General Mills, Inc. v. United States

Slip Op. 14-

UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________
GENERAL MILLS, INC., :
:
Plaintiff, : Before: Nicholas Tsoucalas,
: Senior Judge
v. :
: Court No.: 14-00096
UNITED STATES, :
:
Defendant.____________:

OPINION

[Defendant’s motion to dismiss for lack of subject matter
jurisdiction is granted.]

Dated:'HFHPEHU

John M. Peterson, Maria E. Celis, and Elyssa R. Emsellem, Neville
Peterson LLP of New York, NY, for the plaintiff.

David S. Silverbrand, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington,
DC, for defendant. With him on the brief were Stuart F. Delery,
Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. Of counsel on the brief
was Beth C. Brotman, Attorney, Office of the Assistant Chief
Counsel, U.S. Customs and Border Protection, of Washington, DC.

Tsoucalas, Senior Judge: Defendant, United States (the

“Government” or “Defendant”), moves to dismiss Plaintiff General

Mills, Inc.’s (“General Mills” or “Plaintiff”) complaint for lack

of subject matter jurisdiction. General Mills brought its case

before the court seeking review of Headquarters Ruling Letter

H212286 of January 7, 2014, issued by U.S. Customs and Border

Patrol (“CPB”) concerning its frozen Brussels sprouts. For the
Court No. 14-00096 Page 2

following reasons, Defendant’s motion is granted. See Pl.’s Comp.,

ECF No. 4 (Apr. 9, 2014).

BACKGROUND

General Mills imports frozen Brussels sprouts and frozen

butter sauce chips “packaged together and sold as Green Giant brand

‘baby Brussels sprouts & butter sauce’” (the “Product”). See

Customs Headquarters Ruling Letter H212286 at 92 (January 7,

2014)(“HRL H212286”). General Mills describes production of the

Product in the following manner:

First, General Mills sources sauce chips in the United
States and the supplier qualifies the sauce chips as
NAFTA eligible. The chips are then shipped to Irapuato,
Mexico to be proportionately mixed and combined with
Brussels sprouts. Brussels sprouts, either of Mexican or
Belgian origin, are acquired and frozen to sustain
important vitamins and avoid nutrient loss. The
challenged ruling concerns only the NAFTA eligibility of
products made with Belgian Brussels sprouts.

See Pl.’s Compl. ¶ 11.

General Mills then imports the Product back into the

United States. Id. ¶ 12. If the Brussels sprouts are treated as

originating goods under the North American Free Trade Agreement

(“NAFTA”), the Product is classified as “Special” and receives

duty treatment as a product of Mexico. See HRL H212286 at 95-6.

In December 2011, General Mills requested a ruling

regarding the tariff classification and eligibility of the Product

for NAFTA duty free tariff rates when made using frozen Belgian

Brussels sprouts with the butter sauce chips. See Pl. Compl. ¶
Court No. 14-00096 Page 3

13. General Mills alleges that the Product should be classified

under HTS subheading 2004.90.85, which provides for “Other

vegetables prepared or preserved otherwise than by vinegar or

acetic acid, frozen, other than products of heading 2006: Other

vegetables and mixtures of vegetables; Other, including mixtures.”

Id. In accordance with such classification, General Mills further

maintains that the Product should be “qualified as a NAFTA-

originating product, since the frozen Belgian Brussels sprouts,

classifiable under HTS subheading 0710.80.85, underwent the

qualifying change in tariff classification required for goods of

HTS Heading 2004, to wit, ‘a change to headings 2001 through 2007

from any other chapter,’ as per Note 12(t)/20 to the HTS.” Id. ¶

14.

General Mills alleges that in March 2012, CBP issued New

York Ruling Letter (“NYL”) N202500, in which it found that the

Product would be classified as “put up in sets for retail sale”

and, pursuant to General Rule of Interpretation 3(b) to the HTS,

was classifiable as though it consisted solely of that single

article which imparted the “essential character” to the set. Id.

¶ 15. Because the Brussels sprouts imparted the “essential

character” to the Product, and were a product of Belgium, CBP found

that the Product was not NAFTA-originating when made with Belgian

sprouts. Id. ¶ 15.
Court No. 14-00096 Page 4

General Mills requested reconsideration of NYL N202500

and alleged that: the Product was not a “set,” but rather a

“prepared vegetable product” classifiable under 2004.90.85; the

Belgian Brussels sprouts undergo a tariff shift due to the

packaging with ice chips in Mexico; and General Note 12(s) of the

HTSUS does not apply because the Belgian sprouts are not prepared

or preserved “merely by freezing, by packing (including canning)

in water, brine, or natural juices, or by roasting, either dry or

in oil.” Id. ¶ 16.

In January 2014, CBP published Customs Headquarters

Ruling H212296 in the Customs Bulletin. See HRL H212296 at 92.

CBP reclassified the Product as a prepared vegetable product under

2004.90.85. Id. at 97. However, it continued to find that the

Product, when produced using Belgian sprouts, was not eligible for

NAFTA duty free treatment because it was not a NAFTA-originating

product. Id. at 97. Specifically, CBP found that despite the

change in tariff classification, an exception to the NAFTA duty

treatment applied under General Note 12(s)(ii). Id. at 95.

According to the CBP, under General Note 12(s)(ii) the Product

does not undergo a qualifying change in Mexico because the Belgian

Brussels sprouts are already frozen when they arrive in Mexico,

and are prepared by packing in butter, which is “akin to a natural

juice”. Id. at 96.
Court No. 14-00096 Page 5

In April 2014, General Mills filed Court No. 14-00096 to

contest HRL H212296 under 28 U.S.C. § 1581(i), seeking a ruling on

the record of the CBP’s determination. See Pl.’s Compl. ¶ 1–9.

The Government moves to dismiss General Mills’ complaint for lack

of subject matter jurisdiction. See Def.’s Mem. in Supp. of its

Mot. to Dismiss at 1 (“Def.’s Mem.”). According to the Government,

“because section 1581(a) jurisdiction is available to General

Mills, this Court lacks jurisdiction to entertain this action

pursuant to 28 U.S.C. § 1581(i).” Id.

STANDARD OF REVIEW

“Subject matter jurisdiction constitutes a ‘threshold

matter’ in all cases, such that without it, a case must be

dismissed without proceeding to the merits.” Demos v. United

States, 31 CIT 789, 789 (2007) (not reported in the Federal

Supplement) (citing Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 94 (1998)). “The burden of establishing jurisdiction lies

with the party seeking to invoke th[e] Court's jurisdiction.”

Bhullar v. United States, 27 CIT 532, 535, 259 F. Supp. 2d 1332,

1334 (2003) (citing Old Republic Ins. Co. v. United States, 14 CIT

377, 379, 741 F. Supp. 1570, 1573 (1990)).

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
Court No. 14-00096 Page 6

544, 570 (2007)). “For the purposes of a motion to dismiss, the

material allegations of a complaint are taken as admitted and are

to be liberally construed in favor of the plaintiff(s).” Humane

Soc’y of the U.S. v. Brown, 19 CIT 1104, 1104, 901 F. Supp. 338,

340 (1995) (citing Jenkins v. McKeithen, 395 U.S. 411, 421–22

(1969)).

DISCUSSION

I. Legal Framework

Plaintiff seeks judicial review of HRL H212286 in

accordance with Section 625(c) of the Tariff Act of 1930, as

amended 19 U.S.C. § 1625(c), and the Administrative Procedure Act.

Pl.’s Comp. at 1. Plaintiff invoked jurisdiction pursuant to 28

U.S.C. § 1581(i)(4). Id. Defendant moves to dismiss for lack of

subject matter jurisdiction. Def.’s Mem. at 1.

This Court’s jurisdiction is set forth in 28 U.S.C. §§

1581 (a)–(i). Subsection (a) vests the United States Court of

International Trade (“CIT”) with “exclusive jurisdiction of any

civil action commenced to contest the denial of a protest [by

Customs]”. 28 U.S.C. § 1581 (2012). Subsections (b) through (g)

delineate other specifics grants of jurisdiction. Id. Subsection

1581(h) vests the CIT with “exclusive jurisdiction of any civil

action commenced to review, prior to the importation of the goods

involved, a ruling issued by the Secretary of the Treasury, or a

refusal to issue or change such a ruling. . .” Id. Subsection
Court No. 14-00096 Page 7

1581(i) jurisdiction is known as “residual jurisdiction,” and it

is well-settled that “jurisdiction under subsection 1581(i) may

not be invoked if jurisdiction under another subsection of section

1581 is or could have been available, unless the other subsection

is shown to be manifestly inadequate.” Hartford Fire Ins. Co. v.

United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008) (citing Int'l

Custom Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed.

Cir. 2006)). “[W]here a litigant has access to [the CIT] under

traditional means, such as 28 U.S.C. § 1581(a), it must avail

itself of this avenue of approach by complying with all the

relevant prerequisites thereto.” Id. The litigant “cannot

circumvent the prerequisites of 1581(a) by invoking jurisdiction

under 1581(i),” unless such traditional means are manifestly

inadequate. Id. Therefore, this Court will not entertain a claim

under § 1581(i) where “another subsection of 1581 is or could have

been available, unless the other subsection is shown to be

manifestly inadequate.” Id.

“A litigant asking the court to exercise jurisdiction

over his or her claim has the burden of establishing that

jurisdiction exists.” Chemsol, LLC v. U.S., 755 F.3d 1345, 1349

(2014)(citations omitted).

II. Relief is Available to Plaintiff Under 28 U.S.C. § 1581(a)

As discussed above, in order to invoke jurisdiction

under § 1581(i) Plaintiff must establish that another subsection
Court No. 14-00096 Page 8

of § 1581 was not, and could not, have been available to the

litigant at the time it filed its claim. See Hartford Fire Ins.

Co., 544 F.3d. at 1292. Plaintiff contends that at the time this

case was filed, there were no liquidated entries or pending

protests which could have formed the predicate for bringing an

action pursuant to § 1581(a). Pl.’s Br. at 9. Plaintiff notes

that the availability of a particular form of jurisdiction is

determined by the “time of filing” rule, and seeks to support its

argument by relying on the Court of Appeals for the Federal Circuit

(“CAFC”) decision in Ford Motor Co. v. United States, 688 F.3d

1319, 1328 (Fed. Cir. 2012). Id.

In Ford, the CAFC found jurisdiction under § 1581(i) was

available for a deemed liquidation claim in which Customs’ inaction

was at issue. Ford, 688 F.3d. at 1321. The CAFC noted that “it

is undisputed that at the time of filing of Ford’s complaint,

[Customs] had not affirmatively liquidated any of the nine entries.

It is also undisputed that the general one-year time period imposed

by Congress for liquidating such entries had long since expired”.

Ford, 688 F.3d. at 1321-2. Under such circumstances, the CAFC

held that § 1581(i) jurisdiction was available because the

“importer could not have asserted jurisdiction under any of the

other enumerated provisions of § 1581”. Id.

The facts presented in Ford are unlike the instant case.

Whereas the importers in Ford were unable to pursue an
Court No. 14-00096 Page 9

administrative appeal because Customs unlawfully failed to make a

decision on any entries held for over one year, here, General Mills

was fully capable of making an entry and pursuing the proper

procedural path in order to obtain jurisdiction under § 1581(a).

See id. at 1327.

Plaintiff also relies heavily on this Court’s decision

in Best Key Textiles Co. v. United States. Best Key Textiles Co.

v. United States, 37 CIT __, __, Slip Op. 13-148 (Dec. 13, 2013)

(“Best Key I”), vacated in part on reconsideration, 38 CIT __,

__, Slip Op. 14-22 (Feb. 25, 2014) (“Best Key II”). In Best Key

I, plaintiff, Best Key Textiles (“Best Key”), a producer of

metallized yarn, brought an action seeking “pre-importation

declaratory judgment” on a product known as the “Johnny Collar”

shirt. Best Key I at 1. Best Key invoked jurisdiction under 28

U.S.C § 1581(h), or in the alternative § 1581(i). Id. at 2.

Ultimately, the Court granted defendant’s motion to dismiss for

lack of subject matter jurisdiction. See id. at 2–8.

In the Best Key litigation, Best Key obtained from the

CBP a ruling (the “Yarn Ruling”) on its proprietary “BKMY” yarn.

Id. In order to obtain “duty rate benefits” of the Yarn Ruling,

Best Key “made, or ordered made” a “Johnny Collar” shirt which was

comprised of BKMY yarn, and requested from the CBP a ruling

concerning the classification of the “Johnny Collar” shirt. Id.

at 3. Essentially, Best Key was not seeking a certain rate on its
Court No. 14-00096 Page 10

own product, the BKMY yarn, but rather on the products Best Key’s

customers produced using its BKMY yarn. Id. at 5–6.

Ultimately, in Best Key I, the Court found that Best Key

could not demonstrate that the traditional approach of importing

the goods and filing a protest in accordance with § 1581(a) was

“manifestly inadequate” because it was not importing the goods,

but rather it was trying to obtain a favorable classification for

its customers. Id. at 8. The Court found that Best Key had no

standing to assert the claims of those remote parties under

1581(i). Id. at 6–8.

However, in Best Key II, the Court subsequently granted

Best Key’s motion for reconsideration of its holding on § 1581(i)

jurisdiction. See Best Key II at 1–2. Although the Court’s

analysis of § 1581(i) jurisdiction was sparse, it stated the

following:

The court agrees it is “highly questionable” whether a
Customs’ ruling that lowers the rate of duty on a product
the plaintiff has no expressed intention of importing
can result in aggrievement or adverse effect to the
plaintiff . . . While the court stands by its prior
ruling in general, it is, nonetheless, the plaintiff’s
product that is the subject of the ruling at issue, and
the court has undoubted exclusive jurisdiction over the
general administration and enforcement of this type of
matter in 28 U.S.C. § 1581(i)(4).

Id. at 2.

Plaintiff insists that the Best Key litigation supports

its argument that § 1581(i)(4) jurisdiction is available to
Court No. 14-00096 Page 11

challenge HRL H212286. Pl.’s Br. at 15–18. Plaintiff contends

that the instant case is analogous because as in Best Key II, here,

Plaintiff has “no other means of jurisdiction” available to it

which would “provide General Mills with the relief sought, namely

APA review of the ruling.” Id. at 16.

The court disagrees. Unlike in Best Key II where Best

Key was not the importer of the subject merchandise, here Plaintiff

would be the importer, and therefore, would meet the standing

requirements pursuant to § 1581(a). Thus, whereas the unique

circumstances presented in Best Key II limited jurisdiction to

§ 1581(i), here § 1581(a) jurisdiction could have been available

to Plaintiff had it chosen to pursue the procedural requirements

pursuant to § 1581(a). See Best Key II at 2.

Ultimately, General Mills could have chosen to import

the product and, within one year of importation, file a claim for

NAFTA duty-free treatment pursuant to 19 U.S.C. § 1520(d). 19

U.S.C. § 1520(d) (2012). If Customs were to deny the § 1520(d)

claim, General Mills could then choose to file a protest pursuant

to 19 U.S.C. § 1514. 19 U.S.C. § 1514 (2012). If Customs were to

deny General Mills’ protest, General Mills could then seek judicial

review of the denied protest pursuant to 28 U.S.C. § 1581(a). 28

U.S.C. § 1581(a). Plaintiff’s perceived likelihood of success in

taking this administrative route does not foreclose its ability to

do so. Because General Mills could have secured jurisdiction
Court No. 14-00096 Page 12

pursuant to 28 U.S.C. § 1581(a), the court therefore does not have

jurisdiction pursuant to § 1581(i) unless it is demonstrated that

§ 1581(a) is manifestly inadequate.

III. Relief Under 28 U.S.C. § 1581(a) is Not Manifestly
Inadequate

In order to be manifestly inadequate, a “protest must be

an exercise in futility” or “incapable of producing any result”.

See Hartford, 544 F.3d at 1294. “[A] belief that [a plaintiff]

had no remedy under subsection 1581(a) [does] not make that remedy

inadequate, and [parties] cannot take it upon [themselves] to

determine whether it would be futile to protest or not”. Chemsol,

755 F.3d at 1355 (citations omitted) (internal quotation marks

omitted). “[T]he traditional avenue of approach to the court under

28 U.S.C. § 1581(a) was not intended to be so easily circumvented,

whereby it would become merely a matter of election by the

litigant.” Am. Air Parcel Forwarding Co. v. United States, 718

F.2d 1546, 1550 (Fed. Cir. 1983).

Plaintiff argues that even if jurisdiction under

§ 1581(a) is available, it is “manifestly inadequate” because it

would require General Mills to file a future entry of the Product,

pay duties, sue for recovery based on CBP’s classification, and

“incur mandatory changes in marking and administrative costs,

which would not be recouped even if it were successful.” Pl.’s

Br. at 12. Furthermore, Plaintiff insists that § 1581(a) is
Court No. 14-00096 Page 13

inadequate because “it does not lead to judicial review under the

APA standard of HRL H212286—rather, it would lead to some future

review of a different agency determination, on the basis of a

different record, and subject to a different standard of review.”

Pl.’s Br. at 9 (footnotes omitted).

The court is not persuaded by Plaintiff’s arguments.

First, Plaintiff alleges various forms of financial hardship which

it contends would eliminate its ability to be “made whole” from

proceeding under § 1581(a). Pl.’s Br. at 12. Plaintiff insists

that “on several prior occasions, this Court has held that the

irrevocable cost of sourcing differently or creating new packaging

makes protest remedies inadequate and justifies, either as

aggrievement or even ‘irreparable harm’, the direct review of

Customs rulings on the record before the Court”. Id. at 13 (citing

CPC Int’l Corp. v. United States, 19 CIT 978, 979-80 (1995); Ross

Cosmetics Distrib. Ctrs. V. United States, 18 CIT 979 (1994); Am.

Frozen Food Inst. v. United States, 18 CIT 565, 570-71 (1994)).

Plaintiff fails to call to the court’s attention the fact that all

of the cases it relies on in support of its “irreparable harm”

argument confer jurisdiction on the basis of § 1581(h) and not on

§ 1581(i). Furthermore, it is well settled that “mere allegations

of financial harm, or assertions that an agency failed to follow

a statute, do not make the remedy established by Congress
Court No. 14-00096 Page 14

manifestly inadequate”. See Int'l Custom Products, Inc. v. United

States, 467 F.3d 1324, 1327 (Fed. Cir. 2006) (citations omitted).

Furthermore, the court does not agree with Plaintiff

that because § 1581(a) jurisdiction does “not lead to judicial

review under the APA”, it renders the remedy manifestly inadequate.

Pl.’s Br. at 9. “[C]lear precedent exists that the APA is not a

jurisdictional statute . . . Thus the APA does not give an

independent basis for finding jurisdiction in the Court of

International Trade.” Am. Air Parcel Forwarding Co., 718 F.2d at

1552.

Ultimately, this court finds that neither the procedural

and administrative costs inherent in § 1581(a), nor General Mill’s

desire to obtain APA review, render the remedy manifestly

inadequate.

IV. Transfer to U.S. District Court for the District of
Columbia

Lastly, Plaintiff contends that if it is determined that

subject matter jurisdiction does not exist before this Court, the

case should be transferred to the U.S. District Court for the

District of Columbia (“USDCDC”) pursuant to 28 U.S.C. § 1631. See

Pl.’s Br. at 22-25. Because this Court finds that § 1581(a)

jurisdiction could have been available to Plaintiff it would be

inappropriate to transfer this case to the USDCDC. See Conoco,

Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1586
Court No. 14-00096 Page 15

(Fed. Cir. 1994) (“If jurisdiction can be found to lie under the

provisions of § 1581, such jurisdiction would place exclusive

judicial review of the issues raised by the appellants in the Court

of International Trade. Only if no jurisdictional grant can be

found in the Court of International Trade would it be appropriate

to invoke the general administrative review function of the

district courts in such cases.”).

Conclusion

For the reasons stated above, this court finds that

jurisdiction under § 1581(a) was available and was not manifestly

inadequate, rendering jurisdiction under § 1581(i) improper.

Defendant’s motion to dismiss is GRANTED. Plaintiff’s complaint

is dismissed. Judgment will be entered accordingly.

/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: %FDFNCFS



New York, New York