Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit
05-1073
CORRPRO COMPANIES, INC.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
Jerry P. Wiskin, Simons & Wiskin, of South Amboy, New Jersey, argued for
plaintiff-appellee. With him on the brief was Philip Y. Simons.
Aimee Lee, Attorney, Commercial Litigation Branch, Civil Division, Department of
Justice, of New York, New York, argued for defendant-appellant. With her on the brief
were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, of
Washington, DC; and Barbara S. Williams, Attorney in Charge, of New York, New York.
Of counsel on the brief was Beth C. Brotman, Attorney, Office of Assistant Chief
Counsel, International Trade Litigation, United States Customs and Border Protection,
of New York, New York.
Appealed from: United States Court of International Trade
Senior Judge Richard W. Goldberg
United States Court of Appeals for the Federal Circuit
05-1073
CORRPRO COMPANIES, INC.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
_____________________
DECIDED: January 3, 2006
_____________________
Before LOURIE, CLEVENGER, and LINN, Circuit Judges.
LOURIE, Circuit Judge.
The United States appeals from the decision of the United States Court of
International Trade denying the government’s motion to dismiss for lack of jurisdiction,
granting Corrpro Companies, Inc.’s (“Corrpro’s”) motion for summary judgment, and
classifying the subject merchandise under Harmonized Tariff Schedule of the United
States (“HTSUS”) MX 8543.40.00, duty-free. Corrpro Cos. v. United States, slip op. 04-
116 (Ct. Int’l Trade Sept. 10, 2004) (“Decision”). Because Customs did not make a
protestable decision as to North American Free Trade Agreement (“NAFTA”) eligibility
giving rise to jurisdiction in the Court of International Trade under 28 U.S.C. § 1581(a),
we reverse.
BACKGROUND
This case arises from Corrpro’s attempt to claim preferential treatment under
NAFTA for certain entries of sacrificial magnesium anodes. Enacted on December 8,
1993, NAFTA is an agreement between the United States, Canada, and Mexico to
promote the free flow of goods through a reduction or phased elimination of tariffs and
non-tariff barriers to trade. 19 U.S.C. § 3312 (1994) (approving and implementing
NAFTA). See Xerox v. United States, 423 F.3d 1356, 1359 (Fed. Cir. 2005).
Preferential tariff treatment under NAFTA allows importers to enter qualified goods into
the United States free of duty.
Under NAFTA, an importer’s right to preferential tariff treatment for qualifying
goods does not vest automatically on entry. Id. at 1361. As provided in Articles 501(1)
and 503(1) of NAFTA, implemented in 19 C.F.R. § 181.21(a), an importer seeking
preferential tariff treatment under NAFTA must make a written declaration that the
goods qualify for NAFTA treatment and must base that declaration on a properly
executed NAFTA “Certificate of Origin” that covers the goods being imported. 19 C.F.R.
§§ 181.11(a), 181.21(a) (2005) (“A Certificate of Origin shall be employed to certify that
a good being exported either from the United States into Canada or Mexico or from
Canada or Mexico into the United States qualifies as an originating good for purposes of
preferential tariff treatment under the NAFTA.”).
However, an importer is not required to submit a written declaration and the
appropriate NAFTA Certificates of Origin immediately upon entry of the subject goods.
Xerox, 423 F.3d at 1361. Under Article 502(3) of NAFTA, codified at 19 U.S.C.
§ 1520(d), an importer who does not make a NAFTA claim at the time of entry may
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nevertheless apply for a “refund of any excess duties paid” on a good qualifying for
NAFTA treatment by submitting a written declaration and the appropriate Certificates of
Origin “within 1 year after the date of importation.” 19 U.S.C. § 1520(d) (2000). In this
case, Corrpro claims that its imported goods are entitled to NAFTA treatment even
though it did not make a NAFTA claim at the time of entry or within one year of entry.
On August 16, 1999, Corrpro began importing magnesium anodes into the United
States. Decision, slip op. at 2-3. The United States Bureau of Customs and Border
Protection (“Customs”)∗ classified the goods under HTSUS 8104.19.00 as “[m]agnesium
and articles thereof, including waste and scrap: Unwrought magnesium: Other” at the
rate of 6.5 percent ad valorem. Id. Corrpro did not make a claim for NAFTA treatment
at the time of entry under 19 C.F.R. § 181.21(a). Id., slip op. at 3. On June 30, 2000,
Customs liquidated the subject merchandise under 19 U.S.C.
§ 1500. Customs did not accord the goods any preferential treatment under NAFTA
because Corrpro had not yet raised the issue. Id.
Corrpro also did not claim preferential treatment under NAFTA within one year of
the date of importation under 19 U.S.C. § 1520(d). However, on September 12, 2000,
Corrpro filed protests to Customs’ liquidation under 19 U.S.C. § 1514(a), arguing that
the goods were classifiable as HTSUS MX 8543.30.00, free of duty under NAFTA. Id.
Section 1514(a) is a procedural mechanism by which an importer may protest Customs’
decision pertaining to the classification, rate, and amount of duties, but it does not
specifically relate to NAFTA eligibility. See Xerox, 423 F.3d at 1365 (dismissing for lack
∗
Effective March 1, 2003, the United States Customs Service was renamed the
United States Bureau of Customs and Border Protection. Homeland Security Act of
2002, Pub. L. No. 107-296, § 1502, 116 Stat. 2135, 2308-09 (2002).
05-1073 -3-
of jurisdiction “a post-importation [NAFTA] claim under the guise of a 19 U.S.C.
§ 1514(a) protest more than a year after entry”).
Corrpro claimed preferential treatment under NAFTA in its 19 U.S.C.
§ 1514(a) protest without filing a written declaration or Certificates of Origin
substantiating its assertion of NAFTA eligibility. On August 13, 2001, Customs denied
Corrpro’s protests in full. Decision, slip op. at 3. Later in 2002, for the first time, Corrpro
submitted to Customs Certificates of Origin covering the goods, after it had filed a
complaint in the Court of International Trade. Id., slip op. at 18 n.3 (noting that the
parties dispute whether the Certificates of Origin were filed on February 4, 2002, as
stated in the affidavit attached to the Certificates, or on June 27, 2002, the date
indicated on the certificates themselves).
Corrpro had filed its complaint in the Court of International Trade seeking
preferential duty treatment for the imported goods on September 6, 2001. In its
complaint, Corrpro asserted that the trial court had jurisdiction under 28 U.S.C.
§ 1581(a) because of its 19 U.S.C. § 1514(a) protest challenging the “classification and
the rate and amount of duties chargeable.” Id., slip op. at 3. Corrpro then moved for
summary judgment that the subject merchandise was entitled to preferential duty
treatment under NAFTA. Id., slip op. at 1-2. On September 10, 2004, the Court of
International Trade held that it had jurisdiction to entertain the action and granted
Corrpro’s motion for summary judgment.
In determining whether Customs had made a protestable decision that conferred
jurisdiction over Corrpro’s NAFTA claims, the trial court first held that Customs’ initial
classification of the goods was a decision on NAFTA eligibility that could be protested,
05-1073 -4-
even though Customs had not expressly considered the question of preferential
treatment under NAFTA at that time. Id., slip op. at 13-14. The trial court reasoned that
this inference was warranted because Corrpro had been precluded by Customs
Headquarters Ruling Letter (“HQ”) 557046 from making a NAFTA claim at the time of
entry. Id. HQ 557046, which provides that anodes classifiable in HTSUS 8104.19.00
are not eligible for duty-free treatment under the Generalized System of Preferences,
was issued on May 17, 1993, prior to the enactment of NAFTA (although it was
retracted on October 10, 2001). The trial court therefore concluded that Corrpro had
acted properly under a standard of reasonable care in not seeking NAFTA treatment at
the time of entry or within one year of entry. Id., slip op. at 9-10. Second, the trial court
held that Corrpro’s post-importation submission of NAFTA Certificates of Origin met the
procedural requirements of 19 C.F.R. § 10.112 because Corrpro’s delay in submission
had resulted from its adherence to Customs’ classification ruling. Id., slip op. at 17-18.
Third, the trial court held that the subject merchandise satisfied NAFTA’s rules of origin
and thus was eligible for preferential treatment under NAFTA as a matter of law. Id.,
slip op. at 22-24.
The government timely appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5).
DISCUSSION
We review the Court of International Trade’s jurisdictional ruling based on its
interpretation of 19 U.S.C. §§ 1514 and 1520(d) de novo. Xerox v. United States, 423
F.3d 1356, 1359 (Fed. Cir. 2005). We also review that court’s grant of summary
05-1073 -5-
judgment de novo. Int'l Trading Co. v. United States, 412 F.3d 1303, 1307 (Fed. Cir.
2005).
The government makes three arguments on appeal. First, the government
contends that the Court of International Trade should have dismissed the complaint for
lack of jurisdiction because there was no protestable decision by Customs regarding
NAFTA eligibility. The government asserts that, contrary to the reasoning of the trial
court, HQ 557046 did not preclude Corrpro from making a NAFTA claim at the time of
entry or within one year of the date of importation because (1) had Corrpro filed a
protest against the initial classification, Corrpro could then have filed a 19 U.S.C.
§ 1520(d) petition that would have been protestable even though it would be held in
suspension pending the outcome of the classification decision, and (2) HTSUS
8104.19.00 allows duty-free entry of the goods in question under NAFTA.
Second, the government argues that even if the Court of International Trade had
jurisdiction over the case, Corrpro’s NAFTA claims should have been denied because
Corrpro did not satisfy the requirements of 19 U.S.C. § 1520(d) and 19 C.F.R.
§§ 181.31 and 181.32 to file a protest within one year of importation and to submit
Certificates of Origin at the time of the protest. Finally, the government argues that if
the trial court had jurisdiction over this matter, remand is appropriate to determine the
merits of NAFTA eligibility because Customs did not meaningfully review Corrpro’s
NAFTA claim.
Corrpro responds that the Court of International Trade correctly held that it had
jurisdiction because the “liquidations of the specific entries of Corrpro’s merchandise,
including the decisions merged into liquidation” were protestable decisions. In the
05-1073 -6-
alternative, Corrpro contends that the initial classification decision by Customs was a
protestable decision, as determined by the trial court. Second, Corrpro argues that it
acted reasonably in not claiming NAFTA treatment at entry or within one year of entry
because making a NAFTA claim while HQ 550746 was in effect would have subjected
Corrpro to the possible imposition of civil penalties. Corrpro also asserts that Congress
did not intend that 19 U.S.C. § 1520(d) be the exclusive means for seeking NAFTA
treatment subsequent to time of entry and that Corrpro could submit supporting
documentation at a later time in compliance with the procedural requirements of 19
C.F.R. § 10.112. Finally, Corrpro argues that remand is unnecessary because the
Court of International Trade correctly determined the classification of the imported
anodes under de novo review.
We agree with the government that the Court of International Trade lacked
jurisdiction over the complaint for lack of a protestable decision by Customs. 28 U.S.C.
§ 1581(a) establishes jurisdiction over protestable decisions, providing that the “Court of
International Trade shall have exclusive jurisdiction of any civil action commenced to
contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of
1930.” However, we recently held in Xerox that Customs’ liquidation of an importer’s
entries was not a protestable decision with respect to preferential treatment under
NAFTA because “Customs at no time considered the merits of NAFTA eligibility, nor
could it [have] without a valid claim by [the importer] for such eligibility.” 423 F.3d at
1363 (emphasis added). We observed, “[i]n the absence of a proper claim for NAFTA
treatment, either at entry or within a year of entry . . . Customs cannot make a
protestable decision to deny an importer preferential NAFTA treatment.” Id. at 1365.
05-1073 -7-
We concluded that because “the existence of a protestable decision of the type
enumerated in 19 U.S.C. § 1514(a) is a condition precedent for jurisdiction to lie in the
Court of International Trade under section 1581(a),” Xerox’s appeal of an invalid protest
was properly dismissed for lack of jurisdiction. Id. Accordingly, under our precedent,
there is a protestable decision as to NAFTA eligibility that confers jurisdiction in the
Court of International Trade under 28 U.S.C. § 1581(a) only when the importer has
made a valid claim for NAFTA treatment, either at entry or within a year of entry, with a
written declaration and Certificates of Origin presented in a timely fashion, and Customs
has engaged in “some sort of decision-making process” expressly considering the
merits of that claim. Id. at 1363 (quoting U.S. Shoe Corp. v. United States, 114 F.3d
1564, 1569 (Fed. Cir. 1997)).
Corrpro concedes that it did not make a post-importation NAFTA claim within a
year of entry under 19 U.S.C. § 1520(d). Corrpro argues, however, that its late
submission is excused because, under a standard of reasonable care, it could not make
a NAFTA claim until after HQ 557046 was revoked. We will not decide that question;
even assuming that Corrpro could have made a valid claim after the expiration of the
one-year time limit, Corrpro cannot establish that Customs engaged in some sort of
decision-making on the merits of a valid NAFTA claim. In order to make a valid NAFTA
claim, an importer must submit a written declaration and the appropriate Certificates of
Origin. 19 CFR §§ 181.11(a), 181.32. An importer may not circumvent these statutory
and regulatory requirements. Corrpro did not submit the appropriate Certificates of
Origin until 2002. Thus, neither Customs’ initial classification decision, made in 1999,
nor its liquidation of goods, made in 2000, could have been a decision on the merits of a
05-1073 -8-
valid NAFTA claim, as no valid NAFTA claim existed at that time. As we held in Xerox,
“[t]here is simply no basis for attributing to Customs a decision denying [a NAFTA] claim
that did not exist.” 423 F.3d at 1363. Moreover, there is no evidence that Customs in
fact considered Corrpro’s NAFTA claim after the Certificates of Origin were submitted in
2002, while Corrpro’s action was pending in the Court of International Trade. Therefore,
Customs did not make a protestable decision establishing jurisdiction under 28 USC §
1581(a).
In holding that it had jurisdiction over Corrpro’s claim, the Court of International
Trade erred in concluding that the initial classification decision by Customs in 1999 was
a protestable decision. We recognize, of course, that Xerox was decided after the trial
court rendered its decision in this case. In any event, the trial court’s reasoning
assumed that Corrpro had made a valid NAFTA claim at the time of entry, even though
Corrpo had not yet raised that issue. But we cannot attribute to Customs a decision on
a NAFTA claim that did not yet exist. Because Customs could not have considered and
did not consider the merits of NAFTA eligibility in the initial classification decision, it did
not make a protestable decision at that time. For the same reason, we disagree with
Corrpro’s argument that Customs’ liquidation of the goods is a protestable decision.
Customs could not have engaged in any sort of decision-making as to NAFTA eligibility
in liquidating the goods because Corrpro had not yet raised the NAFTA issue.
Finally, Corrpro attempts to distinguish Xerox based on the Court of International
Trade’s determination that there was “no discernible evidence that Corrpro’s NAFTA
claim was not considered by Customs in [Customs’ denial of Corrpro’s 19 U.S.C.
§ 1514(a)] protest.” Decision, slip op. at 14-15. That finding misses the point. We held
05-1073 -9-
in Xerox that Customs cannot make a protestable decision to deny an importer
preferential NAFTA treatment in the absence of a proper claim for NAFTA treatment.
423 F.3d at 1365. Accordingly, our decision turns on whether Customs engaged in any
decision-making on a valid NAFTA claim by Corrpro in 2002, not on whether there was
a lack of evidence that Customs had not considered the issue of NAFTA eligibility when
denying Corrpro’s 19 U.S.C. § 1514(a) protest in 2001. No such decision-making
occurred.
Because the Court of International Trade did not have jurisdiction over this
matter, the denial of the government’s motion to dismiss is reversed, and the remaining
issues raised on appeal are moot.
CONCLUSION
Because Corrpro did not satisfy the statutory requirements in order to make a
valid NAFTA claim until 2002, Customs could not have and did not consider the merits
of that claim in its initial classification decision or liquidation. Accordingly, there was no
protestable decision conferring jurisdiction on the Court of International Trade under 28
U.S.C. § 1581(a). The decision of that court denying the government’s motion to
dismiss and granting summary judgment for Corrpro is therefore
REVERSED.
05-1073 -10-
Corrpro Companies, Inc. v. United States
Combined Opinion