from the United States Court of International Trade in No.
1:17-cv-00177-JCG, Judge Jennifer Choe-Groves.
Givens, Joshua Beker, Givens & Johnston, PLLC, Houston,
TX, argued for plaintiff-appellant.
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.
Prost, Chief Judge, Wallach and Hughes, Circuit Judges.
Wallach, Circuit Judge.
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.
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).
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
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.
Standard of Review and Legal Standard
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).
[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 ...