Ford Motor Co. v. United States

Slip Op. 11- 130

UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
FORD MOTOR COMPANY, :
:
Plaintiff, :
: Before: WALLACH, Judge
v. : Court No.: 09-00375
:
UNITED STATES OF AMERICA, U.S. :
DEPARTMENT OF HOMELAND :
SECURITY, U.S. CUSTOMS AND :
BORDER PROTECTION, :
:
Defendants. :
:

[ Defendants’ Motion to Dismiss is DENIED. ]

Dated: October 18, 2011

Baker & Hostetler LLP (Matthew W. Caligur and C. Thomas Kruse) and Paulsen K. Vandevert,
Of Counsel, for Plaintiff Ford Motor Company.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Barbara S. Williams,
Attorney-in-Charge, International Trade Field Office, U.S. Department of Justice (Justin R.
Miller and David S. Silverbrand); and Yelena Slepak, U.S. Customs and Border Protection, for
Defendants United States, U.S. Department of Homeland Security, and U.S. Customs and Border
Protection.

OPINION

Wallach, Judge:

I
INTRODUCTION

Defendants United States of America, U.S. Department of Homeland Security, and U.S.

Customs and Border Protection move to dismiss Plaintiff Ford Motor Company’s Second

Amended Complaint for lack of subject matter jurisdiction. Defendants’ Motion to Dismiss, Doc.

No. 74 (“Defendants’ Motion”); Defendants’ Memorandum of Support of Its Motion to Dismiss,

1
Doc. No. 74 at 9-25 (“Defendants’ Memo”). Because Plaintiff’s claims are ripe and within the

court’s 28 U.S.C. § 1581(i) jurisdiction, Defendants’ Motion is DENIED.

II
BACKGROUND

A “drawback” is a refund of duties paid on an import that has been exported or destroyed,

19 U.S.C. § 1313; 19 C.F.R. § 191.2(i)-(k); a “drawback entry” is the form filed by a claimant to

request a drawback payment, 19 C.F.R. § 191.2(j).1 Customs finalizes that payment through

“liquidation” of the drawback entry. 19 C.F.R. §§ 159.1, 191.81.2 In some circumstances,

Customs pays the claimant the estimated drawback before it liquidates the drawback entry. 19

C.F.R. § 191.92. Subject to certain exceptions, entries that are not affirmatively liquidated by

Customs in a timely manner are “deemed liquidated” by operation of law at the amount

originally asserted by the claimant. 19 U.S.C. § 1504(a)(2)(A). If Customs determines that it has

overpaid on a drawback entry that has already liquidated (whether affirmatively or by operation

of law), it normally cannot recover the difference from the claimant. See 19 U.S.C. §§ 1514(a),

1520(a)(4); United States v. Nat’l Semiconductor Corp., 30 CIT 769, 774 (2006).

For the deemed liquidation of drawback entries, Congress enacted the current 19 U.S.C. §

1504(a)(2) as part of the Miscellaneous Trade and Technical Corrections Act of 2004. See

Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, §1563, 118 Stat.

2434 (2004). Although Plaintiff and Defendants disagree on the proper interpretation of this

provision, see Second Amended Complaint for Injunctive and Declaratory Relief, Doc. No. 38 at

1
A “drawback entry” forms only part of a “drawback claim.” 19 C.F.R. § 191.2(j)-(k). However, “[t]hese terms are
often used interchangeably by claimants and Customs.” Defendants’ Memo at 4 n.2; see also 19 U.S.C. § 1504(a)(2)
(“Entries or claims for drawback”).
2
Customs also liquidates entries for the underlying imports, which are known as import entries or consumption
entries. 19 C.F.R. §§ 159.1; 191.81.

2
7-10 (“Second Amended Complaint”); Defendants’ Memo at 2-4, resolution of Defendants’

Motion does not depend on the substance of that disagreement.3

The instant action includes all drawback entries that Plaintiff filed prior to December 3,

2004 and that Customs had not affirmatively liquidated when the action commenced on

September 2, 2009. See Second Amended Complaint, Doc. No. 38 at 2-3; id., Ex. A; Plaintiff’s

Consent Motion to Sever Liquidated Drawback Claims, Doc. No. 65 at 3; Summons, Doc. No. 1

at 1; Defendants’ Memo at 5-6. The 17 drawback entries specifically identified by Plaintiff were

all filed between 1996 and either 1997 or 1998. Second Amended Complaint at 6. Plaintiff

argues that all of these entries are now deemed liquidated. Id. at 3. Accordingly:

[P]ursuant to 28 U.S.C. § 1581(i), 5 U.S.C. § 706, 28 U.S.C. § 2643(c)(1), and 28
U.S.C. § 2201, Ford seeks a declaratory judgment from the Court that (1) the
Drawback Claims have been deemed liquidated by operation of law pursuant to
19 U.S.C. § 1504(a)(2); (2) Customs has no legal authority to review and/or
3
19 U.S.C. § 1504(a)(2) provides as follows:
(2) Entries or claims for drawback
(A) In general
Except as provided in subparagraph (B) or (C), unless an entry or claim for drawback is
extended under [19 U.S.C. § 1504(b)] or suspended as required by statute or court order, an
entry or claim for drawback not liquidated within 1 year from the date of entry or claim shall be
deemed liquidated at the drawback amount asserted by the claimant at the time of entry or
claim. Notwithstanding section 1500(e) of this title, notice of liquidation need not be given of an
entry deemed liquidated.
(B) Unliquidated imports
An entry or claim for drawback whose designated or identified import entries have not been
liquidated and become final within the 1-year period described in subparagraph (A), or within
the 1-year period described in subparagraph (C), shall be deemed liquidated upon the deposit of
estimated duties on the unliquidated imported merchandise, and upon the filing with the
Customs Service of a written request for the liquidation of the drawback entry or claim. Such a
request must include a waiver of any right to payment or refund under other provisions of law.
The Secretary of the Treasury shall prescribe any necessary regulations for the purpose of
administering this subparagraph.
(C) Exception
An entry or claim for drawback filed before [December 3, 2004], the liquidation of which is not
final as of [December 3, 2004], shall be deemed liquidated on the date that is 1 year after
[December 3, 2004], at the drawback amount asserted by the claimant at the time of the entry or
claim.
19 U.S.C. § 1504(a)(2).

3
 affirmatively liquidate any drawback claims that have been deemed liquidated by
operation of law; and (3) any action by Customs to review and/or affirmatively
liquidate drawback claims that have been deemed liquidated by operation of law
is [unlawful]. . . . Ford also seeks a permanent injunction enjoining Customs from
(1) reviewing and/or affirmatively liquidating these Drawback Claims; (2) taking
any action adverse or detrimental to Ford relating to these Drawback Claims; and
(3) restraining Customs from taking any steps or actions to collect additional
duties from Ford any amounts relating to these Drawback Claims, and taking any
actions adverse to Ford in respect of these Drawback Claims, including, but not
limited to placing Ford on national sanctions.

Id. at 3-4.

Although Defendants do not explicitly state whether they believe any of these drawback

claims are deemed liquidated, see generally Defendants’ Memo; Defendants’ Reply

Memorandum in Support of Its Motion to Dismiss, Doc. No. 117 (“Defendants’ Reply”), they do

note that “Customs is actively liquidating” certain drawback entries filed by Plaintiff,

Defendants’ Memo at 5. Indeed, after Plaintiff commenced this action, Customs affirmatively

liquidated five of the drawback entries included in it. See Second Amended Complaint at 3, 15;

id., Ex. A at 1; Defendants’ Memo at 6, 23.

Defendants now move to dismiss this action, arguing that (1) Plaintiff’s claims with

respect to the 12 drawback entries that have not been affirmatively liquidated present no

justiciable case or controversy and remain unripe and that (2) the court’s jurisdiction under 28

U.S.C. § 1581(i) does not extend to any of the 17 drawback entries. Defendants’ Memo at 9-25.

III
STANDARD OF REVIEW

In deciding a motion to dismiss, “the Court assumes that ‘all well-pled factual allegations

are true,’ construing ‘all reasonable inferences in favor of the nonmovant.’” United States v.

Islip, 22 CIT 852, 854, 18 F. Supp. 2d 1047 (1998) (quoting Gould, Inc. v. United States, 935

4
F.2d 1271, 1274 (Fed. Cir. 1991)).4 When the court’s jurisdiction is challenged, “[t]he party

seeking to invoke . . . jurisdiction bears the burden of proving the requisite jurisdictional facts.”

Former Emps. of Sonoco Prods. Co. v. U.S. Sec’y of Labor, 27 CIT 812, 814, 273 F. Supp. 2d

1336 (2003) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780,

80 L. Ed. 1135 (1936)).

IV
DISCUSSION

Plaintiff challenges Customs’ authority to act with respect to the drawback entries at

issue. See infra Part IV.A. That challenge presents a case or controversy that is both ripe, see

infra Part IV.B, and within the court’s 28 U.S.C. § 1581(i) jurisdiction, see infra Parts IV.C-D.

A
Plaintiff Challenges Customs’ Authority To Act

Plaintiff asks this court to declare that Customs lacks the statutory authority to act, and to

accordingly enjoin Customs from acting, with regard to any of the drawback claims at issue. See

Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss, Doc. No. 114 at 1-2

(“Plaintiff’s Response”) (“The purpose of Ford’s suit . . . is to obtain declaratory judgment that

Customs has no legal authority to review, liquidate, or take any action with respect to the

Drawback Claims, other than to recognize their proper status as finally liquidated at the amounts

claimed by Ford.”); Second Amended Complaint at 2 (“Customs is without legal authority to
4
Plaintiff incorrectly implies that this rule extends to its legal arguments. See Plaintiff’s Response in Opposition to
Defendants’ Motion to Dismiss, Doc. No. 114 at 9 (“Plaintiff’s Response”) (“The only facts before the Court are the
well-pled facts contained in Ford’s Second Amended Complaint that Customs’ legal interpretation of § 1504 is
deeply flawed. In deciding the motion to dismiss, the Court should assume the truth of all well-pled factual
allegations, and should construe that [sic] all reasonable inferences in Ford’s favor.”), 15 (“Customs is ignoring the
clear Congressional mandate to bring final resolution to aging drawback claims. . . . In some instances, Customs has
affirmatively liquidated aging drawback claims and issued duty bills to Ford, ignoring the fact that 19 U.S.C. § 1504
provides that the aging drawback claims have been deemed liquidated by operation of law at the value claimed by
the importer at the time of entry. Under these facts, which must be taken as true, Ford’s declaratory judgment action
is ripe for review.”).

5
review and/or liquidate [these] drawback claims”), 3-4 (seeking injunctive and declaratory

relief), 24-25 (same).

Plaintiff’s essential challenge is therefore to the existence, rather than to the exercise, of

Customs’ authority over these drawback claims. See Plaintiff’s Response at 15 (“Customs’

improper actions deprive Ford of its fundamental due process rights by requiring Ford to

participate in a statutorily barred and unlawful process in which the Drawback Claims that have

been deemed finally liquidated by operation of law are reopened and reassessed.”), 21 (“Ford is

challenging the legality and constitutionality of Customs taking any action at all on [these

drawback claims], including requiring Ford to verify the correctness of the claims, protest

liquidations of certain [of these claims], and then to challenge Customs’ actions where Customs’

unlawful ‘decisions’ were adverse to Ford.”); Ford’s Sur-Reply in Opposition to Defendants’

Motion to Dismiss and Brief in Support, Doc. No. 46 at 2 (“Plaintiff’s Sur-reply”) (“Customs is

currently and actively engaged in a systematic review of the Drawback Claims, despite its lack of

any legal authority to conduct such a review.).5 Indeed, Plaintiff argues that Customs was and is

legally unable to even reach a protestable decision with respect to any of these drawback claims.

Plaintiff’s Response at 4-5 (citing Totes-Isotoner Corp. v. United States, 580 F. Supp. 2d 1371

(CIT 2008), aff’d 594 F.3d 1346 (Fed. Cir. 2010)).6

5
Plaintiff’s Sur-reply pertains to an earlier motion to dismiss filed by Defendants and denied without prejudice by
the court. See Plaintiff’s Sur-reply; April 20, 2010 Order, Doc. No. 63.
6
The court need not and does not reach the merits of this argument. However, even if Customs lacked authority
over the entries, its “decision to liquidate certain entries anew after the entries had already been deemed liquidated is
a protestable decision under 19 U.S.C. § 1514(a)(5).” Fujitsu Gen. Am., Inc. v. United States, 24 CIT 733, 739, 110
F. Supp. 2d 1061 (2000) (citing Pagoda Trading Corp. v. United States, 804 F.2d 665, 668 (Fed. Cir. 1986)).

6
 B
Plaintiff’s Challenge Presents A Case Or Controversy That Is Ripe

Defendants argue that Plaintiff’s challenge with respect to the drawback claims that

Customs has not affirmatively liquidated does not present a “case or controversy” and is not ripe.

Defendants’ Memo at 10-14.

An action for declaratory judgment presents a “case or controversy” if “the facts alleged,

under all the circumstances, show that there is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality to warrant the issuance of [that]

declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S. Ct. 764,

166 L. Ed. 2d 604 (2007) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S.

270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941)). The court’s “analysis must begin with the

recognition that, where threatened action by government is concerned, we do not require a

plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—

for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action

(or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but

nonetheless does not eliminate Article III jurisdiction.” Id. at 128-29.

Even if a case or controversy exists, “injunctive and declaratory judgment remedies . . .

are discretionary, and courts traditionally have been reluctant to apply them to administrative

determinations unless these arise in the context of a controversy ‘ripe’ for judicial resolution, . . .

that is to say, unless the effects of the administrative action challenged have been felt in a

concrete way by the challenging parties.” Reno v. Catholic Soc. Servs., 509 U.S. 43, 57, 113 S.

Ct. 2485, 125 L. Ed. 2d 38 (1993) (quoting in part Abbott Laboratories v. Gardner, 387 U.S. 136,

148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)) (internal quotations omitted); see also Ford

Motor Co. v. United States, 716 F. Supp. 2d 1302, 1313-14 (CIT 2010).

7
 Although Defendants believe that Plaintiff “cannot demonstrate a concrete or definite

harm . . . until Customs actively liquidates” the drawback entries at issue, Defendants’ Memo at

11, the Congress that amended 19 U.S.C. § 1504 recognized that an importer is harmed if “for an

open-ended time period [its drawback] claim unfairly remains subject to challenge by U.S.

Customs,” S. Rep. No. 108-28 at 172 (2003), quoted in Second Amended Complaint at 7. The

pre-amendment statute’s lack of a timeframe for liquidation of drawback entries “create[d] an

unwarranted liability and the possibility that the claimant [would] have to reimburse the U.S.

Treasury any drawback monies paid to the claimant—even several years from when the claim

was actually made and the money was paid to the drawback claimant.” S. Rep. No. 108-28 at

172-73 (2003) (emphasis added), quoted in Second Amended Complaint at 7. Congress intended

that its changes to 19 U.S.C. § 1504 “would remove such liability overhanging drawback

claimants.” S. Rep. No. 108-28 at 173, quoted in Second Amended Complaint at 7-8.

On the assumption that Plaintiff’s “well-pled factual allegations are true,” Islip, 22 CIT at

854, the court infers, for the purpose of deciding Defendants’ Motion, that Plaintiff has suffered

the kind of harm described by Congress. Compare Second Amended Complaint at 6, 9-12 with S.

Rep. No. 108-28 at 172-73. Because Customs asserts authority over the drawback entries at

issue, Plaintiff continues to face liabilities of uncertain magnitude and duration. Some of these

drawback entries are nearly 15 years old. Second Amended Complaint at 6. Plaintiff disposed of

its pertinent records after maintaining them “for the three year period . . . required by the statute

and Customs’ regulation,” id., and Customs has indicated that “no documents or records relating

to either the Ford drawback claims or the underlying consumption entries are available due to

their age,” id. at 12. Nonetheless, after “not communicat[ing] with Ford in any way with respect

to either the Drawback Claims or the underlying consumption entries” for nine years, id. at 6,

8
Customs began soliciting information from Plaintiff in 2008, see Second Amended Complaint at

9-10 (alleging that Customs “directed Ford to review” and as necessary amend certain drawback

entries), 11-12 (alleging that “Customs asked Ford to provide . . . information and records” that

Customs believed “related to some, if not all, of” the drawback entries). These allegations, if

true, demonstrate an immediate, real, and substantial controversy, MedImmune, 549 U.S. at 127,

“the effects of [which] have been ‘felt in a concrete way’” by Plaintiff, Reno, 509 U.S. at 57

(quoting Abbot Laboratories, 387 U.S. at 148-49).7

C
The Court Has Jurisdiction Under 28 U.S.C. § 1581(i) To Hear Plaintiff’s Claims

Defendants argue that the court lacks jurisdiction under 28 U.S.C. § 1581(i) because

Plaintiff “has an available and adequate remedy under 28 U.S.C. § 1581(a).” Defendants’ Memo

at 9. Defendants make this argument with respect to all the drawback entries at issue—that is,

both those that have been affirmatively liquidated, see id. at 14-22, and those that have not, see

id. at 23-25.

This court has previously identified three jurisdictional bases under which an importer

can make a deemed liquidation argument.8 First, the importer can wait for Customs to

affirmatively liquidate, protest the liquidation under 19 U.S.C. § 1514, and then, if Customs

denies the protest, challenge that denial under 28 U.S.C. § 1581(a). Fujitsu Gen. Am., Inc. v.

United States, 24 CIT 733, 744-45, 110 F. Supp. 2d 1061 (2000) (holding that an importer that

failed to protest an affirmative liquidation cannot bring the same challenge under 28 U.S.C. §

7
The inference, for the purpose of deciding Defendants’ Motion, that Plaintiff was harmed does not imply that
Customs’ actions were unlawful.
8
Although the cases discussed in this paragraph involve consumption entries rather than drawback entries, the court
discerns no reason why this would affect the jurisdictional analysis. Compare 19 U.S.C. § 1504(a)(1) with id. §
1504(a)(2); cf. S. Rep. No. 108-28 at 173 (2003) (“This change would remove such liability overhanging drawback
claimants by requiring U.S. Customs (1) to liquidate existing drawback claims, and (2) to liquidate future drawback
claims within a specified period of time, as U.S. Customs already does for merchandise entered for consumption.”).

9
1581(i)), aff’d, 283 F.3d 1364 (Fed. Cir. 2002). Second, the importer can wait for Customs to

affirmatively liquidate, decline to pay whatever amount it is billed, and then assert an affirmative

defense of deemed liquidation if the United States brings an enforcement action under 28 U.S.C.

§ 1582. Id. at 743-44 (citing United States v. Cherry Hill Textiles, Inc., 112 F.3d 1550, 1560

(Fed. Cir. 1997)). Third, the importer need not wait at all: As long as Customs has yet to

affirmatively liquidate, the importer can bring an action under 28 U.S.C. § 1581(i) to obtain “a

declaratory judgment from the CIT confirming that there was a deemed liquidation.” Ford Motor,

716 F. Supp. 2d at 1312 (quoting Fujistu, 24 CIT at 739)9; see also Fujitsu, 24 CIT at 745 n.11;

28 U.S.C. § 2201 (declaratory relief).

Although the instant action follows this third jurisdictional path, see Second Amended

Complaint at 3-4; Plaintiff’s Response at 12, Defendants nonetheless argue that “[i]f the Court

were to . . . allow Ford to proceed in the context of section 1581(i), it would be allowing Ford to

circumvent the jurisdictional scheme of section 1581,” Defendants’ Memo at 21. According to

Defendants:

Ford can bring about the liquidation of its drawback entries by depositing
estimated duties on the unliquidated imported merchandise and filing a written
request with Customs for the liquidation of the drawback entry or claim. 19
U.S.C. § 1504(a)(2)(B). Once the drawback entries are liquidated pursuant to this
framework, Ford can protest the liquidation, and if necessary, commence an
action pursuant to 28 U.S.C. § 1581(a). Thus, unlike Fujitsu, seeking a
declaratory judgment in the context of section 1581(i) is not Ford’s only remedy.

Id. at 20; see also id. at 14-15 (citing 19 U.S.C. § 1504(a)(2)(B) and 19 C.F.R. § 19.81(a)-(c)).

The Federal Circuit has “consistently held that to prevent circumvention of the

administrative processes crafted by Congress, jurisdiction under [28 U.S.C. § 1581(i)] may not

be invoked if jurisdiction under another subsection of section 1581 is or could have been

9
But see infra Part IV.D.

10
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. 2006) (citing Int’l Custom Prods., Inc. v.

United States, 467 F.3d 1324, 1327 (Fed. Cir. 2008)). “Mere allegations of financial harm, or

assertions that an agency failed to follow a statute, do not make the remedy established by

Congress manifestly inadequate.” Int’l Custom Prods., 467 F.3d at 1327 (quoting Miller & Co. v.

United States, 824 F.2d 961, 964 (Fed. Cir. 1987) (citing Am. Air Parcel Forwarding Co. v.

United States, 718 F.2d 1546, 1550 (Fed. Cir. 1983))).10

Defendants are correct that a declaratory judgment is not the only remedy that is

conceivably available to Plaintiff: Like the importer in Fujitsu, Plaintiff could have waited for

Customs to affirmatively liquidate the entries at issue or waited even longer for the United States

to bring enforcement actions. See Fujitsu, 24 CIT at 745. However, neither of these conditional

remedies is ultimately available or sufficient to redress the particular harms alleged by Plaintiff.

Critically, requiring Plaintiff to await affirmative liquidations or enforcement actions

could extend the “unwarranted liability” that Congress sought to eliminate when it amended 19

U.S.C. § 1504 in 2004. S. Rep. No. 108-28 at 172-73 (2003), quoted in Second Amended

Complaint at 7; see supra Part IV.B. Indeed, the Federal Circuit anticipated this Congressional

desire to provide certainty and finality when it decided Cherry Hill in 1997. See Cherry Hill, 112

10
The court expressly rejects Plaintiff’s argument that because “[t]he presence or absence of jurisdiction is
determined on the facts existing at the time the complaint under consideration was filed,” “[t]he fact that Ford
conceivably could bring a future action under 28 U.S.C. § 1581(a) is irrelevant.” Plaintiff’s Response at 19 (citing
Keene Corp. v. United States, 508 U.S. 200, 207, 113 S. Ct. 2035, 124 L. Ed. 2d 118 (1993)). Under 28 U.S.C. §
1581, a jurisdictional basis is “available” if a party can ultimately invoke it by complying with the procedural
requirements particular to it. Cf. Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992)
(“[The limitation on 28 U.S.C. § 1581(i) jurisdiction] preserves the congressionally mandated procedures and
safeguards . . . provided in the other subsections, . . . absent which litigants could ignore the precepts of subsections
(a)-(h) and immediately file suit in the Court of International Trade under subsection (i).” (internal citations
omitted)). However, in certain circumstances, these procedural requirements can render a basis manifestly
inadequate. See, e.g., United States Cane Sugar Refiners’ Ass’n v. Block, 69 C.C.P.A. 172, 175 n.5, 683 F.2d 399
(CCPA 1982) (“The delay inherent in proceeding under § 1581(a) makes relief under that provision manifestly
inadequate and, accordingly, the court has jurisdiction in this case under § 1581(i).”); infra Part IV.C.

11
F.3d at 1560. Despite “the general rule that, without timely protest, all liquidations, whether

legal or not, become final and conclusive under 19 U.S.C. § 1514,” Fujitsu, 24 CIT at 743, the

Federal Circuit held that “an importer need not protest a purported liquidation by Customs ‘in

order to be entitled to defend against liability on the ground of the deemed liquidation,’” id. at

744 (quoting Cherry Hill, 112 F.3d at 1560). Without this exception:

There would be nothing, in theory, that would prevent Customs from conducting
multiple successive liquidations of the same entry and requiring the importer or
surety to assume the burdens of protesting each one. Likewise, Customs could
purport to liquidate an entry anew, years after the first liquidation had become
final, and thereby impose liability on the importer or surety if the importer or
surety were not vigilant in watching for notice of such untimely liquidations or if
it were no longer able to undertake the burden of filing and pursuing a protest.

The potential for abuse from a rule requiring protests in such cases is sufficiently
plain that we think it unlikely that Congress would have intended the protest
requirement to apply so broadly.

Cherry Hill, 112 F.3d at 1560, quoted in Fujitsu, 24 CIT at 744.11

Plaintiff’s allegations also suggest a “potential for abuse” that only a declaratory

judgment could prevent. See generally Second Amended Complaint at 9-15. For example,

several months before Plaintiff commenced the instant action in September 2009, see Summons,

Doc. No. 1, Customs affirmatively liquidated certain drawback entries from 1996-97, see Second

Amended Complaint at 12, 13.12 According to Plaintiff, “Customs did not give or transmit notice

of these liquidations, as required by 19 U.S.C. § 1500(e). In fact, Ford learned of Customs’

liquidation of these drawback claims only when it received the duty bills.” Id. at 12. Customs

denied Plaintiff’s subsequent protest, id. at 13, and warned that nonpayment of the duty bills

11
Although a declaratory judgment action is different than an enforcement action, see Fujitsu, 283 F.3d at 1375-76,
the Federal Circuit’s rationale in Cherry Hill is instructive, see Fujitsu, 24 CIT at 745.
12
These entries are not included in the instant action. See Second Amended Complaint at 4, 13; Plaintiff’s Consent
Motion to Sever Liquidated Drawback Claims, Doc. No. 65 at 3 (“As [certain listed] drawback claims were
liquidated prior to filing, Ford agrees that the Court lacks jurisdiction under 28 U.S.C. § 1581(i) over them.”).

12
would result in the actual or functional imposition of “national sanctions” on Plaintiff, id. at 14.13

After ultimately “conclud[ing] that it had no reasonable alternative,” id., Plaintiff “paid the

amounts assessed on [these] Drawback Claims plus interest accrued to date,” id. at 15, even

though it believed that the entries had actually liquidated several years prior, id. at 10, 11.

With respect to the entries included in the instant action, Plaintiff correctly notes that it

“has followed precisely the instructions promulgated by this Court regarding how to preserve

and pursue judicial review where a party seeks judicial confirmation of deemed liquidation.”

Plaintiff’s Response at 12. Regardless of whether Plaintiff is ultimately entitled to declaratory

judgment in its favor, it is entitled to judicial review under 28 U.S.C. § 1581(i). Fujitsu, 24 CIT

at 739, 745 n.11; cf. Ford Motor, 716 F. Supp. 2d at 1312.

D
All Entries At Issue Remain Within The Court’s 28 U.S.C. § 1581(i) Jurisdiction

The judicial review to which Plaintiff is entitled extends to all drawback entries that are

currently at issue in this action, including the five entries that Customs affirmatively liquidated

after the action commenced. Defendants argue that because Plaintiff protested those liquidations

and then “commenced a separate action pursuant [to] 28 U.S.C. § 1581(a),” Defendants’ Memo

at 23 (referencing Court No. 10-00142), “there can be no dispute that section 1581(a) is available

to Ford for these . . . entries, and Ford has not demonstrated why proceeding forward with these

five claims in the context of Court No. 10-00142 would be manifestly inadequate,” id. In

support of this argument, Defendants cite Ford Motor, 716 F. Supp. 2d at 1312-13, as well as

13
According to Plaintiff, unlike the normal procedure, importers subject to national sanctions are “required to file
the entry release and the entry summary, and [are] also required to pay estimated duties all at the time of initial
importation.” Second Amended Complaint at 14.

13
Ford Motor Co. v. United States, 751 F. Supp. 2d 1316, 1317-18 (CIT 2010) (denying Plaintiff’s

motion for reconsideration of Ford Motor, 716 F. Supp. 2d 1302). Defendants’ Reply at 11-12.14

In Ford Motor, this court held that its jurisdiction under 28 U.S.C. § 1581(i) included

entries that were not affirmatively liquidated but excluded entries that were affirmatively

liquidated, even though those liquidations occurred after the action commenced. Compare Ford

Motor, 716 F. Supp. 2d at 1312, with id. at 1310.15 While Plaintiff’s arguments in that case may

have been “erroneous[],” Ford Motor, 751 F. Supp. 2d at 1317, the court does not reach a similar

conclusion in the instant action.

“Jurisdiction over Customs’ actions is measured at the time the summons is filed. Once

entries are properly before the Court, Customs is powerless to exert authority over these entries

in the absence of a Court order.” Washington Int’l Ins. Co. v. United States, 25 CIT 207, 218, 138

F. Supp. 2d 1314 (2001). This follows from “the long-standing rule in the Federal courts that

jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by

subsequent events, including action by the parties.” F. Alderete General Contractors, Inc. v.

United States, 715 F.2d 1476, 1480 (Fed. Cir. 1983) (citing St. Paul Mercury Indemnity Co. v.

Red Cab Co., 303 U.S. 283, 293, 58 S. Ct. 586, 82 L. Ed. 845 (1938); Rosado v. Wyman, 397

U.S. 397, 402, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970); Dery v. Wyer, 265 F.2d 804 (2d Cir.

14
Defendants also express understandable “surpris[e]” that Plaintiff’s Response fails to address these critical
portions of Ford Motor, 716 F. Supp. 2d at 1310. Defendants’ Reply at 10 n.7.
15
The court in Ford Motor also declined to issue a temporary restraining order, preliminary injunction, and
declaratory judgment regarding the entries over which it found jurisdiction, Ford Motor, 716 F. Supp. 2d at 1312-14,
reasoning in part that “Plaintiff will be able to obtain meaningful judicial review over all legitimate legal claims
pertaining to” those entries by waiting for their liquidation, following “all procedural prerequisites,” and ultimately
bringing an action under 28 U.S.C. § 1581(a), id. at 1314. In the instant action, the court also declined to issue a
preliminary injunction, see October 20, 2009 Order, Doc. No. 36 at 2, and has not had occasion to decide whether to
issue the declaratory judgment that Plaintiff seeks.

14
1959); Hill v. Rolleri, 615 F.2d 886 (9th Cir. 1980); Craft v. United States, 218 Ct. Cl. 579, 589

F.2d 1057 (Ct. Cl. 1978)), cited in Washington Int’l, 25 CIT at 218.16

When Plaintiff commenced the instant action, 28 U.S.C. § 1581(i) jurisdiction existed

over all relevant drawback entries that had yet to be affirmatively liquidated by Customs. See

supra Part IV.C; accord Ford Motor, 716 F. Supp. 2d at 1312. Because the court had jurisdiction

then, it has jurisdiction now; Customs’ post-commencement liquidations neither preclude nor

postpone the court’s exercise of jurisdiction over the entries at issue.

V
CONCLUSION

For the reasons stated above, Defendants’ Motion is DENIED.

__/s/ Evan J. Wallach____
Evan J. Wallach, Judge

Dated: October 18, 2011
New York, New York

16
Moreover, it is implausible that Congress intended to permit Customs to unilaterally terminate, at any point before
judgment, an importer’s otherwise viable action to obtain the certainty and finality that Customs had failed to timely
provide. See S. Rep. No. 108-28 at 172-73.

15