Chemsol, LLC v. United States , 755 F.3d 1345 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
CHEMSOL, LLC AND MC INTERNATIONAL, LLC,
Plaintiffs-Appellants,
v.
UNITED STATES AND
UNITED STATES CUSTOMS AND BORDER
PROTECTION,
Defendants-Appellees.
______________________
2013-1402, -1403
______________________
Appeals from the United States Court of International
Trade in Nos. 11-CV-0516 and 11-CV-0517, Chief Judge
Donald C. Pogue.
______________________
Decided: June 24, 2014
______________________
RUSSELL A. SEMMEL, Neville Peterson LLP, of Wash-
ington, DC, argued for plaintiffs-appellants. With him on
the brief was GEORGE W. THOMPSON.
CLAUDIA BURKE, Assistant Director, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendants-
appellees. With her on the brief were STUART F. DELERY,
Assistant Attorney General, and JEANNE E. DAVIDSON,
Director. Of counsel was JUSTIN REINHART MILLER,
2 CHEMSOL, LLC v. US
Attorney, International Trade Field Office, of New York,
New York. Of counsel on the brief was YELENA SLEPAK,
Attorney, Office of the Assistant Chief Counsel, Interna-
tional Trade Litigation, United States Customs and
Border Protection, of New York, New York.
______________________
Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
Appellants Chemsol, LLC and MC International, LLC
(d/b/a Miami Chemical) (“MCI”) appeal the decision of the
United States Court of International Trade (“CIT”) dis-
missing their case for lack of subject matter jurisdiction.
Chemsol, LLC v. United States, 901 F. Supp. 2d 1362 (Ct.
Int’l Trade 2013). Because the CIT properly held it did
not have jurisdiction over this case, this court affirms.
BACKGROUND
In 2009, Chemsol made six entries of citric acid, pur-
portedly from the Dominican Republic, and in 2009 and
2010, MCI made thirteen entries of citric acid, purported-
ly from India (collectively, “the Entries”). Appellants
claimed duty-free status for the Entries and therefore did
not deposit any duties on entry. In 2010, United States
Immigration and Customs Enforcement (“ICE”) and
United States Customs and Border Protection (“Cus-
toms”) (collectively, “the Government”) initiated an inves-
tigation to determine whether Chinese citric acid was
being transshipped through other countries to evade
antidumping and countervailing duties applicable to
imports of citric acid from China. Customs suspected that
Appellants’ Entries were actually produced in China, but
were transshipped through the Dominican Republic and
India to avoid duties.
To complete the transshipment investigation, Cus-
toms extended the deadline for liquidation of the Entries
CHEMSOL, LLC v. US 3
pursuant to 19 U.S.C. § 1504(b) (2006). For Chemsol, as
of the time it filed this suit, Customs had extended liqui-
dation for all of its Entries at least twice. As to MCI, as of
the date of filing, Customs had extended liquidation once
for all of its Entries, a second time for most of its Entries,
and a third time for one Entry. It is undisputed that both
Chemsol and MCI received notice of these extensions.
In response to the extensions, Appellants filed suit in
the CIT on December 16, 2011, seeking “relief declaring
the extensions unlawful such that the entries have there-
fore been ‘deemed’ liquidated by operation of law.” Chem-
sol, 901 F. Supp. 2d at 1363; see J.A. 31, 43. Though the
Entries were not yet deemed liquidated because the
liquidation period was extended with notice, Appellants
asserted the CIT had jurisdiction under 28 U.S.C.
§ 1581(i) (2006), the CIT’s “residual jurisdiction” provi-
sion. The Government moved to dismiss for lack of sub-
ject matter jurisdiction, 1 claiming Appellants could not
rely on § 1581(i) because they were first required to
challenge the extensions before Customs by means of a
post-liquidation protest, after which they could seek
judicial review of any protest denial pursuant to 19 U.S.C.
§ 1515, the Tariff Act’s “review of protests” provision.
Jurisdiction over such a denial, the Government argued,
would then be proper under 28 U.S.C. § 1581(a).
The CIT agreed, observing that “[i]n the time that has
elapsed since the commencement of this action, ICE has
completed its investigation and, but for [Appellants’] suit,
Customs could complete its administrative process and
1 In the alternative, the Government moved to dis-
miss for failure to state a claim upon which relief may be
granted. Chemsol, 901 F. Supp. 2d at 1365. Because the
CIT dismissed this case for lack of jurisdiction, the CIT
did not reach the other motion to dismiss. Id. at 1369 n.9.
4 CHEMSOL, LLC v. US
liquidate [Appellants’] remaining entries.” 2 Chemsol, 901
F. Supp. 2d at 1365. The CIT held “the statutory review
process for challenging liquidation of [Appellants’] entries
under . . . 19 U.S.C. §§ 1515–16[ ] and 28 U.S.C. § 1581(a),
provides an adequate remedy for [Appellants’] claims,”
and accordingly granted the Government’s motion to
dismiss for lack of subject matter jurisdiction. Id. at
1363–64 (footnote omitted).
Appellants filed these timely appeals. This court has
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
I. Standard of Review
This court reviews de novo the CIT’s dismissal for
lack of subject matter jurisdiction. Ford Motor Co. v.
United States, 688 F.3d 1319, 1322 (Fed. Cir. 2012).
II. Legal Framework
A. Jurisdiction
The CIT’s limited jurisdiction is enumerated in 28
U.S.C. § 1581(a) through (i). Subsection (a) vests the CIT
2 The CIT also held that Chemsol’s claims relating
to four of the nineteen Entries were moot because the
Entries had auto-liquidated duty free in Appellants’ favor.
Chemsol, 901 F. Supp. 2d at 1365; see SKF USA, Inc. v.
United States, 512 F.3d 1326, 1329 (Fed. Cir. 2008) (“[A]
court action [is] moot once liquidation occurs.”). Specifi-
cally, in response to an inquiry from the CIT, on March 7,
2013, the Government reported that one of Chemsol’s
Entries had auto-liquidated in its favor and three Entries
were extended a third (and final) time. J.A. 60–61. As to
MCI, the Government reported that three Entries had
auto-liquidated in MCI’s favor and nine Entries were
extended a third (and final) time. J.A. 63–64.
CHEMSOL, LLC v. US 5
with “exclusive jurisdiction of any civil action commenced
to contest the denial of a protest [by Customs].” Subsec-
tions (b) through (g) delineate other specific grants of
jurisdiction. Subsection (i), the “residual jurisdiction”
provision, provides:
In addition to the jurisdiction conferred upon the
[CIT] by subsections (a)–(h) of this section . . . ,
the [CIT] shall have exclusive jurisdiction of any
civil action commenced against the United States,
its agencies, or its officers, that arises out of any
law of the United States providing for—
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on
the importation of merchandise for rea-
sons other than the raising of revenue;
(3) embargoes or other quantitative re-
strictions on the importation of merchan-
dise for reasons other than the protection
of the public health or safety; or
(4) administration and enforcement with
respect to the matters referred to in para-
graphs (1)–(3) of this subsection and sub-
sections (a)–(h) of this section.
28 U.S.C. § 1581(i).
While the residual jurisdiction provision is a “catch all
provision,” “[a]n overly broad interpretation of this provi-
sion . . . would threaten to swallow the specific grants of
jurisdiction contained within the other subsections and
their corresponding requirements.” Norman G. Jensen,
Inc. v. United States, 687 F.3d 1325, 1329 (Fed. Cir.
2012). Therefore, this court has repeatedly held that
subsection (i) “‘may not be invoked when jurisdiction
under another subsection of § 1581 is or could have been
available, unless the remedy provided under that other
6 CHEMSOL, LLC v. US
subsection would be manifestly inadequate.’” Ford, 688
F.3d at 1323 (quoting Miller & Co. v. United States, 824
F.2d 961, 963 (Fed. Cir. 1987)). Thus, if a litigant has
access to the CIT under subsections (a) through (h), “‘it
must avail itself of this avenue of approach by complying
with all the relevant prerequisites thereto’” unless the
remedy available under another subsection is “manifestly
inadequate.” Hartford Fire Ins. Co. v. United States, 544
F.3d 1289, 1292 (Fed. Cir. 2008) (quoting Am. Air Parcel
Forwarding Co. v. United States, 718 F.2d 1546, 1549
(Fed. Cir. 1983)). A litigant asking the court to exercise
jurisdiction over his or her claim has the burden of estab-
lishing that jurisdiction exists. See Rocovich v. United
States, 933 F.2d 991, 993 (Fed. Cir. 1991) (citing KVOS,
Inc. v. Associated Press, 299 U.S. 269, 278 (1936)).
B. Liquidation
When importing merchandise into the United States,
“the importer of record shall deposit with [Customs] at the
time of entry . . . the amount of duties and fees estimated
to be payable on such merchandise,” including applicable
antidumping or countervailing duties. 19 U.S.C.
§ 1505(a). Customs generally must “liquidate” the entries
“within 1 year from . . . the date of entry.” See id.
§ 1504(a)(1). “Liquidation means the final computation or
ascertainment of the duties . . . accruing on an entry,”
after which the final amount due (if any) is calculated and
billed, completing the import transaction. 19 C.F.R.
§ 159.1 (2010); Ford, 688 F.3d at 1321 (“The process for
bringing . . . customs transactions to final resolution is
called ‘liquidation.’”). If Customs does not liquidate the
entry within one year, the entry is “deemed liquidated at
the rate of duty, value, quantity, and amount of duties
asserted by the importer of record” on its entry documen-
tation. 19 U.S.C. § 1504(a)(1). In other words, “deemed
liquidation” is liquidation by operation of law.
CHEMSOL, LLC v. US 7
Before the elapse of the one-year liquidation period,
however, under § 1504(b)(1), Customs “may extend the
period in which to liquidate an entry if . . . the infor-
mation needed for the proper appraisement or classifica-
tion of the imported or withdrawn merchandise, . . . or for
ensuring compliance with applicable law, is not available
to [Customs].” However, Customs may only extend the
liquidation period three times, resulting in a total of four
years from the date of entry within which Customs must
liquidate the entries or they will be deemed liquidated.
Id. § 1504(b); 19 C.F.R. § 159.12(e), (f).
Whether by Customs’ action or by operation of law,
liquidation is final unless an importer files a timely
protest with Customs challenging its decision “within 180
days after but not before . . . [the] date of liquidation.” 19
U.S.C. § 1514(c)(3)(A) (emphasis added). “Absent such a
protest, the Customs decision is final” and is no longer
subject to administrative or judicial review. Hartford
Fire, 544 F.3d at 1292 (citation omitted). This court has
confirmed that liquidation is the “final challengeable
event” and “[f]indings related to liquidation,” such as the
need for extensions, “merge with the liquidation.” See
Volkswagen of Am., Inc. v. United States, 532 F.3d 1365,
1370 (Fed. Cir. 2008); see also United States v. Utex Int’l
Inc., 857 F.2d 1408, 1410 (Fed. Cir. 1988) (“‘All findings
involved in a [Customs] decision merge in the liquidation.
It is the liquidation which is final and subject to protest,
not the preliminary findings or decisions of customs
officers.’”) (citations omitted). This is also evident from
the statute, which specifies that “decisions of [Customs],
including the legality of all orders and findings . . . as to[,
inter alia,] . . . the liquidation or reliquidation of an
entry,” are final unless a timely protest is filed. 19 U.S.C.
§ 1514(a)(5); see also id. § 1514(c)(3)(A) (“A protest of a
decision, order, or finding described in subsection (a) of
this section shall be filed with [Customs] within 180 days
8 CHEMSOL, LLC v. US
after but not before . . . [the] date of liquidation or reliqui-
dation.”) (emphasis added).
III. The CIT Properly Dismissed for Lack of Jurisdiction
A. Relief is Available to Appellants Under 28 U.S.C.
§ 1581(a)
The CIT held it lacked jurisdiction under § 1581(i) be-
cause Appellants’ “challenge to Customs’ extensions of the
time for liquidation may be brought, after liquidation, by
filing a protest and obtaining jurisdiction in this court
under Section 1581(a).” Chemsol, 901 F. Supp. 2d at
1366. The CIT noted that Customs’ actions in this case
were “well within the four-year period allowed for exten-
sions; Customs continues to actively investigate the
appropriate liquidation for the entries.” Id. Furthermore,
the CIT stated, “[u]pon conclusion of that process and
liquidation of the entries, the importers will have ample
opportunity to raise any issues through the protest and
judicial review process that culminates in § 1581(a).” Id.
Appellants argue the CIT erred in failing to find
§ 1581(i) confers subject matter jurisdiction over this
action. In support, Appellants first argue the CIT failed
to follow this court’s opinion in Ford, 688 F.3d at 1323,
which Appellants claim involves a “materially identical
fact pattern[ ] and legal issues.” Appellants’ Br. 10 (capi-
talization removed).
In Ford, this court found jurisdiction under § 1581(i)
available for a deemed liquidation claim in which Cus-
toms’ inaction was at issue. In doing so, this court noted
that “[i]t is undisputed that at the time of filing of Ford’s
complaint, [Customs] had not affirmatively liquidated any
of the nine entries. It is also undisputed that the general
one-year time period imposed by Congress for liquidating
such entries had long since expired.” Ford, 688 F.3d at
1321–22. This court then held (1) the case involved “a
valid invocation of the court’s residual jurisdiction, as the
CHEMSOL, LLC v. US 9
importer could not have asserted jurisdiction under any of
the other enumerated provisions of § 1581,” and (2) “post-
complaint efforts by [Customs] to clear the importer’s
accounts did not undo such jurisdiction.” Id. at 1321.
This court concluded that “[w]here, as here, there has
been an allegation that [Customs] unlawfully failed to
make any [protestable] decision, we cannot see how an
administrative appeal could have been initiated pre-
filing.” Id. at 1327 (emphasis added).
Appellants insist the CIT erred when it found Ford
distinguishable because, here, Customs extended the
liquidation period with proper notice, whereas in Ford
Customs failed to act altogether. Appellants contend this
is a misreading of the facts in Ford because only the first
claim of Ford’s Complaint alleged that none of its entries
was extended, while the second, third, and fourth claims
of the Complaint alleged, in the alternative, that if Cus-
toms did issue extensions, such extensions “lacked notice,
reasoning, or validity.” Appellants’ Br. 14. On this basis,
Appellants argue “[t]he fact pattern and legal issues now
before the Court are all but identical to [Ford] in every
material way” because “[i]n both cases, the importer
asserted that [Customs] purported to extend liquidation
for certain entries, and notice thereof was issued, but
either no reason or an invalid reason was given for the
extensions, thereby rendering them void.” 3 Id. at 12
(emphases added).
3 Appellants also argue that “[b]y reversing the de-
cision below, this Court can ensure that the CIT is con-
sistent not just with the Circuit but also with itself.”
Appellants’ Br. 17. In support, they compare two deci-
sions of the judge who authored the decision below, which
purportedly conflict. Id. Appellants quote this case and
contend it “is in remarkable, direct contrast to an opinion
of then-Judge Pogue thirteen years ago.” Id. (citation
10 CHEMSOL, LLC v. US
Appellants’ reliance on Ford is misplaced. In contrast
to Ford, here deemed liquidation had not yet occurred
when Appellants filed their complaints, and Customs had
extended the liquidation period pursuant to its statutory
authority in 19 U.S.C. § 1504(b) to determine the country
of origin of the Entries and the proper duty rate. There is
no dispute that Customs properly notified Appellants of
the extensions to the liquidation period. Thus, this case
presents exactly the scenario in which “§ 1514’s protest
provisions [can] be invoked” because “‘Customs . . . en-
gage[d] in some sort of decision-making process,’” Ford,
688 F.3d at 1327 (quoting Xerox Corp. v. United States,
423 F.3d 1356, 1363 (Fed. Cir. 2005)), and, any objections
to the validity of the extensions would be merged into the
later liquidation. This court has also clarified that “all
aspects of entry [are] merged in the liquidation and that
‘absent timely reliquidation or protest’ the liquidation [is]
final.” Volkswagen, 532 F.3d at 1370 (quoting Utex, 857
F.2d at 1412). Thus, “[i]f an importer wishes to challenge
[an aspect of entry], the importer must protest the liqui-
dation.” Id. As the Government points out, “[t]his ap-
proach makes sense—it recognizes that the decision to
extend the period for liquidation may be necessary to
determine the ultimate country of origin, classification, or
omitted). As Chemsol’s counsel well knows, however, the
purportedly conflicting opinion by Chief Judge Pogue was
authored prior to this court’s cases expressly limiting the
bounds of residual jurisdiction under § 1581(i). E.g.,
Norman G. Jensen, 687 F.3d at 1328; Hartford Fire, 544
F.3d at 1292; Int’l Custom Prods., Inc. v. United States,
467 F.3d 1324, 1327 (Fed. Cir. 2006); see Oral Arg. at
7:57–8:10, available at http://www.cafc.uscourts.gov/oral-
argument-recordings/all/chemsol.html (counsel replying
“yes” when asked whether there is “a line of cases that
expressly limit . . . the bounds of residual jurisdiction
under [§] 1581(i) that came out of this court”).
CHEMSOL, LLC v. US 11
rate assessed and, therefore, should be subsumed in the
liquidation for purposes of administrative and judicial
review.” Appellees’ Br. 13. Thus, while Ford rightfully
sought a declaration that its entries were deemed liqui-
dated, because the one-year liquidation period had
elapsed without notice of any action by Customs, here
such a declaration is not appropriate because Customs
issued timely extensions, thereby preventing deemed
liquidation.
In addition, unlike in this case, whether extensions
had occurred was an issue very much in dispute in Ford.
Indeed, in determining whether Ford had conceded this
issue in a post-complaint statement, this court stated
“[w]e read Ford’s statement as only acknowledging that
[Customs] had taken some administrative action with the
purpose of extending liquidation, and not necessarily as
conceding that extension had been effectuated.” Ford,
688 F.3d at 1330. Thus, Appellants’ statement that “[i]n
both cases, the importer asserted that [Customs] purport-
ed to extend liquidation for certain entries, and notice
thereof was issued,” Appellants’ Br. 12 (emphasis added),
is a mischaracterization of the facts in Ford. Appellants’
reliance on the other claims of Ford’s Complaint also does
not help their argument. This court recognized that Ford
argued, in the alternative, that if any extension had been
effectuated, Ford “received no notice of such an extension
or suspension, and urged that notice was required for any
putative extension to be effective.” Ford, 688 F.3d at
1322. Here, there is no dispute that Appellants received
proper notice. Appellants’ insistence that notice was
issued in both cases, and that this case is “materially
identical” to Ford, is erroneous.
Appellants’ suggestion that these cases are identical
also ignores another substantial difference: in this case,
Customs extended the liquidation period for the express
purpose of undertaking a fraud investigation because it
suspected that Appellants’ Entries were fraudulently
12 CHEMSOL, LLC v. US
made. In contrast, in Ford it was unclear whether Cus-
toms had extended the liquidation period and, if so, why
extensions were necessary. There is no suggestion that
Ford stands for the broad proposition that any challenge
to an extension of liquidation is immediately reviewable
under § 1581(i). Appellants’ argument would vitiate the
extension provision available to Customs under 19 U.S.C.
§ 1504(b) and prevent it from gathering additional infor-
mation prior to final liquidation. As the CIT accurately
observed:
Customs’ reason for extending the liquidation pe-
riod for [Appellants’] imports is to allow ICE time
to conclude its investigation of possible trans-
shipment of goods. To allow [Appellants] to inter-
rupt the administrative process currently
underway by providing declarative relief would
severely undermine Customs and ICE’s ability to
conduct meaningful investigations into possible
fraudulent activity.
Chemsol, 901 F. Supp. 2d at 1368.
Appellants also argue jurisdiction over their claims is
proper under § 1581(i) because no other basis of jurisdic-
tion is available and adequate. They say that jurisdiction
under subsection (a) is not available because Customs
“has not made and might never make a protestable deci-
sion.” Appellants’ Br. 20 (capitalization removed). That
is, Appellants contend, because Customs may never
affirmatively liquidate the Entries before they are deemed
liquidated in Appellants’ favor, it is uncertain whether
Appellants will ever need to protest a Customs decision.
In contrast, Appellants continue, subsection (i) “offers an
affirmative avenue to the court where an importer, after
the liquidation period has uneventfully elapsed, can . . . go
straight to court for a judicial declaration that such
liquidation has occurred, and thereby forestall an improp-
CHEMSOL, LLC v. US 13
er subsequent affirmative liquidation by [Customs].” Id.
at 9–10 (emphasis added).
These arguments ignore established law. Congress
created an express statutory scheme in § 1581(a) for
administrative and judicial review of Customs’ actions,
providing for a protest before Customs and review of
protest denials in the CIT. 19 U.S.C. §§ 1514(c)(3) (“A
protest of a decision, order, or finding . . . shall be filed
with [Customs] within 180 days after but not before . . .
[the] date of liquidation or reliquidation.”), 1515; 28
U.S.C. § 1581(a). Thus, the CIT “may adjudicate disputes
stemming from denials of protests once the importer has
exhausted its administrative protest options.” Ford, 688
F.3d at 1327 (citing 28 U.S.C. § 1581(a)); see United States
v. U.S. Shoe Corp., 523 U.S. 360, 365 (1998) (“A protest
. . . is an essential prerequisite when one challenges an
actual Customs decision.”).
Customs’ decision to extend the liquidation period is a
normal, if infrequent, part of its processing of entries, see
19 U.S.C. § 1504(b), and the propriety of an extension
made with proper notice may only first be challenged
before Customs in an administrative protest after liquida-
tion. As noted previously, §§ 1504(b) and 1514(a) together
contemplate that all determinations involved in a final
liquidation, including extensions, are subsumed into the
liquidation. Indeed, this court routinely reviews the CIT’s
adjudication of the validity of a Customs extension as part
of its review of a protest denial under § 1581(a). See, e.g.,
Ford Motor Co. v. United States, 286 F.3d 1335 (Fed. Cir.
2002); Ford Motor Co. v. United States, 157 F.3d 849 (Fed.
Cir. 1998); Intercargo Ins. Co. v. United States, 83 F.3d
391 (Fed. Cir. 1996); St. Paul Fire & Marine Ins. Co. v.
United States, 6 F.3d 763 (Fed. Cir. 1993); Pagoda Trad-
ing Corp. v. United States, 804 F.2d 665 (Fed. Cir. 1986).
Appellants apparently believe immediate review of
extension decisions is necessary so they need not wait for
14 CHEMSOL, LLC v. US
the four-year deemed liquidation period to end. Immedi-
ate review by the courts would extend the time to liqui-
date far past that deadline, as evidenced by this case.
Further, such interim review might not obviate the need
for a subsequent protest to final liquidation after the
extension challenge is fully litigated. In other words,
allowing earlier review of extension decisions delays the
administrative process until final resolution of the exten-
sion challenge, at which point the administrative process
resumes and could very well lead to an administrative
protest of the final liquidation decision anyway. Indeed,
earlier review could cut off legitimate investigatory work
conducted by Customs, such as the investigation into the
suspected fraudulent transshipment scheme in this case,
preventing Customs from concluding its investigation.
Only where Customs fails to extend the liquidation
period, or fails to notify the importers of an extension as
required by statute (as occurred in Ford), may importers
seek a declaration that their entries have liquidated by
operation of law once the deemed liquidation period has
passed. Where extensions are made with proper notice
during ongoing investigations by Customs, however,
§ 1581(a) provides jurisdiction for importers who object to
the final liquidation, or any interim decisions merged
therein, including the decision to extend the liquidation
period.
Appellants also argue the CIT erred in finding
§ 1581(a) would become available in the future because
jurisdiction must be assessed at the time of filing. This
was error, according to Appellants, because § 1581(i)
jurisdiction is foreclosed only when another subsection of
1581 is available at the time of filing. In support, Appel-
lants contend that “in every case where this Court has
dismissed an action brought under § 1581(i) . . . , it has
pointed to predicates for other bases for jurisdiction which
existed prior to, or at the time, the complaint was filed.”
Appellants’ Br. 23–24. Because there was no protestable
CHEMSOL, LLC v. US 15
decision at the time Appellants filed their complaints,
they contend § 1581(a) is not available to them.
Appellants are incorrect. For example, in Norman G.
Jensen, upon which Appellants rely, this court stated,
“jurisdiction over the present suit could be procured under
another subsection of § 1581 simply by requesting accel-
erated disposition under § 1515(b) and then securing
jurisdiction under § 1581(a),” 687 F.3d at 1331 (emphasis
added), demonstrating that some future action was re-
quired on the part of the appellants in that case to secure
jurisdiction under § 1581(a). It is the availability of
jurisdiction under § 1581(i) that must be determined at
the time of filing, not the immediate availability of possi-
ble resort to another subsection of § 1581. The CIT has
repeatedly and correctly held that when relief is prospec-
tively and realistically available under another subsection
of 1581, invocation of subsection (i) is incorrect. See, e.g.,
Tianjin Magnesium Int’l Co. v. United States, 533 F.
Supp. 2d 1327, 1338 (Ct. Int’l Trade 2008); Abitibi-Consol.
Inc. v. United States, 437 F. Supp. 2d 1352, 1356–59 (Ct.
Int’l Trade 2006).
Appellants are correct that in Ford this court stated
“that subject matter jurisdiction is determined at the time
of the complaint, and . . . does not depend on subsequent
events.” Ford, 688 F.3d at 1324. This does not mean
immediate review under the residual jurisdiction provi-
sion is appropriate when Customs is engaged in a statuto-
rily-authorized administrative process that will lend itself
to jurisdiction under another provision of § 1581. Indeed,
the “mere recitation of a basis for jurisdiction [is] not . . .
controlling,” and courts “must look to the true nature of
the action in a district court in determining jurisdiction.”
Hartford Fire, 544 F.3d at 1293 (citing Norsk Hydro Can.,
Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir.
2006)). Here, the CIT properly found “the true nature of
[Appellants’] action is a challenge to Customs’ extensions
of the time for liquidation. But Customs’ actions, as
16 CHEMSOL, LLC v. US
alleged in [Appellants’] complaints, are well within the
four-year period allowed for extensions.” Chemsol, 901 F.
Supp. 2d at 1366. Unlike Ford, where Customs failed to
take any reviewable action prior to the time the entries
liquidated by operation of law, here subsection (a) is the
appropriate avenue for challenging an extension made
with proper notice. See Hartford Fire, 544 F.3d at 1292.
Because jurisdiction under subsection (a) would be avail-
able, the CIT correctly declined to exercise jurisdiction
under subsection (i). See Norman G. Jensen, 687 F.3d at
1330 (“[B]ecause Jensen could obtain jurisdiction under
§ 1581(a), jurisdiction under § 1581(i) does not exist.”
(citing Hartford Fire, 544 F.3d at 1292)).
B. Relief Under 28 U.S.C. § 1581(a) is Not Manifestly
Inadequate
Finally, Appellants argue that even if jurisdiction un-
der § 1581(a) is available, it is “manifestly inadequate”
because it cannot remedy Appellants’ injury. According to
Appellants, subsection (a) offers a remedy to importers
who believe they have been injured by the liquidation
process and the remedy is limited to the refund of excess
duties. Here, Appellants contend such a remedy is inade-
quate because they have not deposited any duties; rather,
they made their Entries duty free. Appellants’ injury,
they state, is the uncertainty that results from the ongo-
ing investigation, and the relief they seek is a declaration
that deemed liquidation has occurred. Thus, Appellants
continue, the harm they suffered cannot be remedied by
§ 1581(a) through the protest procedure because the
remedy would be limited to compensation for economic
losses.
Appellants’ arguments misstate both the facts and
law, however. The statute does not allow Customs to
delay liquidation “indefinitely,” Appellants’ Br. 19, or at
its whim. Rather, the statute specifies that Customs may
extend liquidation “if . . . the information needed for the
CHEMSOL, LLC v. US 17
proper appraisement or classification of the imported or
withdrawn merchandise, . . . or for ensuring compliance
with applicable law, is not available to the Customs
Service.” 19 U.S.C. § 1504(b). Customs may only extend
liquidation three times, resulting in a total of four years
from the date of entry within which Customs must liqui-
date the entries or they will be deemed liquidated. Id.; 19
C.F.R. § 159.12(f). Four years is not “indefinite.” To the
extent Appellants contend their injury is the delay in
processing the Entries, as noted, immediate review of
extension decisions would extend the liquidation process
far past the deemed liquidation period, and would not
foreclose the possibility of further delays due to subse-
quent protests to final liquidation after the interim exten-
sion challenge is fully litigated.
Here, Customs extended liquidation with proper no-
tice. As to Appellants’ concern about “certainty in their
liabilities and predictab[ility] in the processing of their
customs obligations,” Appellants’ Br. 27, under the ex-
press statutory scheme established by Congress, Appel-
lants’ Entries will certainly be affirmatively liquidated by
Customs or deemed liquidated in their favor by four years
from the date of entry at the latest. Indeed, if Customs
fails to liquidate within the four-year period and a
deemed liquidation notice is not issued, Appellants could
seek redress by filing a subsection (i) complaint seeking a
declaration of deemed liquidation under Ford. That is not
this case. As the CIT found:
Final agency action has not occurred and the rec-
ord shows that Customs’ investigation continues
to be active and has not lapsed into inactivity as it
did in Ford. The matter can be brought under
§ 1581(a) after the [Appellants’] entries have liq-
uidated and [Appellants have] filed an adminis-
trative protest, should [they] continue to feel at
that point in time that [they have] been injured.
In this context, [Appellants] cannot claim that the
18 CHEMSOL, LLC v. US
§ 1581(a) remedy is manifestly inadequate as
there is no meaningful assertion of harm in letting
Customs process and liquidate their entries.
Chemsol, 901 F. Supp. 2d at 1368 (citations omitted).
“[A] belief that [a plaintiff] had no remedy under sub-
section 1581(a) [does] not make that remedy inadequate,”
Hartford Fire, 544 F.3d at 1294, and Appellants “cannot
take it upon [themselves] to determine whether it would
be futile to protest or not,” Int’l Custom Prods., Inc. v.
United States, 467 F.3d 1324, 1328 (Fed. Cir. 2006). For
these reasons, the CIT properly found that jurisdiction
under § 1581(a) was available and adequate, rendering
jurisdiction under subsection (i) improper.
CONCLUSION
Accordingly, the decision of the Court of International
Trade is
AFFIRMED