Erwin Hymer Group North America Inc. v. United States
2017 CIT 151
| Ct. Intl. Trade | 2017Background
- Erwin Hymer (formerly Roadtrek) imported 149 vehicles from Canada in 2014; CBP liquidated the entries and assessed duties under HTSUS subheading 8703.24.00.
- Erwin Hymer timely filed a protest contesting classification and asserting entitlement to duty-free treatment under subheading 9802.00.50; the protest form’s CBP field 17 was marked "Approved" by an Import Specialist on the form copy.
- CBP later placed the protest in "suspended" status pending a related Court of International Trade test-case decision; reliquidation and any refunds were not performed.
- Plaintiff sued under 28 U.S.C. § 1581(i), seeking a writ/mandamus (or equivalent APA relief) to compel reliquidation and refund of excess duties plus interest, arguing that the "Approved" marking created a nondiscretionary duty to reliquidate.
- Defendant argued lack of jurisdiction or, alternatively, that the initial "approval" could be rescinded prior to reliquidation and that no mandatory duty to refund was triggered.
- The Court held it had jurisdiction under 28 U.S.C. § 1581(i)(4) but concluded CBP did not unlawfully withhold action because a protest is not "allowed" until reliquidation; therefore the "Approved" box alone did not trigger a nondiscretionary duty to reliquidate or refund.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction — whether §1581(i) covers challenge to CBP withholding refund after protest "Approved" | Erwin Hymer: action arises from administration of import revenue laws; §1581(i)(4) applies and gives the Court jurisdiction | U.S.: Plaintiff lacks §1581 jurisdiction; any review should await denial or accelerated-disposition procedures under §1515(b) and §1581(a) | Court: §1581(i)(4) provides residual jurisdiction over administration/enforcement of revenue laws here; jurisdiction exists |
| Legal effect of CBP marking protest "Approved" on CBP Form 19 | Erwin Hymer: the "Approved" mark constitutes an allowance that triggers nondiscretionary duties under 19 U.S.C. §1515(a) to reliquidate and refund | U.S.: "Approved" on the form is not synonymous with statutory "allow"; reliquidation is the operative act that allows a protest | Court: "approval" on the form is not legally equivalent to an "allowance"; reliquidation, not form-checking, effectuates an allowance and triggers refund duties |
| Whether CBP unlawfully withheld or unreasonably delayed refund/reliquidation | Erwin Hymer: refusing to reliquidate after marking "Approved" is unlawful withholding and unreasonable delay under APA §706(1) | U.S.: CBP rescinded the approval and properly suspended processing pending related case law; no discrete mandatory duty to compel | Court: No unlawful withholding because reliquidation (the discrete action required) never occurred; marking "Approved" alone does not create a nondiscretionary duty |
| Remedy — mandamus / mandatory relief available | Erwin Hymer: seeks mandamus forcing reliquidation and refund with interest | U.S.: APA/administrative procedures govern; mandamus not appropriate absent APA failure | Court: Relief under APA §706(1) would be the form of mandatory relief if warranted, but here merits fail so no mandamus/mandated reliquidation is ordered |
Key Cases Cited
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (limits APA §706(1) to compel discrete agency actions)
- Hitachi Home Electronics (America), Inc. v. United States, 661 F.3d 1343 (Fed. Cir. 2011) (refund duty is predicated on Customs allowing a protest)
- Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347 (Fed. Cir. 2006) (look to the true nature of the action to determine CIT jurisdiction)
- Wolff Shoe Co. v. United States, 861 F. Supp. 133 (1994) (discusses consequences where an "Approved" protest accompanied reliquidation and refund)
- Mount Emmons Mining Co. v. Babbitt, 117 F.3d 1167 (10th Cir. 1997) (discusses mandamus-like relief fashioned through APA §706(1))
- Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993) (availability of APA remedy precludes alternative mandamus relief)