Aluminerie Becancourt Inc. v. United Stateser ( 2004 )

Slip Op. 04-86
United States Court of International Trade
ALUMINERIE BECANCOUR, INC.,
c/o REYNOLDS METALS COMPANY,
Plaintiff,
Before: Pogue, Judge
v.
Court No. 00-00445
UNITED STATES,
Defendant.
[Defendant’s motion to dismiss denied.]
Decided: July 14, 2004
LeBoeuf, Lamb, Greene & MacRae, LLP (Gary P. Connelly, Melvin S.
Schwechter) for Plaintiff.
Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,
Acting Attorney-in-Charge, International Trade Field Office, James
A. Curley, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Yelena Slepak, Attorney, Of Counsel,
Office of Assistant Chief Counsel, U.S. Bureau of Customs and
Border Protection, for Defendant.
OPINION
Pogue, Judge: Plaintiff Aluminerie Becancour, Inc.
(“Aluminerie” or “Plaintiff”) seeks to invoke this Court’s
jurisdiction pursuant to subsection (a) of 28 U.S.C. § 1581 (2000)
to challenge the denial of its administrative protest filed
Court No. 00-00445 Page 2
pursuant to 19 U.S.C. § 1514 (2000).1 That protest sought to
challenge Defendant’s imposition of certain Merchandise Processing
Fees (“MPF”) on Plaintiff’s imports.
Defendant United States Bureau of Customs and Border
Protection2 (“Customs” or “Defendant”) moves for dismissal claiming
lack of subject matter jurisdiction because Plaintiff failed to
timely file its protest. The Court also inquires into whether the
instant action was timely filed with the Court.
Because Plaintiff’s protest was timely filed, and because
Plaintiff’s case was timely filed, Defendant’s motion to dismiss is
denied.3
1
Because Plaintiff filed its summons in 2000, Summons of
Aluminerie at 2, the Court will refer to the 2000 versions of the
statutes or regulations. The Court acknowledges, however, that
because the events related to this action took place over an
extended period of time, various versions of each of the statutes
and regulations involved may apply. Accordingly, the Court has
reviewed the versions from 1994 until the present and found that
no amendments affecting the outcome of this case have occurred.
The Court notes that subsection (c) of 28 U.S.C. § 1491, see
infra note 27, was redesignated from subsection (b) to subsection
(c) in 1996. See Administrative Dispute Resolution Act of 1996,
Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (codified as
amended at 28 U.S.C. § 1491 (2000)).
2
Effective March 1, 2003, the United States Customs Service was
renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
3
In Aluminerie Becancour, Inc. v. United States, slip. op. 04-40
(CIT Apr. 23, 2004), the Court granted Defendant's motion.
However, pursuant to USCIT R. 59(a) (stating that a "rehearing
may be granted . . . in an action finally determined”), the
Court No. 00-00445 Page 3
I. Background
Plaintiff’s administrative protest has a ten-year history, a
review of which is necessary background for the motion at issue
here. On December 15, 1992, Aluminerie made a voluntary disclosure
to Customs under 19 U.S.C. § 1592(c)(4), admitting that it had
failed to pay MPF on unwrought aluminum products imported into the
United States between 1990 and the date of disclosure. Def.’s Mem.
Supp. Mot. Dismiss at 1-2 (“Def.’s Mot.”); Pl.’s Opp’n to Mot.
Dismiss at 1 (“Pl.’s Opp’n”). To perfect its voluntary disclosure,
Customs requested that Aluminerie tender $88,542.87, which
Aluminerie paid on October 6, 1994. See Letter from John Barry
Donohue, Jr., Assoc. Gen. Counsel, Reynolds Metals Co., to William
D. Dietzel, Dist. Dir., Customs, Pl.’s Ex. A at 1,4 4 (Oct. 6,
1994) (“October 6 Letter”).5
Court, on June 8, 2004, ordered reconsideration of its April 23
opinion and now, hereby, vacates the judgment granted therein and
the opinion on which it was based.
4
Documents appended to Pl.’s Opp’n are referred to as “Pl.’s Ex.”
followed by the corresponding letter. The document appended to
Plaintiff’s motion for leave to amend its memorandum of
opposition is referred to as “Pl.’s Attach.” Documents appended
to Plaintiff’s supplemental letter brief are referred to as
“Pl.’s Supp. Ex.” followed by the corresponding letter.
5
The record shows that all correspondence and documentation
referred to in this decision was either addressed to or sent by
Reynolds Metals Company, in its capacity as owner of Aluminerie
Becancour, Inc. Reynolds Metals Company also owns Canadian
Reynolds Metals Company, which is the Plaintiff in a companion
case before this Court. Canadian Reynolds Metals Co. v. United
States, Court No. 00-00444, slip op. ______ (CIT July 14, 2004)
(pending).
Court No. 00-00445 Page 4
Along with its payment, Aluminerie submitted a letter in which
it advised Customs of its intent to appeal the MPF determination,
as it considered its entries exempt from the MPF rate demanded by
Customs. Id. at 1. Aluminerie argued that the unwrought aluminum
products were of Canadian origin, and thus qualified for special
treatment pursuant to the United States-Canada Free Trade Agreement
(“USCFTA”). Letter from Rufus E. Jarman, Jr., Barnes, Richardson
& Colburn, to Dist. Dir., Customs, Pl.’s Ex. D at 4, 4-5 (Feb. 1,
1995) (“February 1 Letter”).6 Customs, on the other hand, had
previously concluded that due to a non-Canadian additive,
Aluminerie’s entries failed to qualify for the reduced MPF rate
provided by the USCFTA. Id. at 5. Aluminerie, in turn, argued
that pursuant to the doctrine of de minimis non curat lex, the
foreign additive in the Canadian entries should be disregarded for
country of origin purposes. Id. Aluminerie informed Customs in
its payment tender letter that it expected a full refund of the
tender amount along with accrued interest in the event that
subsequent litigation was successful. October 6 Letter, Pl.’s Ex.
A at 1.
Customs responded in a letter dated November 8, 1994, stating
that it had received Aluminerie’s tender of MPF, but rejected all
conditions imposed by Aluminerie in connection to this payment.
6
Barnes, Richardson & Colburn was Plaintiff’s legal
representative at the time. See February 1 Letter, Pl.’s Ex. D
at 4.
Court No. 00-00445 Page 5
Letter from Charles J. Reed, Fines, Penalties & Forfeitures
Officer, on behalf of William D. Dietzel, Dist. Dir., Customs, to
John Barry Donohue, Reynolds Metals Co., Pl.’s Ex. B at 1 (Nov. 8,
1994) (“November 8 Letter”). Subsequently, Customs and Aluminerie
concluded an escrow agreement on December 20, 1994, in which they
agreed to let the decision in a designated test case7 control
whether a full refund of Aluminerie’s MPF payment was appropriate.
Agreement between Reynolds Metals Company and U.S. Customs Service,
Pl.’s Mot. for Leave to Amend Pl.’s Opp’n, Pl.’s Attach. at 1 (Dec.
20, 1994) (“Escrow Agreement”).8 In the event that the test case
decision was favorable to Aluminerie, Customs further agreed to
refund the full tendered amount “together with such interest as may
be required by law.” Id. at 1-2.
On February 6, 1995, Aluminerie filed an administrative
protest. See Letter from Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, to Dist. Dir., Customs, Pl.’s Ex. D at 1
7
In subsequent amendments to the escrow agreement, concluded on
October 28, 1996, and July 13, 1998, the parties identified the
designated test case as Alcan Aluminum Corp. v. United States, 21
CIT 1238, 986 F. Supp. 1436 (1997), originally referred to as St.
Albans Protest No. 0201-93-100281 (HQ 955367) and subsequently
appealed to the Federal Circuit Court of Appeals. Letter from
Charles D. Ressin, Chief, Penalties Branch, Int’l Trade
Compliance Div., to Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, Pl.’s Ex. C at 3, 4 (Oct. 30, 1996); Letter
from Charles D. Ressin, Chief, Penalties Branch, Int’l Trade
Compliance Div., to Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, Pl.’s Ex. C at 5, 6 (July 13, 1998); Alcan
Aluminum Corp. v. United States, 165 F.3d 898 (Fed. Cir. 1999).
8
Reynolds Metals Company concluded the agreement with Customs on
behalf of Plaintiff. See Escrow Agreement, Pl.’s Attach. at 1.
Court No. 00-00445 Page 6
(Feb. 6, 1995) (“February 6 Letter”); Protest No. 0712-95-100130,
Pl.’s Ex. D at 3 (Feb. 6, 1995) (“Protest Form”).9 In its protest,
Plaintiff appeared to make three objections to Customs’ actions.
First, Plaintiff stated that it objected to the assessment and
payment of MPF. February 1 Letter, Pl.’s Ex. D at 4. Second, it
protested “contingencies not anticipated in the [escrow]
[a]greement[,] or unanticipated frustration” of the same. Id. at
5-6. Plaintiff then appears to have made a third objection,
referring to Customs’ acceptance of payment. Id. at 4. In support
of this third objection, Plaintiff noted that a copy of Customs’
letter dated November 8, 1994, as well as a receipt of payment made
out by Customs on November 7, 1994, was enclosed with the protest.
9
The “protest package” provided as Exhibit D by Plaintiff
contains copies of two letters along with a copy of a completed
Customs Form 19 (Protest No. 0712-95-100130); the first letter is
dated February 1, 1995, and the second letter is dated February
6, 1995. See Pl.’s Ex. D. Accordingly, it appears as though
Plaintiff first attempted to forward a protest to Customs on
February 1, 1995, but that for reasons unclear to the Court, the
protest was not filed until February 6, 1995, the date Customs
received and stamped the protest form. Protest Form, Pl.’s Ex. D
at 3. The implementing regulation for filing of protests
confirms that a protest is considered filed on the date it is
received by Customs. 19 C.F.R. § 174.12(f) (“The date on which a
protest is received by the Customs officer with whom it is
required to be filed shall be deemed the date on which it is
filed.”). Additionally, both parties agree that the protest was
filed on February 6, 1995. See Def.’s Mot. at 2; Pl.’s Opp’n at
3. As the February 6 Letter merely serves as a complement to the
original protest attempt on February 1, 1995, however, the Court
will treat the letter dated February 1, 1995, as part of the
protest filed on February 6, 1995. See February 6 Letter, Pl.’s
Ex. D at 1 (“[W]e forwarded protests, dated February 1, 1995, in
which [Aluminerie] protested the assessment and payment of
Merchandise Processing Fee (‘MPF’).”).
Court No. 00-00445 Page 7
Id.; see also Collection Receipt from U.S. Bureau of Customs &
Border Prot., to Aluminerie Becancour, Pl.’s Ex. A at 6 (Nov. 7,
1994) (“Receipt”). Plaintiff clarified in its protest that it did
not expect Customs to act in response to its objections until final
judgment was rendered in the pending test case. February 1 Letter,
Pl.’s Ex. D at 6.
On January 5, 1999, the Federal Circuit Court of Appeals
issued its decision in the test case, Alcan Aluminum Corp. v.
United States, 165 F.3d 898 (Fed. Cir. 1999). The Alcan Aluminum
Corp. Court held that the foreign additive in question was subject
to the principle of de minimis non curat lex, and therefore, the
entries were considered of Canadian origin. 165 F.3d at 902. The
Alcan Aluminum Corp. decision became final on April 5, 1999. Pl.’s
Opp’n at 4.
Because Aluminerie’s entries qualified for preferential trade
status under the USCFTA as a result of the favorable decision in
Alcan Aluminum Corp., Customs refunded to Aluminerie the deposited
MPF amount in full “[o]n or about” February 7, 2000.10 Compl. of
Aluminerie at 3.
Customs, however, failed to tender interest pursuant to the
escrow agreement when it made the refund to Aluminerie. Def.’s
Mot. at 2; Pl.’s Opp’n at 4. Aluminerie then sent, on February 10,
2000, a request for accelerated disposition of its protest. See
10
No supporting exhibit was provided, but Defendant does not deny
this statement. See Def.’s Mem. at 2.
Court No. 00-00445 Page 8
Pl.’s Opp’n at 4-5; Letter from F. D. “Rick” Van Arnam, Jr.,
Barnes, Richardson, & Colburn, to Port Dir., Customs, Pl.’s Supp.
Ex. A (Feb. 9, 2000); Certified Mail Receipt, Pl.’s Supp. Ex. B
(Feb. 10, 2000). Following what Aluminerie considered a denial of
the original protest by operation of law, it filed a summons with
the Court on September 7, 2000. Summons of Aluminerie at 2.
Plaintiff subsequently, on September 30, 2002, filed its complaint
seeking relief. Compl. of Aluminerie at 6. The thrust of
Plaintiff’s complaint is that Customs failed to pay interest on the
refunded MPF. Id. at 3-4. As noted above, Defendant Customs moves
to dismiss for lack of subject matter jurisdiction.
II. Standard of Review
Because Plaintiff is seeking to invoke the Court’s
jurisdiction, it has the burden to establish the basis for
jurisdiction. See Former Employees of Sonoco Prods. Co. v. United
States Sec’y of Labor, 27 CIT ____, ____, 273 F. Supp. 2d 1336,
1338 (2003) (citing McNutt v. Gen. Motors Acceptance Corp., 298
U.S. 178, 189 (1936)). At the same time, because Defendant’s
motion to dismiss challenges the sufficiency of Plaintiff’s
pleadings (as opposed to the factual basis underlying the
pleadings), the Court will accept all facts alleged in Plaintiff’s
pleading as true. Corrpro Cos. v. United States, slip. op. 03-59,
at 4 (CIT June 4, 2003).
Court No. 00-00445 Page 9
III. Discussion
Defendant moves to dismiss, alleging that because Aluminerie
failed to timely protest any Customs decision, subject matter
jurisdiction is lacking. See Def.’s Mot at 3-4. Furthermore, even
in the event that the Aluminerie timely protested a Customs
decision, this Court can only exercise subject matter jurisdiction
if the case was timely filed with the Court. See 28 U.S.C. §
2636(a); USCIT R. 3(a). The Court will therefore discuss each of
these timing issues in turn.
A. Plaintiff Timely Protested a Customs Decision
Plaintiff seeks to invoke the Court’s jurisdiction under 28
U.S.C. § 1581(a), which provides for the review of the denial of a
protest made under section 515 of the Tariff Act of 1930, as
amended at 19 U.S.C. § 1515. Compl. of Aluminerie at 1; 28 U.S.C.
§ 1581(a). Subsection (a) of § 1515 authorizes Customs “to review
and deny or allow a protest as long as it is filed in accordance
with 19 U.S.C. § 1514. 19 U.S.C. § 1515(a). A suit attempting to
invoke the Court’s jurisdiction under 28 U.S.C. § 1581(a) must
therefore be based on a protest which complies with the
requirements of § 1514.
Title 19 U.S.C. § 1514 governs the timing of protests. 19
U.S.C. § 1514. Section 1514 specifically provides that, where no
notice of liquidation is involved, a protest must be filed no more
Court No. 00-00445 Page 10
than ninety days after the protested decision.11 Both parties to
this action agree that there is no notice of liquidation in this
matter; therefore, it is necessary to determine whether Plaintiff’s
protest challenged any Customs decision made within ninety days
prior to the protest’s filing. See Def.’s Mot. at 3; Pl.’s Opp’n
at 5.
In its protest, Plaintiff appears to make three objections.
See February 1 Letter, Pl.’s Ex. D at 4-6. First, Plaintiff
protests the assessment and payment of MPF. Id. at 4. The MPF
tender, however, occurred on October 6, 1994, October 6 Letter,
Pl.’s Ex. A at 4, while Plaintiff filed its protest on February 6,
1995. Protest Form, Pl.’s Ex. D at 3. Because a time period of
more than ninety days elapsed between those two events, Plaintiff’s
protest fails to present a timely challenge to the assessment and
payment of MPF.
Second, Plaintiff protests unanticipated frustration of, and
11
Title 19 U.S.C. § 1514(c)(3) provides as follows:
A protest of a decision, order, or finding described
in subsection (a) of this section shall be filed with
the Customs Service within ninety days after but not
before--
(A) notice of liquidation or reliquidation,
or
(B) in circumstances where subparagraph (A)
is inapplicable, the date of the decision as
to which protest is made.
19 U.S.C. § 1514(c)(3).
Court No. 00-00445 Page 11
contingencies not foreseen in, the escrow agreement. February 1
Letter, Pl.’s Ex. D at 5-6. Title 19 U.S.C. § 1514(c)(3) states,
however, that parties must file protests “within ninety days after
but not before . . . the date of the decision as to which protest
is made.” Id. (emphasis added). The decision the protesting
party objects to must therefore occur prior to the filing of the
protest. As previously stated, Aluminerie filed its protest on
February 6, 1995. Protest Form, Pl.’s Ex. D at 3. To the extent
that Plaintiff objects to the unanticipated event of Customs’
decision to refund MPF without interest in February 2000, that
event had not yet occurred at the time the protest was filed.12
Accordingly, under a plain reading of 19 U.S.C. § 1514(c)(3),
Plaintiff’s protective protest was untimely and invalid. See A.N.
Deringer, Inc. v. United States, 12 CIT 969, 972, 698 F. Supp. 923,
925 (1988) (holding that a protest was invalid either because it
was filed the day before Customs denied a previous claim for relief
12
Plaintiff claims that Customs made the decision not to pay
interest as early as November 8, 1994, the day it sent the
November 8 Letter. See Pl.’s Opp’n at 6. However, the parties
subsequently signed the escrow agreement, where Customs agreed to
refund the MPF amount and “interest as may be required by law” if
related litigation was successful. Escrow Agreement, Pl.’s
Attach. at 1-2. Thus, even presuming that Customs made the
decision to deprive Aluminerie of interest at such an early
stage, that decision was later vitiated by the terms of the
escrow agreement before the filing of the protest. Moreover,
even if the escrow agreement did not vitiate Customs’ original
rejection of any conditions on the payment of MPF, the language
of the protest – objecting to unanticipated frustration of the
escrow agreement – clearly refers to decisions which had not yet
been made, and not to the November 8 Letter.
Court No. 00-00445 Page 12
or barred by the provision allowing only one protest per entry of
merchandise).
Third, Plaintiff appears to object to Customs’ acceptance of
its MPF tender. See February 1 Letter, Pl.’s Ex. D at 4. In its
protest, Plaintiff alleges that Customs accepted its payment on
November 8, 1994, and specifies that the protest was filed within
ninety days of that date. Id. Plaintiff’s February 1 Letter
further states that Plaintiff attached a copy of the November 8
Letter to the protest, as well as a copy of the receipt from
Customs. Id. The receipt, however, shows that Customs received
Plaintiff’s MPF payment on November 7, 1994. Receipt, Pl.’s Ex. A
at 6. The November 8 Letter, on the other hand, indicates that
Customs acknowledged the MPF tender, and that Customs intended not
to accept the tender’s contingencies. November 8 Letter, Pl.’s Ex.
B at 1. Consequently, the Court cannot conclude that Customs’
acceptance of Plaintiff’s tender took place on November 8, 1994.
Rather, acceptance occurred a day prior, when Customs received
payment and made out the receipt. Customs therefore, on November
7, 1994, made the decision Plaintiff attempted to protest; November
7 was ninety-one days prior to the filing of the protest in
question here. However, February 5, 1995, the ninetieth day from
November 7, 1994, fell on a Sunday. Under USCIT R. 6(a), when this
Court computes any period of time prescribed by statute, and where
the last day falls on a Saturday, Sunday or holiday, the last day
Court No. 00-00445 Page 13
of the period shall not be included in the computation, but the
allowable time period shall run to the next business day. See
USCIT R. 6(a). Therefore, Plaintiff’s protest was timely filed on
February 6, 1995.13
B. The Case Was Timely Filed With the Court
The timeliness of the protest does not itself mean that
jurisdiction is proper in this case. Having found that the protest
itself was timely filed, the Court turns to the question of whether
the instant case was timely filed with the Court. A case arising
from the denial of a properly filed protest must be commenced
within 180 days after the date of mailing of the denial of the
protest, or within 180 days of denial of the protest by operation
of law. See 28 U.S.C. § 2636(a). A case arising under 19 U.S.C.
§ 1581(a) is considered commenced when the summons is filed. See
USCIT R. 3(a)(1). The summons in this case was filed on September
7, 2000. See Summons of Aluminerie at 2. All that remains in
13
The Court’s opinion here does not reach the question of whether
Plaintiff’s protest is susceptible of the relief desired by
Plaintiff. Defendant has argued that by failing to directly
challenge the nonpayment of interest, Plaintiff has failed to
make a protest that can result in the desired relief. See Def.’s
Mot at 4-5. Plaintiff argues that Customs’ failure to pay
interest is in violation of 19 U.S.C. § 1505(c), Pl.’s Opp’n at
11, which in pertinent part holds,“[i]nterest on excess moneys
deposited shall accrue, at a rate determined by the Secretary,
from the date the importer of record deposits estimated duties,
fees, and interest.” 19 U.S.C. § 1505(c). This statute might
allow the protest of acceptance of tender to properly result in
repayment of interest. However, in this opinion, the Court
limits itself to discussion of the timeliness of Plaintiff’s
protest and case.
Court No. 00-00445 Page 14
order to know whether that summons was timely, is to discover
whether denial occurred, and if so, whether the filing of the case
meets the requirements of 28 U.S.C. § 2636(a).
Protests may be denied either by an affirmative act or, where
a request for accelerated disposition has been sent by certified
mail, by operation of law. See 28 U.S.C. § 2636(a), 19 U.S.C. §
1515(b). Title 19 U.S.C. § 1515(b) provides that where a request
for accelerated disposition has not been allowed or denied within
thirty days of its certified mailing, it will be denied by
operation of law:
[a] request for accelerated disposition of a protest
filed in accordance with section 1514 of this title
may be mailed by certified or registered mail. . .
any time after ninety days following the filing of
such protest. . . . [A] protest which has not been
allowed or denied in whole or in part within thirty
days following the date of mailing by certified or
registered mail of a request for accelerated
disposition shall be deemed denied on the thirtieth
day following mailing of such request.
19 U.S.C. § 1515(b).14 Aluminerie mailed by certified mail a
request for accelerated disposition of its protest to Customs on
14
Title 19 U.S.C. § 1515(a) states that “within two years from
the date a protest was filed in accordance with section 1514 of
this title, [Customs] shall review the protest and shall allow or
deny such protest in whole or in part.” 19 U.S.C. § 1515(a).
The section does not state that protests not allowed or denied
within two years are denied by operation of law. However, when
read in context with 28 U.S.C. § 2636(a), it appears that section
1515(b) provides the means by which a protest may be denied by
operation of law. See U.S.C. § 1515(b); see also Knickerbocker
Liquors Corp. v. United States, 78 Cust. Ct. 192, 193-95, 432 F.
Supp. 1347, 1349-50 (1977).
Court No. 00-00445 Page 15
February 10, 2000. See Certified Mail Receipt, Pl.’s Supp. Ex. B.15
Aluminerie’s protest was denied by operation of law, then, on March
11, 2000, the thirtieth day from the mailing of the request. That
day, however, was a Saturday, so under USCIT R. 6(a), March 13,
2000, the following Monday, is officially the day upon which the
protest was denied by operation of law. Fewer than 180 days
elapsed between March 13, 2000 and September 7, 2000, the day the
summons was filed. Therefore, this action was timely commenced
with this Court.
The protest upon which this case was timely filed, as was the
case itself. Accordingly, Customs’ motion to dismiss is hereby
denied.
So ordered.
/s/Donald C. Pogue
Donald C. Pogue,
Judge
Dated: July 14, 2004
New York, New York
15
The Domestic Return Receipt provided by Aluminerie indicates
that the request for accelerated disposition of protest was
received by Customs on February 14, 2000. See Domestic Return
Receipt, Pl.’s Supp. Ex. B (Feb. 14, 2000).
ERRATUM
Please make the following change to Aluminerie Becancour, Inc. v. United States, Slip
Op. 04-86, July 14, 2004, Court No. 00-00445:
On page 8, the last sentence,
At the same time, because Defendant’s motion to dismiss challenges the sufficiency of Plaintiff’s
pleadings (as opposed to the factual basis underlying the pleadings), the Court will accept all
facts alleged in Plaintiff’s pleading as true. Corrpro Cos. v. United States, slip. op. 03-59, at 4
(CIT June 4, 2003).
should be struck and replaced with the following:
At the same time, “the Court assumes ‘all well-pled factual allegations are true,’ construing ‘all
reasonable inferences in favor of the nonmovant.’” United States v. Islip, 22 CIT 852, 854, 18 F.
Supp. 2d 1047, 1051 (1998) (quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.
Cir. 1991)).
August 10, 2004