Arp Materials, Inc. v. United States

Case: 21-2176 Document: 38 Page: 1 Filed: 09/06/2022
United States Court of Appeals
for the Federal Circuit
______________________
ARP MATERIALS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2176
______________________
Appeal from the United States Court of International
Trade in No. 1:20-cv-00144-MMB, Judge M. Miller Baker.
-------------------------------------------------
THE HARRISON STEEL CASTINGS COMPANY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2177
______________________
Appeal from the United States Court of International
Trade in No. 1:20-cv-00147-MMB, Judge M. Miller Baker.
Case: 21-2176 Document: 38 Page: 2 Filed: 09/06/2022
2 ARP MATERIALS, INC. v. US
______________________
Decided: September 6, 2022
______________________
CHRISTOPHER M. KANE, Simon Gluck & Kane LLP, New
York, NY, argued for plaintiffs-appellants. Also repre-
sented by MARIANA DEL RIO KOSTENWEIN, DANIEL J.
GLUCK.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM; VALERIE SORENSEN-CLARK, Office of Assistant
Chief Counsel, International Trade Litigation, United
States Customs and Border Protection, New York, NY.
______________________
Before HUGHES, LINN, and STOLL, Circuit Judges.
HUGHES, Circuit Judge.
Importers ARP Materials, Inc. and The Harrison Steel
Castings Company seek refunds of estimated duties they
deposited with the United States Customs and Border Pro-
tection for tariffs that the United States Trade Representa-
tive retroactively rescinded. The United States Court of
International Trade dismissed the importers’ amended
complaints for lack of jurisdiction. ARP and Harrison ap-
peal. The jurisdictional provision on which the importers
rely, 28 U.S.C. § 1581(i), may not be invoked when jurisdic-
tion under another subsection of § 1581 could have been
available and would have provided an adequate remedy if
timely invoked. We affirm the court’s dismissals because
jurisdiction would have been available under § 1581(a) had
the importers timely protested Customs’ classification de-
cisions and because failure to invoke an available remedy
Case: 21-2176 Document: 38 Page: 3 Filed: 09/06/2022
ARP MATERIALS, INC. v. US 3
within the timeframe prescribed does not render the rem-
edy manifestly inadequate.
I
A
Section 301 of the Trade Act of 1974 authorizes the Of-
fice of the United States Trade Representative (USTR) to
investigate and enforce domestic rights under trade agree-
ments and to respond to certain foreign trade practices.
19 U.S.C. § 2411. Under this authority, USTR began inves-
tigating certain Chinese trade practices in August 2017. It
found that some of China’s trade practices “related to intel-
lectual property, innovation, and technology were unrea-
sonable or discriminatory, and burden[ed] or restrict[ed]
U.S. commerce.” U.S. Gov’t Accountability Off., GAO-21-
506, Report to Congressional Requesters: U.S.–China
Trade 3 (2021)). “To help obtain the elimination of” those
trade practices, USTR, “at the direction of the President,
placed additional tariffs on certain products from China
starting in July 2018.” Id. at 1. USTR issued four lists of
product categories subject to the new tariffs. Id. at 4. Rele-
vant to this appeal, USTR imposed a 25% tariff on List 2
product categories in August 2018 and a 10% tariff on
List 3 product categories in September 2018. Id.“[T]o mitigate the potential harm of these tariffs on
U.S. companies and workers,” USTR established, “for the
first and only time,” an opportunity for domestic stakehold-
ers “to request to exclude particular products from the ad-
ditional tariffs.” Id. at 1, 6; see also 83 Fed. Reg. 40,823,
40,824 (Aug. 16, 2018) (for List 2); 84 Fed. Reg. 20,459,
20,460 (May 9, 2019) (for List 3). USTR informed importers
that any exclusion granted would “apply to the particular
product covered by the exclusion” rather than the “particu-
lar producer[] or exporter[]” who requested the exclusion.
ARP Materials, Inc. v. United States, 520 F. Supp. 3d 1341,
1349 (Ct. Int’l Trade 2021) (Decision). These exclusions
were thus “product-specific,” meaning that “the grant of an
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4 ARP MATERIALS, INC. v. US
exclusion in response to one importer’s application could
apply to like products imported by other entities.” Id.; see
also 84 Fed. Reg. 37,381, 37,381 (July 31, 2019) (“[T]he ex-
clusions are available for any product that meets the de-
scription in the Annex, regardless of whether the importer
filed an exclusion request.”). These exclusions were applied
retroactively to the effective date of each tariff—August 23,
2018 for List 2 1 and September 24, 2018 for List 3. 2 See
84 Fed. Reg. at 37,381; 84 Fed. Reg. 38,717, 38,717 (Aug. 7,
2019).
USTR declared that Customs “w[ould] issue instruc-
tions on entry guidance and implementation,” and it in-
structed importers to reach out to Customs directly.
84 Fed. Reg. at 37,381. It further provided contact infor-
mation for importers to do so—for answers to any specific
questions importers might have about “[C]ustoms classifi-
cation or implementation of the product exclusions.” Id.; see
also Decision at 1349 (“Just as . . . USTR’s initial imposi-
tion of [§] 301 duties was not self-executing as to any entry
of goods and instead depended upon Customs’ classification
of the entry as subject to such duties, . . . USTR’s retroac-
tive exclusions were not self-executing as to the eligible
goods.”).
On May 22, 2019, Customs published instructions de-
tailing how importers could obtain refunds of previously
paid § 301 tariffs on eligible imports. See U.S. Customs &
Border Prot., CSMS No. 19000260, Section 301 Products
Excluded from Duties - Liquidation Extension Request
(2019). For entries covered by granted product exclusions,
Customs instructed importers as follows:
1 ARP’s relevant merchandise was classified under
List 2. Decision at 1350.
2 Harrison’s relevant merchandise was classified un-
der List 3. Decision at 1352.
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ARP MATERIALS, INC. v. US 5
Once a product exclusion is granted by USTR, an
Importer of Record (IOR) may request an adminis-
trative refund by filing a Post Summary Correction
(PSC) for unliquidated entries that are covered by
the exclusion. If an entry is liquidated prior to the
filing of a PSC, a party may file a protest.
Id. For entries covered by pending product exclusion re-
quests, Customs provided these instructions:
As the IOR, if you have a pending product exclusion
request with USTR, or are importing a product that
is covered by such a pending exclusion request, and
you are concerned that a corresponding entry may
liquidate before USTR renders a decision on the ex-
clusion request, you can:
(1) request an extension of the liquidation
deadline, and file a PSC no later than
15 days before the extended date of liquida-
tion; and/or
(2) file a protest within the 180 day period
following liquidation. When filing a pro-
test, the protestant should identify the
pending product exclusion decision from
USTR as a basis for the protest. Upon re-
ceiving USTR’s decision on the product ex-
clusion, the protestant should submit the
exclusion information to [Customs], as ad-
ditional information pursuant to 19 C.F.R.
[§] 174.28.
If a protest is filed, [Customs] will postpone making
a determination on protests that include a claim
identifying a pending product exclusion. Once
USTR completes the exclusion process, [i.e., rules
on the product exclusion request,] [Customs] will
process these protests pursuant to USTR’s exclu-
sion determination. That is, [Customs] will refrain
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6 ARP MATERIALS, INC. v. US
from denying or granting a party’s protest before
the importer receives a final determination from
USTR regarding its product exclusion request.
Id. (emphases added). Customs reissued substantially sim-
ilar instructions immediately following each notice of prod-
uct exclusion that USTR published. See, e.g., U.S. Customs
& Border Prot., CSMS No. 39169565, GUIDANCE: Sev-
enth Round of Products Excluded from Section 301 Duties
(Tranche 2) (2019) (“To request a refund of [§] 301 duties
paid on previous imports of duty-excluded products
granted by . . . USTR, importers . . . may protest the liqui-
dation.”); U.S. Customs & Border Prot., CSMS
No. 42181055, GUIDANCE: Section 301 Tranche 3 - $200B
Eleventh Round of Product Exclusions from China (2020)
(substantially identical instructions).
B
ARP “made five entries (importations) of merchandise”
that Customs had classified under subheading
3901.90.1000 (on List 2) of the Harmonized Tariff Schedule
of the United States (HTSUS), “render[ing] the entries lia-
ble for [§] 301 duties,” i.e., “subject to [§] 301 tariffs on the
dates of entry.” 3 Decision at 1350. On July 31, 2019, after
the five entries were made, USTR granted exclusion re-
quests submitted by other importers that covered the same
category of products as ARP’s merchandise. 84 Fed. Reg.
at 37,382. These exclusions applied retroactively to
3 ARP made its first entry of merchandise,
No. F57-4005259-6 (entry ’5259-6), on August 30, 2018; its
second entry, No. F57-4004968-3 (entry ’4968-3), on Sep-
tember 21, 2018; its third entry, No. F57-4005369-3 (en-
try ’5369-3), on September 24, 2018; its fourth entry,
No. F57-4005611-8 (entry ’5611-8), on September 27, 2018;
and its fifth entry, No. F57-4007552-2 (entry ’7552-2) on
July 17, 2019. Decision at 1352.
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ARP MATERIALS, INC. v. US 7
August 23, 2018—before ARP’s entries—and remained in
effect through July 31, 2020. On March 2, 2020, seven
months after USTR had published its exclusion notice and
199 days following liquidation, 4 ARP protested Customs’
assessment of § 301 duties on entries ’4968-3 and ’5369-3.
Decision at 1351–52. Customs denied the protest as un-
timely since ARP had failed to file the protest within
180 days of the entries’ liquidation date. Id. at 1351; see
also 19 U.S.C. § 1514(c)(3)(A) (“A protest of a decision, or-
der, or finding described in subsection (a) shall be filed
with [Customs] within 180 days after but not be-
fore . . . [the] date of liquidation or reliquidation.”). On
June 27, 2020, ARP timely filed a protest for entry ’7552-2.
Decision at 1351–52. Since it had filed that protest just
15 days after the entry’s liquidation, 5 Customs granted the
protest, reclassified the entry, and refunded ARP the § 301
duties it had paid for that entry. Id. at 1351. “ARP did not
file protests for entries ’5259-6 and ’5611-8.” 6 Id.
Harrison made two entries of merchandise—one on
September 27, 2018, and the other on October 12, 2018—
that Customs classified under HTSUS subheading
8302.30.3060 (on List 3), rendering the entries liable for
§ 301 duties. On March 26, 2020, USTR “granted exclusion
requests submitted by other importers that covered the
same category of products as Harrison’s.” Id. at 1352; see
also 85 Fed. Reg. 17,158, 17,160 (Mar. 26, 2020). These ex-
clusions applied retroactively to September 24, 2018—be-
fore Harrison’s entries—and remained in effect through
4 The liquidation date for entries ’4968-3 and ’5369-3
was August 16, 2019. Decision at 1352.
5 The liquidation date for entry ’7552-2 was June 12,
2020. Decision at 1352.
6 The liquidation date for entry ’5259-6 was July 26,
2019. Decision at 1352. The liquidation date for entry
’5611-8 was August 23, 2019. Id.Case: 21-2176 Document: 38 Page: 8 Filed: 09/06/2022
8 ARP MATERIALS, INC. v. US
August 7, 2020. On March 31, 2020, five days after USTR
had published its exclusion notice but more than 180 days
after the liquidation dates for the two entries at issue, 7
“Harrison filed a protest challenging Customs’ assessment
of [§] 301 duties on these entries and two other entries not
included in Harrison’s complaint.” Decision at 1353 & n.22.
“Customs denied the protest as untimely as to the two en-
tries at issue but granted the protest as to the other two
entries.” Id.
After Customs denied their protests, ARP and Harri-
son commenced civil actions against the government in the
Court of International Trade, both invoking 28 U.S.C.
§ 1581(i) as the jurisdictional basis for their suits. In “their
substantially identical complaints,” the importers alleged
that the government was “in wrongful possession of” cer-
tain § 301 duties they had paid since “USTR ha[d] deter-
mined that no such duties apply ab initio to the date of
implementation of [§] 301 duties on [Lists 2 and 3] of the
affected items previously announced by . . . USTR.” Id. at
1354 (third alteration in original); see also id. at 1354 n.24
(explaining that “the two amended complaints are substan-
tively identical aside from references to the plaintiffs’
names and a few minor wording differences”). The import-
ers seek to compel refunds for the § 301 duties that USTR
had imposed but retroactively rescinded after Customs had
liquidated them.
The government moved to dismiss ARP’s and Harri-
son’s actions, and the Court of International Trade granted
7 The liquidation date for the first entry of merchan-
dise, No. 555-0666283-6 (entry ’6283-6), was August 23,
2019. Decision at 1354. The liquidation date for the second
entry of merchandise, No. 555-0666818-9 (entry ’6818-9),
was September 6, 2019. Id.
Case: 21-2176 Document: 38 Page: 9 Filed: 09/06/2022
ARP MATERIALS, INC. v. US 9
the motions. 8 The court held that it lacks subject matter
jurisdiction under § 1581(i) as to the entries challenged in
this appeal. In the court’s view, “jurisdiction would have
existed here under § 1581(a) had [the importers] timely
protested Customs’ classification decisions that resulted in
their erroneous liability for [§] 301 duties,” and failure to
timely invoke the importers’ available remedy under
§ 1581(a) did not render the remedy inadequate. Id. at
1361. The court pointed out that the importers “had ade-
quate notice of the procedures they were to follow to correct
Customs’ erroneous classification decisions.” Id. at 1362.
Indeed, the court highlighted, the importers “did follow
those procedures to receive refunds as to certain entries.”
Id. They simply and “regrettably dropped the ball” when
they failed to timely protest the classification decisions for
“the entries remaining at issue here.” Id. Because a remedy
would have been available under § 1581(a), the court de-
termined that it lacked subject matter jurisdiction under
the “catch-all” provision, § 1581(i). The court accordingly
granted the government’s motions to dismiss under Fed-
eral Rule of Civil Procedure 12(b)(1).
ARP and Harrison appeal. Because they make the
same arguments, we address them together. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(5).
II
We review the Court of International Trade’s “decision
to grant the government’s motions to dismiss for lack of
subject matter jurisdiction de novo as a question of law.”
Hutchison Quality Furniture, Inc. v. United States,
827 F.3d 1355, 1359 (Fed. Cir. 2016) (cleaned up).
8 The Court of International Trade consolidated
ARP’s and Harrison’s actions on September 8, 2020, desig-
nating these cases as “test cases” pursuant to United
States Court of International Trade Rule 83(e).
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10 ARP MATERIALS, INC. v. US
The Court of International Trade’s jurisdiction is gov-
erned by 28 U.S.C. § 1581, with each of its subsections “de-
lineat[ing] particular laws over which the Court of
International Trade may assert jurisdiction.” Nat’l Corn
Growers Ass’n v. Baker, 840 F.2d 1547, 1555 (Fed. Cir.
1988). The two provisions relevant to this appeal are
§ 1581(a) and (i).
Section 1581(a) grants the Court of International
Trade “exclusive jurisdiction [over] any civil action com-
menced to contest the denial of a protest, in whole or in
part, under [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a). “Sec-
tion 1515 provides for Customs’ review and subsequent al-
lowance or denial of protests that are ‘filed in accordance
with’ 19 U.S.C. § 1514.” Fujitsu Gen. Am., Inc. v. United
States, 283 F.3d 1364, 1371 (Fed. Cir. 2002) (quoting
19 U.S.C. § 1515(a)). Section 1514 details the types of Cus-
toms decisions “that may be the subject of protests,” includ-
ing “decisions relating to ‘the liquidation or reliquidation of
an entry.’” Id. (quoting 19 U.S.C. § 1514(a)(5)). “[T]he
Court of International Trade’s authority to hear a claim un-
der [§] 1581(a) depends upon the importer raising the claim
in a valid protest filed with Customs within the prescribed
[180]-day period, or alternatively, in a protest coming
within an exception that excuses a failure to meet the dead-
line.” Id.
Section 1581(i) confers jurisdiction over a civil action
arising out of any federal law providing for “tariffs, duties,
fees, or other taxes on the importation of merchandise for
reasons other than the raising of revenue.” 28 U.S.C.
§ 1581(i)(1)(B). Though we describe § 1581(i) as a “catch-
all” provision, “its scope is strictly limited.” Norcal/Crosetti
Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir.
1992). “Section 1581(i) jurisdiction may not be invoked
when jurisdiction under another subsection of § 1581 is or
could have been available, unless the remedy provided un-
der that other subsection would be manifestly inadequate.”
Id. (citation omitted). “This preserves the congressionally
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ARP MATERIALS, INC. v. US 11
mandated procedures and safeguards provided in the other
subsections, absent which litigants could ignore the pre-
cepts of subsections (a)–(h) and immediately file suit in the
Court of International Trade under subsection (i).” Id. (in-
ternal citations omitted).
An inquiry into § 1581(i) jurisdiction is thus a two-step
process. “First, we consider whether jurisdiction under a
subsection other than § 1581(i) was available.” Erwin
Hymer Grp. N. Am., Inc. v. United States, 930 F.3d 1370,
1375 (Fed. Cir. 2019). Second, “if jurisdiction was available
under a different subsection of § 1581, we [then] examine
whether the remedy provided under that subsection is
‘manifestly inadequate.’” Id.
A
ARP and Harrison challenge the Court of International
Trade’s decision holding that jurisdiction under § 1581(a)
would have been available had the importers “timely pro-
tested Customs’ classification decisions that resulted in
their erroneous liability for [§] 301 duties.” Decision
at 1361. The crux of ARP’s and Harrison’s arguments is
that “the fundamental issues” they raise involve USTR’s
exclusion decisions, “not the purely ministerial involve-
ment of [Customs] in the effectuation of the decisions of . . .
USTR under [§] 301.” Appellants’ Br. 3. So, they contend,
they were not required to file protests. Id. at 18 (relying on
Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347,
1354–55 (Fed. Cir. 2006), “because it among many cases
demonstrates that the challenge of decisions of an agency
other than [Customs] does not require the filing of a pro-
test”). In the importers’ view, Customs’ role was ministerial
because Customs’ “hands were tied by the decisions of . . .
USTR, without which [§] 301 duties could not be collected
by [Customs].” Id. at 22; see also Indus. Chems., Inc. v.
United States, 941 F.3d 1368, 1371 (Fed. Cir. 2019) (“‘Cus-
toms must [have] engage[d] in some sort of decision-mak-
ing process in order for there to be a protestable decision.’
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12 ARP MATERIALS, INC. v. US
This is because Customs must have the ‘authority to grant
relief in [the] protest action.’” (alterations in original) (cita-
tions omitted)).
But “the protest procedure cannot be [so] easily circum-
vented.” Int’l Custom Prods., Inc. v. United States, 467 F.3d
1324, 1327 (Fed. Cir. 2006); see Norsk Hydro Can.,
472 F.3d at 1355 (“[A] party may not expand a court’s ju-
risdiction by creative pleading.”). “To prevent usurpation of
the protest scheme Congress has crafted, it is of utmost im-
portance that mere recitation of a basis for jurisdiction not
be controlling.” Hartford Fire Ins. Co. v. United States,
544 F.3d 1289, 1293 (Fed. Cir. 2008). Instead, “[w]e look to
the ‘true nature of the action’ in determining whether the
[Court of International Trade] properly found jurisdiction
lacking.” Hutchison, 827 F.3d at 1360 (citation omitted).
This “will depend upon the attendant facts asserted in the
pleadings.” Id. Thus, “[d]etermining the true nature of an
action under § 1581” requires that we “discern the particu-
lar agency action that is the source of the alleged harm so
that we may identify which subsection of § 1581 provides
the appropriate vehicle for judicial review.” Id.
Here, the importers allege that the government “re-
mains in wrongful possession of the [§] 301 duties on [the
importers’] entries of [certain] merchandise as . . . USTR
ha[d] determined that no such duties apply ab initio to the
date of implementation of [such] duties.” Appx53, 59. And
they request that the Court of International Trade “order
refund of the monies due through reliquidation of the in-
volved entries.” Appx54, 60. Thus, as characterized by the
importers themselves, the source of their alleged harm is
Customs’ classification decisions that “USTR’s retroactive
exclusions rendered erroneous.” Decision at 1359–60 (“Ac-
cording to Plaintiffs, the USTR’s retroactive exclusions
rendered Customs’ classification of their merchandise un-
der those subheadings ‘wrongful.’”). These classification
decisions are necessarily protestable “decisions” because
“[p]roper classification of goods under the HTSUS”
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ARP MATERIALS, INC. v. US 13
requires the agency to “first ascertain[] the meaning of spe-
cific terms in the tariff provisions and then determin[e]
whether the subject merchandise comes within the descrip-
tion of those terms”—the first question being one of law,
the second being one of fact. Millenium Lumber Distrib.
Ltd. v. United States, 558 F.3d 1326, 1328 (Fed. Cir. 2009).
Customs made substantive legal determinations—inter-
preting the HTSUS subheadings—and factual determina-
tions—determining whether the entries fell within those
subheadings—that it had the authority to make. See
Hutchison, 827 F.3d at 1362 (“Indeed, when Customs
makes a decision to liquidate, that decision is ‘[m]ore than
passive or ministerial’ and ‘constitute[s] a “decision” within
the context of § 1514(a).’” (alterations in original) (quoting
Cemex, S.A. v. United States, 384 F.3d 1314, 1324
(Fed. Cir. 2004))).
Accordingly, this case “presents exactly the scenario in
which § 1514’s protest provisions can be invoked because
Customs engaged in some sort of decision-making process.”
Chemsol, LLC v. United States, 755 F.3d 1345, 1351
(Fed. Cir. 2014) (citation omitted) (cleaned up). Because
the importers contend that USTR’s exclusions rendered
Customs’ classifications of their entries erroneous, they
were statutorily obligated to timely protest under
19 U.S.C. § 1514(a)(2). That Customs’ classification deci-
sions became erroneous after USTR granted retroactive ex-
clusions is irrelevant. The obligation to protest a Customs
classification error does not turn on whether it was errone-
ous ab initio or became erroneous because of retroactive
administrative action. It instead turns on whether Cus-
toms’ classifications of the importers’ entries were protest-
able “decisions” under 19 U.S.C. § 1514, and we hold that
these classifications were such protestable “decisions.”
B
Because a remedy would have been available under
§ 1581(a) had the importers timely protested Customs’
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14 ARP MATERIALS, INC. v. US
classification decisions, ARP and Harrison cannot invoke
the Court of International Trade’s residual jurisdiction un-
der § 1581(i) unless they show that the relief in § 1581(a)
would have been manifestly inadequate. Juice Farms, Inc.
v. United States, 68 F.3d 1344, 1346 (Fed. Cir. 1995). But
neither ARP nor Harrison can meet this burden because “a
remedy is not inadequate ‘simply because [the importer]
failed to invoke it within the time frame [that is] pre-
scribe[d].’” Id. (citation omitted). “[T]o be manifestly inad-
equate, the protest must be an exercise in futility, or
incapable of producing any result; failing utterly of the de-
sired end through intrinsic defect; useless, ineffectual,
vain.” Sunpreme Inc. v. United States, 892 F.3d 1186,
1193–94 (Fed. Cir. 2018) (cleaned up).
Here, the importers’ successful protests, for example,
for entry ’7552-2, were “far from being exercises in futility.”
Decision at 1361. Had ARP protested within 180 days fol-
lowing the liquidation for each entry now at issue, ARP
would have had the opportunity to protest Customs’ assess-
ments of § 301 duties underlying the challenged entries’
liquidations. See Juice Farms, 68 F.3d at 1346 (“If Juice
Farms had protested within ninety days of bulletin notices,
it would have had an opportunity to protest the legality of
Customs’ liquidations in the Court of International
Trade.”). Indeed, ARP had ample opportunity to file such
protests. Of its five entries at issue, ARP’s earliest protest
deadline—i.e., 180 days after an entry’s liquidation—was
January 22, 2020. Yet ARP did not protest any of Customs’
classification decisions until March 2, 2020, more than
seven months after USTR had issued the applicable rele-
vant product exclusion notice. The opportunity to protest is
not an inadequate remedy “simply because [ARP] failed to
invoke it within the time frame . . . prescribe[d].” Id.
at 1346 (citation omitted). ARP “had an adequate remedy
for its alleged erroneous liquidation[s], but it lost that rem-
edy because its protest[s] w[ere] untimely,” or not made at
all, “not because the remedy was inadequate.” Carbon
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ARP MATERIALS, INC. v. US 15
Activated Corp. v. United States, 6 F. Supp. 3d 1378, 1380
(Ct. Int’l Trade 2014), aff’d, 791 F.3d 1312 (Fed. Cir. 2015);
see also Hutchison, 827 F.3d at 1362 (“The record demon-
strates that Hutchison not only could have filed a protest,
but that it in fact did so after Customs liquidated its en-
tries. Hutchison’s incorrect ‘belief that it had no remedy
under § 1581(a) [does] not make that remedy inadequate,’
and in any event is belied by the actions Hutchison took
prior to filing suit.” (alteration in original) (quoting Hart-
ford Fire, 544 F.3d at 1294)).
Similarly, had Harrison timely requested an extension
of the liquidation deadlines for the entries at issue, Harri-
son would have had the opportunity to request a refund by
filing a Post Summary Correction “no later than 15 days
before the extended date of liquidation.” U.S. Customs &
Border Prot., CSMS No. 19000260, Section 301 Products
Excluded from Duties - Liquidation Extension Request
(2019) (providing instructions for importers that “have a
pending product exclusion request with USTR, or are im-
porting a product that is covered by such a pending exclu-
sion request, and [who] are concerned that a corresponding
entry may liquidate before USTR renders a decision on the
exclusion request”). Thus, Harrison likewise could have
had the opportunity to challenge Customs’ classification
decisions had the importer done so promptly. See Juice
Farms, 68 F.3d at 1346 (“Customs posted bulletin notices
of these liquidations at the customshouse. The bulletin no-
tices supply sufficient notice and thus trigger the ninety-
day period for protests. . . . Juice Farms, the importer,
bears the burden to check for posted notices of liquidation
and to protest timely. Juice Farms cannot circumvent the
timely protest requirement by claiming that its own lack of
diligence requires equitable relief under 28 U.S.C.
§ 1581(i).” (citations omitted)); cf. Int’l Custom Prods.,
467 F.3d at 1328 (“Plaintiff cannot take it upon itself to de-
termine whether it would be futile to protest or not. In or-
der to protect itself, a protest should have been filed . . . .”).
Case: 21-2176 Document: 38 Page: 16 Filed: 09/06/2022
16 ARP MATERIALS, INC. v. US
III
We have considered the parties’ remaining arguments
and find them unpersuasive. We affirm the Court of Inter-
national Trade’s decision dismissing ARP’s and Harrison’s
amended complaints for lack of jurisdiction.
AFFIRMED