Aluminerie Becancour, Inc. v. United States

Slip Op. 04-40

United States Court of International Trade

ALUMINERIE BECANCOUR, INC.,
c/o REYNOLDS METALS COMPANY,

Plaintiff,
Before: Pogue, Judge
v.
Court No. 00-00445
UNITED STATES,

Defendant.

[Defendant’s motion to dismiss granted; action dismissed.]

Decided: April 23, 2004

LeBoeuf, Lamb, Greene & MacRae, LLP (Gary P. Connelly, Melvin S.
Schwechter) for Plaintiff.

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,
Acting Attorney-in-Charge, International Trade Field Office, James
A. Curley, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Yelena Slepak, Attorney, Of Counsel,
Office of Assistant Chief Counsel, U.S. Bureau of Customs and
Border Protection, for Defendant.

OPINION

Pogue, Judge: Plaintiff Aluminerie Becancour, Inc.

(“Aluminerie” or “Plaintiff”) seeks to invoke this Court’s

jurisdiction pursuant to either subsections (a) or (i) of 28 U.S.C.

§ 1581 (2000) to challenge the denial of its administrative protest
Court No. 00-00445 Page 2

filed pursuant to 19 U.S.C. § 1514 (2000).1 Defendant United

States Bureau of Customs and Border Protection2 (“Customs” or

“Defendant”) moves for dismissal claiming lack of subject matter

jurisdiction because Plaintiff failed to properly and timely file

its protest and failed to follow court rules in filing this case.

In the event that the Court finds jurisdiction lacking,

Plaintiff requests transfer of its suit to the United States Court

of Federal Claims pursuant to 28 U.S.C. § 1631,3 asserting that the

United States Court of Federal Claims has concurrent jurisdiction

under 28 U.S.C. § 1491.4

For the reasons stated below, Defendant’s motion to dismiss is

1
Because Plaintiff filed its summons in 2000, Summons of
Aluminerie at 2, the Court will refer to the 2000 versions of the
statutes or regulations. The Court acknowledges, however, that
because the events related to this action took place over an
extended period of time, various versions of each of the statutes
and regulations involved may apply. Accordingly, the Court has
reviewed the versions from 1994 until the present and found that
no amendments affecting the outcome of this case have occurred.
The Court notes that subsection (c) of 28 U.S.C. § 1491, see
infra note 27, was redesignated from subsection (b) to subsection
(c) in 1996. See Administrative Dispute Resolution Act of 1996,
Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (codified as
amended at 28 U.S.C. § 1491 (2000)).
2
Effective March 1, 2003, the United States Customs Service was
renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
3
For the pertinent text of the statute, see infra note 23.
4
For the pertinent text of the statute, see infra note 24.
Court No. 00-00445 Page 3

granted.

I. Background

Plaintiff’s administrative protest has a ten-year history, a

review of which is necessary background for the motion at issue

here. On December 15, 1992, Aluminerie made a voluntary disclosure

to Customs under 19 U.S.C. § 1592(c)(4), admitting that it had

failed to pay certain Merchandise Processing Fees (“MPF”) on

unwrought aluminum products imported into the United States between

1990 and the date of disclosure. Def.’s Mem. Supp. Mot. Dismiss at

1-2 (“Def.’s Mot.”); Pl.’s Opp’n to Mot. Dismiss at 1 (“Pl.’s

Opp’n”). To perfect its voluntary disclosure, Customs requested

that Aluminerie tender $88,542.87, which Aluminerie paid on October

6, 1994. See Letter from John Barry Donohue, Jr., Assoc. Gen.

Counsel, Reynolds Metals Co., to William D. Dietzel, Dist. Dir.,

U.S. Bureau of Customs & Border Prot., Pl.’s Ex. A at 1,5 4 (Oct.

6, 1994) (“October 6 Letter”).6

5
Documents appended to Pl.’s Opp’n are referred to as “Pl.’s
Exhibit” followed by the corresponding letter. The document
appended to Plaintiff’s motion for leave to amend its memorandum
of opposition is referred to as “Pl.’s Attachment.”
6
The record shows that all correspondence and documentation
referred to in this decision was either addressed to or sent by
Reynolds Metals Company, in its capacity as owner of Aluminerie
Becancour, Inc. Reynolds Metals Company also owns Canadian
Reynolds Metals Company, which is the Plaintiff in a companion
case before this Court. Canadian Reynolds Metals Co. v. United
States, Court No. 00-00444, slip op. ______ (CIT Apr. 23, 2004)
(pending).
Court No. 00-00445 Page 4

Along with its payment, Aluminerie submitted a letter in which

it advised Customs of its intent to appeal the MPF determination,

as it considered its entries exempt from the MPF rate demanded by

Customs. Id. at 1. Aluminerie argued that the unwrought aluminum

products were of Canadian origin, and thus qualified for special

treatment pursuant to the United States-Canada Free Trade Agreement

(“USCFTA”). Letter from Rufus E. Jarman, Jr., Barnes, Richardson

& Colburn, to Dist. Dir., U.S. Bureau of Customs & Border Prot.,

Pl.’s Ex. D at 4, 4-5 (Feb. 1, 1995) (“February 1 Letter”).7

Customs, on the other hand, had previously concluded that due to a

non-Canadian additive, Aluminerie’s entries failed to qualify for

the reduced MPF rate provided by the USCFTA. Id. at 5.

Aluminerie, in turn, argued that pursuant to the doctrine of de

minimis non curat lex, the foreign additive in the Canadian entries

should be disregarded for country of origin purposes. Id.

Aluminerie informed Customs in its payment tender letter that it

expected a full refund of the tender amount along with accrued

interest in the event that subsequent litigation was successful.

October 6 Letter, Pl.’s Ex. A at 1.

Customs responded in a letter dated November 8, 1994, stating

that it had received Aluminerie’s tender of MPF, but rejected all

conditions imposed by Aluminerie in connection to this payment.

7
Barnes, Richardson & Colburn was Plaintiff’s legal
representative at the time. See February 1 Letter, Pl.’s Ex. D
at 4.
Court No. 00-00445 Page 5

Letter from Charles J. Reed, Fines, Penalties & Forfeitures

Officer, on behalf of William D. Dietzel, Dist. Dir., U.S. Bureau

of Customs & Border Prot., to John Barry Donohue, Reynolds Metals

Co., Pl.’s Ex. B at 1 (Nov. 8, 1994) (“November 8 Letter”).

Subsequently, Customs and Aluminerie concluded an escrow agreement

on December 20, 1994, in which they agreed to let the decision in

a designated test case8 control whether a full refund of

Aluminerie’s MPF payment was appropriate. Agreement between

Reynolds Metals Company and U.S. Customs Service, Pl.’s Mot. for

Leave to Amend Pl.’s Opp’n, Pl.’s Attach. at 1 (Dec. 20, 1994)

(“Escrow Agreement”).9 In the event that the test case decision

was favorable to Aluminerie, Customs further agreed to refund the

full tendered amount “together with such interest as may be

required by law.” Id. at 1-2.

On February 6, 1995, Aluminerie filed an administrative

protest. See Letter from Frederic D. Van Arnam, Jr., Barnes,

8
In subsequent amendments to the escrow agreement, concluded on
October 28, 1996, and July 13, 1998, the parties identified the
designated test case as Alcan Aluminum Corp. v. United States, 21
CIT 1238, 986 F. Supp. 1436 (1997), originally referred to as St.
Albans Protest No. 0201-93-100281 (HQ 955367) and subsequently
appealed to the Federal Circuit Court of Appeals. Letter from
Charles D. Ressin, Chief, Penalties Branch, Int’l Trade
Compliance Div., to Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, Pl.’s Ex. C at 3, 4 (Oct. 30, 1996); Letter
from Charles D. Ressin, Chief, Penalties Branch, Int’l Trade
Compliance Div., to Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, Pl.’s Ex. C at 5, 6 (July 13, 1998); Alcan
Aluminum Corp. v. United States, 165 F.3d 898 (Fed. Cir. 1999).
9
Reynolds Metals Company concluded the agreement with Customs on
behalf of Plaintiff. See Escrow Agreement, Pl.’s Attach. at 1.
Court No. 00-00445 Page 6

Richardson & Colburn, to Dist. Dir., U.S. Bureau of Customs &

Border Prot., Pl.’s Ex. D at 1 (Feb. 6, 1995) (“February 6

Letter”); Protest No. 0712-95-100130, Pl.’s Ex. D at 3 (Feb. 6,

1995) (“Protest Form”).10 In its protest, Plaintiff appeared to

make three objections to Customs’ actions. First, Plaintiff stated

that it objected to the assessment and payment of MPF. February 1

Letter, Pl.’s Ex. D at 4. Second, it protested “contingencies not

anticipated in the [escrow] [a]greement[,] or unanticipated

frustration” of the same. Id. at 5-6. Plaintiff then appears to

have made a third objection, referring to Customs’ acceptance of

payment. Id. at 4. In support of this third objection, Plaintiff

noted that a copy of Customs’ letter dated November 8, 1994, as

10
The “protest package” provided as Exhibit D by Plaintiff
contains copies of two letters along with a copy of a completed
Customs Form 19 (Protest No. 0712-95-100130); the first letter is
dated February 1, 1995, and the second letter is dated February
6, 1995. See Pl.’s Ex. D. Accordingly, it appears as though
Plaintiff first attempted to forward a protest to Customs on
February 1, 1995, but that for reasons unclear to the Court, the
protest was not filed until February 6, 1995, the date Customs
received and stamped the protest form. Protest Form, Pl.’s Ex. D
at 3. The implementing regulation for filing of protests
confirms that a protest is considered filed on the date it is
received by Customs. 19 C.F.R. § 174.12(f) (“The date on which a
protest is received by the Customs officer with whom it is
required to be filed shall be deemed the date on which it is
filed.”). Additionally, both parties agree that the protest was
filed on February 6, 1995. See Def.’s Mot. at 2; Pl.’s Opp’n at
3. As the February 6 Letter merely serves as a complement to the
original protest attempt on February 1, 1995, however, the Court
will treat the letter dated February 1, 1995, as part of the
protest filed on February 6, 1995. See February 6 Letter, Pl.’s
Ex. D at 1 (“[W]e forwarded protests, dated February 1, 1995, in
which [Aluminerie] protested the assessment and payment of
Merchandise Processing Fee (‘MPF’).”).
Court No. 00-00445 Page 7

well as a receipt of payment made out by Customs on November 7,

1994, was enclosed with the protest. Id.; see also Collection

Receipt from U.S. Bureau of Customs & Border Prot., to Aluminerie

Becancour, Pl.’s Ex. A at 6 (Nov. 7, 1994) (“Receipt”). Plaintiff

clarified in its protest that it did not expect Customs to act in

response to its objections until final judgment was rendered in the

pending test case. February 1 Letter, Pl.’s Ex. D at 6.

On January 5, 1999, the Federal Circuit Court of Appeals

issued its decision in the test case, Alcan Aluminum Corp. v.

United States, 165 F.3d 898 (Fed. Cir. 1999). The Alcan Aluminum

Corp. Court held that the foreign additive in question was subject

to the principle of de minimis non curat lex, and therefore, the

entries were considered of Canadian origin. 165 F.3d at 902. The

Alcan Aluminum Corp. decision became final on April 5, 1999. Pl.’s

Opp’n at 4.

Because Aluminerie’s entries qualified for preferential trade

status under the USCFTA as a result of the favorable decision in

Alcan Aluminum Corp., Customs refunded to Aluminerie the deposited

MPF amount in full “[o]n or about” February 7, 2000.11 Compl. of

Aluminerie at 3.

Customs, however, failed to tender interest pursuant to the

escrow agreement when it made the refund to Aluminerie. Def.’s

Mot. at 2; Pl.’s Opp’n at 4. Aluminerie claims it then sent, on

11
No supporting exhibit was provided, but Defendant does not deny
this statement. See Def.’s Mem. at 2.
Court No. 00-00445 Page 8

February 10, 2000, a request for accelerated disposition of its

protest.12 Pl.’s Opp’n at 4. Following what Aluminerie considered

a denial of the original protest by operation of law, it filed a

summons with the Court on September 7, 2000. Summons of Aluminerie

at 2. Plaintiff subsequently, on September 30, 2002, filed its

complaint seeking relief. Compl. of Aluminerie at 6. The thrust

of Plaintiff’s complaint is that Customs failed to pay interest on

the refunded MPF. Id. at 3-4. Defendant Customs moved to dismiss

for lack of subject matter jurisdiction.

II. Standard of Review

Because Plaintiff is seeking to invoke the Court’s

jurisdiction, it has the burden to establish the basis for

jurisdiction. See Former Employees of Sonoco Prods. Co. v. United

States Sec’y of Labor, 27 CIT ____, ____, 273 F. Supp. 2d 1336,

1338 (2003) (citing McNutt v. Gen. Motors Acceptance Corp., 298

U.S. 178, 189 (1936)). At the same time, as Defendant’s motion to

dismiss challenges the sufficiency of Plaintiff’s pleadings (as

opposed to the factual basis underlying the pleadings), the Court

will accept all facts alleged in Plaintiff’s pleading as true.

Corrpro Cos. v. United States, slip. op. 03-59, at 4 (CIT June 4,

2003).

12
Plaintiff failed to provide the Court a copy of this letter.
However, as the letter is not a determinative factor in this
action, this lack of evidence has no effect on the Court’s
decision.
Court No. 00-00445 Page 9

III. Discussion

Plaintiff seeks to invoke the Court’s jurisdiction under 28

U.S.C. § 1581(a), or alternatively under 28 U.S.C. § 1581(i).

Compl. of Aluminerie at 1. Title 28 U.S.C. § 1581(a) confers

jurisdiction over actions based on denials of protests. Title 28

U.S.C. § 1581(i), on the other hand, is a residual provision that

confers jurisdiction over certain international trade-related

disputes not covered by subsections (a)-(h). Id. In the event

that the Court finds jurisdiction lacking, Plaintiff argues that

the Court should transfer this action to the United States Court of

Federal Claims, as it considers that court to have concurrent

jurisdiction under 28 U.S.C. § 1491. Pl.’s Opp’n at 8-12. The

Court first discusses subject matter jurisdiction under § 1581(a)

and § 1581(i), and then discusses the prospect of transfer to the

United States Court of Federal Claims.

A. Subject Matter Jurisdiction

Plaintiff seeks to invoke the Court’s jurisdiction under 28

U.S.C. § 1581(a), or alternatively under 28 U.S.C. § 1581(i).

Compl. of Aluminerie at 1. Defendant makes four arguments in its

motion for lack of subject matter jurisdiction. First, it argues

that jurisdiction is lacking under 28 U.S.C. § 1581(a), because

Plaintiff failed to timely and properly file a protest. Def.’s

Mot. at 3-4. Second, Defendant claims that 28 U.S.C. § 1581(i)
Court No. 00-00445 Page 10

does not confer jurisdiction, as Plaintiff failed to follow

procedural requirements for filing an action under this statutory

provision. Id. at 6. Third, Defendant argues that subsection (i)

of 28 U.S.C. § 1581 cannot confer jurisdiction where a remedy was

potentially available under subsection (a). Id. at 5. Fourth,

Defendant argues that the action under 28 U.S.C. § 1581(i) was

untimely commenced. Id. at 9. The Court will discuss separately

the two statutory provisions involved. First, the Court will

discuss jurisdiction under 28 U.S.C. § 1581(a). Subsequently, it

will briefly address jurisdiction pursuant to 28 U.S.C. § 1581(i),

as well as the prospects for transfer to the United States Court of

Federal Claims.

1. 28 U.S.C. § 1581(a)

In its complaint, Plaintiff initially alleges that the Court

has jurisdiction pursuant to 28 U.S.C. § 1581(a), which provides as

follows: “[t]he Court of International Trade shall have exclusive

jurisdiction of any civil action commenced to contest the denial of

a protest, in whole or in part, under section 515 of the Tariff Act

of 1930.” 28 U.S.C. § 1581(a). Section 515 of the Tariff Act of

1930, as amended at 19 U.S.C. § 1515, provides for administrative

review of protests. 19 U.S.C. § 1515. Subsection (a) of § 1515

stipulates that Customs “shall review the protest and shall allow

or deny such protest in whole or in part” as long as it is filed in
Court No. 00-00445 Page 11

accordance with 19 U.S.C. § 1514. 19 U.S.C. § 1515(a). Title 19

U.S.C. § 1514 describes the requirements for filing protests. 19

U.S.C. § 1514. A suit attempting to invoke the Court’s

jurisdiction under 28 U.S.C. § 1581(a) must therefore be based on

a protest which complies with the requirements of § 1514.

Among other things, § 1514 establishes two requirements for

protests: contents and timing. 19 U.S.C. § 1514(c). Title 19

U.S.C. § 1514(c)(1)13 and title 19 C.F.R. § 174.13(a)14 of the

agency’s regulations both govern the contents of protests. The

Court liberally construes the requirements of 19 U.S.C. §

1514(c)(1). Ammex, Inc. v. United States, 27 CIT ____, ____, 288

13
Title 19 U.S.C. § 1514(c)(1) provides in pertinent part:

A protest must set forth distinctly and specifically--
(A) each decision . . . as to which protest is made;
(B) each category of merchandise affected by each
decision . . . ;
(C) the nature of each objection and the reasons
therefor; and
(D) any other matter required by the Secretary by
regulation.
Id.
14
The implementing regulation 19 C.F.R. § 174.13(a) specifies in
pertinent part that protests must contain:

(1) The name and address of the protestant . . . ;
. . .
(3) The number and date of the entry;
. . .
(5) A specific description of the merchandise affected
by the decision as to which protest is made;
(6) The nature of, and justification for the objection
set forth distinctly and specifically with respect to
each category, payment, claim, decision, or refusal.
Id.
Court No. 00-00445 Page 12

F. Supp. 2d 1375, 1382 (2003) (acknowledging that there is a “long

line of cases taking a liberal posture as to what constitutes a

valid protest”). In Mattel, Inc. v. United States, for example,

the Court held that a letter requesting reliquidation under the

wrong statutory provision constituted a valid protest, despite its

error. 72 Cust. Ct. 257, 266, 377 F. Supp. 955, 963 (1974).

Further, the Mattel, Inc. Court concluded that “however cryptic,

inartistic, or poorly drawn a communication may be, it is

sufficient as a protest for purposes of [19 U.S.C. § 1514] if it

conveys enough information to apprise knowledgeable officials of

the importer’s intent and the relief sought.” Mattel, Inc., 72

Cust. Ct. at 262, 377 F. Supp. at 960.

Directly relevant to this dispute, 19 U.S.C. § 1514 governs

the timing of protests. Title 19 U.S.C. § 1514(c)(3) provides as

follows:

A protest of a decision, order, or finding
described in subsection (a) of this section shall be
filed with the Customs Service within ninety days after
but not before--
(A) notice of liquidation or reliquidation, or
(B) in circumstances where subparagraph (A) is
inapplicable, the date of the decision as to
which protest is made.

19 U.S.C. § 1514(c)(3).

Both parties to this action agree that because Plaintiff’s

entries were never liquidated, subparagraph (B) of 19 U.S.C. §

1514(c)(3) applies. Def.’s Mot. at 3; Pl.’s Opp’n at 5.

As a sovereign entity, the United States is immune from suit
Court No. 00-00445 Page 13

unless it consents to be sued. United States v. Mitchell, 445 U.S.

535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584,

586 (1941)). Title 28 U.S.C. § 1581(a) constitutes an explicit

waiver of immunity by the United States. US JVC Corp. v. United

States, 22 CIT 687, 694, 15 F. Supp. 2d 906, 913 (1998). Previous

judicial decisions have therefore held that the statutory timing

requirement for protests is a mandatory term of the United States’

consent to suit pursuant to 28 U.S.C. § 1581(a). United States v.

Boe, 64 Ct. Cust. App. 11, 15-16, 543 F.2d 151, 154-55 (1976)

(holding that the Customs Court lacked jurisdiction when Plaintiff

failed to comply with all terms of consent by the United States

mandated by 28 U.S.C. § 1582 (1976), the predecessor to 28 U.S.C.

§ 1581(a) (2000)). Accordingly, the Court must construe the timing

requirement strictly. Boe, 64 Ct. Cust. App. at 15, 543 F.2d at

154; see also Star Sales & Distrib. Corp. v. United States, 10 CIT

709, 710, 663 F. Supp. 1127, 1128 (1986) (holding that the Court

does not have jurisdiction over an action contesting the denial of

a protest filed more than ninety days after notice of liquidation).

The Court now considers Plaintiff’s protest in light of the

provisions of § 1514.

To apply the requirements of 19 U.S.C. § 1514 to this case, it

is necessary to review the contents of Plaintiff’s protest, and

determine whether that protest challenges any decision by Customs

made within the ninety-day period prior to its filing, i.e.,
Court No. 00-00445 Page 14

whether the protest was within the statutory time period.

In its protest, Plaintiff appears to make three objections.

See February 1 Letter, Pl.’s Ex. D at 4-6. First, Plaintiff

protests the assessment and payment of MPF. Id. at 4. The MPF

tender, however, occurred on October 6, 1994, October 6 Letter,

Pl.’s Ex. A at 4, while Plaintiff filed its protest on February 6,

1995. Protest Form, Pl.’s Ex. D at 3. Because a time period of

more than ninety days elapsed between those two events, Plaintiff’s

protest fails to present a timely challenge to the assessment and

payment of MPF.

Second, Plaintiff protests unanticipated frustration of, and

contingencies not foreseen in, the escrow agreement. February 1

Letter, Pl.’s Ex. D at 5-6. Title 19 U.S.C. § 1514(c)(3) states,

however, that parties must file protests “within ninety days after

but not before . . . the date of the decision as to which protest

is made.” Id. (emphasis added). The decision the protesting

party objects to must therefore occur prior to the filing of the

protest. As previously stated, Aluminerie filed its protest on

February 6, 1995. Protest Form, Pl.’s Ex. D at 3. To the extent

that Plaintiff objects to the unanticipated event of Customs’

decision to refund MPF without interest in February 2000, that

event had not yet occurred at the time the protest was filed.15

15
Plaintiff claims that Customs made the decision not to pay
interest as early as November 8, 1994, the day it sent the
November 8 Letter. See Pl.’s Opp’n at 6. However, the parties
subsequently signed the escrow agreement, where Customs agreed to
Court No. 00-00445 Page 15

Accordingly, under a plain reading of 19 U.S.C. § 1514(c)(3),

Plaintiff’s protective protest was untimely and invalid. See A.N.

Deringer, Inc. v. United States, 12 CIT 969, 972, 698 F. Supp. 923,

925 (1988) (holding that a protest was invalid either because it

was filed the day before Customs denied a previous claim for relief

or barred by the provision allowing only one protest per entry of

merchandise).

Because the escrow agreement stipulated Customs’ obligation to

refund Plaintiff the MPF tender along with “interest as may be

required by law” in the event that the test case decision was

favorable to Aluminerie, Escrow Agreement, Pl.’s Attach. at 1-2,

the subsequent non-payment of interest in February 2000 could

qualify as an unanticipated event in light of the agreement.16

However, for the reasons stated above, Plaintiff should have chosen

refund the MPF amount and “interest as may be required by law” if
related litigation was successful. Escrow Agreement, Pl.’s
Attach. at 1-2. Thus, even presuming that Customs made the
decision to deprive Aluminerie of interest at such an early
stage, that decision was later vitiated by the terms of the
escrow agreement before the filing of the protest. Moreover,
even if the escrow agreement did not vitiate Customs’ original
rejection of any conditions on the payment of MPF, the language
of the protest – objecting to unanticipated frustration of the
escrow agreement – clearly refers to decisions which had not yet
been made, and not to the November 8 Letter.
16
Plaintiff argues that Customs’ failure to pay interest is in
violation of 19 U.S.C. § 1505(c), Pl.’s Opp’n at 11, which in
pertinent part holds,“[i]nterest on excess moneys deposited shall
accrue, at a rate determined by the Secretary, from the date the
importer of record deposits estimated duties, fees, and
interest.” 19 U.S.C. § 1505(c). However, as the Court does not
have jurisdiction over this action, it will not discuss the legal
basis of Plaintiff’s claim.
Court No. 00-00445 Page 16

to wait until after Customs’ decision not to pay interest before

filing its protest.17

Third, Plaintiff appears to object to Customs’ acceptance of

its MPF tender. See February 1 Letter, Pl.’s Ex. D at 4. In its

protest, Plaintiff alleges that Customs accepted its payment on

November 8, 1994, and specifies that the protest was filed within

ninety days of that date. Id. Plaintiff’s February 1 Letter

further states that Plaintiff attached a copy of the November 8

Letter to the protest, as well as a copy of the receipt from

Customs. Id. The receipt, however, shows that Customs received

Plaintiff’s MPF payment on November 7, 1994. Receipt, Pl.’s Ex. A

at 6. The November 8 Letter, on the other hand, indicates that

Customs acknowledged the MPF tender, and that Customs intended not

to accept the tender’s contingencies. November 8 Letter, Pl.’s Ex.

B at 1. Consequently, the Court cannot conclude that Customs’

acceptance of Plaintiff’s tender took place on November 8, 1994.

Rather, acceptance occurred a day prior, when Customs received

payment and made out the receipt. Customs therefore, on November

7, 1994, made the decision Plaintiff attempted to protest; November

7 was, however, ninety-one days prior to the filing of the protest

17
Title 19 U.S.C. § 1514(c) provides that parties may generally
only file one protest per entry of merchandise. Although the
Court does not so decide, it may have been possible for
Plaintiff, even after filing the untimely protest at issue here,
to file a second protest following Customs’ non-payment of
interest, arguing that, as its previous protest was untimely
filed, it was legally invalid, and therefore should not count
against the single-protest rule.
Court No. 00-00445 Page 17

in question here. Accordingly, Plaintiff’s protest fails to

present a timely, valid challenge to Customs’ acceptance of MPF

tender, as Plaintiff filed that protest more than ninety days after

Customs’ decision.

Based on the analysis above, the Court concludes that

Plaintiff’s protest dated February 6, 1995, was untimely filed, as

Plaintiff failed to file it within ninety days of the Customs

decisions that it seeks to challenge. Plaintiff, however, sets

forth one additional argument to support its contentions that it

filed a timely protest.

Aluminerie appears to argue that its subsequent actions cured

the defects of the untimely protest. Plaintiff claims that it

properly filed, on February 10, 2000, a request for accelerated

disposition of protest pursuant to 19 U.S.C. § 1515(b).18 Pl.’s

Opp’n at 4-5. However, such a request cannot cure a timing defect

in the underlying protest. For Plaintiff’s claim to be within the

Court’s jurisdiction, the referenced protest must first be filed in

accordance with 19 U.S.C. § 1514. As Plaintiff’s protest was

untimely, Plaintiff’s subsequent request for accelerated

disposition could not revive it.19

18
Title 19 U.S.C. § 1515(b) states in pertinent part that “[a]
request for accelerated disposition of a protest filed in
accordance with section 1514 of this title may be mailed . . .
any time after ninety days following the filing of such protest.”
Id.
19
Additionally, Plaintiff could not have cured the timing defect
through an amendment of the protest, as 19 U.S.C. § 1514(c)(1)
Court No. 00-00445 Page 18

The Court therefore holds that the protest dated February 6,

1995, was untimely and improperly filed. Moreover, Plaintiff’s

subsequent acts failed to cure or amend its original protest.

Because Plaintiff failed to file a valid protest, Customs’

decisions are final and this Court lacks jurisdiction under 28

U.S.C. § 1581(a). New Zealand Lamb Co. v. United States, 40 F.3d

377, 380 (Fed. Cir. 1994) (holding that although the jurisdiction

limitation also works to make decisions final and conclusive upon

the government unless it acts to revise them within the limitations

period, there was no such decision that triggered the ninety-day

period and consequently a failure to invoke jurisdiction); Hambro

Auto. Corp. v. United States, 66 Ct. Cust. App. 113, 117, 603 F.2d

850, 853 (1979) (holding that refusal by customs officials to

reliquidate entries became final and conclusive upon the importer

when it failed to file a protest within the previously mandated

sixty-day limitations period); Everflora Miami, Inc. v. United

States, 19 CIT 485, 487, 885 F. Supp. 243, 246 (1995), aff’d, 86

F.3d 1174 (Fed. Cir. 1996) (holding that the Court lacked

jurisdiction over Customs’ allegedly erroneous duty assessments

because the importer failed to timely protest liquidation, which

thereby made the Customs decision final and conclusive upon the

parties).

states that an amendment must take place “any time prior to the
expiration of the time in which such protest could have been
filed.” Id. Therefore, because the original protest was
untimely, any amendments to the protest were also untimely.
Court No. 00-00445 Page 19

2. 28 U.S.C. § 1581(i)

In the event that jurisdiction under 28 U.S.C. § 1581(a)

fails, Plaintiff argues that 28 U.S.C. § 1581(i) confers subject

matter jurisdiction on the Court. Compl. of Aluminerie at 1. To

invoke jurisdiction under 28 U.S.C. § 1581(i), however, Plaintiff

must file its summons and complaint at the same time. See 28

U.S.C. § 2632(a);20 USCIT R. 3(a)(3).21 Plaintiff filed its summons

20
Title 28 U.S.C. § 2632 provides in pertinent part:

(a) Except for civil actions specified in
subsections (b) and (c) of this section, a civil
action in the Court of International Trade shall be
commenced by filing concurrently with the clerk of
the court a summons and complaint.”

Id. Subsections (b) and (c) refer to actions filed under
sections 515, 516, or 516A of the Tariff Act of 1930, and
therefore are claims pursuant to 28 U.S.C. § 1581(a), (b), and
(c). Cf. 19 U.S.C. § 1515-16 with 28 U.S.C. § 1581(a)-(c).
Consequently, because Plaintiff seeks to invoke the Court’s
jurisdiction under 28 U.S.C. § 1581(i), subsection (a) of 28
U.S.C. § 2632 applies.
21
Rule 3 of the Court’s rules states:

(a) Commencement. A civil action is commenced by filing
with the clerk of the court:
(1) A summons in an action described in 28
U.S.C. § 1581(a) or (b);
(2) A summons, and within [thirty] days
thereafter a complaint, in an action
described in 28 U.S.C. § 1581(c) to contest
a determination listed in section 516A(a)(2)
or (3) of the Tariff Act of 1930; or
(3) A summons and complaint concurrently in
all other actions.

USCIT R. 3. Accordingly, in order to invoke jurisdiction under
28 U.S.C. § 1581(i), subsection (3) requires that a plaintiff
files the summons and complaint concurrently. USCIT R. 3(a)(3).
Court No. 00-00445 Page 20

on September 7, 2000, and subsequently its complaint on September

30, 2002. Summons of Aluminerie at 2; Compl. of Aluminerie at 6.

Because Plaintiff did not file the summons and complaint

concurrently, it fails to properly invoke jurisdiction pursuant to

28 U.S.C. § 1581(i).22

B. Transfer to the United States Court of Federal Claims

In the alternative, Plaintiff requests transfer of its action

to the United States Court of Federal Claims, Pl.’s Opp’n at 8,

arguing that, in the interest of justice, 28 U.S.C. § 1631 permits

transfer of the case where the Court does not have jurisdiction.23

Id. at 9. Citing 28 U.S.C. § 1491(a)(1), Plaintiff argues that

because it could have originally brought its action in the United

States Court of Federal Claims, the action may now be transferred

to that court.24 Pl.’s Opp’n at 9-10.

22
Defendant also argues that subsection (i) of 28 U.S.C. § 1581
cannot confer jurisdiction when another remedy was potentially
available under subsection (a), and that any claim intended under
subsection (i) was untimely filed. Def.’s Mot. at 5-9. However,
it is not necessary for the Court to reach this issue.
23
Title 28 U.S.C. § 1631 stipulates in pertinent part, “[if a]
court finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer [the] action
or appeal to any other such court in which the action or appeal
could have been brought at the time it was filed.” Id.
24
Title 28 U.S.C. § 1491(a)(1) provides in pertinent part, “[t]he
United States Court of Federal Claims shall have jurisdiction to
render judgment upon any claim against the United States founded
. . . upon any express or implied contract with the United
States.” Id. Plaintiff argues that 28 U.S.C. § 1491(a)(1)
confers jurisdiction over its claims, as they arise from the
Court No. 00-00445 Page 21

Congress, however, has conferred on the United States Court of

International Trade exclusive jurisdiction over certain customs-

related matters. K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 188

(1988). Jurisdiction may then lie either in the United States

Court of International Trade or in another federal court, but not

in both. In Vivitar Corp. v. United States, the Federal Circuit

laid out the analysis to be followed when it appears that both the

United States Court of International Trade and another federal

court, may have jurisdiction over a claim, stating:

“[I]t is faulty analysis to look first to the
jurisdiction of the district courts to determine whether
the [United States Court of International Trade] has
jurisdiction. . . . The focus must be solely on whether
the claim falls within the language and intent of the
jurisdiction grant to the [United States Court of
International Trade].”

Vivitar Corp. v. United States, 761 F.2d 1552, 1559-60 (Fed. Cir.

1985), cert. denied, 474 U.S. 1055 (1986). Accordingly, the

correct approach for distinguishing actions invoking the

jurisdiction granted exclusively to the United States Court of

International Trade is to focus on whether a claim falls within the

language of a statute conferring jurisdiction on this Court.

Subsection (a) of 28 U.S.C. § 1581 confers exclusive

jurisdiction on the United States Court of International Trade over

actions involving the denial of a protest. 28 U.S.C. § 1581(a).

Consequently, under the jurisdictional scheme established for the

escrow agreement concluded by the parties. Pl.’s Opp’n at 10.
Court No. 00-00445 Page 22

United States Court of International Trade, when an action arises

under such a provision, that jurisdiction is exclusive and operates

to the exclusion of all other courts. See K Mart Corp., 485 U.S.

at 182-83; Orleans Int’l, Inc. v. United States, 334 F.3d 1375,

1378 (Fed. Cir. 2003); Vivitar Corp., 761 F.2d at 1559-60.

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

International Trade therefore divests the United States Court of

Federal Claims of jurisdiction over all actions involving the

denial of a protest.25

Although Plaintiff failed to properly invoke this Court’s

jurisdiction due to procedural flaws, Plaintiff’s action arises

from the denial of a protest, and remains within the language of 28

U.S.C. § 1581(a). Moreover, although Plaintiff may claim a cause

of action in the Court of Federal Claims under the escrow

agreement, Customs’ refusal to pay interest on Plaintiff’s MPF

payment was clearly protestable.26 Accordingly, this Court’s

25
There is additional support for this conclusion in a previous
decision by the United States Court of Federal Claims. See
Macrotel Int’l Corp. v. United States, 34 Fed. Cl. 98, 99 (1995)
(holding that because it fell within the exclusive jurisdiction
of the United States Court of International Trade, the United
States Court of Federal Claims lacked jurisdiction over a matter
that was protested or “protestable”).
26
Title 19 U.S.C. § 1514(a) lists those decisions of Customs’
which are subject to protest. See 19 U.S.C. § 1514(a). They
include all decisions relating to “charges and exactions of
whatever character” and “the liquidation or reliquidation of an
entry, or reconciliation as to the issues contained therein.”
Even if Customs’ refusal to pay interest on the MPF refund did
not constitute a charge or exaction under 19 U.S.C. § 1514(a)(3),
it was clearly related to reconciliation of the liquidation of an
Court No. 00-00445 Page 23

jurisdiction continues to operate to the exclusion of all other

courts. See 28 U.S.C. § 1491(c).27 Consequently, because the

United States Court of Federal Claims lacked jurisdiction over

Plaintiff’s action at the time it was filed with this Court, the

Court denies Plaintiff’s request to transfer its action to that

Court. See 28 U.S.C. § 1631.

IV. Conclusion

For the reasons stated above, Customs’ motion to dismiss is

granted. Aluminerie’s action is dismissed.

/s/Donald C. Pogue

Donald C. Pogue,
Judge

Dated: April 23, 2004
New York, New York

entry under 19 U.S.C. § 1514(a)(5). See United States v.
Universal Fruits & Vegetables Corp., No. 02-55340, slip op. at 17
(9th Cir. 2004) (citing Heller, Ehrman, White & MacAuliffe v.
Babbitt, 992 F.2d 360, 363-64( D.C. Cir. 1993); Conoco, Inc. v.
United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1586-89
(Fed. Cir. 1994); J.C. Penney Co. v. United States Treas. Dep’t,
439 F.2d 63, 66-68 (2d. Cir 1971).
27
Title 28 U.S.C. § 1491(c), governing the jurisdiction of the
Court of Federal Claims, provides in pertinent part, “[n]othing
herein shall be construed to give the United States Court of
Federal Claims jurisdiction of any civil action within the
exclusive jurisdiction of the Court of International Trade.” 28
U.S.C. § 1491(c).