Before: Mark A. Barnett, Chief Judge 

Court No. 19-00198 

OPINION 

[Dismissing this action for lack of subject-matter jurisdiction.] 

 Dated: December 15, 2023 

Ronald A. Oleynik, Holland & Knight LLP, of Washington, DC, for Plaintiff Royal Brush 

Manufacturing, Inc. 

Antonia R. Soares, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, of Washington, DC, for Defendant United States. With her 

on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, 

Patricia M. McCarthy, Director, and Claudia Burke, Deputy Director. Of counsel on the 

brief was Tamari J. Lagvilava, Senior Attorney, Office of the Chief Counsel, U.S. 

Customs and Border Protection, of Washington, DC. 

Felicia L. Nowels, Michael J. Larson, and Li X. Massie, Akerman LLP, of Tallahassee, 

FL, for Defendant-Intervenor Dixon Ticonderoga Co. 

Barnett, Chief Judge: This case concerns Plaintiff Royal Brush Manufacturing, 

Inc.’s (“Royal Brush”) challenge to U.S. Customs and Border Protection’s (“Customs” or 
Court No. 19-00198 Page 2 

“CBP”) affirmative determination of evasion of the antidumping duty order on certain 

cased pencils from the People’s Republic of China, issued pursuant to Customs’ 

authority under the Enforce and Protect Act (“EAPA”), 19 U.S.C. § 1517 (2018).1 The 

matter returns to the U.S. Court of International Trade (“CIT”) following the U.S. Court of 

Appeals for the Federal Circuit’s (“Federal Circuit”) decision vacating and remanding the 

case to this court. See Royal Brush Mfg., Inc. v. United States, 75 F.4th 1250, 1263 

(Fed. Cir. 2023) (“Royal Brush CAFC”);2 Mandate, ECF No. 83. The Federal Circuit 

“remand[ed] this case to the CIT with instructions to remand to CBP” for further 

proceedings consistent with the Federal Circuit’s decision. Royal Brush CAFC, 75 F.4th 

at 1263. For the following reasons, the court concludes that it lacks subject-matter 

jurisdiction and must dismiss the action. 

BACKGROUND

This court has issued two opinions summarizing the factual and procedural 

background in this case; familiarity with those opinions is presumed. See Royal Brush 

Mfg., Inc. v. United States (“Royal Brush I”), 44 CIT __, 483 F. Supp. 3d 1294 (2020); 

1 All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, 

and all references to the U.S. Code are to the 2018 edition unless otherwise specified. 

EAPA was enacted as part of the Trade Facilitation and Trade Enforcement Act of 

2015, Pub. L. No. 114–125, § 421, 130 Stat. 122, 161 (2016). “Evasion” is defined as 

“entering covered merchandise into the customs territory of the United States by means 

of any document or electronically transmitted data or information, written or oral 

statement, or act that is material and false, or any omission that is material, and that 

results in any cash deposit or other security or any amount of applicable antidumping or 

countervailing duties being reduced or not being applied with respect to the 

merchandise.” 19 U.S.C. § 1517(a)(5)(A). 

2 The Federal Circuit issued its decision on July 27, 2023, and entered judgment on 

August 1, 2023. Op. & J., Royal Brush Mfg., Inc. v. United States, Fed. Cir. 2022-1226 

(July 27, 2023 & Aug. 1, 2023), ECF Nos. 77–78. 
Court No. 19-00198 Page 3 

Royal Brush Mfg., Inc. v. United States (“Royal Brush II”), 45 CIT __, 545 F. Supp. 3d 

1357 (2021), vacated, 75 F.4th 1250. The court summarizes herein the factual and 

procedural background relevant to this opinion.3

Royal Brush is a U.S. importer of pencils exported by a company located in the 

Republic of the Philippines (“the Philippines”). Royal Brush I, 483 F. Supp. 3d at 1298. 

“On March 27, 2018, CBP initiated an investigation in EAPA Case No. 7238.” Id. (citing 

Initiation of Investigation in EAPA Case No. 7238 (Mar. 27, 2018), CR 4, PR 5, ECF No. 

24-1). CBP informed Royal Brush that “the entries covered by this investigation are 

those that were entered for consumption, or withdrawn from a warehouse for 

consumption, from March 6, 2017 through the pendency of this investigation.” Id. at 

1298–99 (quoting Notice of Initiation of Investigation and Interim Measures (June 26, 

2018) (“Initiation Notice”) at 1, CR 8, PR 14, ECF No. 24-1).4 CBP further stated that it 

had “suspended liquidation for any entries that entered on or after March 27, 2018, the 

date of initiation of this investigation, and extended liquidation for all unliquidated entries 

that entered before March 27, 2018.” Id. at 1299 (citing Initiation Notice at 6). Section 

1517(e)(1) provides statutory authority for CBP to impose the “interim measure[]” of 

suspension or extension of liquidation after finding “a reasonable suspicion” that the 

3 The administrative record for the underlying proceeding is contained in a Confidential 

Administrative Record (“CR”), ECF Nos. 24-1 through 24-19, and a Public 

Administrative Record (“PR”), ECF Nos. 23-1 through 23-3. 

4 Pursuant to 19 C.F.R. § 165.2, subject entries “are those entries of allegedly covered 

merchandise made within one year before the receipt of an allegation,” but, “at its 

discretion, CBP may investigate other entries of such covered merchandise.” 
Court No. 19-00198 Page 4 

entries covered by the period of investigation were made through evasion. 19 U.S.C. 

§ 1517(e)(1). 

On May 6, 2019, CBP issued a determination in which the agency concluded that 

the subject imports “entered through evasion.” Notice of Final Determination as to 

Evasion, EAPA Case No. 7238 (May 6, 2019) at 5, CR 131, PR 57, ECF No. 24-19. 

Royal Brush requested and obtained an administrative review of that determination. 

Decision on Request for Admin. Review, EAPA Case No. 7238 (Sept. 24, 2019) (“Sept. 

24 Determination”), PR 64, ECF No. 23-3; see also 19 U.S.C. § 1517(f) (providing for de 

novo administrative review of an initial determination). CBP affirmed its initial 

affirmative determination. Sept. 24 Determination at 11. 

On November 6, 2019, Royal Brush commenced this case seeking judicial 

review of CBP’s determination. Summons, ECF No. 1; Compl., ECF No. 2. On 

November 27, 2019, the court granted Royal Brush’s consent motion for a preliminary 

injunction barring CBP from liquidating “any and all unliquidated entries of cased 

pencils” imported by Royal Brush “from [the Philippines] that were . . . subject to [CBP’s 

evasion determination in EAPA Case No. 7238]” and were “entered, or withdrawn from 

warehouse, for consumption on or after March 6, 2017, up to and including the date a 

final and conclusive court decision, including all appeals and remand proceedings, is 

issued” and which “remain unliquidated as of 5:00 p.m. on the day the Court enters the 

order enjoining liquidation on the docket of this action.” Order (Nov. 27, 2019), ECF No. 

13. On December 10, 2019, the court granted the consent motion to intervene as a 
Court No. 19-00198 Page 5 

defendant-intervenor filed by Dixon Ticonderoga Company (“Dixon”). Order (Dec. 10, 

2019), ECF No. 19. 

After addressing Royal Brush’s claims, the court sustained CBP’s affirmative 

determination as modified on remand and entered judgment. See Royal Brush II, 545 

F. Supp. 3d at 1374; J., ECF No. 73. Royal Brush appealed to the Federal Circuit. 

Notice of Appeal, ECF No. 74. 

While the case was on appeal, the Government informed the Federal Circuit that 

CBP had liquidated all five Royal Brush entries subject to the evasion determination. 

Royal Brush CAFC, 75 F.4th at 1255. All liquidations occurred before this court entered 

the preliminary injunction referenced above, and CBP assessed antidumping duties on 

two of the five entries. Id. The other three entries were liquidated without antidumping 

duties. Id. The Government sought dismissal of the action for lack of subject-matter 

jurisdiction because Royal Brush had failed to protest the liquidations, rendering those 

liquidations “final and conclusive” pursuant to 19 U.S.C. § 1514(a). Id. 

The Federal Circuit disagreed. The appellate court noted that the EAPA “statute 

does not require a liquidation protest as a condition of review,” and that with respect to 

the three entries liquidated without the assessment of duties (referred to herein as the 

“duty-free entries”), “Royal Brush had nothing to protest . . . because Royal Brush was 

not assessed any antidumping duties.” Id. at 1256. The Federal Circuit concluded that, 

“[a]t least as to [the duty-free entries] it is clear that the case is not moot” because “CBP 

might successfully seek reliquidation of the entries” and “the evasion determination 

makes Royal Brush potentially liable for civil penalties” pursuant to 19 U.S.C. 
Court No. 19-00198 Page 6 

§ 1517(h).5 Id. (observing further that “[t]he [G]overnment has given no indication that it 

intends to forgo these remedies”). 

For the two entries liquidated inclusive of duties (referred to herein as the “dutyassessed entries”), the Federal Circuit stated that it “need not determine for purposes of 

this case what remedies Royal Brush may have to recover the assessed duties . . . 

since Royal Brush, in this case, has not sought such relief.” Id. at 1256–57. After 

finding that the case was not moot at least as to some of the entries, the appellate court 

addressed Royal Brush’s claims and subsequently reversed this court’s holdings with 

instructions to remand the matter to CBP. Id. at 1257–63.6

Royal Brush CAFC thus establishes that when CBP erroneously liquidates 

entries for which suspension applies pending an EAPA determination, filing a protest is 

not a precondition to obtaining judicial review of an evasion determination and that 

liquidation exclusive of potential duties does not moot the action when further 

5 Section 1517(h) provides a “rule of construction” that no evasion determination issued 

pursuant to 19 U.S.C. § 1517 “shall preclude any individual or entity from proceeding, or 

otherwise affect or limit the authority of any individual or entity to proceed, with any civil, 

criminal, or administrative investigation or proceeding pursuant to any other provision of 

Federal or State law, including sections 1592 of this title and 1595a of this title.” 19 

U.S.C. § 1517(h). Section 1517(d) further permits CBP, upon making an affirmative 

evasion determination, to “take such additional enforcement measures as the 

Commissioner determines appropriate, such as--(i) initiating proceedings under section 

1592 or 1595a of this title.” Id. § 1517(d)(1)(E)(i). 

6 The Federal Circuit concluded that the absence of a statute or regulation authorizing 

CBP to establish a procedure concerning the issuance of administrative protective 

orders for purposes of providing Royal Brush with business proprietary information did 

not mean that such disclosure was barred by the Trade Secrets Act, 18 U.S.C. § 1905, 

when, as in this case, the “release of information is ‘authorized by law’ within the 

meaning of the Trade Secrets Act if that release is required as a matter of constitutional 

due process,” Royal Brush CAFC, 75 F.4th at 1260. The court also concluded that 

CBP’s verification report contained new factual information that Royal Brush had the 

right to rebut. Id. at 1262. 
Court No. 19-00198 Page 7 

government action in reliance on the evasion determination remains available. Royal 

Brush CAFC did not, however, decide whether failure to protest a liquidation inclusive of 

potential duties precludes an importer from obtaining a refund of those duties. 

Prior to issuing a remand order, the court posed a series of questions to the 

parties “in order to determine how best to proceed in this case.” Order (Nov. 3, 2023) 

(“Nov. 3 Order”), ECF No. 86. It is well established that “courts . . . have an 

independent obligation to determine whether subject-matter jurisdiction exists, even in 

the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 

(2006). The reason for this is clear: “if the . . . court lack[s] jurisdiction, many months of 

work on the part of the attorneys and the court may be wasted.” ECC Int’l Constructors, 

LLC v. Sec’y of Army, 79 F.4th 1364, 1368 (Fed. Cir. 2023) (quoting Henderson ex rel. 

Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). In order to assess whether the 

bases for jurisdiction found by the Federal Circuit continue to exist, the court requested 

the parties to address whether: 1) 19 U.S.C. § 1501—or any other legal provision—

authorizes CBP to reliquidate the duty-free entries, Nov. 3 Order at 1–2; 2) the 

Government intends to seek civil penalties pursuant to 19 U.S.C. § 1592 on any of the 

entries, id. at 2; 3) Royal Brush intends to seek refunds in connection with the dutyinclusive entries and, if so, the legal basis for reliquidation “absent a protest and in light 

of 19 U.S.C. § 1514(a), the Federal Circuit’s decisions in SKF USA, Inc. v. United 

States, 512 F.3d 1326 (Fed. Cir. 2008), and Zenith Radio Corp. v. United States, 710 

F.2d 806 (Fed. Cir. 1983), and this court’s exercise of jurisdiction pursuant to 28 U.S.C. 

§ 1581(c),” id. at 2; and 4) the court should stay this case “pending the Federal Circuit’s 
Court No. 19-00198 Page 8 

resolution of this question in All One God Faith, Inc. v. United States, [Fed. Cir.] Court 

No. 23-1078,” id. at 2–3. 

Parties filed their responses to the court’s questions and replies to the response 

filings of other parties. Pl.’s Resp. to Ct.’s Order of Nov. 3, 2023 (“Pl.’s Resp.”), ECF 

No. 89; Def.’s Resps. to the Ct.’s Nov. 3, 2023 Questions (“Def.’s Resp.”), ECF No. 91; 

Def.-Int.’s Resp. to Ct.’s Order of Nov. 3, 2023 (“Def.-Int.’s Resp.”), ECF No. 90; Pl.’s 

Reply to Def.’s Resps. to Ct.’s Order of Nov. 3, 2023 (“Pl.’s Reply”), ECF No. 92; Def.-

Int.’s Reply to Resps. to Ct.’s Order of Nov. 3, 2023 (“Def.-Int.’s Reply”), ECF No. 93; 

Def.’s Resps. to the Parties’ Submission Pursuant to the Ct.’s Nov. 3, 2023 Order 

(“Def.’s Reply”), ECF No. 94. 

JURISDICTION

To adjudicate a case, a court must have subject-matter jurisdiction over the 

claims presented. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 

(1998). Royal Brush bears the burden of establishing subject-matter jurisdiction. See 

Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). “[W]hen 

a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be 

dismissed in its entirety.” Arbaugh, 546 U.S. at 514. 

While the court has statutory jurisdiction pursuant to 28 U.S.C. § 1581(c) to 

review CBP’s evasion determination, Article III of the U.S. Constitution limits the court to 

resolving “legal questions only in the context of actual ‘Cases’ or ‘Controversies.’” 

Alvarez v. Smith, 558 U.S. 87, 92 (2009) (quoting U.S. Const. art. III, § 2). Thus, “[i]f an 

event occurs while a case is pending on appeal that makes it impossible for the court to 

grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed 
Court No. 19-00198 Page 9 

as moot.” Nasatka v. Delta Sci. Corp., 58 F.3d 1578, 1580 (Fed. Cir. 1995) (quoting 

Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). “Mootness is a 

jurisdictional question because the [c]ourt is not empowered to decide moot questions 

or abstract propositions.” North Carolina v. Rice 404 U.S. 244, 246 (1971) (citations 

omitted). 

DISCUSSION

I. Duty-Free Entries 

With respect to the duty-free entries, the Federal Circuit relied on “the possibility 

that CBP might successfully seek reliquidation of the entries” and on the possibility of 

civil penalties to find that the case was not moot. Royal Brush CAFC, 75 F.4th at 1256. 

However, those remedies are not, or are no longer, available to the Government 

regardless of any possible affirmative evasion determination by CBP in another remand 

proceeding. 

Royal Brush imported each of the duty-free entries respectively on March 27, 

2017, August 8, 2017, and April 24, 2018. Def.’s Resp. at 2. The corresponding dates 

of liquidation are January 19, 2018, June 8, 2018, and January 4, 2019, respectively. 

See id. at 1.7 

Notwithstanding CBP’s failure to adhere to the statutory suspension of liquidation 

pursuant to 19 U.S.C. § 1517(e)(1), section 1500 of that title directs CBP to make 

7 The Government included a table with dates of entry and liquidation in the motion to 

dismiss filed at the Federal Circuit. See Def.-Appellee the United States’ Mot. to 

Dismiss for Lack of Jurisdiction, Royal Brush Mfg., Inc. v. United States, Fed. Cir. 2022-

1226 (Jan. 12, 2023), ECF No. 62-1 (“Def.’s Mot. to Dismiss (CAFC)”). The court has 

reviewed that filing to determine the dates of entry and liquidation that correspond to the 

duty-free and duty-assessed entries. 
Court No. 19-00198 Page 10 

certain decisions regarding appraisement and classification, to liquidate an entry, and to 

provide notice to the importer. 19 U.S.C. § 1500. Following “[a] liquidation made in 

accordance with section 1500,” CBP has 90 days from the date of liquidation to 

reliquidate an entry. 19 U.S.C. § 1501. The Government concedes that, because of the 

passage of time, “CBP has no legal basis to voluntarily reliquidate these entries under 

19 U.S.C. § 1501.” Def.’s Resp. at 1. The Government further states that it “is unaware 

of any other available legal basis for CBP to seek reliquidation” and, thus, that “CBP 

does not intend to seek reliquidation of the three entries.” Id.; see also Def.’s Reply at 

1.8 Royal Brush and Dixon agree that voluntary reliquidation is no longer available. 

Pl.’s Resp. at 2; Def.-Int.’s Resp. at 1. 

The inquiry does not end there. Dixon avers that 28 U.S.C. § 2643(c)(1) 

provides a basis for CBP to reliquidate the duty-free entries. Def.-Int.’s Resp. at 2. 

Section 2643 permits the CIT, with certain exceptions that are not relevant here, to 

“order any other form of relief” in addition to the relief listed in subsections (a) and (b) 

“that is appropriate in a civil action, including, but not limited to, declaratory judgments, 

orders of remand, injunctions, and writs of mandamus and prohibition.” 28 U.S.C. 

§ 2643(c)(1). 

The Government makes no claim for reliquidation pursuant to section 2643. 

Furthermore, while the court has construed this provision to provide for reliquidation in 

8 CBP’s regulations state that, “[f]or entries of covered merchandise that are already 

liquidated when an affirmative determination is made as to evasion under § 165.27, 

CBP will initiate or continue any appropriate actions separate from this proceeding.” 19 

C.F.R. § 165.28(a) (emphasis added). The regulation does not provide CBP with 

authority to circumvent the statutory constraints on reliquidation. 
Court No. 19-00198 Page 11 

some circumstances in a case arising under 28 U.S.C. § 1581(i), see, e.g., Shinyei 

Corp. of Am. v. United States, 355 F.3d 1297, 1312 (Fed. Cir. 2004),9 the court has not 

interpreted the statute to authorize reliquidation in a case arising under 28 U.S.C. 

§ 1581(c)—in a manner favorable to the Government or otherwise.10 That is because 

section 1514 provides that “decisions of the Customs Service” as to “the classification 

and rate and amount of duties chargeable,” “shall be final and conclusive upon all 

persons (including the United States and any officer thereof) unless a protest is filed in 

accordance with this section.” 19 U.S.C. § 1514(a)(2) (emphasis added). While the 

voluntary reliquidation provision of 19 U.S.C. § 1501 constitutes an exception to the rule 

of finality set forth in 19 U.S.C. § 1514, sections 1514 and 1501 together indicate that 

Congress intended for liquidation to become final with respect to the Government and 

9 Shinyei addressed a challenge to a set of erroneous U.S. Department of Commerce 

(“Commerce”) instructions carried out by CBP, a challenge that the plaintiff was unable 

to bring pursuant to 28 U.S.C. § 1581(a) or (c). 355 F.3d at 1304. 

10 One exception to this rule arises when liquidation occurs in violation of a courtordered injunction suspending liquidation. See, e.g., Agro Dutch Indus. Ltd. v. United 

States, 589 F.3d 1187, 1192 (Fed. Cir. 2009). In Agro Dutch, CBP liquidated the 

subject entries after the court entered an injunction but before the injunction went into 

effect five days after it was issued. Id. at 1189. The liquidations came to light after the 

CIT entered judgment in the case, and the court thereafter granted the plaintiff’s motion 

to amend the judgment to require CBP to reliquidate the entries at the lower rate 

obtained in the litigation by bringing forward the effective date of the injunction. See id.

at 1189–90. The Federal Circuit affirmed the CIT’s order to reliquidate the entries 

based, in part, on effectuating the intent of the parties and the court. See id. at 1193–

94. The appellate court contrasted its decision in SKF USA, Inc. v. United States, 512 

F.3d 1326 (Fed. Cir. 2008) (per curiam), in which the court concluded that mootness 

foreclosed jurisdiction when the subject entries liquidated by operation of law before the 

CIT enjoined liquidation. See id. at 1191 (discussing SKF, 512 F.3d at 1328, 1332). 

Here, the liquidations predate the court’s injunction, placing this case within the holding 

of SKF, not Agro Dutch. 
Court No. 19-00198 Page 12 

with respect to importers or others with statutory standing to file protests while providing 

for a limited amount of time for CBP to correct its errors. 

Just as importers are held to the statutory constraints on relief from erroneous 

liquidations, discussed further in the next section, so too is the Government.11 Cf. Nat’l 

Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1560 (Fed. Cir. 1988) (in a case in which 

the CIT erroneously assumed jurisdiction pursuant to 28 U.S.C. § 1581(i) instead of 28 

U.S.C. § 1581(b), finding that the finality of liquidation pursuant to 19 U.S.C. § 1514 

barred the CIT from “ordering payments” to the Government “without reliquidation”). 

The Government also concedes that the civil penalty provisions set forth in 19 

U.S.C. § 1592 are now unavailable for the duty-free entries. See Def.’s Resp. at 2. The 

statute of limitations for an action pursuant to 19 U.S.C. § 1592(d) is five years from “the 

date of the alleged violation,” 19 U.S.C. § 1621(1), which is generally considered to be 

the date of entry, see, e.g., United States v. Liu, 47 CIT __, __, 625 F. Supp. 3d 1378, 

1381 (2023). Thus, the statute of limitations for a penalty action for each of the dutyfree entries lapsed on March 27, 2022, August 8, 2022, and April 24, 2023, respectively. 

Def.’s Resp. at 2. 

11 This view of the statutory scheme finds further support in the “deemed liquidation” 

provision in 19 U.S.C. § 1504. Section 1504 states that unless CBP liquidates an entry 

“within [one] year from . . . the date of entry,” that entry “shall be deemed liquidated at 

the rate of duty, value, quantity, and amount of duties asserted by the importer of 

record.” 19 U.S.C. § 1504(a)(1)(A). “The purpose of section 1504 was to bring finality 

to the duty assessment process” and “eliminate unanticipated requests for additional 

duties coming years after the original entry.” United States v. Cherry Hill Textiles, Inc., 

112 F.3d 1550, 1559 (Fed. Cir. 1997) (citation omitted). Allowing the Government to 

pursue additional duties on entries years after CBP erroneously liquidated the entries 

would violate the finality considerations embedded throughout the statutory provisions 

that govern the ascertainment and collection of duties. 
Court No. 19-00198 Page 13 

Because there is no basis upon which the Government may pursue reliquidation 

of, or penalties for, the duty-free entries, and there being no other apparent form of relief 

available to Royal Brush, this case is moot with respect to the duty-free entries. 

II. Duty-Assessed Entries 

For the duty-assessed entries, the Federal Circuit indicated that judicial review 

over Royal Brush’s claims was available because EAPA “does not require a liquidation 

protest as a condition of review.” Royal Brush CAFC, 75 F.4th at 1256. Be that as it 

may, it does not answer the question of whether the court may grant “any effectual relief 

whatever” with respect to these particular entries. See Church of Scientology, 506 U.S. 

at 12. As noted, the appellate court did not determine “what remedies Royal Brush may 

have to recover the assessed duties with respect to their two entries that were subject 

to antidumping duties upon liquidation since Royal Brush, in this case, has not sought 

such relief.” Royal Brush CAFC, 75 F.4th at 1256–57. 

Royal Brush did not allege a standalone claim regarding the premature 

liquidations, nor did it seek to amend its filings at any time, although Royal Brush did 

request relief in the form of refunds of “any monies collected on its imports as a result of 

CBP’s evasion investigation.” Compl. at 12.12 Royal Brush also argued before the 

Federal Circuit that reliquidation of the duty-assessed entries constitutes an available 

remedy in addition to other forms of relief notwithstanding its failure to file protests. See

12 It is unclear when Royal Brush first learned that CBP had liquidated its entries, though 

presumably that occurred after Royal Brush filed its complaint and requested this court 

to enjoin the liquidation of its entries. The Government represented to the Federal 

Circuit that notices of liquidation were posted on CBP’s public website and that counsel 

for Defendant informed Royal Brush’s counsel of the liquidations in or around December 

2021, after this court had entered judgment. Def.’s Mot. to Dismiss (CAFC) at 7. 
Court No. 19-00198 Page 14 

Pl.-Appellant’s Opp’n to Def.-Appellee United States’ Mot. to Dismiss, Royal Brush Mfg., 

Inc. v. United States, Fed. Cir. No. 2022-1226 (Jan. 23, 2023) at 8–11, ECF No. 63. 

Given the Federal Circuit’s position that Royal Brush has not sought to recover 

antidumping duties, Royal Brush CAFC, 75 F.4th at 1256, the steps taken by Royal 

Brush would appear to be insufficient to preserve the availability of refunds.13 

For the sake of clarity, however, the court here concludes that Royal Brush is 

precluded from obtaining refunds in connection with the duty-assessed entries based on 

Royal Brush’s failure to protest the liquidations. In conjunction with the passing of the 

deadline for the Government to seek penalties,14 this case is moot also with respect to 

these entries.15 

13 The Federal Circuit’s statement suggests that Royal Brush should have asserted a 

separate claim for reliquidation, potentially pursuant to a different jurisdictional basis. In 

VoestAlpine USA Corp. v. United States, 46 CIT __, __, 578 F. Supp. 3d 1263, 1273–

75, 1276–79 (2022), the court discussed the availability of reliquidation and refunds not 

as a jurisdictional matter but as a claim that must be supported by a legal theory and 

relevant facts. That case, however, arose under the court’s jurisdiction pursuant to 28 

U.S.C. § 1581(i). See id. at 1272. The opinion addressed whether the availability of 

reliquidation pursuant to the court’s remedial authority in 28 U.S.C. § 2643(c)(1) 

implicated the court’s jurisdiction to hear the case or, as the court concluded, presented 

an issue to be decided in the context of whether plaintiffs had stated a claim for relief. 

See id. at 1277; but cf. AM/NS Calvert LLC v. United States, 47 CIT __, __, 654 F. 

Supp. 3d 1324, 1343 (2023) (finding that the issue of reliquidation in a case arising 

under 28 U.S.C. § 1581(i) is properly construed as a claim “for injunctive relief . . . 

subject to ordinary equitable principles”). In contrast to both VoestAlpine and AM/NS 

Calvert, however, this case arises under 28 U.S.C. § 1581(c). 

14 The Government concedes that the statute of limitations for commencing a penalty 

action for each of the duty-assessed entries lapsed on July 25, 2023, and August 10, 

2023, respectively. Def.’s Resp. at 3. 

15 For the reasons discussed, the court also disagrees with Royal Brush’s and Dixon’s 

assertions that the court need not decide the issue of refunds because the issue is not 

yet ripe unless and until CBP issues a negative determination because their assertions 

overlook the jurisdictional impact of the finality of liquidation. See Pl.’s Resp. at 4; Pl.’s 

Reply at 2; Def.-Int.’s Resp. at 5; Def.-Int.’s Reply at 1–2. 
Court No. 19-00198 Page 15 

While the EAPA statute is relatively new, Congress grounded judicial review of 

evasion determinations within 28 U.S.C. § 1581(c) for which there is a large body of 

precedential case law addressing the impact of liquidation on the court’s jurisdiction. 

While that precedent primarily addresses the failure to protest erroneous liquidations in 

the context of judicial review of a determination by Commerce pursuant to 19 U.S.C. 

§ 1516a, the circumstances surrounding an EAPA investigation pursuant to 19 U.S.C. 

§ 1517 are sufficiently analogous that the reasoning set forth in those opinions, 

perforce, leads to the same result here. Cf. All One God Faith, Inc. v. United States, 46 

CIT __, __, 589 F. Supp. 3d 1238, 1248 (2022), appeal filed, Fed. Cir. No. 2023-1078 

(Oct. 25, 2022) (dismissing certain claims for lack of subject-matter jurisdiction when 

CBP liquidated entries subject to an EAPA investigation and the importer-plaintiffs 

protested the liquidations but failed to challenge the protest denials pursuant to 28 

U.S.C. § 1581(a)).16

For more than 50 years, the Federal Circuit has consistently held that liquidation 

of entries subject to a Commerce determination pursuant to 19 U.S.C. § 1516a would 

“eliminate the only remedy available to [an interested party] for an incorrect review 

determination by depriving the trial court of the ability to assess dumping duties . . . in 

16 While the court may elect to stay the case pending the Federal Circuit’s resolution of 

the jurisdictional issues presented in All One God, see Seneca Nation of Indians v. U.S. 

Dep’t of Health and Human Servs., 144 F. Supp. 3d 115, 119–20 (D.D.C., 2015) (stating 

that a court may decide whether to stay a case when jurisdiction is unclear because that 

decision “does not ask the [c]ourt to declare the substantive law”), the court disagrees 

with the Government that a stay is appropriate here, see Def.’s Resp. at 4; Def.’s Reply 

at 8. Staying the case at this point would not promote greater “economy of time and 

effort for [the court], for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 

254 (1936). The more efficient course, taken herein, is to resolve the jurisdictional 

uncertainties this case raises. 
Court No. 19-00198 Page 16 

accordance with a correct margin on entries [subject to the] review period.” Zenith, 710 

F.2d at 810.17 The appellate court explained that section 1516a “has no provision 

permitting reliquidation in this case or imposition of higher dumping duties after 

liquidation if [the plaintiff] is successful on the merits.” Id. Thus, the court held, without 

an injunction to prevent liquidation, the plaintiff’s “statutory right to obtain judicial review 

of the determination would be without meaning for the only entries permanently affected 

by that determination.” Id. 

The Federal Circuit has “consistently applied the Zenith rule, at least in the 

context of judicial review under section 1516a.” SKF, 512 F.3d at 1329 (collecting 

cases). Thus, in SKF, the Federal Circuit relied on stare decisis to apply Zenith and 

foreclose judicial review of entries covered by a Commerce determination that liquidated 

as a matter of law pursuant to 19 U.S.C. § 1504(d). Id. The court noted that an 

importer could “obtain liquidation at the rate instructed in Commerce’s final review 

results by timely protesting a deemed liquidation under 19 U.S.C. § 1514(c).” Id. at 

1331 n.1 (citing Koyo Corp. of U.S.A. v. United States, 497 F.3d 1231, 1241 (Fed. Cir. 

2007)). 

To be clear, there are differences between 19 U.S.C. §§ 1516a and 1517. 

Section 1516a provides for a court-ordered injunction on liquidation and for liquidation in 

accordance with the court’s decision for entries covered by any such injunction. 19 

U.S.C. § 1516a(c)(1)–(2). In contrast, section 1517 provides for the suspension of 

17 Indeed, Royal Brush cited Zenith to support the need for a preliminary injunction in 

this case to avoid “mooting the present action.” Consent Mot. for a Prelim. Inj. at 3, 

ECF No. 11. 
Court No. 19-00198 Page 17 

liquidation by CBP for entries that were made on or after the date of initiation of the 

investigation up until the date of a final affirmative determination and for the extension of 

liquidation for entries that were made prior to the date of initiation. 19 U.S.C. 

§ 1517(d)(1)(A)–(B), (e)(1)–(2). When the final determination is affirmative, the statute 

directs CBP to obtain the appropriate assessment rates for the entries covered by the 

determination from Commerce, collect cash deposits, and assess duties on those 

entries in accordance with Commerce’s instructions. Id. § 1517(d)(1)(C), (D). Section 

1517 does not refer to court-ordered injunctions18 or explicitly address the 

consequences of judicial review. Cf. 19 U.S.C. § 1516a(c)(2)–(3) (providing authority 

for statutory injunctions and, when necessary, remand to the relevant agency for 

disposition consistent with the court’s opinion). 

Like section 1516a, in section 1517 Congress specified the scope and standard 

of judicial review. In section 1516a, Congress conferred authority on the court to review 

a specified list of determinations pursuant to the identified standards of review, most 

often, for substantial evidence and accord with the law. 19 U.S.C. § 1516a(a)(2)(B), 

(b)(1). In section 1517, Congress conferred authority on the court to review CBP’s 

determinations made pursuant to 19 U.S.C. § 1517(c) and (f) for procedural compliance 

with those subsections and to assess “whether any determination, finding, or conclusion 

is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 

Id. § 1517(g)(1), (2). Neither section 1516a nor section 1517 provides explicit authority 

18 Royal Brush based its motion for a preliminary injunction, in part, on the court’s 

authority to issue injunctions pursuant to 28 U.S.C. § 1585 and CIT Rule 65(a). 

Consent Mot. for a Prelim. Inj. at 1–2. 
Court No. 19-00198 Page 18 

for the CIT to review liquidated entries or “has [any] provision permitting reliquidation”; 

thus, “[o]nce liquidation occurs, a subsequent decision by the trial court on the merits of 

[a plaintiff’s] challenge can have no effect on the dumping duties assessed on [the 

subject] entries.” Zenith, 710 F.2d at 810; see also All One God, 589 F. Supp. 3d at 

1247 (finding that nothing in section 1517 grants the CIT jurisdiction to review 

challenges to erroneous liquidations). 

Section 1517 does, however, contain several rules of construction, two of which 

are relevant here. 

First, section 1517(h) provides: 

No determination under subsection (c), review under subsection (f), or 

action taken by the Commissioner pursuant to this section shall preclude 

any individual or entity from proceeding, or otherwise affect or limit the 

authority of any individual or entity to proceed, with any civil, criminal, or 

administrative investigation or proceeding pursuant to any other provision 

of Federal or State law, including sections 1592 of this title and 1595a of 

this title. 

19 U.S.C. § 1517(h). This provision demonstrates that an evasion determination by 

CBP does not “affect or limit the authority of any individual or entity to proceed[] with” an 

“administrative . . . proceeding,” which would include administratively protesting an 

allegedly erroneous liquidation by CBP. See id. Next, section 1517(g)(3) states that 

“[n]othing in this subsection shall affect the availability of judicial review to an interested 

party under any other provision of law.” 19 U.S.C. § 1517(g)(3). Thus, judicial review of 

an EAPA determination does not preclude an importer from challenging a protest denial 

at the CIT pursuant to 28 U.S.C. § 1581(a). See id. Indeed, Congress was expressly 

aware of the possibility of parallel litigation stemming from an EAPA investigation 

because the statute also recognizes that Commerce determinations responsive to CBP 
Court No. 19-00198 Page 19 

covered merchandise referrals may give rise to separate litigation pursuant to 19 U.S.C. 

§ 1516a(a)(2). See id. § 1517(b)(4)(D). 

On this point, Juice Farms is instructive. There, liquidation of the plaintiff’s 

entries was suspended by Commerce in connection with an antidumping duty 

investigation and subsequent administrative reviews. Juice Farms, Inc. v. United 

States, 68 F.3d 1344, 1345 (Fed. Cir. 1995). Although the “suspension orders 

remained in effect, Customs erroneously liquidated twenty [of the plaintiff’s] entries.” Id. 

The suspension orders also resulted in the plaintiff’s failure to monitor the bulletin 

notices of liquidation CBP posted at the customshouse through which the plaintiff made 

the majority of its entries. Id. After learning of the erroneous liquidations, the plaintiff 

filed untimely protests to obtain the benefit of the lower rate assessed by Commerce. 

Id. The Federal Circuit affirmed the CIT’s decision to dismiss the case for lack of 

subject-matter jurisdiction, thereby denying relief to the plaintiff. Id. at 1346. 

While the Juice Farms court framed the question as “whether th[e] time limit for 

protests applies to allegedly illegal liquidations,” id. at 1345, the court held that the 

notices of liquidation triggered the time period within which the plaintiff must file its 

protests and because the plaintiff’s protests were untimely, the CIT properly dismissed 

the case, id. at 1346.19 The appellate court observed: 

Section 1514 of title 19 contemplates that both the legality and 

correctness of a liquidation be determined, at least initially, via the protest 

19 At the time of the Federal Circuit’s opinion in Juice Farms, the statute required a 

protest to be filed within 90 days of the decision to be protested. 19 U.S.C. § 1514(c)(3) 

(1994). Congress amended the statute in 2004 to provide 180 days. Miscellaneous 

Trade and Technical Corrections Act of 2004, Pub. L. No. 108-429, 118 Stat. 2434, 

§ 2103. As previously noted, this 180-day period has run with respect to all of Plaintiff’s 

entries. 
Court No. 19-00198 Page 20 

procedure. Thus, all liquidations, whether legal or not, are subject to the 

timely protest requirement. Without a timely protest, all liquidations 

become final and conclusive under 19 U.S.C. § 1514. 

Id. (emphases added) (citations omitted). 

The “effect of the ‘final and conclusive’ clause [in section 1514] is thus simply one 

of statutory construction”: the phrase “indicates that Congress meant to foreclose 

unprotested issues from being raised in any context, not simply to impose a prerequisite 

to bringing suit.” Cherry Hill, 112 F.3d at 1557 (holding that an importer was barred 

from raising an allegedly erroneous liquidation as a defense to an enforcement action 

for payment on a bond when the importer had failed to protest the liquidation). The 

Federal Circuit held that allowing a collateral attack on liquidations “would be 

inconsistent with the underlying policy of section 1514, which is to channel challenges to 

liquidations through the protest mechanism in the first instance.” Id. 

So too here. In order to forestall the finality of liquidation and preserve its ability 

to obtain refunds in connection with the duty-assessed entries, Royal Brush was 

required to protest those liquidations and to do so in a timely manner. 19 U.S.C. 

§ 1514(a). Royal Brush makes no claim that the protest procedures set forth in 19 

U.S.C. § 1514 were unavailable or manifestly inadequate. Because Royal Brush failed 

to adhere to the statutory requirements set forth in 19 U.S.C. § 1514, this court is 

without authority to order reliquidation under these circumstances. 

Despite notice that the court was examining whether “this matter remains a live 

case or controversy or, instead, has become moot,” Pl.’s Resp. at 2, Royal Brush 

makes no other arguments for finding a case or controversy to exist. At most, Royal 

Brush attempts to analogize the liquidations in this case to a liquidation in violation of a 
Court No. 19-00198 Page 21 

court order and argues that the court should utilize its remedial authority pursuant to 28 

U.S.C. § 2643. Id. at 3–4. As discussed above, however, the liquidations in this case 

occurred prior to the court’s entry of a preliminary injunction. Supra note 10. Moreover, 

Royal Brush fails to explain why the court should have any more authority to order 

reliquidation in a case arising under 19 U.S.C. § 1517 than it has in a case arising under 

19 U.S.C. § 1516a, both of which are entertained pursuant to 28 U.S.C. § 1581(c), and 

in light of the judicial precedent discussed above. 

There being no apparent relief the court can confer on Royal Brush with respect 

to the duty-assessed entries, this case also is moot with respect to those entries. 

CONCLUSION 

In accordance with the foregoing, the court finds that it lacks subject-matter 

jurisdiction to entertain further proceedings in this case and the case must be 

dismissed. Judgment will be entered accordingly. 

 /s/ Mark A. Barnett 

 Mark A. Barnett, Chief Judge 

Dated: December 15, 2023 

 New York, New York