47 F.4th 1370
Fed. Cir.2022Background:
- In 2018–2020 the U.S. Trade Representative (USTR) imposed Section 301 tariffs on lists of Chinese products and later issued product‑specific, retroactive exclusions for certain categories.
- USTR told importers to contact Customs for classification/implementation and Customs issued guidance explaining refund procedures: file Post Summary Corrections (PSCs) for unliquidated entries, request liquidation extensions, or file protests within 180 days after liquidation.
- ARP and Harrison imported merchandise that Customs classified as subject to §301 duties; those entries were later covered by USTR retroactive exclusions but many entries had already liquidated.
- Each company filed some protests; Customs denied several protests as untimely under 19 U.S.C. §1514 (180‑day rule). One ARP protest was timely and granted.
- ARP and Harrison then sued in the Court of International Trade invoking 28 U.S.C. §1581(i). The court dismissed for lack of jurisdiction, holding §1581(a) would have been available had the importers timely protested and that §1581(a)’s remedy was not manifestly inadequate. The Federal Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Customs’ classification/liquidation decisions were protestable under §1581(a) | Challenge concerns USTR exclusions, not Customs; Customs’ role was ministerial so no protest required | Customs made substantive legal and factual classification decisions that were protestable under §1514/§1581(a) | Held protestable; importers were required to timely protest Customs’ classification/liquidation decisions |
| Whether plaintiffs may invoke §1581(i) instead of §1581(a) | §1581(i) applies because the true source of the dispute is USTR’s exclusion determinations | §1581(i) is unavailable where another §1581 subsection (here §1581(a)) could have provided an adequate remedy | Held §1581(i) unavailable because §1581(a) would have been available |
| Whether the remedy under §1581(a) was manifestly inadequate (so §1581(i) could be used) | Timely relief was futile or unavailable because exclusions were retroactive; filing protests was pointless | The protest/PSC/extension procedures could have afforded relief; one protest was in fact successful when timely filed | Held remedy not manifestly inadequate; failing to file timely does not make the remedy futile or inadequate |
Key Cases Cited
- Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356 (9th Cir. 1992) (§1581(i) limited where another §1581 remedy was available unless that remedy is manifestly inadequate)
- Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364 (Fed. Cir. 2002) (§1581(a) jurisdiction depends on timely protest under §1514)
- Hutchison Quality Furniture, Inc. v. United States, 827 F.3d 1355 (Fed. Cir. 2016) (determine the "true nature" of the action to identify the proper §1581 subsection)
- Juice Farms, Inc. v. United States, 68 F.3d 1344 (Fed. Cir. 1995) (missing statutory deadline does not by itself render the statutory remedy inadequate)
- Int'l Custom Prods., Inc. v. United States, 467 F.3d 1324 (Fed. Cir. 2006) (protest procedure cannot be circumvented by creative pleading)
- Millennium Lumber Distrib. Ltd. v. United States, 558 F.3d 1326 (Fed. Cir. 2009) (classification involves legal and factual determinations and is protestable)
- Cemex, S.A. v. United States, 384 F.3d 1314 (Fed. Cir. 2004) (liquidation decisions are more than ministerial and constitute protestable decisions)
- Sunpreme Inc. v. United States, 892 F.3d 1186 (Fed. Cir. 2018) (to be "manifestly inadequate" a remedy must be futile or incapable of producing any result)
- Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347 (Fed. Cir. 2006) (agency decisions other than Customs may be challenged without a protest in some circumstances; relied on by plaintiffs here)