Industrial Chemicals, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
INDUSTRIAL CHEMICALS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1176
______________________
Appeal from the United States Court of International
Trade in No. 1:17-cv-00177-JCG, Judge Jennifer Choe-
Groves.
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Decided: November 8, 2019
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ROBERT GIVENS, JOSHUA BEKER, Givens & Johnston,
PLLC, Houston, TX, argued for plaintiff-appellant.
GUY EDDON, International Trade Field Office, Commer-
cial Litigation Branch, Civil Division, United States De-
partment of Justice, New York, NY, argued for defendant-
appellee. Also represented by AMY RUBIN, JAMIE
SHOOKMAN; JOSEPH H. HUNT, JEANNE DAVIDSON, Washing-
ton, DC; YELENA SLEPAK, Office of the Assistant Chief
Counsel, United States Bureau of Customs and Border Pro-
tection, United States Department of Homeland Security,
New York, NY.
2 INDUSTRIAL CHEMICALS, INC. v. UNITED STATES
______________________
Before PROST, Chief Judge, WALLACH and HUGHES, Circuit
Judges.
WALLACH, Circuit Judge.
Appellant Industrial Chemicals, Inc. (“Industrial
Chemicals”) appeals from the judgment of the U.S. Court
of International Trade (“CIT”) dismissing its complaint.
The CIT held that it lacked jurisdiction under 28 U.S.C.
§ 1581(a) (2012) to consider Industrial Chemicals’ claim
that the U.S. Customs and Border Protection (“Customs”)
had improperly denied its protest concerning duty free
treatment for its entries of organic chemicals from India
under the Generalized System of Preferences (“GSP”). See
Indus. Chems., Inc. v. United States, 335 F. Supp. 3d 1327,
1330 (Ct. Int’l Trade 2018); J.A. 1 (Judgment). We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.
BACKGROUND
The GSP provides “duty-free treatment” for “eligible
article[s] from . . . beneficiary developing countr[ies],” 19
U.S.C. § 2461 (2012), among them, India, see Harmonized
Tariff Schedule of the United States, General Note 4(a)
(2013) (listing India as a GSP designated beneficiary coun-
try). Congressional authorization for the GSP expired on
July 31, 2013, see Extension–Generalized System of Pref-
erences, Pub. L. No. 112–40, § 1, 125 Stat. 401, 401 (2011),
and was not renewed until June 29, 2015, see Trade Pref-
erences Extension Act of 2015 (“Extension Act”), Pub. L.
No. 114–27, § 201, 129 Stat. 362, 371 (2015). For GSP-
eligible entries made during the lapse in authorization,
Congress provided “retroactive application” of the GSP
(i.e., a refund of duties paid), so long as the importer filed
a request with Customs “not later than” December 28,
2015. Id. § 201(b)(2)(A)–(B).
INDUSTRIAL CHEMICALS, INC. v. UNITED STATES 3
Industrial Chemicals made sixty-five entries of organic
chemicals from India between August 2013 and Octo-
ber 2014, while the GSP had lapsed. J.A. 13–15 (Schedule
of Protests), 36–39 (Request). The entries were liquidated
between June 2014 and September 2015. J.A. 13–15. In-
dustrial Chemicals avers that, if the GSP had been in force,
its entries would have been GSP-eligible. J.A. 17, 36. In-
dustrial Chemicals did not, however, submit its request for
retroactive GSP treatment until February 2, 2016, more
than a month after the deadline. See J.A. 36. On March
11, 2016, Customs denied the request, explaining that
“[s]ince [the request] was received after December 28,
2015, it [could not] be processed per [the Extension Act
§ 201].” J.A. 40. On June 1, 2016, Industrial Chemicals
filed its Protest of Customs’ “denial of GSP treatment.”
J.A. 44; see J.A. 13–15. Customs denied the Protest as un-
timely pursuant to 19 U.S.C. § 1514. J.A. 41 (denying In-
dustrial Chemicals’ Protest because it had been filed more
than 180 days after liquidation of its entries); see 19 U.S.C.
§ 1514(c)(3) (providing that a protest must be filed with
Customs “within 180 days after” the “date of liquidation or
reliquidation” of relevant entries or, if both of those are in-
applicable, “the date of the [protested] decision”).
Industrial Chemicals filed a Complaint in the CIT, al-
leging improper denial of its Protest. J.A. 16–24 (Com-
plaint). Industrial Chemicals claimed jurisdiction under
28 U.S.C. § 1581(a). J.A. 17; see 28 U.S.C. § 1581(a)
(providing jurisdiction over “any civil action commenced to
contest the denial of a protest, in whole or in part”). The
CIT dismissed Industrial Chemicals’ Complaint, conclud-
ing that the CIT lacked subject matter jurisdiction because
Industrial Chemicals’ Protest was invalid. Indus. Chems.,
335 F. Supp. 3d at 1330.
4 INDUSTRIAL CHEMICALS, INC. v. UNITED STATES
DISCUSSION
I. Standard of Review and Legal Standard
We review the CIT’s jurisdictional determinations de
novo. See Sunpreme Inc. v. United States, 892 F.3d 1186,
1191 (Fed. Cir. 2018) (citation omitted). “Although we re-
view the decisions of the CIT de novo, we give great weight
to the informed opinion of the CIT and it is nearly always
the starting point of our analysis.” Nan Ya Plastics Corp. v.
United States, 810 F.3d 1333, 1341 (Fed. Cir. 2016) (inter-
nal quotation marks, brackets, ellipsis, and citation omit-
ted). “[T]he party invoking [the CIT’s] jurisdiction bears
the burden of establishing it.” Norsk Hydro Can., Inc. v.
United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). “How-
ever, we must accept well-pleaded factual allegations as
true and must draw all reasonable inferences in favor of
the claimant.” Hutchison Quality Furniture, Inc. v. United
States, 827 F.3d 1355, 1359 (Fed. Cir. 2016) (internal quo-
tation marks and citation omitted).
“The [CIT], like all federal courts, is a court of limited
jurisdiction.” Sakar Int’l, Inc. v. United States, 516 F.3d
1340, 1349 (Fed. Cir. 2008) (citation omitted); see 28 U.S.C.
§ 1581(a)–(j) (enumerating the CIT’s jurisdiction). Sec-
tion 1581(a) gives the CIT “exclusive jurisdiction of any
civil action commenced to contest [Customs’] denial of a
protest, in whole or in part, under [19 U.S.C. § 1515].”
28 U.S.C. § 1581(a); see 19 U.S.C. § 1515 (providing Cus-
toms with authority to review protests made pursuant to
19 U.S.C. § 1514). Under § 1514, an importer may protest
“any clerical error, mistake of fact, or other inadvert-
ence . . . adverse to the importer, in any entry, liquidation,
or reliquidation, and, decisions of [Customs], including the
legality of all orders and findings entering into the same,
as to” certain Customs enforcement actions including “the
classification and rate and amount of duties chargeable”
and “the liquidation or reliquidation of an entry . . . or any
modification thereof[.]” 19 U.S.C. § 1514(a)(2), (5); see 19
INDUSTRIAL CHEMICALS, INC. v. UNITED STATES 5
C.F.R. § 174.12(a)(1) (2016) (providing that an importer
may file a protest). Customs’ “merely ministerial” actions
are not protestable under 19 U.S.C. § 1514. Mitsubishi El-
ecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed.
Cir. 1994). “Customs must [have] engage[d] in some sort
of decision-making process in order for there to be a
protestable decision.” U.S. Shoe Corp. v. United States, 114
F.3d 1564, 1569 (Fed. Cir. 1997), aff’d, 523 U.S. 360 (1998);
see Thyssenkrupp Steel N. Am., Inc. v. United States, 886
F.3d 1215, 1225 (Fed. Cir. 2018) (explaining that the term
“ministerial” “excludes actions requiring genuine interpre-
tive or comparable judgments as to what is to be done” (ci-
tation omitted)). This is because Customs must have the
“authority to grant relief in [the] protest action.” Gilda In-
dus., Inc. v. United States, 446 F.3d 1271, 1276 (Fed.
Cir. 2006). Further, protests must be filed with Customs
“within 180 days after” either “the date of liquidation or
reliquidation,” or, “in circumstances where [those are] in-
applicable, the date of the [protested] decision.” 19 U.S.C.
§ 1514(c)(3).
II. The CIT Properly Dismissed Industrial Chemicals’
Complaint for Lack of Jurisdiction
The CIT dismissed Industrial Chemicals’ Complaint
for lack of jurisdiction, explaining that, to the extent Indus-
trial Chemicals contested Customs’ denial of retroactive
GSP treatment, its Protest was invalid, because the denial
was “not a protestable decision under 19 U.S.C. § 1514(a),”
and “[t]o the extent that [Industrial Chemicals] contest[ed]
the liquidation of its entries, its [P]rotest was untimely[.]”
Indus. Chems., 335 F. Supp. 3d at 1330. 1 Industrial
1 Industrial Chemicals does not contest that, to the
extent its Protest challenged the liquidation of its entries,
it was untimely. Oral Arg. at 9:40–9:50, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=2019-1176.mp3
(Q: “You’re time-barred from filing a protest to the actual
6 INDUSTRIAL CHEMICALS, INC. v. UNITED STATES
Chemicals challenges the CIT’s holding as based on “a mis-
understanding of the facts of the case.” Appellant’s Br. 6.
Industrial Chemicals argues that “[j]urisdiction” over its
claim “is proper under 28 U.S.C. § 1581(a)” because Cus-
toms’ denial of retroactive GSP treatment was a “protesta-
ble decision under 19 U.S.C. § 1514(a),” and its Protest
“was timely” because it was filed within 180 days of that
denial. Id. We disagree with Industrial Chemicals.
Customs’ denial of GSP treatment to Industrial Chem-
icals’ entries was not a “protestable decision” under
19 U.S.C. § 1514(a). Industrial Chemicals filed its request
for retroactive GSP treatment in February 2016, after the
December 28, 2015 statutory deadline. See J.A. 20 (Com-
plaint), 36 (Request); see also Appellant’s Br. 10 (“Indus-
trial Chemicals . . . did not file a claim for a refund of duties
under GSP until after the statutory deadline under the
GSP Renewal Act.”). Customs did not have the discretion
to amend or exempt Industrial Chemicals from that dead-
line. See Extension Act § 201 (providing for “retroactive
application” of the GSP, so long as the importer filed a re-
quest with Customs “not later than” December 28, 2015);
see also Haggar Apparel Co. v. United States, 222 F.3d
1337, 1340 (Fed. Cir. 2000) (“If the intent of Congress is
clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously ex-
pressed intent of Congress[.]” (quoting Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984))). Therefore, Customs’ application of the deadline to
Industrial Chemicals’ untimely request was ministerial.
See Thyssenkrupp, 886 F.3d at 1225 (providing that a “non-
ministerial task” requires the resolution of “a genuine dis-
pute”); Gilda, 446 F.3d at 1276 (explaining that where
“Customs has no authority to overturn or disregard” an
liquidation decision that’s the normal protest course?”
A: “Absolutely, your Honor.”).
INDUSTRIAL CHEMICALS, INC. v. UNITED STATES 7
instruction, protest is not available because “Customs
would have no authority to grant relief in a protest action
challenging the imposition of the duty”). Such ministerial
actions are not protestable under 19 U.S.C. § 1514(a).
Mitsubishi, 44 F.3d at 977 (explaining that Customs’ non-
discretionary, “ministerial” acts “do not fall within 19
U.S.C. § 1514(a)”). Accordingly, the CIT did not err in find-
ing Industrial Chemicals’ Protest invalid.
Industrial Chemicals’ counterarguments are unper-
suasive. First, Industrial Chemicals asserts that
Thyssenkrupp supports the conclusion that Customs’ “de-
nial of a protest is inherently ‘protestable.’” Appellant’s
Br. 7 (citing Thyssenkrupp, 886 F.3d at 1221–22). In
Thyssenkrupp, we considered whether the CIT had
§ 1581(a) jurisdiction where Customs had “rejected” an im-
porter’s protest as “non-protestable.” 886 F.3d at 1222. We
addressed whether Customs’ “rejection” constituted a “de-
nial of the protest” under 19 U.S.C. § 1514(a). Id. at 1221–
22; see 19 U.S.C. § 1514(a) (providing that certain Customs
actions and decisions will be “final and conclusive” unless
a “protest is filed” or “a civil action contesting the denial of
a protest . . . is commenced in the [CIT]” (emphasis added)).
We held that Customs’ “rejection” was a “denial” for the
purposes of commencing an action in the CIT.
Thyssenkrupp, 886 F.3d at 1222–23 (explaining that a “re-
jection” is a “label . . . of no statutory significance”). We
then considered whether the underlying Customs’ action
was protestable. Id. at 1223–27. We concluded that, be-
cause the underlying Customs action was “a determination
that embodied meaningful judgments,” it was protestable.
Id. at 1225. We held that the CIT properly had § 1581(a)
jurisdiction. Id. at 1228. Thyssenkrupp does not stand for
the proposition that the CIT “inherent[ly]” has § 1581(a)
jurisdiction over any “denial of a protest,” Appellant’s Br. 7,
but rather that the CIT has jurisdiction over the denial of
a timely, valid protest, 886 F.3d at 1227. As the Govern-
ment explained, Thyssenkrupp does not undermine, but
8 INDUSTRIAL CHEMICALS, INC. v. UNITED STATES
“underscores the soundness of the [CIT’s] judgment” here.
Appellee’s Br. 12.
Second, Industrial Chemicals argues that Zojirushi
Am. Corp. v. United States, 180 F. Supp. 3d 1354 (Ct. Int’l
Trade 2016), supports the conclusion that an importer may
protest an “error in the construction of the law” or of fact,
even if that error was their own. Appellant’s Br. 9–10
(quoting Zojirushi, 180 F. Supp. 3d at 1365). However,
whether Industrial Chemicals made an “error,” such that
it “did not file a claim for a refund of duties under [the] GSP
until after the statutory deadline[,]” is irrelevant. Appel-
lant’s Br. 10. Customs did not have the discretion to ex-
empt Industrial Chemicals from the deadline set by
Congress. See Extension Act § 201 (providing “retroactive
application” of the GSP, so long as the importer filed a re-
quest with Customs “not later than” December 28, 2015);
cf. Juice Farms, Inc. v. United States, 68 F.3d 1344, 1346
(Fed. Cir. 1997) (explaining that an importer “cannot cir-
cumvent” a statutory filing deadline “by claiming . . . its
own lack of diligence”). 2 Accordingly, the CIT properly dis-
missed Industrial Chemicals’ Complaint for lack of juris-
diction.
2 Industrial Chemicals also asserts that Ford v.
United States, 635 F.3d 550 (Fed. Cir. 2011), “confirms that
jurisdiction exists in [Industrial Chemicals’] case.” Appel-
lant’s Reply 4. In Ford, we held that, where an importer
has “timely filed” a post-importation rebate claim, failure
to “timely fil[e]” a supporting document “did not deprive
the [CIT] of jurisdiction.” 635 F.3d at 557. Industrial
Chemicals, however, did not timely file its claim (its re-
quest for retroactive GSP treatment). J.A. 20 (Complaint),
36 (Request). Ford is, accordingly, inapposite.
INDUSTRIAL CHEMICALS, INC. v. UNITED STATES 9
CONCLUSION
We have considered Industrial Chemicals’ remaining
arguments 3 and find them unpersuasive. The Judgment of
the U.S. Court of International Trade is
AFFIRMED
3 Industrial Chemicals argues that the CIT has ju-
risdiction under 28 U.S.C. § 1581(i)(2) or (4). Appellant’s
Br. 11–15. However, Industrial Chemicals did not raise
this argument before the CIT. J.A. 17 (Complaint) (assert-
ing only 28 U.S.C. § 1581(a) jurisdiction). The argument
is, accordingly, waived. Golden Bridge Tech., Inc. v. Nokia,
Inc., 527 F.3d 1318, 1323 (Fed. Cir. 2008) (“This is an ap-
pellate court and as such we abide by the general rule that
new arguments will not be decided in the first instance on
appeal.”); Hutchison, 827 F.3d at 1359 (“The party invoking
the CIT’s jurisdiction bears the burden of establishing it.”
(internal quotation marks, brackets, and citation omitted)).