Ford Motor Co. v. United States , 688 F.3d 1319 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
FORD MOTOR COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1134
__________________________
Appeal from the United States Court of International
Trade in case no. 09-CV-151, Judge Gregory W. Carman.
__________________________
Decided: August 10, 2012
__________________________
GREGORY G. GARRE, Latham & Watkins, LLP, of
Washington, DC, argued for plaintiff-appellant. On the
brief was MATTHEW W. CALIGUR, Baker & Hostetler, LLP,
of Houston, Texas. Of counsel was PAULSEN KING
VANDEVERT, Ford Motor Company, of Dearborn, Michi-
gan.
JUSTIN R. MILLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of New York, New York, argued for defendant-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director, of
FORD MOTOR CO v. US 2
Washington, DC; and BARBARA S. WILLIAMS, Attorney in
charge, of New York, New York. Of counsel on the brief
was YELENA SLEPAK, Office of Assistant Chief Counsel,
International Trade Litigation, United States Customs
and Border Protection, of New York, New York.
__________________________
Before RADER, Chief Judge, DYK and REYNA, Circuit
Judges.
REYNA, Circuit Judge.
This case concerns the jurisdiction of the Court of In-
ternational Trade to review U.S. Customs and Border
Protection’s (“CBP’s”) assessments of duties on goods
imported into the nation. The process for bringing such
customs transactions to final resolution is called “liquida-
tion.” 19 C.F.R. § 159.1. In this case, the importer filed
for declaratory judgment that CBP had failed to liquidate
in the time required by law. Its complaint asserted
jurisdiction under 28 U.S.C. § 1581(i), the Tariff Act’s
grant of residual jurisdiction to the Court of International
Trade over matters concerning enforcement and admini-
stration of, inter alia, duty assessment. We hold that this
was a valid invocation of the court’s residual jurisdiction,
as the importer could not have asserted jurisdiction under
any of the other enumerated provisions of § 1581. We
further hold that post-complaint efforts by CBP to clear
the importer’s accounts did not undo such jurisdiction,
and reverse the Court of International Trade’s contrary
order. We also reverse the Court of International Trade’s
finding that one of the importer’s subsequent pleadings
conceded a dispositive issue, which the court held made
certain claims non-justiciable. Finally, we vacate the
court’s discretionary dismissal of the importer’s remaining
claims, concluding that that order was too interlinked
with the jurisdiction and justiciability errors to survive
3 FORD MOTOR CO v. US
appeal. See Ford Motor Co. v. United States, 716 F. Supp.
2d. 1302 (Ct. Int’l Trade July 22, 2010) [hereinafter
Dismissal Opinion].
I
As automotive enthusiasts will know, in 2004, Ford
Motor Company (“Ford”), owned and operated the British
car maker Jaguar. In 2004 and 2005, Ford imported
Jaguar-brand cars from the United Kingdom into the
United States. On the cars’ entry into the United States,
Ford deposited estimated duty payments with CBP. Ford
subsequently concluded that its estimates were too high,
and that it had overpaid on the duty actually owed.
Ford filed reconciliation entries with CBP, laying out
its math and seeking a refund. This appeal concerns nine
such entries, filed between August 2005 and October
2006. Ford hoped that CBP would review each entry,
agree with the reasoning therein, and then liquidate the
entry, upon which Ford would get a refund. The total
refund claimed by Ford, across the nine disputed entries,
was about $6.2 million.
For purposes of this short summary, it is not neces-
sary to chart each entry’s detailed progress through CBP’s
reconciliation apparatus. It is enough to fast-forward to
April 15, 2009, and recount a few considerations as they
appeared at that time, as it was on that date that Ford
filed suit in this case.
It is undisputed that at the time of filing of Ford’s
complaint, CBP 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. See Tariff Act of 1930,
§ 504(a), 19 U.S.C. § 1504(a).
FORD MOTOR CO v. US 4
The third and final consideration comes from Ford’s
complaint. Ford alleged that, from the entries’ filing until
April 2009, CBP neither extended nor suspended the
period available for liquidating the entries. 2d Am.
Compl. ¶¶ 67–68, Ford Motor Co. v. United States, No. 09-
151 [hereinafter Ford] (Ct. Int’l Trade Aug. 18, 2009),
Dkt. #19; Rockwell Int’l Corp. v. United States, 549 U.S.
457, 473–74 (2007) (“When a plaintiff files a complaint in
federal court and then voluntarily amends the complaint,
courts look to the amended complaint to determine juris-
diction.”). It is not disputed that CBP has authority, in
certain circumstances, to extend the time to liquidate
entries by up to three years. See Tariff Act of 1930,
§ 504(b), 19 U.S.C. § 1504(b); see also 19 C.F.R.
§ 159.12(a). But Ford said it received no notice of such an
extension or suspension, and urged that notice was re-
quired for any putative extension to be effective. Because
it viewed CBP as having exceeded the statutory deadline,
in April 2009 Ford believed it was entitled to have the
entries liquidated and the refunds paid to it. It therefore
sought declaratory judgment deeming the nine entries
liquidated by operation of law and ordering CBP to pay
Ford the claimed refunds.
A few months after initiation of the lawsuit, there was
new action from CBP. In June–August of 2009 CBP’s
computer system “auto-liquidated” three of the disputed
entries. By the end of September, CBP had “reliquidated”
them, which concluded the reconciliation process. Appel-
lee Br. 7 & n.6. Ford administratively protested each of
these acts before CBP and, when its protests were denied,
initiated separate litigation before the Court of Interna-
tional Trade to appeal the denials. Then, in mid-2010,
CBP announced that it had liquidated a fourth entry and
that its computer system had auto-liquidated a fifth,
5 FORD MOTOR CO v. US
which was scheduled to be “reliquidated” by CBP later in
the year.
In light of this post-complaint activity, and pursuant
to a motion from the government, the Court of Interna-
tional Trade dismissed Ford’s case in its entirety. Dis-
missal Op. The court’s opinion contained three holdings
relevant to this appeal. First, the court held that CBP’s
post-complaint activity stripped the court of subject
matter jurisdiction as to the affected entries. Id. at 1310–
11. Second, the court found that in a recent filing Ford
conceded that CBP had extended the time for liquidation
of five of the nine entries, so the court ruled that no case
or controversy remained as to Ford’s claims that there
had been no extension. Id. Third, the court acknowl-
edged that there remained four non-liquidated entries for
which Ford continued to argue that CBP had acted
unlawfully. The court concluded that it had subject
matter jurisdiction over the case as to those claims, and
that Ford had made no dispositive concessions, but de-
clined to issue declaratory judgment. Id. at 1313–14,
1315 (diagramming holding).
Ford timely appealed. This court has jurisdiction over
final judgments of the Court of International Trade. 28
U.S.C. § 1295(a)(5).
II
This court reviews the Court of International Trade’s
dismissal for lack of subject matter jurisdiction de novo.
Heartland By-Prods., Inc. v. United States, 424 F.3d 1244,
1250 (Fed. Cir. 2005). This court also reviews dismissals
for non-justiciability de novo. King Pharms., Inc. v. Eon
Labs, Inc., 616 F.3d 1267, 1282 (Fed. Cir. 2010).
FORD MOTOR CO v. US 6
III
A
The first question presented by this appeal is whether
the Court of International Trade correctly applied its own
jurisdictional statute, 28 U.S.C. § 1581, and the precedent
of this court to Ford’s case. We are specifically concerned
with the interactions between the enumerated grants of
jurisdiction set forth in subsections (a) through (h) of this
statute and the grant of residual jurisdiction in subsection
(i). It is the residual grant of subsection (i)(4) that Ford
contends covers this case:
(i) In addition to the jurisdiction conferred upon
the Court of International Trade by subsections
(a)–(h) of this section and subject to the exception
set forth in subsection (j) of this section, the Court
of International Trade shall have exclusive juris-
diction of any civil action commenced against the
United States, its agencies, or its officers, that
arises out of any law of the United States provid-
ing for--
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other
than the raising of revenue;
(3) embargoes or other quantitative restric-
tions on the importation of merchandise for
reasons other than the protection of the public
health or safety; or
(4) administration and enforcement with re-
spect to the matters referred to in paragraphs
(1)–(3) of this subsection and subsections (a)–
(h) of this section.
7 FORD MOTOR CO v. US
28 U.S.C. § 1581(i).
This court has on several occasions considered subsec-
tion (i)(4)’s jurisdictional implications. Recognizing that
litigants might be tempted to use subsection (i)(4)’s broad
language to avoid various requirements of subsections (a)
through (h), this court has repeatedly held that subsection
(i)(4) “may not be invoked when jurisdiction under an-
other subsection of § 1581 is or could have been available,
unless the remedy provided under that other subsection
would be manifestly inadequate.” Miller & Co. v. United
States, 824 F.2d 961, 963 (Fed. Cir. 1987); see also Int’l
Custom Prods., Inc. v. United States, 467 F.3d 1324, 1327
(Fed. Cir. 2006); Norcal/Crosetti Foods, Inc. v. United
States, 963 F.2d 356, 359 (Fed. Cir. 1992).
The government asks this court to simply apply those
cases to this, and thus to affirm. The government argues
now that since CBP has fully liquidated some of the
entries, Ford can—and in fact did—dispute those liquida-
tions administratively and, failing that, could (and did)
bring a separate lawsuit under the jurisdiction enumer-
ated in 28 U.S.C. § 1581(a) (conferring jurisdiction over
lawsuits contesting protest denials under Tariff Act
section 515). The availability of a remedy under subsec-
tion (a), says the government, blocks the path to jurisdic-
tion under subsection (i).
The government’s reasoning, however, masks a cru-
cial fact: at the time Ford initiated this lawsuit, none of
these liquidations had yet occurred. Ford could not,
therefore, have exhausted the administrative remedies
necessary to establish jurisdiction under § 1581(a).
Numerous opinions of the Supreme Court hold that
subject matter jurisdiction is determined at the time of
the complaint, and (at least in diversity cases) does not
depend on subsequent events. E.g., Grupo Dataflux v.
FORD MOTOR CO v. US 8
Atlas Global Grp., L.P., 541 U.S. 567, 570–71 (2004) (“It
has long been the case that ‘the jurisdiction of the court
depends on the state of things at the time the action is
brought.’ This time-of-filing rule is hornbook law (quite
literally) taught to first-year law students in any basic
course on federal civil procedure.”) (quoting Mollan v.
Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)) (internal
citation and footnote omitted). Both the Supreme Court
and this court have also held that the case-or-controversy
requirement of Article III (also a matter of subject matter
jurisdiction) must be satisfied at the outset and at all
later stages. See Davis v. Fed. Election Comm'n, 554 U.S.
724, 732-33 (2008) (noting that a case or controversy
“must exist at the commencement of the litigation” and
“must be extant at all stages of review”); Prasco, LLC v.
Medicis Pharm. Corp., 537 F.3d 1329, 1337 (Fed. Cir.
2008); GAF Bldg. Materials Corp. v. Elk Corp., 90 F.3d
479, 483 (Fed. Cir. 1996).
The government argues that the general time-of-filing
rule, however well-established, should not control this
case. It cites authority holding that the time-of-filing rule
is not absolute in cases where the task is to assess federal
question jurisdiction as opposed, for example, to diversity
jurisdiction (which was at issue in Grupo Dataflux and
other cases applying a strong time-of-filing rule). The
government argues for a similar result here. It endorses
the Court of International Trade’s statement that it is
§ 1581(a), not 1581(i), which is “the preferred jurisdic-
tional vehicle established by Congress.” Dismissal Op.,
716 F. Supp. 2d at 1310. To that end, the government
suggests that CBP should be privileged to apply its “nor-
mal administrative process.” Having liquidated the
claims, argues the government, CBP is entitled to have
the propriety of those liquidations tested in litigation
brought under § 1581(a) jurisdiction, and to permit juris-
9 FORD MOTOR CO v. US
diction under § 1581(i) subverts the Congressional intent.
The government distinguishes this case from those
strongly endorsing the time-of-filing rule by pointing out
that CBP’s actions here did not defeat the jurisdiction of
the Court of International Trade, as happened in the
other cases, but only modified its basis from § 1581(i)(4) to
1581(a)—though, in practice, the result here would be
dismissal of the case.
The government is correct that, when it comes to as-
sessing federal question jurisdiction, federal courts may
consider developments emerging after the plaintiff’s first-
filed complaint. As already mentioned, the Supreme
Court in Rockwell International endorsed the practice of
considering amended complaints when determining
federal question jurisdiction. But we note: the Court
viewed this as no departure from the logical foundation of
the time-of-filing rule:
The rule that subject-matter jurisdiction “de-
pends on the state of things at the time of the ac-
tion brought,” Mollan, 22 U.S. (9 Wheat.) at 539,
does not suggest a different interpretation. The
state of things and the originally alleged state of
things are not synonymous; demonstration that
the original allegations were false will defeat ju-
risdiction. So also will the withdrawal of those al-
legations, unless they are replaced by others that
establish jurisdiction.
Rockwell Int’l, 549 U.S. at 473 (citation edited and other
citations omitted).
Consistent with Rockwell International, this court has
not hesitated to consider post-complaint developments
when the case warrants. We are mindful of this court’s
decision in Prasco, where this court consented to take into
account a plaintiff’s recitation of post-filing events to
FORD MOTOR CO v. US 10
establish jurisdiction in its Amended Complaint. 537
F.3d at 1337. A later case, Innovative Therapies, Inc. v.
Kinetic Concepts, Inc., 599 F.3d 1377, 1382–83 (Fed. Cir.
2010), reaffirmed that certain baseline requirements,
such as the existence of a justiciable controversy, had to
be met at filing and had to remain at all later stages. See
also GAF Bldg. Materials, 90 F.3d at 483. While these
cases are from a different statutory realm than the pre-
sent appeal, we find them nevertheless instructive.
Reviewing the law of our sister circuits, we note that
they, like us, have not hesitated to consider post-
complaint developments as required in some circum-
stances, though some have expressed doubt that the time-
of-filing rule uniformly governs subject matter jurisdiction
in federal question cases. See, e.g., Iowa Tribe of Kan. &
Neb. v. Salazar, 607 F.3d 1225, 1236–37 (10th Cir. 2010)
(finding no subject matter jurisdiction where the Interior
Department, post-complaint, took certain land into trust
for an Indian tribe’s benefit, an action for which Congress
had expressly not waived sovereign immunity); ConnectU
LLC v. Zuckerberg, 522 F.3d 82, 93 (1st Cir. 2008) (declin-
ing to limit jurisdictional analysis to the initial complaint,
where amended complaint set forth a proper jurisdictional
basis); Nilssen v. Motorola, Inc., 203 F.3d 782, 784–85
(Fed. Cir. 2000) (holding subject matter jurisdiction
divested because federal cause of action had been dis-
missed without prejudice); New Rock Asset Partners, L.P.
v. Preferred Entity Advancements, Inc., 101 F.3d 1492,
1497–1502 (3d Cir. 1996) (finding no subject matter
jurisdiction where the federal defendant, over whom
original federal jurisdiction could have been exercised,
had been dismissed from the case); Shaw v. Gwatney, 795
F.2d 1351, 1354 (8th Cir. 1986) (taking amended com-
plaint into account in assessing federal question jurisdic-
tion); Boelens v. Redman Homes, Inc., 759 F.2d 504, 507–
11 FORD MOTOR CO v. US
08 (5th Cir. 1985) (finding no jurisdiction after plaintiff
dropped claims that had invoked original federal jurisdic-
tion); Albert v. Kevex Corp., 729 F.2d 757, 760–62 (Fed.
Cir. 1984) (finding no jurisdiction where plaintiff, whose
claim was premised on existence of a patent interference,
made a post-complaint disclaimer of all interfering subject
matter), reh’g denied, 741 F.2d 396 (Fed. Cir. 1984).
Having reviewed these cases, we note that most of
them—including New Rock Asset Partners, 101 F.3d at1497–1502, on which the government relies—involve a
federal claim or party removed from the case by the
plaintiff. 1 Such cases are easily reconciled with Rockwell
1 See, e.g., Iowa Tribe of Kan. & Neb., 607 F.3d at
1233 (“The time-of-filing rule is a judge-made doctrine,
supported in the diversity context by sound policy consid-
erations. . . . In contrast, the time-of-filing rule has been
applied only rarely to federal question cases. . . . Accord-
ingly, we reject plaintiffs’ contention that the Supreme
Court’s statements regarding the time-of-filing rule in
diversity cases control our analysis.” (internal citations
and quotation marks omitted)); ConnectU, 522 F.3d at 92
(“Notwithstanding the impressive pedigree of the time-of-
filing rule, it is inapposite here. The letter and spirit of
the rule apply most obviously in diversity cases, where
the rule originated, and where heightened concerns about
forum-shopping and strategic behavior offer special
justifications for it. These concerns are not present in the
mine-run of federal question cases, and courts have been
careful not to import the time-of-filing rule indiscrimi-
nately into the federal question realm.” (internal citations
omitted)); New Rock Asset Partners, 101 F.3d at 1503(“[T]he letter and spirit of the [time-of-filing] rule apply
most clearly to diversity cases. The Supreme Court set out
the rule in the diversity context. In addition, the Court
crafted the rule for the removal of actions from state
court, which involves a more lenient standard not rele-
vant here. . . . The rule that jurisdiction is assessed at the
time of the filing of the complaint has been applied only
rarely to federal question cases. Moreover, in these rare
FORD MOTOR CO v. US 12
International, as they involve not changes in the underly-
ing facts of the case, but changes in the legal theories
plaintiff seeks to have applied to those facts. That is not
what happened in this case.
Here, it is post-complaint action by the government as
defendant that is presented as changing the jurisdictional
picture. The appellate courts generally allow the govern-
ment to defeat jurisdiction by post-complaint action only
in the presence of some specific indication of Congres-
sional intent that such action would defeat jurisdiction.
In Iowa Tribe of Kansas & Nebraska, for example, the
Tenth Circuit relied on Congress’s express withdrawal of
its sovereign immunity waiver in finding jurisdiction
divested by the government’s post-complaint land acquisi-
tion. 607 F.3d at 1237. Absent such an indication of
legislative intent, the federal appellate judiciary has not
hesitated to apply the general jurisdictional guidance of
the time-of-filing rule. See, e.g., Kabakjian v. United
States, 267 F.3d 208, 212 (3d Cir. 2001) (applying the
time-of-filing rule to retain jurisdiction irrespective of the
government’s post-complaint activity); Kulawy v. United
States, 917 F.2d 729, 733–34 (2d Cir. 1990) (same).
Nonetheless, we need not decide in this case whether
post-filing actions by a defendant can ever defeat jurisdic-
tion in a federal question case under the time-of-filing
rule because it is clear that where the jurisdictional
question is really a question of exhaustion, a defendant
cannot defeat jurisdiction by simply creating a new ave-
nue for exhaustion of administrative remedies that had
not been available at the time of the original filing.
Indeed this precise question was decided by the Supreme
cases, the rule has often been applied axiomatically,
without extensive discussion or analysis.” (internal cita-
tions omitted)).
13 FORD MOTOR CO v. US
Court in Roberts v. LaVallee, 389 U.S. 40 (1967), and
Francisco v. Gathright, 419 U.S. 59 (1974), within the
context of examining the exhaustion requirement for
habeas corpus review of state court convictions. 2 In
Roberts and Francisco, the Supreme Court held that a
petitioner who has exhausted his state court remedies
and then filed a habeas petition in federal court need not
return to the state forum even where there has been an
intervening change in the state court’s construction of the
federal constitution, creating the availability of a poten-
tial remedy in state court. See Roberts, 389 U.S. at 43;
Francisco, 419 U.S. at 63. Thus, Roberts and Francisco
made clear that subsequent availability of a remedy does
not defeat prior satisfaction of a statutory exhaustion
requirement.
Here, the government’s post-filings actions in liqui-
dating the entries may have opened up a new avenue for
judicial review under 19 U.S.C. § 1581(a), but the actions
cannot defeat subject matter jurisdiction under § 1581(i).
The statute contains no indication of contrary intent. The
government points to 19 U.S.C. § 1514(a) as purportedly
requiring that post-complaint action by CBP divest any
§ 1581(i) jurisdiction, and redirect disputes over liquida-
tion back into the administrative protest scheme. But we
find no such provision there. Section 1514(a) states that
the actions of CBP “in any entry, liquidation, or reliquida-
2 Under 28 U.S.C. § 2254(b)-(c), “[a]n application for
a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be
granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the
State,” and “[a]n applicant shall not be deemed to have
exhausted the remedies available in the courts of the
State . . . if he has the right under the law of the State to
raise, by any available procedure, the question pre-
sented.”
FORD MOTOR CO v. US 14
tion,” as well as “decisions of [CBP],” are final unless
protested administratively or, following the administra-
tive protest, judicially. It makes no endorsement of the
administrative protest system for importers’ claims that
CBP unlawfully failed to act. Nor can we see how the
administrative protest process would even address such a
claim, as the process is predicated on CBP taking some
action that then results in a protest. We therefore see no
basis in § 1514(a) for abandoning the time-of-filing rule.
Nor do we see any contrary intent in the jurisdictional
statute itself, § 1581. That statute enumerates that the
Court of International Trade may adjudicate disputes
stemming from denials of protests once the importer has
exhausted its administrative protest options. 28 U.S.C.
§ 1581(a); see also United States v. U.S. Shoe Corp., 523
U.S. 360, 365 (1998) (“A protest, as indicated in 19 U.S.C.
§ 1514, is an essential prerequisite when one challenges
an actual Customs decision.”). Subsection (a) does not
reach the circumstance of this case, where the importer
alleges that CBP failed to enter either an approval or a
denial within the prescribed time. For § 1514’s protest
provisions to be invoked, “Customs must engage in some
sort of decision-making process[.]” Xerox Corp. v. United
States, 423 F.3d 1356, 1363 (Fed. Cir. 2005). Where, as
here, there has been an allegation that CBP unlawfully
failed to make any such decision, we cannot see how an
administrative appeal could have been initiated pre-filing,
and we decline to hold that subsection (a) permits the
importer to be forced back into the administrative process
post-complaint.
Neither do § 1581’s subsections (b)–(h) require any
different outcome. Each of these subsections enumerates
the Court of International Trade’s jurisdiction in matters
not directly presented by this case. No party contends
15 FORD MOTOR CO v. US
that Ford could have brought the present claim under any
of those subsections.
Finally, we do not embrace the argument, presented
by the government and inherent in the trial court’s opin-
ion, that this court’s opinions concerning subsection (i)
(the residual grant of jurisdiction) provide a platform for
the Court of International Trade to depart from the time-
of-filing rule in this case. This court has held that
§ 1581(i) jurisdiction is unavailable to an importer if
another of § 1581’s jurisdictional subsections could have
been asserted. E.g., Int’l Custom Prods., 467 F.3d at
1327. Those opinions turn on the jurisdictional options
that were or could have been available to the plaintiff at
the time of his complaint. They express no view at all
concerning the jurisdictional effect of post-complaint
action by CBP in a case where plaintiff at the time of
filing his complaint had no jurisdictional option save
subsection (i).
Having concluded that the government cannot defeat
jurisdiction under section 1581(i) by creating a new reme-
dial opportunity under section 1581(a) which had not
been available at the time of the original filing, we must
determine whether Ford’s Second Amended Complaint set
forth proper grounds for the Court of International Trade
to exercise § 1581(i)(4) jurisdiction at the time the lawsuit
was filed. We hold that Ford met this requirement.
Ford alleged that as of April 15, 2009, CBP had
unlawfully failed to either timely liquidate the entries at
issue, or to extend the time for liquidation, and that Ford
was thus entitled to declaratory judgment of liquidation
as a matter of law. With no administrative action to
protest, none of the jurisdictional avenues enumerated in
subsections (a) through (h) of § 1581 were available to
Ford. These allegations satisfied this court’s require-
FORD MOTOR CO v. US 16
ments for the exercise of jurisdiction under subsection
(i)(4). Conoco, Inc. v. U.S. Foreign-Trade Zones Bd., 18
F.3d 1581, 1590 (Fed. Cir. 1994).
The government’s counterargument is unpersuasive.
It urges that the entries in this case were, in fact, prop-
erly extended, even at the initiation of this lawsuit. The
government therefore suggests that Ford’s declaratory
judgment case was premature and therefore not “ripe.”
This argument fails for two reasons. First, arguments
concerning the merits of Ford’s claims are not appropriate
for this jurisdictional inquiry. It is well-established that a
court’s subject matter jurisdiction concerns its authority
to take up a case, and not the case’s ultimate resolution.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
89 (1998). Ford invoked the Court of International
Trade’s authority by alleging unlawful action by CBP that
could not be remedied with a lawsuit under § 1581(a)–(h).
The government’s protest that Ford is not actually enti-
tled to relief in this case can be taken up on a motion to
dismiss for failure to state a claim on which relief can be
granted or on summary judgment—not on a motion to
contest jurisdiction. See also Arbaugh v. Y&H Corp., 546
U.S. 500, 511 (2006).
The government’s invocation of the justiciability doc-
trine of ripeness is also unavailing. The ripeness inquiry
in a declaratory judgment case such as this asks whether
the case presents “a substantial controversy, between
parties having adverse legal interests, of sufficient imme-
diacy and reality to warrant the issuance of a declaratory
judgment.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S.
498, 506 (1972) (quoting Md. Cas. Co. v. Pac. Coal & Oil
Co., 312 U.S. 270, 273 (1941)). There is no question here
that Ford’s complaint, by contending that CBP had failed
to take action within the statutory deadline and so waived
17 FORD MOTOR CO v. US
its right to contest Ford’s refund requests, alleged a
controversy ripe for judicial resolution.
We therefore reverse the Court of International
Trade’s dismissal for lack of subject matter jurisdiction of
Ford’s claims concerning entries that CBP liquidated
post-complaint.
B
We next turn to the Court of International Trade’s
dismissal of certain Ford claims for lack of case or contro-
versy. The court concluded that Ford “abandoned” certain
claims with a dispositive concession in one of its briefs.
Dismissal Op., 716 F. Supp. 2d at 1310–11. Although the
Court of International Trade did not use the term, we
view this dismissal as rooted in the well-recognized rule
that if its underlying controversy disappears, a case is
moot and non-justiciable. See, e.g., Kaw Nation v. Norton,
405 F.3d 1317, 1322 (Fed. Cir. 2005) (holding case moot
where one party voluntarily abandoned its arguments).
On appeal, Ford argues that it made no such concessions,
and the court erred in dismissing the claims. As already
stated, this court reviews dismissals for non-justiciability
de novo. King Pharms., 616 F.3d at 1282.
The trial court’s mootness dismissal affects only
Ford’s first “cause of action,” i.e., its claim for declaratory
judgment on the grounds that the disputed entries were
neither extended nor liquidated within the one-year
period set by Congress. See 2d Am. Compl. ¶¶ 66–70.
Ford pled numerous other “causes of action” seeking the
same relief (declaratory judgment of liquidation) on
alternative legal theories, e.g., that if there were exten-
sions, they were invalid because CBP did not issue notices
(cause of action 2); that if CBP did issue notices, the
extensions were invalid because CBP did not give the
required reasons (cause of action 3); and that if CBP did
FORD MOTOR CO v. US 18
give reasons, those reasons were legally improper (cause
of action 4). The propriety of such pleading is not dis-
puted. See Ct. Int’l Tr. R. 8(e)(2) (permitting a party to
plead claims “alternately or hypothetically, either in a
single count or defense or in separate ones”).
The court predicated its dismissal of the first cause of
action on the following statement by Ford:
Although Ford has only just learned of this
development, . . . it appears that on March 29,
2009, [CBP] extended the liquidation of all but
one of Ford’s 2006 Reconciliation Entries. Not-
withstanding any deficiencies in [CBP’s] attempt
to extend the entries, pursuant to 19 C.F.R.
§ 159.12(a)(1), the extensions expired on March
29, 2010.
Ford Mot. for TRO, Ford (Ct. Int’l Tr. June 23, 2010), Dkt.
#36. The court read this as a concession that the six
entries in question “were validly extended.” Dismissal
Op., 716 F. Supp. 2d at 1311. Since Ford’s first cause of
action was predicated on the entries not having been
extended, the court concluded that Ford had abandoned
its claim applying that line of argument to those entries.
The court subsequently confirmed, however, that Ford
remained free to argue that these “extensions” were not
procedurally valid or were otherwise unlawful. Ford, slip
op. at 3 (Ct. Int’l Tr. Oct. 15, 2010), Dkt. #45 (denying
reconsideration of Dismissal Opinion).
On appeal, Ford contends that the dismissal was im-
proper because its statement did not plainly concede these
claims. Ford points to the paucity of record evidence on
the question of whether CBP did or did not administra-
tively “extend” these entries and contends that, in these
circumstances, its statement should be interpreted as at
best equivocal.
19 FORD MOTOR CO v. US
We agree with Ford. Neither on its own nor in con-
text does the quoted statement demonstrate that the
dispute between Ford and the government as to whether
the entries had been extended had become moot. We read
Ford’s statement as only acknowledging that CBP had
taken some administrative action with the purpose of
extending liquidation, and not necessarily as conceding
that extension had been effectuated.
The government’s argument that Ford retained its
right to contest the legal validity of any extension by CBP
misses the mark. It is not the right to contest the exten-
sion’s validity that was prematurely dismissed, but the
right to contest that an extension had occurred at all.
We therefore reverse the Court of International
Trade’s dismissal of Ford’s first cause of action for lack of
case or controversy.
C
Finally, the reasoning expressed above requires that
we vacate the Court of International Trade’s dismissal of
those claims over which the court acknowledged it had
subject matter jurisdiction. The court’s dismissal of these
claims was discretionary, but the court’s reasoning ex-
tended in significant part from its flawed jurisdictional
analysis. For example, the court reasoned that because
Ford had conceded the extension of certain entries (a
finding we have now reversed), “its remaining claims form
a weak basis for granting declaratory relief.” Dismissal
Op., 716 F. Supp. 2d at 1313. We therefore vacate the
court’s discretionary dismissals, with the understanding
that the Court of International Trade retains authority,
but no obligation, to revisit this question on remand.
FORD MOTOR CO v. US 20
IV
For the above-stated reasons, the judgment of the
Court of International Trade is reversed-in-part, vacated-
in-part, and remanded for further proceedings consistent
with this opinion.
REVERSED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.