United States Court of Appeals
for the Federal Circuit
__________________________
FORD MOTOR COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-1238
__________________________
Appeal from the United States Court of International
Trade in consolidated case no. 03-CV-0115, Judge Judith
M. Barzilay.
___________________________
Decided: March 21, 2011
___________________________
NED H. MARSHAK, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of New York, New York,
argued for plaintiff-appellant. With him on the brief were
ROBERT B. SILVERMAN and JOSPEH M. SPRARAGEN. Of
counsel on the brief was PAULSEN K. VANDEVERT, The
Ford Motor Company, of Dearborn, Michigan.
JUSTIN R. MILLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of New York, New York, argued for defendant-
appellee. With him on the brief were BARBARA S.
FORD MOTOR CO v. US 2
WILLIAMS, Attorney in Charge; and TONY WEST, Assistant
Attorney General, and JEANNE E. DAVIDSON, Director, of
Washington, DC. Of counsel was EDWARD F. KENNY,
Attorney. Of counsel on the brief was BETH C. BROTMAN,
Office of Assistant Chief Counsel, United States Customs
and Border Protection, of New York, New York.
__________________________
Before LOURIE, LINN, and DYK, Circuit Judges.
DYK, Circuit Judge.
Ford Motor Company (“Ford”) appeals from a final
judgment of the United States Court of International
Trade (“Trade Court”). The Trade Court dismissed for
lack of jurisdiction Ford’s action challenging the denial by
U.S. Customs and Border Protection (“Customs”) of Ford’s
claims for post-entry duty refunds under the North
American Free Trade Agreement, U.S.-Can.-Mex., Dec.
17, 1992, 32 I.L.M. 289 (1993) [hereinafter NAFTA]. Ford
Motor Co. v. United States, No. 03-00115, slip op. 10-4 (Ct.
Int’l Trade Jan. 12, 2010). We reverse the Trade Court’s
jurisdictional decision and remand for further proceedings
consistent with this opinion.
BACKGROUND
NAFTA is a trade agreement between the United
States, Canada, and Mexico which seeks to promote the
free flow of goods between the member countries. Imports
that qualify for preferential treatment under NAFTA are
permitted to enter the United States duty free. Pursuant
to Article 502(1) of NAFTA, imports are eligible for pref-
erential treatment if the importer:
3 FORD MOTOR CO v. US
a) make[s] a written declaration, based on a
valid Certificate of Origin, that the good
qualifies as an originating good;
b) ha[s] the Certificate in its possession at
the time the declaration is made;
c) provide[s], on the request of that Party’s
custom administration, a copy of the Cer-
tificate; and
d) promptly make[s] a corrected declaration
and pay[s] any duties owing where the
importer has reason to believe that a Cer-
tificate on which a declaration was based
contains information that is not correct.
NAFTA, art. 502(1), 32 I.L.M. at 358. This provision is
implemented in the NAFTA Implementation Act, Pub. L.
No. 103–182, 107 Stat. 2057 (1993) (codified as amended
at 19 U.S.C. § 3301–3473), and 19 C.F.R. § 181.21. An
importer that does not meet these requirements at the
time of entry is not barred from making a claim for pref-
erential treatment. Under NAFTA Article 502(3), an
importer that does not claim preferential treatment at the
time of entry may nonetheless qualify for a post-entry
duty refund. NAFTA, art. 502(3), 32 I.L.M. at 358. That
provision is implemented by 19 U.S.C. § 1520(d), which
provides:
Notwithstanding the fact that a valid protest
was not filed, the Customs Service may, in accor-
dance with regulations prescribed by the Secretary,
FORD MOTOR CO v. US 4
reliquidate an entry to refund any excess duties . .
. paid on a good qualifying under the rules of ori-
gin set out in section 3332 of this title . . . for
which no claim for preferential tariff treatment
was made at the time of importation if the im-
porter, within 1 year after the date of importation,
files, in accordance with those regulations, a claim
that includes—
(1) a written declaration that the good quali-
fies [for preferential treatment] at the
time of importation;
(2) copies of all applicable NAFTA Certificates
of Origin (as defined in section 1508(b)(1)
of this title) . . . ; and
(3) such other documentation and information
relating to the importation of the goods as
the Customs Service may require.
19 U.S.C. § 1520(d) (emphases added).
This case arises from Ford’s attempt to claim prefer-
ential treatment under NAFTA for certain shipments of
automotive parts imported into the United States from
Canada. Ford imported the shipments from Canada
between January 1997 and January 1999. The parties
have agreed to use Entry No. 231-2787386-9, which
entered the United States on June 27, 1997, as a test
case. Ford did not assert at the time of entry that its
goods were eligible for preferential treatment under
NAFTA. Ford electronically filed a post-entry duty refund
5 FORD MOTOR CO v. US
claim on May 13, 1998, less than one year after the date
of importation, asserting that it was entitled to reliquida-
tion and a duty refund under § 1520(d). However, Ford’s
May 13th claim did not include copies of pertinent
NAFTA certificates of origin as required by 19 U.S.C.
§ 1520(d)(2). Ford did not submit the relevant certificates
of origin to Customs until November 5, 1998, over a year
after the date of importation. Customs denied Ford’s
claim, stating that “[t]he NAFTA Certificate of Origin was
not furnished within one year of the date of importation.”
J.A. 224. Ford filed a protest to contest the denial, and
Customs denied the protest on the same grounds. J.A.
134. Ford appealed Customs’ decision to the Trade Court.
Before the Trade Court, Ford argued, inter alia, that
even though it submitted its certificates of origin more
than a year after importation, it filed a “claim” within one
year as required by § 1520(d), and the certificates of
origin were not an essential part of that claim for jurisdic-
tional purposes. Ford argued that Customs should have
accepted its late-filed certificates pursuant to 19 C.F.R.
§ 10.112, which provides that,
[w]henever a free entry or a reduced duty docu-
ment, form, or statement required to be filed in
connection with the entry is not filed at the time of
the entry or within the period for which a bond
was filed for its production, but failure to file it
was not due to willful negligence or fraudulent in-
tent, such document, form, or statement may be
filed at any time prior to the liquidation of the en-
try or, if the entry was liquidated, before the liqui-
dation becomes final.
Id. (emphasis added). The government disagreed and
moved to dismiss for lack of subject matter jurisdiction,
FORD MOTOR CO v. US 6
arguing that the submission of NAFTA certificates of
origin within one year was a jurisdictional prerequisite.
The Trade Court granted the government’s motion,
reasoning that, under 28 U.S.C. § 1581(a), “Customs must
reach a ‘decision’ on [a] protest” before the Trade Court
may exercise jurisdiction, and “Customs cannot address
the merits of a protest, and therefore make a protestable
decision, in the absence of a claim filed in accordance with
law.” Ford, slip op. at 14. The Trade Court found that
Ford had not filed a valid § 1520(d) claim based on this
court’s decisions in Xerox Corp. v. United States, 423 F.3d
1356 (Fed. Cir. 2005), and Corrpro Cos., Inc. v. United
States, 433 F.3d 1360 (Fed. Cir. 2006). As discussed
below, these cases held that the timely filing of a claim
under § 1520(d) was a jurisdictional prerequisite, but they
did not involve claims—such as Ford’s—that were timely
filed but lacking certificates of origin. Nonetheless, the
Trade Court interpreted Xerox and Corrpro as “unambi-
guously requir[ing] that any claim for NAFTA treatment
made pursuant to [§ 1520(d)] must include timely filed
certificates of origin to be valid.” Ford, slip op. at 16.
Because Ford failed to file its certificates within one year
of importation, the court found that Ford had not filed a
valid § 1520(d) claim from which Customs could have
rendered a jurisdiction-conferring protestable decision.
Ford, slip op. at 16.
Ford timely appealed to this court. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
The question presented in this case is whether the
Trade Court lacks jurisdiction to review a Customs deci-
sion denying an importer’s § 1520(d) post-entry rebate
claim where the importer filed a claim with Customs
within one year after the date of entry, but did not file the
7 FORD MOTOR CO v. US
pertinent certificates of origin within that one year period.
We hold that Ford’s untimely filing of its certificates of
origin did not deprive the Trade Court of jurisdiction to
hear Ford’s claim.
I
It is clear that 19 U.S.C. § 1520(d) requires importers
to file “a claim” within one year after the date of importa-
tion. Under 28 U.S.C. § 1581(a), the Trade Court has
“exclusive jurisdiction [over] 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.” In Xerox and
Corrpro, we held that, for there to be a “protestable deci-
sion” giving rise to § 1581(a) Trade Court jurisdiction,
claims under § 1520(d) must be timely filed within one
year of importation. See Xerox, 423 F.3d at 1363; Corrpro,
433 F.3d at 1365.
In Xerox, we found that there was no protestable deci-
sion giving rise to § 1581(a) Trade Court jurisdiction
because the petitioner had failed to “raise[] in the first
instance a claim for preferential treatment under
NAFTA” within one year after entry. 423 F.3d at 1363.
That is, unlike the present case, it was not until more
than a year after importation that the petitioner in Xerox
asserted “for the first time . . . that its entries were enti-
tled to a duty-free preference.” Id. at 1358. Similarly, in
Corrpro, we again found there to be no protestable deci-
sion because the petitioner “concede[d] that it did not
make a post-importation NAFTA claim within a year of
entry.” 433 F.3d at 1365. Thus, in both Xerox and
Corrpro, the importers did not file notice of any § 1520(d)
claims at all until more than one year after their dates of
importation. In contrast, Ford imported its representa-
tive shipment on June 27, 1997, and filed notice of its
FORD MOTOR CO v. US 8
§ 1520(d) claim with Customs less than a year later on
May 13, 1998.
While Xerox and Corrpro held that § 1520(d)’s one-
year time limitation is jurisdictional insofar as it requires
the timely filing of a claim, the question presented in
Ford’s case is whether submission of a certificate of origin
together with the claim is also a jurisdictional require-
ment. Neither Xerox nor Corrpro addressed whether
failure to timely file a certificate of origin is by itself a
jurisdictional bar to relief when the importer has other-
wise timely filed notice of its claim. 1
As the Supreme Court has recently concluded in sev-
eral cases, the term “jurisdictional” is often overused, and
overbroad statutory constructions that find all necessary
claim elements to be jurisdictional prerequisites should be
avoided. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500,
1 We acknowledge that some language in Corrpro
may seem to suggest that the certificate filing require-
ment is itself jurisdictional. See Corrpro, 433 F.3d at
1365. We are not bound by such language, because the
issue in the present case—i.e., whether failure to timely
file a certificate of origin is by itself a jurisdictional bar to
relief when the importer has otherwise timely filed notice
of its claim—was not before the court in Corrpro. See
Boeing N. Am., Inc. v. Roche, 298 F.3d 1274, 1282 (Fed.
Cir. 2002) (“Under our established precedent we are not
bound by Northrop on the issue of allocability under the
CAS standards since the CAS issue was neither argued
nor discussed in our opinion.”); see also Brecht v. Abra-
hamson, 507 U.S. 619, 631 (1993) (noting that, if a deci-
sion “never squarely addressed” an issue, a court remains
“free to address the issue on the merits” in subsequent
cases); Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d
1299, 1308 n.9 (Fed. Cir. 2008); United States v. County of
Cook, Illinois, 170 F.3d 1084, 1088 (Fed. Cir. 1999); Nat’l
Cable Television Ass’n, Inc. v. Am. Cinema Editors, Inc.,
937 F.2d 1572, 1581 (Fed. Cir. 1991).
9 FORD MOTOR CO v. US
510–11 (2006); Eberhart v. United States, 546 U.S. 12, 15–
16 (2005); Scarborough v. Principi, 541 U.S. 401, 413–14
(2004); Kontrick v. Ryan, 540 U.S. 443, 453–55 (2004);
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89–91
(1998).
In the recent case of Reed Elsevier, Inc. v. Muchnick,
130 S. Ct. 1237, 1241 (2010), the Supreme Court held
that the Copyright Act’s registration requirement does
not restrict a federal court’s subject matter jurisdiction,
even though copyright registration is a precondition to
filing a valid infringement claim under the Copyright Act,
see 17 U.S.C. § 411(a). The Court noted the common
mistake of treating “elements of a cause of action as
jurisdictional limitations,” and cautioned against “such
‘drive-by jurisdictional rulings’ which too easily can miss
the ‘critical difference[s]’ between true jurisdictional
conditions and nonjurisdictional limitations on causes of
action.” Id. at 1243–44 (citations omitted). The Court
further explained that
[a] statutory condition that requires a party to
take some action before filing a lawsuit is not
automatically “a jurisdictional perquisite to suit.”
Rather, the jurisdictional analysis must focus on
the “legal character” of the requirement, which we
discern[] by looking to the condition’s text, con-
text, and relevant historical treatment. We simi-
larly have treated as nonjurisdictional other types
of threshold requirements that claimants must
complete, or exhaust, before filing a lawsuit.
Id. at 1246-47 (citations omitted). The Court ultimately
found the copyright registration requirement to be non-
jurisdictional because it “is not clearly labeled jurisdic-
tional, is not located in a jurisdiction-granting provision,
FORD MOTOR CO v. US 10
and admits of congressionally authorized exceptions.” Id.
at 1247.
When analyzed in view of the foregoing principles, it
is readily apparent that the timely filing of a NAFTA
certificate of origin is not a prerequisite to the Trade
Court’s having jurisdiction to review a § 1520(d) post-
entry duty rebate claim. Like the copyright registration
requirement in Reed Elsevier, § 1520(d)’s timely certifi-
cate filing requirement is not clearly labeled as jurisdic-
tional, and it is not located in a jurisdiction-granting
provision. The Trade Court’s jurisdiction over civil ac-
tions arising under § 515 of the Tariff Act of 1930 is
granted by 28 U.S.C. § 1581(a), not by 19 U.S.C. §
1520(d).
Also as in Reed Elsevier, § 1520(d)’s certificate filing
requirement admits of congressionally authorized excep-
tions. Article 503(c) of NAFTA provides that “[e]ach
Party shall provide that a Certificate of Origin shall not
be required for . . . an importation of a good for which the
Party into whose territory the good is imported has
waived the requirement for a Certificate of Origin.”
NAFTA, art. 503(c), 32 I.L.M. at 358–59. Section 1520(d)
in turn provides that Customs may reliquidate post-entry
duty rebate claims “in accordance with regulations pre-
scribed by the Secretary” and requires that rebate claims
be submitted “in accordance with those regulations.” 19
U.S.C. § 1520(d). While § 1520(d) does not specifically
refer to the waiver provision of NAFTA Article 503(c), it is
obvious that § 1520(d) was designed in part to permit the
implementation of Article 503(c)’s waiver authority via
Customs’ regulations. 2 Significantly, Customs has inter-
2 We also note that Article 503(c)’s waiver provision
was expressly referenced in the November 4, 1993,
NAFTA Statement of Administrative Action that Con-
11 FORD MOTOR CO v. US
preted § 1520(d) as granting it such regulatory authority,
providing for the waiver of § 1520(d)’s certificate of origin
filing requirement in at least two areas. First, 19 C.F.R. §
181.22(d)(1) defines three circumstances in which “an
importer shall not be required to have a Certificate of
Origin in his possession,” including:
(i) An importation of a good for which the
port director has in writing waived the re-
quirement for a Certificate of Origin be-
cause the port director is otherwise
satisfied that the good qualifies for prefer-
ential tariff treatment under the NAFTA;
(ii) A non-commercial importation of a good;
or
(iii) A commercial importation for which
the total value of originating goods does
not exceed US $2,500, provided that,
unless waived by the port director, the
producer, exporter, importer or authorized
agent includes on, or attaches to, the in-
voice or other document accompanying the
shipment the following signed statement:
I hereby certify that the good covered by
this shipment qualifies as an originating
good for purposes of preferential tariff
treatment under the NAFTA.
gress approved in 19 U.S.C. § 3311. The Statement of
Administrative Action authorizes new implementing
regulations to be adopted for the described provisions of
NAFTA. See NAFTA Implementation Act, Statement of
Administrative Action, H.R. Doc. No. 103–159, at 450, 501
(1993).
FORD MOTOR CO v. US 12
Second, for § 1520(d) claims filed under Customs’ Recon-
ciliation program, 3 the “[p]resentation of the NAFTA
Certificate of Origin to Customs is waived,” provided that
the filer “retain these documents, which shall be provided
to Customs upon request.” Modification of National
Customs Automation Program Test Regarding Reconcilia-
tion, 62 Fed. Reg. 51181, 51182 (Dep’t of the Treasury,
Sept. 30, 1997). Both the exercise of waiver authority and
Customs’ admission that it may lawfully exercise such
authority support our conclusion that the requirement is
not jurisdictional.
As the Supreme Court has stated, unlike substantive
elements of a claim, issues implicating subject matter
jurisdiction “can never be forfeited or waived.” Arbaugh
v. Y & H Corp., 546 U.S. at 514; see also United States v.
Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter juris-
diction, because it involves a court’s power to hear a case,
can never be forfeited or waived.”). At any rate, “[i]t
would be at least unusual to ascribe jurisdictional signifi-
cance to a condition subject to [an] exception[]” such as
the ability to be waived. Reed Elsevier, 130 S. Ct. at 1246;
see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
397 (1982) (holding that, because Congress had “ap-
proved” of prior cases awarding Title VII relief to claim-
ants who had not complied with the Equal Employment
Opportunity Commission’s (“EEOC”) filing requirement,
3 Customs’ Reconciliation program is a test pro-
gram that “allows an importer to provide Customs with
information (other than that related to the admissibility
of merchandise), which is not available at the time of
entry summary filing, at a subsequent time.” Announce-
ment of Nat’l Customs Automation Program Test Regard-
ing Reconciliation, 62 Fed. Reg. 5673, 5674 (Dep’t of the
Treasury, Feb. 6, 1997).
13 FORD MOTOR CO v. US
“Congress necessarily adopted the view that the provision
for filing charges with the EEOC should not be construed
to erect a jurisdictional prerequisite to suit in the district
court”).
The distinction we recognize between the jurisdic-
tional nature of the requirement that notice of a § 1520(d)
claim be timely filed—and the non-jurisdictional nature of
a § 1520(d) claim’s content requirements such as certifi-
cates of origin—is analogous to the requirements for filing
a notice of appeal in federal court. Under Rule 3 of the
Federal Rules of Appellate Procedure, a petitioner must
file notice of its appeal “within the time allowed by Rule
4.” Fed. R. App. P. 3(a)(1). However, Rule 3 further notes
that “[a]n appeal must not be dismissed for informality of
form or title of the notice of appeal.” Fed R. App. P.
3(c)(4). The Advisory Committee notes regarding the
1979 Amendments to Rule 3 further explain that, while
the timely filing of the notice of appeal has been
characterized as jurisdictional, . . . it is important
that the right to appeal not be lost by mistakes of
mere form. In a number of decided cases it has
been held that so long as the function of notice is
met by the filing of a paper indicating an inten-
tion to appeal, the substance of the rule has been
complied with.
Id. (Advisory Committee note). 4 We find that similar
principles apply here. That is, so long as notice of a
4 See also Bowles v. Russell, 551 U.S. 205, 214
(2007) (“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.”); United States v.
Grant, 256 F.3d 1146, 1151 (11th Cir. 2001) (holding that
the timely filing of a single notice of appeal was sufficient
to confer jurisdiction over defendant’s appeals from two
FORD MOTOR CO v. US 14
party’s § 1520(d) claim is timely filed within one year of
importation, failure to adhere to § 1520(d)’s formalities,
such as timely filing a certification of origin, will not
deprive the Trade Court of jurisdiction to hear the case.
That is so here even if such failure may end up being
dispositive of the party’s claim.
Accordingly, because (1) Ford timely filed notice of its
claim; (2) Congress has not clearly labeled § 1520(d)’s
timely certificate filing requirement as “jurisdictional”; (3)
§ 1520(d) is not a jurisdiction-granting provision; and (4)
Customs possesses the authority to waive the certificate
filing requirement, we conclude that Ford’s failure to file
its certificates of origin within one year of the importation
did not deprive the Trade Court of jurisdiction.
II
The government additionally contends that, even as-
suming the certificate of origin filing requirement is non-
jurisdictional, “Ford’s claims should still be dismissed for
lack of subject matter jurisdiction because there has been
no protestable determination.” Appellee’s Br. 35. For
there to be a protestable decision, the government con-
tends, Customs must have “engaged in ‘some sort of
decision making process’ expressly considering the merits
of [the petitioner’s] claim.” Corrpro, 433 F.3d at 1365
(quoting Xerox, 423 F.3d at 1363); see also U.S. Shoe Corp.
v. United States, 114 F.3d 1564, 1569 (Fed. Cir. 1997).
Because Customs rejected Ford’s § 1520(d) claim on the
procedural ground that Ford failed to timely submit its
certificates of origin, the government contends that Cus-
toms never reached the merits of Ford’s claim and thus
never rendered a protestable decision as required for
separate convictions, even though the notice only refer-
enced one conviction and case number).
15 FORD MOTOR CO v. US
Trade Court jurisdiction under 28 U.S.C. § 1581(a). We
disagree.
Ford filed a § 1520(d) claim on May 13, 1998, and
Customs denied Ford’s claim on May 27, 1998, stating
that “[t]he NAFTA Certificate of Origin was not furnished
within one year of the date of importation.” J.A. 224.
This denial can also be viewed as including decisions by
Customs (a) to not grant Ford a waiver of the certificate
filing requirement under 19 C.F.R. § 181.22(d)(1)(i), and
(b) to not accept Ford’s late-filed certificates under 19
C.F.R. § 10.112. Ford filed a “protest” against this deci-
sion on August 2, 1999, which was considered by Customs
Headquarters and denied by written decision on August
29, 2002. See J.A. 134–49. By filing a summons in the
Trade Court to contest the August 29 denial, Ford has
quite plainly commenced an action “to contest the denial
of a protest.” See 28 U.S.C. § 1581(a). Customs has
therefore rendered a protestable decision sufficient to
confer jurisdiction on the Trade Court under § 1581(a).
The government points to Xerox, 423 F.3d at 1358,
and Corrpro, 433 F.3d at 1363, arguing that in both cases
the plaintiffs filed protests that were denied, yet this
court nonetheless held that no valid protestable determi-
nations existed and that there was no basis for § 1581(a)
jurisdiction. However, as explained above, Xerox and
Corrpro are distinguishable from the present case on the
key fact that, unlike Ford, the petitioners in Xerox and
Corrpro never filed notices of their § 1520(d) claims
within one year after importation. Unlike the certificate
filing deadline, the requirement that notice of a § 1520(d)
claim be timely filed is jurisdictional in nature.
We hold that, where an importer properly files notice
of its § 1520(d) claim with Customs less than one year
after entry, Customs renders a protestable decision—for
FORD MOTOR CO v. US 16
the purposes of 28 U.S.C. § 1581(a)—if it denies the
importer’s claim. The position urged by the government—
that any decision which does not expressly adjudicate the
merits of a petitioner’s claim is not a “denial of a protest”
under 28 U.S.C. § 1581(a)—would leave parties without
recourse even if Customs were to erroneously dismiss
their claims. Such a draconian rule is not the law.
III
Having found that § 1520(d)’s certificate of origin re-
quirement is not jurisdictional, the final question is
whether, as Ford contends, Customs was required to
accept Ford’s late-filed certificates under 19 C.F.R. §
10.112. Ford’s position is that § 10.112 applies in this
case because (1) a certificate of origin is a “free entry or a
reduced duty document” required to be filed in connection
with the entry; (2) though Ford filed its certificates more
than a year after importation, its filing nonetheless came
before liquidation of its entries had become final; and (3)
Customs admitted that Ford’s failure to file its certificates
within one year of entry was not due to willful negligence
or fraudulent intent, J.A. 199, ¶ 21. The government
argues that § 10.112 only applies to documents required
to be filed “at the time of entry,” and § 1520(d) only con-
cerns post-entry rebate claims. Appellee’s Br. 31. Ford
counters that the language in the regulation actually
requires that the certificates be filed “in connection with
the entry,” which is not synonymous with “at the time of
entry.” Appellant’s Reply 18. Ford additionally notes
that § 10.112 has received broad constructions in prior
cases. See, e.g., Gulfstream Aerospace Corp. v. United
States, 981 F. Supp. 654, 667 (Ct. Int’l Trade 1997); Aviall
of Tex., Inc. v. United States, 861 F. Supp. 100, 105 (Ct.
Int’l Trade 1994); Bertrand Freres, Inc. v. United States,
47 Cust. Ct. 155 (1961). We find that this issue is best
17 FORD MOTOR CO v. US
left to be decided in the first instance by the Trade
Court. 5
CONCLUSION
Because we find that the Trade Court erred in dis-
missing Ford’s claim for lack of jurisdiction, we reverse
the Trade Court’s decision and remand for further pro-
ceedings consistent with this opinion.
REVERSED and REMANDED
5 While this court held in Xerox that “we may not
construe 19 C.F.R. § 10.112 to increase the one-year time
period for making a post-importation NAFTA claim”
because the timely filing of a claim is a jurisdictional
requirement, 423 F.3d at 1365, Xerox did not address
whether the untimely filing of a non-jurisdictional certifi-
cate of origin could be excused under § 10.112.