941 F.3d 1368
Fed. Cir.2019Background
- The Generalized System of Preferences (GSP) lapsed July 31, 2013 and was reenacted June 29, 2015; Congress allowed retroactive refunds only if request was filed with Customs by December 28, 2015.
- Industrial Chemicals imported 65 entries of organic chemicals from India between Aug 2013 and Oct 2014; those entries were liquidated between June 2014 and Sept 2015.
- Industrial filed a request for retroactive GSP treatment on February 2, 2016 (after the Dec. 28, 2015 deadline); Customs denied the request on March 11, 2016 as untimely.
- Industrial filed a Protest on June 1, 2016; Customs denied the Protest as untimely under 19 U.S.C. § 1514(c)(3) because it was filed more than 180 days after liquidation.
- Industrial sued in the U.S. Court of International Trade (CIT) under 28 U.S.C. § 1581(a) to contest denial of the Protest; the CIT dismissed for lack of jurisdiction, and the Federal Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Customs' denial of retroactive GSP treatment was a protestable decision under 19 U.S.C. § 1514(a) | Industrial: Denial of the retroactive GSP request is a protestable decision subject to § 1514(a) | Govt: Denial was ministerial application of a statutory deadline; Customs had no discretion to grant relief, so not protestable | Denial was non-protestable ministerial act; § 1514(a) did not apply |
| Whether Industrial's Protest was timely under § 1514(c)(3) | Industrial: Protest was timely because it challenged Customs’ denial and was filed within 180 days of that denial | Govt: Protest was filed more than 180 days after liquidation; challenge to liquidation is time-barred | To the extent Protest challenged liquidation, it was untimely and jurisdiction fails |
| Whether Thyssenkrupp/Ford control to create jurisdiction here | Industrial: Prior cases show denial/rejection can be protestable and preserve jurisdiction | Govt: Those cases do not support jurisdiction where the underlying action was non-discretionary and untimely | Court: Thyssenkrupp and Ford distinguishable; they do not create jurisdiction for non-discretionary, untimely claims |
| Whether CIT could exercise alternate jurisdiction (e.g., § 1581(i)) | Industrial: CIT has other jurisdictional grounds (argued on appeal) | Govt: Industrial did not raise alternate bases before the CIT; argument waived | Alternate jurisdiction arguments waived; court declines to decide them |
Key Cases Cited
- Thyssenkrupp Steel N. Am., Inc. v. United States, 886 F.3d 1215 (Fed. Cir. 2018) (protestability requires Customs to have made meaningful judgments)
- Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) (ministerial acts are not protestable)
- Gilda Indus., Inc. v. United States, 446 F.3d 1271 (Fed. Cir. 2006) (Customs must have authority to grant relief for protestability)
- U.S. Shoe Corp. v. United States, 114 F.3d 1564 (Fed. Cir. 1997) (Customs must engage in decision-making for protestability)
- Haggar Apparel Co. v. United States, 222 F.3d 1337 (Fed. Cir. 2000) (courts give effect to clear congressional intent under Chevron)
- Juice Farms, Inc. v. United States, 68 F.3d 1344 (Fed. Cir. 1995) (importer cannot evade statutory filing deadlines by claiming lack of diligence)
- Ford v. United States, 635 F.3d 550 (Fed. Cir. 2011) (timely filing can preserve jurisdiction despite later documentary deficiencies)
- Zojirushi Am. Corp. v. United States, 180 F. Supp. 3d 1354 (Ct. Int'l Trade 2016) (CIT discussion that importers may protest legal construction errors)