Shell Oil Co. v. United States, 688 F.3d 1376

Shell imported petroleum products in 1993-1994 and paid duties, with HMT and ET taxes; Shell simultaneously exported substitute finished petroleum derivatives eligible for drawback.
Between 1995-1996 Gulf Coast Drawback Services filed numerous substitution drawback claims on Shell’s behalf with Customs.
Drawback statute requires filing of complete claims within three years of export of substitute merchandise; untimely claims are abandoned.
The 1999 amendments created a six-month grace period to file or re-file otherwise untimely claims after enactment; the three-year clock was suspended only for claims filed within that six months.
The 2004 amendments overturned Texport and clarified eligibility to include any duty, tax, or fee; they apply prospectively to entries not final, with limitations.
In Aectra and Warren, the court addressed tolling, futility, and notice issues; Shell filed protests in 1997, seeking HMT and ET after the three-year window had expired.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are HMT and ET claims timely under §1313?	Shell argues amendments revive timely HMT/ET claims.	Government maintains claims were filed outside the three-year window and not protected by amendments.	No; claims untimely under §1313(r)(1).
Did the 1999 six-month grace period revive untimely claims?	Shell relies on six-month grace to re-file after denial.	Grace period only applies to claims filed within six months after enactment; Shell did not re-file then.	Inapplicable; grace period did not save Shell's claims.
Does futility toll or prior denial excuse filing?	Shell contends futility or prior denial justify reopening claims for HMT/ET.	Futility does not excuse failure to file proper, complete claims within the period.	Futility and prior denial do not excuse noncompliance; no tolling.
Do the 2004 amendments retroactively revive late claims?	Shell argues amendments allow late protective requests to be treated as timely.	Amendments are not retroactive to late, already liquidated entries without timely protective requests.	No; 2004 amendments do not apply to final liquidations.

United States v. U.S. Shoe Corp., 523 U.S. 360 (U.S. Supreme Court 1998) (drawback must comply with statutory timing; related to constitutional concerns)
Aectra Refining & Mktg., Inc. v. United States, 565 F.3d 1364 (Fed. Cir. 2009) (six-month grace period; futility not a defense to timely preservation)
George E. Warren Corp. v. United States, 341 F.3d 1348 (Fed. Cir. 2003) (distinguishes jurisdictional grounds; precludes tolling by futility)
Texport Oil Co. v. United States, 185 F.3d 1291 (Fed. Cir. 1999) (pre-2004 framework distinguished taxes/fees; prompted 2004 amendments)