All Tools, Inc. v. United States , 34 Ct. Int'l Trade 1318 ( 2010 )

Slip Op. 10-114
UNITED STATES COURT OF INTERNATIONAL TRADE
:
ALL TOOLS, INC., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 07-00237
UNITED STATES, :
:
Defendant. :
:
:
OPINION
[Defendant’s motion for summary judgment granted.]
Dated: October 5, 2010
Peter S. Herrick, P.A. (Peter S. Herrick), for plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commericial
Litigation Branch, Civil Division, United States Department of
Justice, (Edward F. Kenny); Office of Assistant Chief Counsel for
Import Administration, International Trade Litigation United
States Customs and Border Protection (Chi. S. Choy), of counsel,
for defendant.
Eaton, Judge: This matter is before the court on defendant’s
motion for summary judgment based on a claimed lack of subject-
matter jurisdiction. By its motion, defendant alleges that
plaintiff, All Tools, Inc. (“All Tools”), failed to file timely
its summons pursuant to 28 U.S.C. § 2636(a)(1) (2006), and
therefore failed to establish jurisdiction before this Court.
Def.’s Mem. in Support of Mot. for Summ. J. (“Def.’s Mem.”) 1.
All Tools argues that the deadline for filing its suit was
equitably tolled pending Customs’ issuance of a protest number,
Court No. 07-00237 Page 2
and therefore its suit is timely. Pl.’s Mem. in Opp. to Mot. for
Summ. J. (“Pl.’s Mem.”) 1. Because some of the Counts in the
Complaint were untimely filed, and others raise issues not found
in a timely protest, the court grants defendant’s motion for
summary judgment and dismisses the case.
BACKGROUND
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment in its favor as a matter of law. USCIT R. 56(c). Here,
none of the material facts are in dispute. On August 26, 2003,
All Tools, through its customs broker, Mr. Pedro Carmona, entered
a shipment of Chinese-origin painting accessories through the
Port of San Juan, Puerto Rico. Def.’s Mem. Ex. 1. Mr. Carmona
completed the entry summary for the merchandise, stating that the
entry included paint brushes classified under HTSUS No.
9603.40.4040 as “Natural Bristle Brushes.” Def.’s Mem. Ex. 1.
Mr. Carmona was listed on the entry summary as the importer of
record. Def.’s Mem. Ex. 1.
Following the filing of the entry summary, Customs concluded
that, because the paint brushes had natural bristles, they fell
within antidumping duty order No. A570-501-000, and therefore
were subject to an unfair trade duty of 351.92 percent. Def.’s
Mem. Ex. 2; see Natural Bristle Paint Brushes and Brush Heads
Court No. 07-00237 Page 3
from the People’s Republic of China, 61 Fed. Reg. 52,917 (Dep’t
of Commerce Oct. 9, 1996) (final results). On January 8, 2004,
Customs sent an Informed Compliance Notice addressed to Mr.
Carmona, care of All Tools, stating that the paint brushes were
subject to this antidumping duty. Def.’s Mem. Ex. 2.
The Informed Compliance Notice also directed All Tools’
attention to a Customs Notice (Notice No. 2001-01 of Oct. 4,
2001) regarding the filing of non-reimbursement statements for
entries subject to antidumping duties. Def.’s Mem. Ex. 2. The
purpose of a non-reimbursement statement is to assure Customs
that the importer will not be repaid the antidumping duty by the
exporter or producer of the merchandise. 19 C.F.R.
§ 351.402(f)(1)-(2) (2009). If an importer fails to file a non-
reimbursement statement, Commerce may presume that the exporter
or purchaser did, in fact, reimburse the importer for the
antidumping duties paid. 19 C.F.R. § 351.402(f)(3). In cases
where Commerce relies on this presumption, it will treat the duty
as if it had been fully reimbursed, and will charge the importer
the duty a second time, in effect doubling the duty rate. See
Id. All Tools did not file a non-reimbursement statement until
February 17, 2006. Def.’s Mem. Ex. 11.
On September 13, 2004, having heard nothing from either Mr.
Carmona or All Tools, Customs sent a Notice of Action to Mr.
Carmona advising that “dumping duties of 703.84% [were to] be
Court No. 07-00237 Page 4
assessed” on the entry as a non-reimbursement statement had not
been filed. Def.’s Mem. Ex. 5; see 19 C.F.R. § 152.2. Neither
Mr. Carmona nor All Tools responded to the Notice of Action.
Customs liquidated the entry on October 15, 2004 and assessed the
double duty rate. Def.’s Mem. Ex. 6.
On January 14, 2005, 91 days after the liquidation of All
Tools’ entry, Mr. Carmona filed a protest against liquidation on
the company’s behalf, contesting the classification of the entry.1
Def.’s Mem. Ex. 7 (“Protest No. 1"). By seeking to have its
merchandise classified as being made of synthetic bristles, All
Tools was endeavoring to keep its merchandise from being subject
to antidumping duties.
Customs denied Protest No. 1 as untimely on January 18,
2005, stating that it was not filed within ninety days of the
liquidation. Def.’s Mem. Ex. 8; see 19 U.S.C. § 1514(c)(3)(A)
(2000).2 Pursuant to 19 U.S.C. § 1514(a), an appeal of the denial
of Protest No. 1 could have been taken within 180 days of January
18, 2005. All Tools did not appeal the denial of Protest No. 1
1
All Tools contended, in Protest No. 1, that the brushes
should have been classified as HTSUS No. 9603.40.40.60 “other
paint brushes,” and further that the brushes were made of
synthetic filaments, and therefore not subject to the antidumping
duty order. Def.’s Mem. Ex. 7.
2
Until the 2004 Amendments to the Tariff Act went into
effect on December 18, 2004, the time limit for protesting a
Customs classification determination was ninety days after notice
of liquidation or reliquidation. See Amendments to the Tariff
Act of 1930, Pub. L. 108-429, § 1571 (amended 2004).
Court No. 07-00237 Page 5
to this Court.
On September 2, 2005, Mr. Carmona filed a claim with Customs
pursuant to 19 U.S.C. § 1520(c)(1)3 alleging a mistake of fact.
Def.’s Mem. Ex. 9 (“Carmona Letter”). The basis for Mr.
Carmona’s claim was that the “Informed Compliance Notice [and
the] Notice of Action . . . treated Carmona as the ‘importer’
when, in fact, All Tools was the ‘importer.’” Carmona Letter 2.
Customs denied Mr. Carmona’s claim on January 5, 2006, stating
that the circumstances “[did] not constitute clerical error,
mistake of fact or other inadvertence.” Def.’s Mem. Ex. 10.
On March 17, 2006, All Tools filed a protest with Customs to
contest the denial of Mr. Carmona’s § 1520(c)(1) mistake of fact
3
19 U.S.C. § 1520(c)(1) (2000) was repealed on December
3, 2004 (Amendments to Tariff Act of 1930, Pub. L. 108-429, Title
II, § 2105 (amended 2004)), but was still in effect as to All
Tools’ entry. It stated:
Notwithstanding a valid protest was not
filed, the Customs Service may, in accordance
with regulations prescribed by the Secretary,
reliquidate an entry or reconciliation to
correct–
(1) a clerical error, mistake of fact,
or other inadvertence, whether or not
resulting from or contained in electronic
transmission, not amounting to an error in
the construction of a law, adverse to the
importer and manifest from the record or
established by documentary evidence, in any
entry, liquidation, or other customs
transaction, when the error, mistake, or
inadvertence is brought to the attention of
the Customs Service within one year after the
date of liquidation or exaction[.]
Court No. 07-00237 Page 6
claim.4 Def.’s Mem. Ex. 11 (“Protest No. 2"). On April 5, 2006,
Customs denied Protest No. 2. Def.’s Mem. Ex. 12.
Following the denial of the protest, counsel for All Tools
asked Customs to assign a protest number to Protest No. 2 on four
occasions beginning on April 13, 2006, eight days after Customs
denied All Tools’ protest as untimely, and ending on February 20,
2007. Pl.’s Exs. B, C, D, E. Customs assigned a protest number
on February 20, 2007, but has given no reason for its failure to
assign a number at an earlier date. Pl.’s Mem. 2.
All Tools commenced this suit on July 3, 2007, 133 days
after receiving the protest number, seeking: (1) an order
reclassifying its merchandise (“Count I”); (2) an order “that the
dumping duties cannot be doubled in this case” (“Count II”); (3)
the reliquidation of its merchandise at the “at entered” rate
because deemed liquidation had occurred on August 26, 2004
(“Count III”); and (4) an order “approving” Protest No. 2 and
ordering Customs to refund the duties (“Count IV”). All Tools,
Inc. v. United States, Court No. 07-00237, Summons (July 3,
2007); All Tools, Inc. v. United States, Court No. 07-00237,
Complaint (Apr. 2, 2008). Prior to filing its summons, All Tools
paid the duties owed on the entry as required by 28 U.S.C.
4
All Tools, as the ultimate consignee, has standing to
file a protest “with respect to merchandise that is the subject
of a decision specified in [19 U.S.C. § 1514(a)]”. 19 U.S.C.
§ 1514(c)(2)(A) (2006).
Court No. 07-00237 Page 7
§ 2637(a).5 Pl.’s Resp. To June 29, 2010 Letter 1. The summons
was filed some 896 days after the denial of Protest No. 1, and
274 days after the statutorily-prescribed time for appealing the
denial of Protest No. 2. See 19 U.S.C. § 1514(a).
Defendant filed its motion for summary judgment on September
30, 2009. Oral argument was held on April 8, 2010, after which
the court ordered additional briefing on a number of issues
concerning the § 1520(c)(1) mistake of fact claim. All Tools,
Inc. v. United States, Court No. 07-00237 (Apr. 12, 2010) (order
for additional briefing). On June 29, 2010, the court sent a
letter to the parties requesting information as to the status of
Mr. Carmona’s interest in the matter. All Tools, Inc. v. United
States, Court No. 07-00237 (June 29, 2010) (letter to parties
regarding Mr. Carmona).
Plaintiff asserts that this Court has jurisdiction to hear
its claims pursuant to 28 U.S.C. § 1581(a). Pl.’s Mem. 6. Under
28 U.S.C. § 1581(a), the United States Court of International
Trade has “exclusive jurisdiction of any civil action commenced
5
As part of his mistake of fact claim, Mr. Carmona
stated “it was a mistake of fact for Customs to look to Carmona
for payment of antidumping duties and interest and not All
Tools.” Carmona Letter 4. Mr. Carmona, however, is not a party
to this suit, and both parties agree that, because All Tools paid
the duties before commencing suit, his claim is moot. Pl.’s
Reply to June 29 Letter 2 (“Mr. Carmona does not have any
interest in this case.”); Def.’s Reply to June 29 Letter 3 (“[i]t
is our position that Mr. Carmona has no interest in the outcome
of this lawsuit.”).
Court No. 07-00237 Page 8
to contest the denial of a protest, in whole or in part . . . .”
STANDARD OF REVIEW
The defendant’s motion for summary judgment is based on its
assertion that the court does not have jurisdiction over the
Counts of All Tools’ complaint. “A jurisdictional challenge to
the court’s consideration of [p]laintiff’s action raises a
threshold inquiry.” Hartford Fire Ins. Co. v. United States, 31
CIT 1281, 1285, 507 F. Supp. 2d 1331, 1334 (2007) (citations
omitted).
Thus, before reaching the merits of plaintiff’s Complaint,
the court must rule on defendant’s motion for summary judgment.
“The party seeking to invoke this Court’s jurisdiction has the
burden of establishing such jurisdiction.” Autoalliance Int’l,
Inc. v. United States, 29 CIT 1082, 1088, 398 F. Supp. 2d 1326,
1332 (2005) (citations omitted). To avoid dismissal, a plaintiff
“must allege in his pleading the facts essential to show
jurisdiction.” McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936).
DISCUSSION
The United States, on behalf of Customs, has moved for
summary judgment on the basis that All Tools failed to file
Court No. 07-00237 Page 9
timely its summons pursuant to 28 U.S.C. § 2636(a)(1).6 Such
timely filing is a prerequisite for the commencement of an action
before this Court under 28 U.S.C. § 1581(a). See AutoAlliance
Int’l, Inc. v. United States, 26 CIT 1316, 1323, 240 F. Supp. 2d
1315, 1322 (2002) (finding that plaintiff’s suit was barred
because plaintiff failed to file a summons in this Court within
180 days after Customs’ ruling on the protests).
All Tools opposes the motion for summary judgment, but does
not dispute any of the jurisdictional facts. Rather, All Tools
insists that its lawsuit was timely commenced because the
deadline for filing the summons was equitably tolled until
Customs issued a protest number for Protest No. 2.
The court finds that All Tools’ complaint must be dismissed
for the following reasons.
I. The Classification and Antidumping Duty Claim
Plaintiff’s primary purpose in filing this suit is to gain
6
28 U.S.C. § 2636(a) reads, in part:
(a) A civil action contesting the
denial, in whole or in part, of a protest
under [19 U.S.C. § 1515] 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 [19 U.S.C. §
1515(a)] . . . .
Court No. 07-00237 Page 10
review of the classification of the paint brushes in its entry.
This is because if All Tools is successful in challenging the
classification, it will be able to place its merchandise outside
of the antidumping duty order, and thus keep it from being
subject to antidumping duties.
As noted, All Tools’ protest of the classification of its
merchandise (Protest No. 1) was filed on January 14, 2005,
ninety-one days after its October 15, 2004 liquidation. Customs
denied Protest No. 1 as untimely under 19 U.S.C. § 1514(a),
stating that it was filed one day late. Def.’s Mem. Ex. 8; see
Def.’s Mem. Ex. 12 (referring to this protest as protest no.
490905200003). To contest the finding that Protest No. 1 was
untimely filed, and thus to contest the classification of the
paint brushes and the resulting antidumping duties, All Tools was
required to file suit in this Court by July 18, 2005. 28 U.S.C.
§ 2636(a)(1) (“A civil action contesting the denial, in whole or
in part, of a protest . . . is barred unless commenced . . .
within one hundred and eighty days after the date of mailing of
notice of denial of a protest . . . .”). All Tools never sought
judicial review of Protest No. 1.
All Tools makes no claim that the time to file suit
contesting the denial of Protest No. 1 was tolled. Because All
Tools did not file its lawsuit within 180 days of the denial of
Protest No. 1, the liquidation of the entry under HTSUS No.
Court No. 07-00237 Page 11
9603.40.4040 as “Natural Bristle Brushes” became final and
conclusive as of July 18, 2005. 19 U.S.C. § 1514(a)7. Therefore,
All Tools is foreclosed from further contesting: (1) the paint
brushes’ classification; and (2) the application of antidumping
duties resulting from such classification.8 See 28 U.S.C.
§ 2636(a)(1). As a result, the claim for refunding antidumping
duties based on a misclassification of All Tools merchandise
contained in Count I of the complaint is dismissed.
II. The Mistake of Fact Claim
On January 8, 2004, Mr. Carmona was sent the Informed
Compliance Notice, care of All Tools, stating that the company’s
merchandise was subject to the antidumping duties, and further
7
[D]ecisions of the Customs Service, including
the legality of all orders and findings
entering into the same, as to . . . the
classification and rate and amount of duties
chargeable . . . shall be final and
conclusive upon all persons (including the
United States and any officer thereof) unless
a protest is filed in accordance with this
section, or unless a civil action contesting
the denial of a protest, in whole or in part,
is commenced in the United States Court of
International Trade in accordance with
chapter 169 of title 28 within the time
prescribed by section 2636 of that title.
19 U.S.C. § 1514(a).
8
Protest No. 1 made no mention of the doubling of the
antidumping duties as it sought to challenge the classification
of the merchandise and remove it from any antidumping duty
liabilities.
Court No. 07-00237 Page 12
saying “[i]nsure that you abide by Notice No. 2001-01 of 10/04/01
regarding reimbursement statement.” Def.’s Mem. Ex. 2.
Thereafter, Mr. Carmona received the Notice of Action, dated
September 13, 2004, informing All Tools that the double duty was
to be assessed on the merchandise and that the entry was in the
process of being liquidated. As noted, the entry was liquidated
on October 15, 2004, and the double duties were assessed at that
time. On September 2, 2005, Mr. Carmona filed a mistake of fact
claim with Customs pursuant to 19 U.S.C. § 1520(c)(1). Def.’s
Mem. Ex. 9.
The alleged mistake of fact was that the “Informed
Compliance Notice [and the] Notice of Action . . . treated
Carmona as the ‘importer’ when in fact All Tools was the
‘importer.’” Carmona Letter 2. In other words, the mistake of
fact alleged by Mr. Carmona was that he was being treated as the
importer of the merchandise, rather than All Tools, for the
purposes of filing the non-reimbursement statement.
The Carmona Letter did not challenge the application of the
antidumping duty to All Tools’ entry and, while it did take issue
with the doubling of the duty because Mr. Carmona was incapable
of filling out the non-reimbursement statement, it did not assert
that the imposition of the double duty was a mistake of fact.
That is, the mistake of fact asserted in the letter was that Mr.
Carmona was wrongly treated as the entry’s importer for purposes
Court No. 07-00237 Page 13
of filing the non-reimbursement statement. Under the then-
existing law, a mistake of fact claim could have been made to
Customs up to one year after liquidation and still be timely.
See 19 U.S.C. § 1514(a). Thus, Mr. Carmona’s claim appears to
have been timely.
On January 5, 2006, Customs denied Mr. Carmona’s claim by
stating that the allegations in his letter did “not constitute
clerical error, mistake of fact or other inadvertence” and
therefore did not fall within the bounds of 19 U.S.C.
§ 1520(c)(1). Def.’s Mem. Ex. 10. On March 17, 2006, All Tools
filed a protest of Custom’s denial of Mr. Carmona’s § 1520(c)(1)
mistake of fact claim. Def.’s Mem. Ex. 11 (“Protest No. 2"). In
Protest No. 2, All Tools reiterated its claim that Mr. Carmona
could not file the non-reimbursement statement. Def.’s Mem. Ex.
11.
Count II of the complaint addresses the claimed mistake of
fact. At paragraphs 22 through 24 of the complaint, All Tools
alleges that Mr. Carmona “could not file an anti-reimbursement
(sic) statement as he was not privy to the transaction between
the exporter and the importer.” Compl. ¶ 23.
On February 17, 2006, 490 days after its merchandise was
liquidated, All Tools filed a non-reimbursement statement.
Def.’s Mem. Ex. 11. Based on the claimed mistake that the
Informed Compliance Notice wrongly instructed Mr. Carmona to file
Court No. 07-00237 Page 14
the non-reimbursement statement, All Tools’ Count II apparently
asks the court to direct Commerce to accept its late filed non-
reimbursement statement, rescind the doubling of the antidumping
duty, and reliquidate the entry at the 351.92 percent rate.
“Wherefore, the plaintiff respectfully requests the Court to
enter an order that the dumping duties in this case cannot be
doubled and that half of the dumping duties that have been paid
be refunded with interest.” Compl. ¶ 24.
In order for plaintiff to have the allegations contained in
Count II heard, however, its case must have been timely filed.
Plaintiff argues that the court has jurisdiction over this matter
because the deadline for filing the summons was equitably tolled
until the company received a protest number for Protest No. 2.
Thus, according to plaintiff, it was excused by defendant’s
actions from filing its summons by October 2, 2006, 180 days
after Protest No. 2 was denied, and had until 180 days after
February 20, 2009, when it received the protest number, to bring
suit contesting Protest No. 2. Plaintiff cites DaimlerChrysler
Corp. v. United States for the proposition that a protest number
was required for it to file its lawsuit contesting the denial of
a protest. 442 F.3d 1313 (Fed. Cir. 2006) (“DaimlerChrysler”).
In DaimlerChrysler, plaintiff timely filed various suits
contesting the denial of protests relating to the duties on
“sheet metal [exported] to Mexico for painting and assembly into
Court No. 07-00237 Page 15
motor vehicles, and then imported the vehicles into the United
States.” On its summons plaintiff listed some but not all of its
protests by protest number. Id. at 1315 (“The schedule omitted
seven protests covering more than 400 entries . . . .”).
Plaintiff later moved to amend its complaint to include the
entries covered by the protests for which it had omitted the
numbers, but the motion was denied. In affirming the Court of
International Trade, the Federal Circuit found that “[t]he
essential jurisdictional fact―the denial of the protest―simply
cannot be affirmatively alleged without specifically identifying
each protest involved in the suit.” Id. at 1319; see id. at
1321-22 (“[A] summons can provide fair notice only if the
contested protests are identified with particularity. . . .
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.”).
Plaintiff’s reliance on DaimlerChrysler is misplaced. This
is because the case does not hold that the inclusion of a protest
number is a prerequisite for the filing of a summons. Rather, it
stands for the proposition that “a summons can provide fair
notice only if the contested protests are identified with
particularity.” Id. at 1321. In keeping with this holding, this
Court has held that the inclusion of a protest number is not
Court No. 07-00237 Page 16
necessary to commence a lawsuit contesting a protest denial and
that identification by other means such as an entry number is
sufficient to meet filing requirements. See Int’l Custom Prods.,
Inc. v. United States, 32 CIT ___, ___, Slip Op. 08-53 at 2, n.3
(May 20, 2008) (not reported in the Federal Supplement); see
also, DaimlerChrysler v. United States, 28 CIT 2105, 2106-07,
350 F. Supp. 2d 1339, 1341 (2004) (holding that “if the entries
were listed and it was possible for the United States to relate
the entry to the protest, . . . then jurisdiction would also
attach”).
DaimlerChrysler involved eighty-one protests and hundreds of
entries. 442 F.3d at 1316. Here, as has been seen, the sole
entry at issue was subject to two protests. Plaintiff’s lawsuit
seeks to contest Protest No. 2. Plaintiff insists that because
it had no protest number for Protest No. 2, it was prohibited
from filing its summons under the holding of DaimlerChrysler.
There is little question, however, that if All Tools had filed a
summons listing the entry number and the date that Protest No. 2
was denied, Customs would have received sufficient notice as to
the company’s claim and grounds upon which it rested. There are,
no doubt, other ways that plaintiff could have identified the
protest it was disputing and thus have given defendant sufficient
notice for plaintiff to commence the suit. Thus, All Tools was
not prevented from filing this action by Customs’ failure to
Court No. 07-00237 Page 17
assign a protest number.
With this in mind, the court turns to plaintiff’s equitable
tolling argument itself. Equitable tolling is generally limited
to situations either where a claimant “has been ‘induced or
tricked by his adversary’s misconduct into allowing the filing
deadline to pass’” or “where a claimant has actively pursued
judicial relief by filing a defective pleading within the
statutory time period . . . .” Former Emps. of Siemens Info.
Commc’n Networks, Inc. v. Herman, 24 CIT 1201, 1208, 120 F. Supp.
2d 1107, 1114 (2000) (quoting Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990) (“Irwin”)). In order to assert equitable
tolling, the party claiming it must show that it has been
diligent in preserving its legal rights. See Irwin, 498 U.S. at
96 (“We have generally been much less forgiving in receiving late
filings where the claimaint failed to exercise due diligence in
preserving his legal rights.”).
Because All Tools was not prevented from filing its case,
either by defendant inaction or otherwise, equitable tolling is
not available to it. Here, while it is clear that Customs failed
in its duty to supply the protest number, it is equally clear
that, because All Tools could have filed its lawsuit, it was not
induced by Customs’ misconduct “into allowing the filing deadline
to pass” and, as a result, the filing deadline was not tolled.
That is, the plaintiff, who was represented by counsel, was not
Court No. 07-00237 Page 18
prevented by Customs’ failure to supply the protest number from
filing its suit. Thus, plaintiff has simply not made out a case
that the filing deadline should be tolled based on Customs’
behavior.
Nor can it be said that plaintiff can be found to have
demonstrated such diligence as to justify equitable tolling.
“Courts have found due diligence where a party made reasonable
and sustained attempts to resolve questions or ambiguities and
reasonably attempted to comply with the statutory time limits.”
North Dakota Wheat Comm’n v. United States, 28 CIT 1236, 1244,
342 F. Supp. 2d 1319, 1326 (2004) (citing Former Emps. of Quality
Fabricating, Inc. v. U.S. Sec’y of Labor, 27 CIT 419, 424, 259 F.
Supp. 2d 1282, 1286 (2003) (holding that plaintiff showed due
diligence where plaintiff continuously emailed Department of
Labor regional office, checked the Department of Labor website
daily and visited the State of Pennsylvania Department of Labor
Trade Adjustment Representative, yet was not informed she was
consulting the wrong sources of information)).
As evidence of its diligence, All Tools notes that its
counsel asked Customs to assign a protest number to Protest No. 2
on four occasions. Pl.’s Mem. Exs. B, C, D, E. Commerce finally
assigned a protest number on February 20, 2007. Pl.’s Mem. 2.
For purposes of demonstrating due diligence, however, All Tools’
efforts are unconvincing. This is because the company made but
Court No. 07-00237 Page 19
one request for a protest number prior to the time the statute of
limitations had run its course. All Tools made this single
request for a protest number on April 13, 2006, shortly after the
protest had been denied, and then took no further action until
December 21, 2006, well past the 180-day period for bringing suit
before this Court. This falls short of the “repeated and
sustained” attempts envisioned by the court in Former Employees
of Quality Fabricating and, as such, All Tools did not make the
necessary effort required to demonstrate the exercise of due
diligence.
In addition, once the protest number was in hand, All Tools
did not act in a diligent fashion to commence its suit. Rather,
it waited 133 days before filing its summons.
A claim that equitable tolling should be applied to a
deadline to file suit against the government faces a high
threshold, and the plaintiff must affirmatively show that either
the actions of the government “induced or tricked” the plaintiff
into filing its lawsuit after the deadline, or that the plaintiff
has diligently attempted to preserve its legal rights, but did
not meet the required deadline. All Tools has failed to meet
either of these requirements. As such, the complaint contesting
Protest 2 was filed late, and the court does not have
jurisdiction over it. See 28 U.S.C. § 2636(a). Count II of the
complaint is therefore dismissed.
Court No. 07-00237 Page 20
III. The Deemed Liquidation Claim
Next, by Count III of the complaint, All Tools insists that
its entry was liquidated “by operation of law” pursuant to 19
U.S.C. § 1504(a), prior to the actual liquidation on August 26,
2004. As has been noted, however, plaintiff seeks to invoke this
Court’s jurisdiction pursuant to 19 U.S.C. § 1581(a). In order
for the court to have jurisdiction over a claim under § 1581(a),
a challenged decision by Customs must appear in a valid protest.
See, e.g., Novell Inc. v. United States, 21 CIT 1141, 1142, 985
F. Supp. 121, 123 (1997) (holding that this Court’s jurisdiction
under 28 U.S.C. § 1581(a) is limited to those civil actions that
contest the denial, either in whole or in part, of a protest).
All Tools’ deemed liquidation claim is raised for the first time
in its complaint, and thus does not appear in a protest that
Customs has denied. Therefore, the court does not have
jurisdiction under 19 U.S.C. § 1581(a) to hear All Tools’ claim.
As such, Count III of the complaint is dismissed.
IV. The Claim That The Court Should Approve Protest No. 2
Finally, by Count IV, All Tools seeks an order from the
court directing Customs to “approve” Protest No. 2 and “refund
the duties with lawful interest.” Compl. ¶ 34. This claim too
is based on the theory that All Tools’ complaint, although filed
454 days after Protest No. 2 was denied, is nonetheless timely,
Court No. 07-00237 Page 21
based on Customs’ failure to assign the plaintiff a protest
number. As has been seen, however, Count II of the Complaint,
which was based on Mr. Carmona’s mistake of fact claim found in
Protest No. 2, has been found to have been untimely filed, and
therefore does not provide the basis necessary for subject-matter
jurisdiction, and has been dismissed. For the same reasons,
Count IV of the complaint is dismissed.
CONCLUSION
For the foregoing reasons, this case is dismissed. Judgment
shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: October 5, 2010
New York, New York