Daimlerchrysler Corp. v. United States ( 2006 )

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit
05-1357
DAIMLERCHRYSLER CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Lawrence M. Friedman, Barnes, Richardson & Colburn, of Chicago, Illinois,
argued for plaintiff-appellant. With him on the brief was Ilya A. Bakke.
Saul Davis, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of New York, New York, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; and
David M. Cohen, Director, of Washington, DC; and Barbara S. Williams, Attorney-in-
Charge, International Trade Field Office, of New York, New York. Of counsel on the
brief was Michael W. Heydrich, Attorney, Office of Assistant Chief Counsel, International
Trade Litigation, United States Customs and Border Protection, of New York, New York.
Appealed from: United States Court of International Trade
Chief Judge Jane A. Restani
United States Court of Appeals for the Federal Circuit
05-1357
DAIMLERCHRYSLER CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: March 22, 2006
___________________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.
DYK, Circuit Judge.
DaimlerChrysler Corporation (“Daimler”) appeals from a decision of the United
States Court of International Trade denying Daimler’s motion to amend its summons to
include additional protests. The Court of International Trade concluded that it lacked
jurisdiction over protests not listed in the original summons because the 180-day period
for filing a summons to contest the denial of those protests had expired before the date
of the proposed amendment. DaimlerChrysler Corp. v. United States, 350 F. Supp. 2d
1339, 1341-42 (Ct. Int’l Trade 2004) (Chief Judge Restani). We affirm.
BACKGROUND
I
In accordance with the Tariff Act of 1930,1 the United States imposes duties on
imported merchandise. In order to import merchandise, the importer must make “entry”
of the merchandise by filing required documentation with Customs. 19 U.S.C. § 1484(2000); 19 C.F.R. § 141.4 (2005). As part of the process by which the proper amount of
duty is determined (called “liquidation”), Customs assigns imported merchandise a
classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), 19
U.S.C. § 1202.
Under section 515 of the Tariff Act, an importer may challenge Customs’
liquidation of imports, including classification of merchandise under the HTSUS, by filing
a “protest” with Customs. 19 U.S.C. §§ 1514(e), 1515 (2000). A protest may challenge
the classification of a single entry of merchandise, or encompass a number of entries “if
all such entries involve the same protesting party, and if the same category of
merchandise and a decision or decisions common to all entries are the subject of the
protest.” 19 C.F.R. § 174.13(b) (2005). If Customs denies such a protest, it must notify
the importer in writing of the denial. 19 U.S.C. § 1515(a) (2000).
Upon receipt of notice of denial of a protest, the importer may bring suit in the
Court of International Trade to contest Customs’ decision. 19 U.S.C. § 1514(a) (2000).
The Court of International Trade has “exclusive jurisdiction of any civil action
commenced to contest the denial of a protest, in whole or in part, under section 515 of
the Tariff Act of 1930.” 28 U.S.C. § 1581(a) (2000). Such a suit may be initiated only
1
Pub. L. No. 361, 46 Stat. 590, 71st Cong., 2d Sess. (1930) (codified, as
amended, at 19 U.S.C. § 1202, et seq.).
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by “the person who filed the protest . . . or by a surety on the transaction which is the
subject of the protest.” 28 U.S.C. § 2631(a) (2000). To institute an action contesting
the denial of a protest, the importer must have paid “all liquidated duties, charges, or
exactions . . . at the time the action is commenced . . . .” 28 U.S.C. § 2637(a) (2000).
The time limit for commencing a suit is set out in 28 U.S.C. § 2636(a). Section
2636(a) provides:
A civil action contesting the denial, in whole or in part, of a protest under
section 515 of the Tariff Act of 1930 is barred unless commenced in
accordance with the rules of the Court of International Trade—
(1) within one hundred and eighty days after the date of mailing of notice
of denial of a protest under section 515(a) of such Act; or
(2) within one hundred and eighty days after the date of denial of a protest
by operation of law under the provisions of section 515(b) of such Act.
Under 28 U.S.C. § 2632(b), “[a] civil action in the Court of International Trade under
section 515 or 516 of the Tariff Act of 1930 shall be commenced by filing with the clerk
of the court a summons, with the content and in the form, manner, and style prescribed
by the rules of the court.”
II
The facts of this case are undisputed. Daimler exported United States-origin
sheet metal to Mexico for painting and assembly into motor vehicles, and then imported
the vehicles into the United States. On a number of occasions, Daimler filed protests
seeking a partial duty exemption for these imports pursuant to subheading 9802.00.80
of the HTSUS. Daimler argued that the vehicles qualified for the partial duty exemption
because the painting conducted in Mexico was “incidental to the assembly process”
under subheading 9802.00.80. Customs repeatedly denied Daimler’s protests. Daimler
filed a large number of cases in the Court of International Trade challenging the denial
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of various protests. The Court of International Trade designated as a test case one of
Daimler’s suits challenging Customs’ denial of such a protest and suspended 17 other
cases. DaimlerChrysler Corp. v. United States, No. 99-03-00178, 2002 WL 31421861(Ct. Int’l Trade 2002). We subsequently decided the classification issue in Daimler’s
favor in the test case, holding that Daimler was entitled to the partial duty exemption it
claimed. DaimlerChrysler Corp. v. United States, 361 F.3d 1378, 1380 (Fed. Cir. 2004).
The present case was one of the 17 suspended actions. On November 7, 2002,
Daimler filed with the Court of International Trade a summons in the form prescribed by
the Rules of the Court of International Trade. The summons stated that it included 81
protests covering a total of 2105 entries, listed a single protest number, 2304-91-
000043, and stated that “[a]dditional protests and entry numbers [are] continued on [the]
attached 41 page[] . . . schedule of protests[.]” Daimler’s Br., App. at 13. Despite the
representations on the summons form, the attached schedule of protests listed only 74
individual protest numbers and only 1604 entries. Under the heading “Contested
Administrative Decision,” the summons referred to the “[d]enial of claimed classification
under 9802.00.80 for painted sheet metal parts of motor vehicles.” Id., App. at 14.
Finally, the summons included the statement:
Every denied protest included in this civil action was filed by the same
above-named importer, or by an authorized person in his behalf. The
category of merchandise specified above was involved in each entry of
merchandise included in every such denied protest. The issue or issues
stated above were common to all such denied protests. All such protests
were filed and denied as prescribed by law. All liquidated duties, charges
or exactions have been paid and were paid at the port of entry unless
otherwise shown.
Id.05-1357 4
The schedule omitted seven protests covering more than 400 entries, and 97
entries from a protest that was specifically identified in the summons (protest no. 2304-
93-100037). Thus the form correctly stated that it was designed to cover 81 protests,
but failed to list seven of the protests.2 The omitted protests had been denied on May
22, May 23, May 29, and October 4, 2002.
On November 5, 2004, more than 180 days after receiving notice of the denial of
the protests, Daimler moved to amend the summons to include the omitted protests and
entries. The court allowed Daimler to amend the summons to include the 97 entries
covered by the listed protest because “[a]s long as the protests were included in some
way, jurisdiction will attach to every entry listed in the protest itself.” DaimlerChrysler,
350 F. Supp. 2d at 1341. The court barred addition of the seven omitted protests,
however, concluding that while “the summons here was timely under 28 U.S.C.
§ 2636(a) as to whatever it covered,” id. at 1341, “if there is no entry number on or
attached to the summons and no protest number on or attached to the summons at the
time it is filed, the general understanding that DaimlerChrysler intended to pursue this
issue as to all possibly affected entries will not suffice” to include the omitted protests in
the coverage of the summons. Id. at 1341-42 (emphasis in original). The court thus
held that it had no jurisdiction over the omitted protests. Daimler appealed to this court,
and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).3
2
Daimler states in its brief that the complete schedule that was to be
attached to the summons “contained 83 protests.” Br. of Daimler at 5. The correct
number, including the seven omitted protests, appears to be 81, the number stated on
the summons form.
3
On February 24, 2005, the Court of International Trade entered a Rule
54(b) judgment with respect to “the entries dismissed for lack of jur[isdiction].”
05-1357 5
DISCUSSION
We review jurisdictional determinations of the Court of International Trade
without deference. Xerox Corp. v. United States, 289 F.3d 792, 794 (Fed. Cir. 2002).
I
Daimler’s summons was filed within 180 days of Customs’ denials of the relevant
protests, including the omitted protests, but Daimler’s motion to amend was filed more
than 180 days after denial of the omitted protests. We held in Pollak Import-Export
Corp. v. United States, 52 F.3d 303, 306 (Fed. Cir. 1995), that the 180-day time limit is
jurisdictional. The question of whether the seven omitted protests were time-barred and
thus outside the Court of International Trade’s jurisdiction turns on the sufficiency of the
summons as to those protests.
Daimler argues that Pollak holds that failure to comply with any Rule of the Court
of International Trade requiring listing the protest numbers is not jurisdictional.4 We
held in Pollak that the failure to list the individual entries in a summons did not deprive
the Court of International Trade of jurisdiction over those entries. The government
argued that section 2632(b) requires that the summons have “the content and [be filed]
in the form, manner, and style prescribed by the rules” of the Court of International
Trade, and that those rules required listing each entry. 52 F.3d at 306 (internal
quotation marks omitted). We rejected the government’s argument and held that
Congress did not intend that “all of the [Court of International Trade’s] rules governing
DaimlerChrysler Corp. v. United States, No. 01-02-00717 (Ct. Int’l Trade Feb. 24, 2005)
(order entering Rule 54(b) judgment).
4
The form of the summons prescribed by the Rules of the Court of
International Trade provides a space for listing the protest numbers. R. Ct. Int’l Trade,
App., Form 1. Thus, listing the protest numbers is arguably required by the Rules.
05-1357 6
the timely institution of a civil action challenging a protest and the detailed requirements
for the form and content of the summons [constitute] a jurisdictional element of the suit.”
52 F.3d at 307.5 We interpreted sections 2632(b) and 2636(a) to “impose only two
jurisdictional requirements: that a suit be instituted by filing a summons and that the suit
be filed within 180 days after the denial of a protest.” Id. at 306. “Because § 2636(a)(1)
operates as a waiver of sovereign immunity, this court must ‘strictly construe [this
statute] in favor of the sovereign.’” Autoalliance Int’l, Inc. v. United States, 357 F.3d
1290, 1293 (Fed. Cir. 2004) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)) (brackets
in original).
While in Pollak we held that failure to comply with the Rules of the Court of
International Trade is not jurisdictional, we did not address, explicitly or implicitly, the
jurisdictional effect under the statute of the failure to list the protest numbers. In Pollak
the summons specifically identified the challenged protest by number, id. at 305, and no
issue was raised concerning the statute’s requirements regarding the identification of
protests. Thus Pollak does not govern the issue in this appeal.
II
As a general matter, the initial pleading in a federal court action serves two
purposes: (1) It establishes the court’s jurisdiction over the action; and (2) It puts the
adverse party on notice of the commencement and subject-matter of the suit. 5 Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1205, at 109, § 1215, at
5
See also Durr v. Nicholson, 400 F.3d 1375, 1382-83 (Fed. Cir. 2005) (holding that “the
Veterans’ Court’s rules cannot limit the jurisdiction of the Veterans’ Court”). However, in
United States v. Fairfield Gloves, 558 F.2d 1023, 1025-27 (C.C.P.A. 1977), our
predecessor court upheld as a valid exercise of the Customs Court’s statutory
rulemaking authority a rule fixing the time of filing of the summons as the date of
mailing.
05-1357 7
173 (3d ed. 2004). Daimler argues that as in district court actions, here the complaint,
and not the summons, is the initial pleading. We disagree.
The statute imposes no requirement that a complaint be filed, and even the
Rules of the Court of International Trade, while requiring a complaint,6 establish no set
time period for the filing of the complaint. On the face of the statute, the summons
serves as the initial pleading. Section 2632(b) explicitly states that an action in the
Court of International Trade contesting the denial of a protest “shall be commenced by
filing . . . a summons.” The important role of the summons as the initial pleading
indicating that a protest was denied is confirmed by legislative history of the statute.
Before 1970, denial of a protest was sufficient to automatically confer jurisdiction on the
Customs Court to review Customs’ decision. See S. Rep. 91-576, at 7-10 (1969)
(accompanying the Customs Courts Act of 1970). Congress, concerned about the
backlog of cases created by this automatic referral system, introduced the requirement
that the importer invoke the Customs Court’s jurisdiction by filing a summons. Id. at 10-
12, 18. In 1980 when Congress expanded the jurisdiction of the Customs Court to
encompass new kinds of suits, Pub. L. No. 96-417 § 201, 94 Stat. 1727, 1728-29, 96th
Cong. 2d Sess. (Oct. 10, 1980), Congress determined that, in general, “a civil action in
the Court of International Trade shall be commenced by filing concurrently with the clerk
of the court a summons and complaint . . . .” Id., 94 Stat. at 1732 (enacting the current
version of 28 U.S.C. § 2632(a)). Congress explicitly chose, however, to retain the
provision from the prior act requiring that only a summons be initially filed to commence
6
R. Ct. Int’l Trade 7(a).
05-1357 8
an action contesting the denial of a protest.7 Id. (enacting what is now 28 U.S.C.
§ 2632(b)); H.R. Rep. 96-1235, at 15 (1980) (noting that section 2632(b) “restates
existing law with respect to” actions contesting the denial of a protest).
We conclude that the initial pleading in actions to contest the denial of a protest
is the summons.
A
As the initial pleading, the summons must establish the court’s jurisdiction.
Federal courts established under Article III of the Constitution, such as the Court of
International Trade,8 are courts of limited jurisdiction, Delaware v. Van Arsdall, 475 U.S.
673, 692 (1986), and are presumed to be “without jurisdiction” unless “the contrary
appears affirmatively from the record.” King Iron Bridge & Mfg. Co. v. Otoe County, 120
U.S. 225, 226 (1887); see also Thomas v. Bd. of Trs., 195 U.S. 207, 210 (1904);
Minnesota v. N. Secs. Co., 194 U.S. 48, 62-63 (1904); 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 1206, at 110 (3d ed. 2004). Accordingly, it is
settled that a party invoking federal court jurisdiction must, in the initial pleading, allege
sufficient facts to establish the court’s jurisdiction. McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936); KVOS, Inc. v. Assoc. Press, 299 U.S. 269, 277-
78 (1936); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
7
What is now section 2632(b) was initially enacted as section 2632(a) in
the Customs Courts act of 1970, Pub. L. No. 91-271, § 113(a), 84 Stat. 274, 279, 91st
Cong., 1st Sess. (June 2, 1970).
8
28 U.S.C. § 1585; see also H.R. Rep. No. 96-1235, at 19-20 (1980), as
reprinted in 1980 U.S.C.C.A.N. 3729, 3731 (explaining that the Customs Courts Act of
1980 made clear the Article III status of the Court of International Trade).
05-1357 9
§ 1206, at 117-18.9 It is also settled that a plaintiff must establish jurisdiction
independently for each cause of action asserted. See, e.g., Sunward Elecs., Inc. v.
McDonald, 362 F.3d 17, 24 (2d Cir. 2004); Rifkin v. Bear Stearns & Co., Inc., 248 F.3d
628, 634 (7th Cir. 2001).
The plain language of the pertinent statutes establishes that the Court of
International Trade has jurisdiction only to review “the denial of a protest,” and that each
protest denial is the basis of a separate claim. 28 U.S.C. §§ 1581(a), 2631(a), 2635(a),
2636(a) (referring to “[a] civil action contesting the denial, in whole or in part, of a
protest”) (emphasis added), 2637(a), 2638 (referring to “any civil action . . . in which the
denial, in whole or in part, of a protest is a precondition to the commencement of a civil
action” (emphasis added)).10 Thus, the filing of a protest is a jurisdictional requirement.
See Autoalliance, 357 F.3d at 1293-94. In United States v. Novelty Imports, Inc., 476
F.2d 1385 (C.C.P.A. 1973), our predecessor court expressly adopted the Customs
Court’s conclusion11 that “Congress intended to treat each denied protest as a separate
entity or cause of action.” Novelty Imports, Inc. v. United States, 341 F. Supp. 1228,
1231 (Cust. Ct. 1972). Because each protest forms the basis for a separate cause of
9
We have previously applied this principle to actions in courts other than
federal district courts. See, e.g., Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)
(applying this rule to the Court of Appeals of Veterans Claims); Alder Terrace, Inc. v.
United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (applying the rule to the Court of
Federal Claims).
10
19 U.S.C. § 1514(a) provides in pertinent part that liquidation decisions
are final “unless a protest is filed in accordance with this section, or unless a civil action
contesting the denial of a protest . . . is commenced in the United States Court of
International Trade . . . .” (emphasis added). Though Daimler did not raise the issue,
the government argues at great length that this language cannot be read to confer
jurisdiction on the Court of International Trade unless a protest has been filed. In the
light of the statutory provisions discussed in the text, this is obviously correct.
11
See id. at 1387 (“We fully agree with the reasoning and conclusion of
Judge Rao’s well reasoned memorandum, and adopt them as our own.”).
05-1357 10
action, the summons must establish the Court of International Trade’s jurisdiction as to
each protest. The essential jurisdictional fact -- the denial of the protest -- simply cannot
be affirmatively alleged without specifically identifying each protest involved in the suit.
Daimler’s summons failed to identify the seven omitted protests; thus Daimler’s
jurisdictional allegation was inadequate. Neither general statements of the subject
matter of the protests nor listing of the total number of protests at issue in the suit is
sufficient. As the Supreme Court held in Thomas v. Board of Trustees of Ohio State
University, 195 U.S. 207, 218 (1904), “the jurisdiction of a court of the United States
must appear from distinct allegations, . . . and is not to be established argumentatively
or by mere inference.” “It is not enough that grounds of jurisdiction . . . may be inferred
argumentatively from the statements in the [initial pleading], for jurisdiction cannot rest
on any ground that is not affirmatively and distinctly set forth.” Shulthis v. McDougal,
225 U.S. 561, 569 (1912); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1206, at 117-18 (3d ed. 2004).
Nothing in our decision in Zenith Electronics Corporation v. United States, 988
F.2d 1573 (Fed. Cir. 1993), is to the contrary. Zenith involved an action brought under
19 U.S.C. § 1516a to challenge a “determination” of the International Trade Commission
not to initiate an antidumping investigation.12 The plaintiff in Zenith listed an incorrect
12
Section 1516a(a)(1)(A) provides:
Within 30 days after the date of publication in the Federal Register of -- (A)
a determination by the administering authority under [section] 1671a(c) or
1673a(c) of this title, not to initiate an investigation, . . . an interested party
who is a party to the proceeding in connection with which the matter arises
may commence an action in the United States Court of International Trade
by filing concurrently a summons and complaint, each with the content
and in the form, manner, and style prescribed by the rules of that court,
05-1357 11
determination number in the summons. We affirmed the Court of International Trade’s
decision to allow the plaintiff to amend the summons to correct this error on the ground
that “NEC’s cover letter and information sheet correctly identified [by number] the
antidumping determination that NEC sought to challenge.” Zenith, 988 F.2d at 1580.
We need not decide here whether, if a protest is misidentified in the summons, the court
may look to other contemporaneously filed documents to determine the correct protest
number. Here there is no claim that the protest numbers appeared in other documents
filed with the summons. The information form that accompanied the summons (Form 5
in the Appendix of Forms of the Rules of the Court of International Trade) did not list the
protest numbers. Thus, the Zenith issue is not presented in this appeal. If anything,
Zenith underscores the importance of stating necessary jurisdictional facts (there, the
specific antidumping determination) on the face of the summons documents.
B
Another essential purpose of the summons, as the initial pleading, is to put the
government on notice of what protest decisions are being contested in the Court of
International Trade. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1215, at 173-74 (describing the notice function as “the core of the [federal]
pleading process”). Again, the notice function of the summons is similar to that of a
complaint in federal district court. Just as a complaint must “give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests,” the summons
must give the government fair notice of the importer’s “claim [] and the grounds upon
contesting any factual findings or legal conclusions upon which the
determination is based.
(emphasis added)
05-1357 12
which it rests.” Conley v. Gibson, 355 U.S. 41, 47-48 (1957); see Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993);
5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1202, at 92-
94.
Protest denials are not identified by number. Rather, both the government and
the importer refer to the number of the protest itself. Daimler appears to concede that
the summons must give the government fair notice of which protests are involved. But
Daimler insists that specifying on the summons form: “1. the port of entry; 2. the
importer; 3. the type of merchandise; 4. the challenged classification; 5. the protest
claim; 6. the challenged decision of the Port Director; and 7. the issue common to all the
protests[,]” is sufficient to provide notice of the protests at issue in the suit. Reply Br. of
Daimler at 6-7. We disagree. Items 1 through 4 give only basic information, and do
nothing to identify the particular protests involved. Nor do items 5, 6 and 7 specifically
identify any one protest -- rather, they represent the legal theory common to all the
protests and the legal theory common to all decisions denying the protests.
In fiscal year 2005, Customs processed 29 million individual entries of imported
merchandise at 322 ports of entry. United States Customs & Border Protection,
Performance & Accountability Report: Fiscal Year 2005, at 6. The corresponding
volume of protests is necessarily large, though exact numbers of protests are not
published. Requiring the government to sift through a large number of protests for a
single importer at a particular port to identify all those that pertain to a certain type of
merchandise or a certain legal issue would necessarily be burdensome and time-
consuming. The burdens are increased by the government’s document production
05-1357 13
duties in protest cases. Under 28 U.S.C. § 2635(a), after receipt of a summons
commencing an action contesting denial of a protest, Customs must “file with the clerk
of the [Court of International Trade], as part of the official record, any document, paper,
information or data relating to the entry of merchandise and the administrative
determination that is the subject of the protest or petition.” Without identification of the
specific protests at issue, this process would be substantially more difficult. The
government’s document retention obligations are also made uncertain if the government
cannot identify with precision the protests covered by a summons.
Even more significant, while stare decisis of course applies, the typical res
judicata rules do not apply in protest cases.13 “[C]ollateral estoppel does not prevent an
importer from successive litigation over the classification of merchandise, even when
the subsequent importations involve the ‘same issues of fact and the same questions of
law.’” Avenues In Leather, Inc. v. United States, 317 F.3d 1339, 1403 (Fed. Cir. 2003)
(quoting Stone & Downer, 274 U.S. at 234).14 Importers thus may intentionally omit
related protests from a summons to preserve the opportunity to relitigate the issues in a
later suit. Congress acknowledged this feature of protest litigation in creating the
present statutory scheme. Congress recognized that multiple suits might be brought
raising the same issue because “either the importer or the government might be
dissatisfied with the trial of the decided case or feel that additional testimony or
arguments are available which will result in a different decision and, therefore, will
13
United States v. Stone & Downer Co., 274 U.S. 225, 235-36 (1927);
Schott Optical Glass, Inc. v. United States, 750 F.2d 62, 64 (Fed. Cir. 1984).
14
See also Schott, 750 F.2d at 64 (“The opportunity to relitigate applies to
questions of construction of the classifying statute as well as to questions of fact as to
the merchandise.”).
05-1357 14
decide to retry the issue rather than abide by the decision in the earlier case.” S. Rep.
91-576, at 8 (1969).
Because the importer may omit particular protests in a summons in order to
preserve the right to relitigate the issue, the government has no reason to assume that
all related protests are intended to be included in a given suit. Under these
circumstances, a summons can provide fair notice only if the contested protests are
identified with particularity.
III
Daimler failed to identify the seven protests in the summons. The summons was
therefore insufficient to “commence an action” in the Court of International Trade as to
the seven omitted protests within the 180-day limitation period. The Court of
International Trade correctly denied Daimler’s motion to amend the summons on the
ground that the omitted protests were time-barred and thus beyond the court’s
jurisdiction.
CONCLUSION
The decision of the Court of International Trade is
AFFIRMED.
COSTS
No costs.
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