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Industrial Chemicals, Inc. v. United States

United States Court of Appeals, Federal Circuit

November 8, 2019

INDUSTRIAL CHEMICALS, INC., Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of International Trade in No. 1:17-cv-00177-JCG, Judge Jennifer Choe-Groves.

          Robert Givens, Joshua Beker, Givens & Johnston, PLLC, Houston, TX, argued for plaintiff-appellant.

          Guy Eddon, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee. Also represented by Amy Rubin, Jamie Shookman; Joseph H. Hunt, Jeanne Davidson, Washington, DC; Yelena Slepak, Office of the Assistant Chief Counsel, United States Bureau of Customs and Border Protection, United States Department of Homeland Security, New York, NY.

          Before Prost, Chief Judge, Wallach and Hughes, Circuit Judges.

          Wallach, Circuit Judge.

         Appellant Industrial Chemicals, Inc. ("Industrial Chemicals") appeals from the judgment of the U.S. Court of International Trade ("CIT") dismissing its complaint. The CIT held that it lacked jurisdiction under 28 U.S.C. § 1581(a) (2012) to consider Industrial Chemicals' claim that the U.S. Customs and Border Protection ("Customs") had improperly denied its protest concerning duty free treatment for its entries of organic chemicals from India under the Generalized System of Preferences ("GSP"). See Indus. Chems., Inc. v. United States, 335 F.Supp.3d 1327, 1330 (Ct. Int'l Trade 2018); J.A. 1 (Judgment). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.

         Background

         The GSP provides "duty-free treatment" for "eligible article[s] from . . . beneficiary developing countr[ies]," 19 U.S.C. § 2461 (2012), among them, India, see Harmonized Tariff Schedule of the United States, General Note 4(a) (2013) (listing India as a GSP designated beneficiary country). Congressional authorization for the GSP expired on July 31, 2013, see Extension-Generalized System of Preferences, Pub. L. No. 112-40, § 1, 125 Stat. 401, 401 (2011), and was not renewed until June 29, 2015, see Trade Preferences Extension Act of 2015 ("Extension Act"), Pub. L. No. 114-27, § 201, 129 Stat. 362, 371 (2015). For GSP-eligible entries made during the lapse in authorization, Congress provided "retroactive application" of the GSP (i.e., a refund of duties paid), so long as the importer filed a request with Customs "not later than" December 28, 2015. Id. § 201(b)(2)(A)-(B).

         Industrial Chemicals made sixty-five entries of organic chemicals from India between August 2013 and October 2014, while the GSP had lapsed. J.A. 13-15 (Schedule of Protests), 36-39 (Request). The entries were liquidated between June 2014 and September 2015. J.A. 13-15. Industrial Chemicals avers that, if the GSP had been in force, its entries would have been GSP-eligible. J.A. 17, 36. Industrial Chemicals did not, however, submit its request for retroactive GSP treatment until February 2, 2016, more than a month after the deadline. See J.A. 36. On March 11, 2016, Customs denied the request, explaining that "[s]ince [the request] was received after December 28, 2015, it [could not] be processed per [the Extension Act § 201]." J.A. 40. On June 1, 2016, Industrial Chemicals filed its Protest of Customs' "denial of GSP treatment." J.A. 44; see J.A. 13-15. Customs denied the Protest as untimely pursuant to 19 U.S.C. § 1514. J.A. 41 (denying Industrial Chemicals' Protest because it had been filed more than 180 days after liquidation of its entries); see 19 U.S.C. § 1514(c)(3) (providing that a protest must be filed with Customs "within 180 days after" the "date of liquidation or reliquidation" of relevant entries or, if both of those are inapplicable, "the date of the [protested] decision").

         Industrial Chemicals filed a Complaint in the CIT, alleging improper denial of its Protest. J.A. 16-24 (Complaint). Industrial Chemicals claimed jurisdiction under 28 U.S.C. § 1581(a). J.A. 17; see 28 U.S.C. § 1581(a) (providing jurisdiction over "any civil action commenced to contest the denial of a protest, in whole or in part"). The CIT dismissed Industrial Chemicals' Complaint, concluding that the CIT lacked subject matter jurisdiction because Industrial Chemicals' Protest was invalid. Indus. Chems., 335 F.Supp.3d at 1330.

         Discussion

         I. Standard of Review and Legal Standard

         We review the CIT's jurisdictional determinations de novo. See Sunpreme Inc. v. United States, 892 F.3d 1186, 1191 (Fed. Cir. 2018) (citation omitted). "Although we review the decisions of the CIT de novo, we give great weight to the informed opinion of the CIT and it is nearly always the starting point of our analysis." Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1341 (Fed. Cir. 2016) (internal quotation marks, brackets, ellipsis, and citation omitted). "[T]he party invoking [the CIT's] jurisdiction bears the burden of establishing it." Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). "However, we must accept well-pleaded factual allegations as true and must draw all reasonable inferences in favor of the claimant." Hutchison Quality Furniture, Inc. v. United States, 827 F.3d 1355, 1359 (Fed. Cir. 2016) (internal quotation marks and citation omitted).

         "The [CIT], like all federal courts, is a court of limited jurisdiction." Sakar Int'l, Inc. v. United States, 516 F.3d 1340, 1349 (Fed. Cir. 2008) (citation omitted); see 28 U.S.C. § 1581(a)-(j) (enumerating the CIT's jurisdiction). Section 1581(a) gives the CIT "exclusive jurisdiction of any civil action commenced to contest [Customs'] denial of a protest, in whole or in part, under [19 U.S.C. § 1515]." 28 U.S.C. § 1581(a); see 19 U.S.C. § 1515 (providing Customs with authority to review protests made pursuant to 19 U.S.C. § 1514). Under § 1514, an importer may protest "any clerical error, mistake of fact, or other inadvertence . . . adverse to the importer, in any entry, liquidation, or reliquidation, and, decisions of [Customs], including the legality of all orders and findings entering into the same, as to" certain Customs enforcement actions including "the classification and rate and amount of duties chargeable" and "the liquidation or reliquidation of an entry . . . or any modification thereof[.]" 19 U.S.C. § 1514(a)(2), (5); see 19 C.F.R. § 174.12(a)(1) (2016) (providing that an importer may file a protest). Customs' "merely ministerial" actions are not protestable under 19 U.S.C. § 1514. Mitsubishi El-ecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). "Customs must [have] engage[d] in some sort of decision-making process in order for there to be a protestable decision." U.S. Shoe Corp. v. United States, 114 F.3d 1564, 1569 (Fed. Cir. 1997), aff'd, 523 U.S. 360 (1998); see Thyssenkrupp Steel N. Am., Inc. v. United States, 886 F.3d 1215, 1225 (Fed. Cir. 2018) (explaining that the term "ministerial" "excludes actions requiring genuine interpretive or comparable judgments as to what is to be done" (citation omitted)). This is because Customs must have the ...


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