All Tools, Inc. v. United States

Slip Op. 10-114

UNITED STATES COURT OF INTERNATIONAL TRADE

:
ALL TOOLS, INC., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 07-00237
UNITED STATES, :
:
Defendant. :
:
:

OPINION

[Defendant’s motion for summary judgment granted.]

Dated: October 5, 2010

Peter S. Herrick, P.A. (Peter S. Herrick), for plaintiff.

Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commericial
Litigation Branch, Civil Division, United States Department of
Justice, (Edward F. Kenny); Office of Assistant Chief Counsel for
Import Administration, International Trade Litigation United
States Customs and Border Protection (Chi. S. Choy), of counsel,
for defendant.

Eaton, Judge: This matter is before the court on defendant’s

motion for summary judgment based on a claimed lack of subject-

matter jurisdiction. By its motion, defendant alleges that

plaintiff, All Tools, Inc. (“All Tools”), failed to file timely

its summons pursuant to 28 U.S.C. § 2636(a)(1) (2006), and

therefore failed to establish jurisdiction before this Court.

Def.’s Mem. in Support of Mot. for Summ. J. (“Def.’s Mem.”) 1.

All Tools argues that the deadline for filing its suit was

equitably tolled pending Customs’ issuance of a protest number,
Court No. 07-00237 Page 2

and therefore its suit is timely. Pl.’s Mem. in Opp. to Mot. for

Summ. J. (“Pl.’s Mem.”) 1. Because some of the Counts in the

Complaint were untimely filed, and others raise issues not found

in a timely protest, the court grants defendant’s motion for

summary judgment and dismisses the case.

BACKGROUND

Summary judgment is appropriate when there are no genuine

issues of material fact and the moving party is entitled to

judgment in its favor as a matter of law. USCIT R. 56(c). Here,

none of the material facts are in dispute. On August 26, 2003,

All Tools, through its customs broker, Mr. Pedro Carmona, entered

a shipment of Chinese-origin painting accessories through the

Port of San Juan, Puerto Rico. Def.’s Mem. Ex. 1. Mr. Carmona

completed the entry summary for the merchandise, stating that the

entry included paint brushes classified under HTSUS No.

9603.40.4040 as “Natural Bristle Brushes.” Def.’s Mem. Ex. 1.

Mr. Carmona was listed on the entry summary as the importer of

record. Def.’s Mem. Ex. 1.

Following the filing of the entry summary, Customs concluded

that, because the paint brushes had natural bristles, they fell

within antidumping duty order No. A570-501-000, and therefore

were subject to an unfair trade duty of 351.92 percent. Def.’s

Mem. Ex. 2; see Natural Bristle Paint Brushes and Brush Heads
Court No. 07-00237 Page 3

from the People’s Republic of China, 61 Fed. Reg. 52,917 (Dep’t

of Commerce Oct. 9, 1996) (final results). On January 8, 2004,

Customs sent an Informed Compliance Notice addressed to Mr.

Carmona, care of All Tools, stating that the paint brushes were

subject to this antidumping duty. Def.’s Mem. Ex. 2.

The Informed Compliance Notice also directed All Tools’

attention to a Customs Notice (Notice No. 2001-01 of Oct. 4,

2001) regarding the filing of non-reimbursement statements for

entries subject to antidumping duties. Def.’s Mem. Ex. 2. The

purpose of a non-reimbursement statement is to assure Customs

that the importer will not be repaid the antidumping duty by the

exporter or producer of the merchandise. 19 C.F.R.

§ 351.402(f)(1)-(2) (2009). If an importer fails to file a non-

reimbursement statement, Commerce may presume that the exporter

or purchaser did, in fact, reimburse the importer for the

antidumping duties paid. 19 C.F.R. § 351.402(f)(3). In cases

where Commerce relies on this presumption, it will treat the duty

as if it had been fully reimbursed, and will charge the importer

the duty a second time, in effect doubling the duty rate. See

Id. All Tools did not file a non-reimbursement statement until

February 17, 2006. Def.’s Mem. Ex. 11.

On September 13, 2004, having heard nothing from either Mr.

Carmona or All Tools, Customs sent a Notice of Action to Mr.

Carmona advising that “dumping duties of 703.84% [were to] be
Court No. 07-00237 Page 4

assessed” on the entry as a non-reimbursement statement had not

been filed. Def.’s Mem. Ex. 5; see 19 C.F.R. § 152.2. Neither

Mr. Carmona nor All Tools responded to the Notice of Action.

Customs liquidated the entry on October 15, 2004 and assessed the

double duty rate. Def.’s Mem. Ex. 6.

On January 14, 2005, 91 days after the liquidation of All

Tools’ entry, Mr. Carmona filed a protest against liquidation on

the company’s behalf, contesting the classification of the entry.1

Def.’s Mem. Ex. 7 (“Protest No. 1"). By seeking to have its

merchandise classified as being made of synthetic bristles, All

Tools was endeavoring to keep its merchandise from being subject

to antidumping duties.

Customs denied Protest No. 1 as untimely on January 18,

2005, stating that it was not filed within ninety days of the

liquidation. Def.’s Mem. Ex. 8; see 19 U.S.C. § 1514(c)(3)(A)

(2000).2 Pursuant to 19 U.S.C. § 1514(a), an appeal of the denial

of Protest No. 1 could have been taken within 180 days of January

18, 2005. All Tools did not appeal the denial of Protest No. 1

1
All Tools contended, in Protest No. 1, that the brushes
should have been classified as HTSUS No. 9603.40.40.60 “other
paint brushes,” and further that the brushes were made of
synthetic filaments, and therefore not subject to the antidumping
duty order. Def.’s Mem. Ex. 7.
2
Until the 2004 Amendments to the Tariff Act went into
effect on December 18, 2004, the time limit for protesting a
Customs classification determination was ninety days after notice
of liquidation or reliquidation. See Amendments to the Tariff
Act of 1930, Pub. L. 108-429, § 1571 (amended 2004).
Court No. 07-00237 Page 5

to this Court.

On September 2, 2005, Mr. Carmona filed a claim with Customs

pursuant to 19 U.S.C. § 1520(c)(1)3 alleging a mistake of fact.

Def.’s Mem. Ex. 9 (“Carmona Letter”). The basis for Mr.

Carmona’s claim was that the “Informed Compliance Notice [and

the] Notice of Action . . . treated Carmona as the ‘importer’

when, in fact, All Tools was the ‘importer.’” Carmona Letter 2.

Customs denied Mr. Carmona’s claim on January 5, 2006, stating

that the circumstances “[did] not constitute clerical error,

mistake of fact or other inadvertence.” Def.’s Mem. Ex. 10.

On March 17, 2006, All Tools filed a protest with Customs to

contest the denial of Mr. Carmona’s § 1520(c)(1) mistake of fact

3
19 U.S.C. § 1520(c)(1) (2000) was repealed on December
3, 2004 (Amendments to Tariff Act of 1930, Pub. L. 108-429, Title
II, § 2105 (amended 2004)), but was still in effect as to All
Tools’ entry. It stated:

Notwithstanding a valid protest was not
filed, the Customs Service may, in accordance
with regulations prescribed by the Secretary,
reliquidate an entry or reconciliation to
correct–

(1) a clerical error, mistake of fact,
or other inadvertence, whether or not
resulting from or contained in electronic
transmission, not amounting to an error in
the construction of a law, adverse to the
importer and manifest from the record or
established by documentary evidence, in any
entry, liquidation, or other customs
transaction, when the error, mistake, or
inadvertence is brought to the attention of
the Customs Service within one year after the
date of liquidation or exaction[.]
Court No. 07-00237 Page 6

claim.4 Def.’s Mem. Ex. 11 (“Protest No. 2"). On April 5, 2006,

Customs denied Protest No. 2. Def.’s Mem. Ex. 12.

Following the denial of the protest, counsel for All Tools

asked Customs to assign a protest number to Protest No. 2 on four

occasions beginning on April 13, 2006, eight days after Customs

denied All Tools’ protest as untimely, and ending on February 20,

2007. Pl.’s Exs. B, C, D, E. Customs assigned a protest number

on February 20, 2007, but has given no reason for its failure to

assign a number at an earlier date. Pl.’s Mem. 2.

All Tools commenced this suit on July 3, 2007, 133 days

after receiving the protest number, seeking: (1) an order

reclassifying its merchandise (“Count I”); (2) an order “that the

dumping duties cannot be doubled in this case” (“Count II”); (3)

the reliquidation of its merchandise at the “at entered” rate

because deemed liquidation had occurred on August 26, 2004

(“Count III”); and (4) an order “approving” Protest No. 2 and

ordering Customs to refund the duties (“Count IV”). All Tools,

Inc. v. United States, Court No. 07-00237, Summons (July 3,

2007); All Tools, Inc. v. United States, Court No. 07-00237,

Complaint (Apr. 2, 2008). Prior to filing its summons, All Tools

paid the duties owed on the entry as required by 28 U.S.C.

4
All Tools, as the ultimate consignee, has standing to
file a protest “with respect to merchandise that is the subject
of a decision specified in [19 U.S.C. § 1514(a)]”. 19 U.S.C.
§ 1514(c)(2)(A) (2006).
Court No. 07-00237 Page 7

§ 2637(a).5 Pl.’s Resp. To June 29, 2010 Letter 1. The summons

was filed some 896 days after the denial of Protest No. 1, and

274 days after the statutorily-prescribed time for appealing the

denial of Protest No. 2. See 19 U.S.C. § 1514(a).

Defendant filed its motion for summary judgment on September

30, 2009. Oral argument was held on April 8, 2010, after which

the court ordered additional briefing on a number of issues

concerning the § 1520(c)(1) mistake of fact claim. All Tools,

Inc. v. United States, Court No. 07-00237 (Apr. 12, 2010) (order

for additional briefing). On June 29, 2010, the court sent a

letter to the parties requesting information as to the status of

Mr. Carmona’s interest in the matter. All Tools, Inc. v. United

States, Court No. 07-00237 (June 29, 2010) (letter to parties

regarding Mr. Carmona).

Plaintiff asserts that this Court has jurisdiction to hear

its claims pursuant to 28 U.S.C. § 1581(a). Pl.’s Mem. 6. Under

28 U.S.C. § 1581(a), the United States Court of International

Trade has “exclusive jurisdiction of any civil action commenced

5
As part of his mistake of fact claim, Mr. Carmona
stated “it was a mistake of fact for Customs to look to Carmona
for payment of antidumping duties and interest and not All
Tools.” Carmona Letter 4. Mr. Carmona, however, is not a party
to this suit, and both parties agree that, because All Tools paid
the duties before commencing suit, his claim is moot. Pl.’s
Reply to June 29 Letter 2 (“Mr. Carmona does not have any
interest in this case.”); Def.’s Reply to June 29 Letter 3 (“[i]t
is our position that Mr. Carmona has no interest in the outcome
of this lawsuit.”).
Court No. 07-00237 Page 8

to contest the denial of a protest, in whole or in part . . . .”

STANDARD OF REVIEW

The defendant’s motion for summary judgment is based on its

assertion that the court does not have jurisdiction over the

Counts of All Tools’ complaint. “A jurisdictional challenge to

the court’s consideration of [p]laintiff’s action raises a

threshold inquiry.” Hartford Fire Ins. Co. v. United States, 31

CIT 1281, 1285, 507 F. Supp. 2d 1331, 1334 (2007) (citations

omitted).

Thus, before reaching the merits of plaintiff’s Complaint,

the court must rule on defendant’s motion for summary judgment.

“The party seeking to invoke this Court’s jurisdiction has the

burden of establishing such jurisdiction.” Autoalliance Int’l,

Inc. v. United States, 29 CIT 1082, 1088, 398 F. Supp. 2d 1326,

1332 (2005) (citations omitted). To avoid dismissal, a plaintiff

“must allege in his pleading the facts essential to show

jurisdiction.” McNutt v. Gen. Motors Acceptance Corp., 298 U.S.

178, 189 (1936).

DISCUSSION

The United States, on behalf of Customs, has moved for

summary judgment on the basis that All Tools failed to file
Court No. 07-00237 Page 9

timely its summons pursuant to 28 U.S.C. § 2636(a)(1).6 Such

timely filing is a prerequisite for the commencement of an action

before this Court under 28 U.S.C. § 1581(a). See AutoAlliance

Int’l, Inc. v. United States, 26 CIT 1316, 1323, 240 F. Supp. 2d

1315, 1322 (2002) (finding that plaintiff’s suit was barred

because plaintiff failed to file a summons in this Court within

180 days after Customs’ ruling on the protests).

All Tools opposes the motion for summary judgment, but does

not dispute any of the jurisdictional facts. Rather, All Tools

insists that its lawsuit was timely commenced because the

deadline for filing the summons was equitably tolled until

Customs issued a protest number for Protest No. 2.

The court finds that All Tools’ complaint must be dismissed

for the following reasons.

I. The Classification and Antidumping Duty Claim

Plaintiff’s primary purpose in filing this suit is to gain

6
28 U.S.C. § 2636(a) reads, in part:

(a) A civil action contesting the
denial, in whole or in part, of a protest
under [19 U.S.C. § 1515] is barred unless
commenced in accordance with the rules of the
Court of International Trade—

(1) within one hundred and eighty days
after the date of mailing of notice of
denial of a protest under [19 U.S.C. §
1515(a)] . . . .
Court No. 07-00237 Page 10

review of the classification of the paint brushes in its entry.

This is because if All Tools is successful in challenging the

classification, it will be able to place its merchandise outside

of the antidumping duty order, and thus keep it from being

subject to antidumping duties.

As noted, All Tools’ protest of the classification of its

merchandise (Protest No. 1) was filed on January 14, 2005,

ninety-one days after its October 15, 2004 liquidation. Customs

denied Protest No. 1 as untimely under 19 U.S.C. § 1514(a),

stating that it was filed one day late. Def.’s Mem. Ex. 8; see

Def.’s Mem. Ex. 12 (referring to this protest as protest no.

490905200003). To contest the finding that Protest No. 1 was

untimely filed, and thus to contest the classification of the

paint brushes and the resulting antidumping duties, All Tools was

required to file suit in this Court by July 18, 2005. 28 U.S.C.

§ 2636(a)(1) (“A civil action contesting the denial, in whole or

in part, of a protest . . . is barred unless commenced . . .

within one hundred and eighty days after the date of mailing of

notice of denial of a protest . . . .”). All Tools never sought

judicial review of Protest No. 1.

All Tools makes no claim that the time to file suit

contesting the denial of Protest No. 1 was tolled. Because All

Tools did not file its lawsuit within 180 days of the denial of

Protest No. 1, the liquidation of the entry under HTSUS No.
Court No. 07-00237 Page 11

9603.40.4040 as “Natural Bristle Brushes” became final and

conclusive as of July 18, 2005. 19 U.S.C. § 1514(a)7. Therefore,

All Tools is foreclosed from further contesting: (1) the paint

brushes’ classification; and (2) the application of antidumping

duties resulting from such classification.8 See 28 U.S.C.

§ 2636(a)(1). As a result, the claim for refunding antidumping

duties based on a misclassification of All Tools merchandise

contained in Count I of the complaint is dismissed.

II. The Mistake of Fact Claim

On January 8, 2004, Mr. Carmona was sent the Informed

Compliance Notice, care of All Tools, stating that the company’s

merchandise was subject to the antidumping duties, and further

7
[D]ecisions of the Customs Service, including
the legality of all orders and findings
entering into the same, 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, or unless a civil action contesting
the denial of a protest, in whole or in part,
is commenced in the United States Court of
International Trade in accordance with
chapter 169 of title 28 within the time
prescribed by section 2636 of that title.

19 U.S.C. § 1514(a).
8
Protest No. 1 made no mention of the doubling of the
antidumping duties as it sought to challenge the classification
of the merchandise and remove it from any antidumping duty
liabilities.
Court No. 07-00237 Page 12

saying “[i]nsure that you abide by Notice No. 2001-01 of 10/04/01

regarding reimbursement statement.” Def.’s Mem. Ex. 2.

Thereafter, Mr. Carmona received the Notice of Action, dated

September 13, 2004, informing All Tools that the double duty was

to be assessed on the merchandise and that the entry was in the

process of being liquidated. As noted, the entry was liquidated

on October 15, 2004, and the double duties were assessed at that

time. On September 2, 2005, Mr. Carmona filed a mistake of fact

claim with Customs pursuant to 19 U.S.C. § 1520(c)(1). Def.’s

Mem. Ex. 9.

The alleged mistake of fact was that the “Informed

Compliance Notice [and the] Notice of Action . . . treated

Carmona as the ‘importer’ when in fact All Tools was the

‘importer.’” Carmona Letter 2. In other words, the mistake of

fact alleged by Mr. Carmona was that he was being treated as the

importer of the merchandise, rather than All Tools, for the

purposes of filing the non-reimbursement statement.

The Carmona Letter did not challenge the application of the

antidumping duty to All Tools’ entry and, while it did take issue

with the doubling of the duty because Mr. Carmona was incapable

of filling out the non-reimbursement statement, it did not assert

that the imposition of the double duty was a mistake of fact.

That is, the mistake of fact asserted in the letter was that Mr.

Carmona was wrongly treated as the entry’s importer for purposes
Court No. 07-00237 Page 13

of filing the non-reimbursement statement. Under the then-

existing law, a mistake of fact claim could have been made to

Customs up to one year after liquidation and still be timely.

See 19 U.S.C. § 1514(a). Thus, Mr. Carmona’s claim appears to

have been timely.

On January 5, 2006, Customs denied Mr. Carmona’s claim by

stating that the allegations in his letter did “not constitute

clerical error, mistake of fact or other inadvertence” and

therefore did not fall within the bounds of 19 U.S.C.

§ 1520(c)(1). Def.’s Mem. Ex. 10. On March 17, 2006, All Tools

filed a protest of Custom’s denial of Mr. Carmona’s § 1520(c)(1)

mistake of fact claim. Def.’s Mem. Ex. 11 (“Protest No. 2"). In

Protest No. 2, All Tools reiterated its claim that Mr. Carmona

could not file the non-reimbursement statement. Def.’s Mem. Ex.

11.

Count II of the complaint addresses the claimed mistake of

fact. At paragraphs 22 through 24 of the complaint, All Tools

alleges that Mr. Carmona “could not file an anti-reimbursement

(sic) statement as he was not privy to the transaction between

the exporter and the importer.” Compl. ¶ 23.

On February 17, 2006, 490 days after its merchandise was

liquidated, All Tools filed a non-reimbursement statement.

Def.’s Mem. Ex. 11. Based on the claimed mistake that the

Informed Compliance Notice wrongly instructed Mr. Carmona to file
Court No. 07-00237 Page 14

the non-reimbursement statement, All Tools’ Count II apparently

asks the court to direct Commerce to accept its late filed non-

reimbursement statement, rescind the doubling of the antidumping

duty, and reliquidate the entry at the 351.92 percent rate.

“Wherefore, the plaintiff respectfully requests the Court to

enter an order that the dumping duties in this case cannot be

doubled and that half of the dumping duties that have been paid

be refunded with interest.” Compl. ¶ 24.

In order for plaintiff to have the allegations contained in

Count II heard, however, its case must have been timely filed.

Plaintiff argues that the court has jurisdiction over this matter

because the deadline for filing the summons was equitably tolled

until the company received a protest number for Protest No. 2.

Thus, according to plaintiff, it was excused by defendant’s

actions from filing its summons by October 2, 2006, 180 days

after Protest No. 2 was denied, and had until 180 days after

February 20, 2009, when it received the protest number, to bring

suit contesting Protest No. 2. Plaintiff cites DaimlerChrysler

Corp. v. United States for the proposition that a protest number

was required for it to file its lawsuit contesting the denial of

a protest. 442 F.3d 1313 (Fed. Cir. 2006) (“DaimlerChrysler”).

In DaimlerChrysler, plaintiff timely filed various suits

contesting the denial of protests relating to the duties on

“sheet metal [exported] to Mexico for painting and assembly into
Court No. 07-00237 Page 15

motor vehicles, and then imported the vehicles into the United

States.” On its summons plaintiff listed some but not all of its

protests by protest number. Id. at 1315 (“The schedule omitted

seven protests covering more than 400 entries . . . .”).

Plaintiff later moved to amend its complaint to include the

entries covered by the protests for which it had omitted the

numbers, but the motion was denied. In affirming the Court of

International Trade, the Federal Circuit found that “[t]he

essential jurisdictional fact―the denial of the protest―simply

cannot be affirmatively alleged without specifically identifying

each protest involved in the suit.” Id. at 1319; see id. at

1321-22 (“[A] summons can provide fair notice only if the

contested protests are identified with particularity. . . .

Daimler failed to identify the seven protests in the summons.

The summons was therefore insufficient to ‘commence an action’ in

the Court of International Trade as to the seven omitted protests

within the 180-day limitation period.”).

Plaintiff’s reliance on DaimlerChrysler is misplaced. This

is because the case does not hold that the inclusion of a protest

number is a prerequisite for the filing of a summons. Rather, it

stands for the proposition that “a summons can provide fair

notice only if the contested protests are identified with

particularity.” Id. at 1321. In keeping with this holding, this

Court has held that the inclusion of a protest number is not
Court No. 07-00237 Page 16

necessary to commence a lawsuit contesting a protest denial and

that identification by other means such as an entry number is

sufficient to meet filing requirements. See Int’l Custom Prods.,

Inc. v. United States, 32 CIT ___, ___, Slip Op. 08-53 at 2, n.3

(May 20, 2008) (not reported in the Federal Supplement); see

also, DaimlerChrysler v. United States, 28 CIT 2105, 2106-07,

350 F. Supp. 2d 1339, 1341 (2004) (holding that “if the entries

were listed and it was possible for the United States to relate

the entry to the protest, . . . then jurisdiction would also

attach”).

DaimlerChrysler involved eighty-one protests and hundreds of

entries. 442 F.3d at 1316. Here, as has been seen, the sole

entry at issue was subject to two protests. Plaintiff’s lawsuit

seeks to contest Protest No. 2. Plaintiff insists that because

it had no protest number for Protest No. 2, it was prohibited

from filing its summons under the holding of DaimlerChrysler.

There is little question, however, that if All Tools had filed a

summons listing the entry number and the date that Protest No. 2

was denied, Customs would have received sufficient notice as to

the company’s claim and grounds upon which it rested. There are,

no doubt, other ways that plaintiff could have identified the

protest it was disputing and thus have given defendant sufficient

notice for plaintiff to commence the suit. Thus, All Tools was

not prevented from filing this action by Customs’ failure to
Court No. 07-00237 Page 17

assign a protest number.

With this in mind, the court turns to plaintiff’s equitable

tolling argument itself. Equitable tolling is generally limited

to situations either where a claimant “has been ‘induced or

tricked by his adversary’s misconduct into allowing the filing

deadline to pass’” or “where a claimant has actively pursued

judicial relief by filing a defective pleading within the

statutory time period . . . .” Former Emps. of Siemens Info.

Commc’n Networks, Inc. v. Herman, 24 CIT 1201, 1208, 120 F. Supp.

2d 1107, 1114 (2000) (quoting Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89, 96 (1990) (“Irwin”)). In order to assert equitable

tolling, the party claiming it must show that it has been

diligent in preserving its legal rights. See Irwin, 498 U.S. at

96 (“We have generally been much less forgiving in receiving late

filings where the claimaint failed to exercise due diligence in

preserving his legal rights.”).

Because All Tools was not prevented from filing its case,

either by defendant inaction or otherwise, equitable tolling is

not available to it. Here, while it is clear that Customs failed

in its duty to supply the protest number, it is equally clear

that, because All Tools could have filed its lawsuit, it was not

induced by Customs’ misconduct “into allowing the filing deadline

to pass” and, as a result, the filing deadline was not tolled.

That is, the plaintiff, who was represented by counsel, was not
Court No. 07-00237 Page 18

prevented by Customs’ failure to supply the protest number from

filing its suit. Thus, plaintiff has simply not made out a case

that the filing deadline should be tolled based on Customs’

behavior.

Nor can it be said that plaintiff can be found to have

demonstrated such diligence as to justify equitable tolling.

“Courts have found due diligence where a party made reasonable

and sustained attempts to resolve questions or ambiguities and

reasonably attempted to comply with the statutory time limits.”

North Dakota Wheat Comm’n v. United States, 28 CIT 1236, 1244,

342 F. Supp. 2d 1319, 1326 (2004) (citing Former Emps. of Quality

Fabricating, Inc. v. U.S. Sec’y of Labor, 27 CIT 419, 424, 259 F.

Supp. 2d 1282, 1286 (2003) (holding that plaintiff showed due

diligence where plaintiff continuously emailed Department of

Labor regional office, checked the Department of Labor website

daily and visited the State of Pennsylvania Department of Labor

Trade Adjustment Representative, yet was not informed she was

consulting the wrong sources of information)).

As evidence of its diligence, All Tools notes that its

counsel asked Customs to assign a protest number to Protest No. 2

on four occasions. Pl.’s Mem. Exs. B, C, D, E. Commerce finally

assigned a protest number on February 20, 2007. Pl.’s Mem. 2.

For purposes of demonstrating due diligence, however, All Tools’

efforts are unconvincing. This is because the company made but
Court No. 07-00237 Page 19

one request for a protest number prior to the time the statute of

limitations had run its course. All Tools made this single

request for a protest number on April 13, 2006, shortly after the

protest had been denied, and then took no further action until

December 21, 2006, well past the 180-day period for bringing suit

before this Court. This falls short of the “repeated and

sustained” attempts envisioned by the court in Former Employees

of Quality Fabricating and, as such, All Tools did not make the

necessary effort required to demonstrate the exercise of due

diligence.

In addition, once the protest number was in hand, All Tools

did not act in a diligent fashion to commence its suit. Rather,

it waited 133 days before filing its summons.

A claim that equitable tolling should be applied to a

deadline to file suit against the government faces a high

threshold, and the plaintiff must affirmatively show that either

the actions of the government “induced or tricked” the plaintiff

into filing its lawsuit after the deadline, or that the plaintiff

has diligently attempted to preserve its legal rights, but did

not meet the required deadline. All Tools has failed to meet

either of these requirements. As such, the complaint contesting

Protest 2 was filed late, and the court does not have

jurisdiction over it. See 28 U.S.C. § 2636(a). Count II of the

complaint is therefore dismissed.
Court No. 07-00237 Page 20

III. The Deemed Liquidation Claim

Next, by Count III of the complaint, All Tools insists that

its entry was liquidated “by operation of law” pursuant to 19

U.S.C. § 1504(a), prior to the actual liquidation on August 26,

2004. As has been noted, however, plaintiff seeks to invoke this

Court’s jurisdiction pursuant to 19 U.S.C. § 1581(a). In order

for the court to have jurisdiction over a claim under § 1581(a),

a challenged decision by Customs must appear in a valid protest.

See, e.g., Novell Inc. v. United States, 21 CIT 1141, 1142, 985

F. Supp. 121, 123 (1997) (holding that this Court’s jurisdiction

under 28 U.S.C. § 1581(a) is limited to those civil actions that

contest the denial, either in whole or in part, of a protest).

All Tools’ deemed liquidation claim is raised for the first time

in its complaint, and thus does not appear in a protest that

Customs has denied. Therefore, the court does not have

jurisdiction under 19 U.S.C. § 1581(a) to hear All Tools’ claim.

As such, Count III of the complaint is dismissed.

IV. The Claim That The Court Should Approve Protest No. 2

Finally, by Count IV, All Tools seeks an order from the

court directing Customs to “approve” Protest No. 2 and “refund

the duties with lawful interest.” Compl. ¶ 34. This claim too

is based on the theory that All Tools’ complaint, although filed

454 days after Protest No. 2 was denied, is nonetheless timely,
Court No. 07-00237 Page 21

based on Customs’ failure to assign the plaintiff a protest

number. As has been seen, however, Count II of the Complaint,

which was based on Mr. Carmona’s mistake of fact claim found in

Protest No. 2, has been found to have been untimely filed, and

therefore does not provide the basis necessary for subject-matter

jurisdiction, and has been dismissed. For the same reasons,

Count IV of the complaint is dismissed.

CONCLUSION

For the foregoing reasons, this case is dismissed. Judgment

shall be entered accordingly.

/s/ Richard K. Eaton
Richard K. Eaton

Dated: October 5, 2010
New York, New York