United States Court of Appeals for the Federal Circuit 

2008-1071 

HARTFORD FIRE INSURANCE COMPANY, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Frederic D. Van Arnam, Jr.,. Barnes, Richardson & Colburn, of New York, New 

York, argued for plaintiff-appellant. With him on the brief was Eric W. Lander. 

 

Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for defendant-appellee. With 

him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. 

Davidson, Director; and Franklin E. White, Jr., Assistant Director. Of counsel was Beth C. 

Brotman, Office of the Assistant Chief Counsel, United States Customs and Border 

Protection, of New York, New York. 

Appealed from: United States Court of International Trade 

Judge Donald C. Pogue
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 

 

2008-1071 

 

 

HARTFORD FIRE INSURANCE COMPANY, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of International Trade in case no. 07-00101, Judge 

Donald C. Pogue. 

______________________ 

DECIDED: October 8, 2008 

_______________________ 

Before MAYER, LOURIE, and PROST, Circuit Judges.

MAYER, Circuit Judge. 

Hartford Fire Insurance Company appeals the judgment of the United States 

Court of International Trade, finding no subject matter jurisdiction over its claim to find 

its surety bonds unenforceable. Hartford Fire Ins. Co. v. United States, 507 F. Supp. 2d 

1331 (Ct. Int’l Trade 2007). Because we agree that the true nature of the action is a 

failure to file an administrative protest to a demand for payment on a surety bond, we 

affirm. 
BACKGROUND 

In February 2004, importer Brother Packaging imported three entries of 

polyethylene t-shirt bags into the United States pursuant to surety bonds covering 

applicable duties. These bonds were executed in April 2002 and December 2004 

naming appellant Hartford Fire Insurance Company (“Hartford”) as the surety. The 

merchandise was subject to antidumping duties. Upon entry, the United States 

Customs Service (“Customs”) classified the imported merchandise under Harmonized 

Tariff Schedule of the United States subheading 3923.29, requiring a duty of 3% ad 

valorem under a countervailing duty order. However, upon liquidation Customs 

reclassified the imported goods under subheading 3923.21, dutiable at 84.78% ad 

valorem under an antidumping duty order. In February 2006, Customs issued a formal 

demand to Hartford to pay the duties. 

Hartford alleged that its bond was unenforceable because the Continued 

Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. 

§ 1675c (repealed 2006), altered the distribution of collected duties, and because it was 

not obligated to pay a subsidy to the U.S. domestic industry. Before the Byrd 

Amendment, collected duties were placed into the general treasury. Pursuant to the Act 

however, upon liquidation of the dutiable goods, collected duties were placed into 

special accounts within the general treasury for disbursement on each antidumping duty 

or countervailing duty order. 19 U.S.C. § 1675c(e); 19 C.F.R. § 159.64 (2008). These 

funds would be distributed out of the accounts to affected domestic producers pro rata

as a “continued dumping and subsidy offset.” 19 U.S.C. § 1675c(a). Hartford claimed 

that this change in the law materially altered its bond agreements, which it claims 

2008-1071 2
required funds paid on the bonds to be distributed to the United States, and not to any 

individual or company. Hartford therefore argued that jurisdiction resided in the United 

States Court of International Trade pursuant to 28 U.S.C. § 1581(i) (2006) to determine 

the common law surety issue of the enforceability of the bonds.1

 

Hartford filed suit in the Court of International Trade in March 2007 asking the 

court to declare the bonds unenforceable. The court held that because the true nature 

of the action was a challenge to a customs charge protestable under 28 U.S.C. 

§ 1581(a),2

 jurisdiction pursuant to 28 U.S.C. § 1581(i) was not available unless 

Hartford showed that section 1581(a) was “manifestly inadequate.” The court 

dismissed, finding that section 1581(a) was adequate, and that Hartford should have 

timely pursued this administrative remedy. Hartford appealed to this court arguing that 

the Court of International Trade erred as a matter of law in finding jurisdiction under 

section 1581(a) and failing to find that section 1581(a) would have been manifestly 

 1

 28 U.S.C. § 1581(i) provides in relevant part: 

In addition to the jurisdiction conferred upon the Court of International Trade by 

subsections (a) - (h) of this section and subject to the exception set forth in subsection 

(j) of this section, the Court of International Trade shall have exclusive jurisdiction of any 

civil action commenced against the United States, its agencies, or its officers, that 

arises out of any law of the United States providing for— 

(1) revenue from imports or tonnage; 

(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons 

other than the raising of revenue; 

(3) embargoes or other quantitative restrictions on the importation of merchandise 

for reasons other than the protection of the public health or safety; or 

(4) administration and enforcement with respect to the matters referred to in 

paragraphs (1) - (3) of this subsection and subsections (a) - (h) of this section. 

2

 28 U.S.C. § 1581(a) provides: “The Court of International Trade shall have 

exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in 

whole or in part, under section 515 of the Tariff Act of 1930.” 

2008-1071 3
inadequate as a vehicle for relief, rendering section 1581(i) available. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2006). 

DISCUSSION 

“As an appellate body, we have inherent jurisdiction to determine whether a 

lower tribunal had jurisdiction.” Interspiro USA v. Figgie Int’l, Inc., 18 F.3d 927, 930 

(Fed. Cir. 1994) (citing C.R. Bard, Inc. v. Schwartz, 716 F.2d 874, 877 (Fed. Cir. 1983)). 

Because jurisdiction is an issue of law, our review is de novo. Xerox Corp. v. United 

States, 289 F.3d 792, 793-94 (Fed. Cir. 2002). 

The Court of International Trade has jurisdiction limited to specific cases 

enumerated in 28 U.S.C. § 1581. In subsection 1581(a), Congress set out an express 

scheme for administrative and judicial review of Customs’ actions. Int’l Custom Prods., 

Inc. v. United States, 467 F.3d 1324, 1326 (Fed. Cir. 2006). The system grants the 

court exclusive jurisdiction to hear cases contesting a protest denial in an administrative 

hearing before Customs pursuant to section 515 of the Tariff Act of 1930, 19 U.S.C. 

§ 1515. Id. at 1326-27. Section 1581(i) grants the court exclusive, residual jurisdiction 

to hear civil actions against the United States concerning importation revenues, tariffs 

and duties, embargoes, and administration and enforcement of matters involving 

section 515 of the Tariff Act and other matters not relevant to this case. While we have 

previously labeled subsection 1581(i) as a “catch all provision”, see, e.g., 

Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992), we 

have also consistently held that to prevent circumvention of the administrative 

processes crafted by Congress, jurisdiction under subsection 1581(i) may not be 

invoked if jurisdiction under another subsection of section 1581 is or could have been 

2008-1071 4
available, unless the other subsection is shown to be manifestly inadequate. Int’l

Custom Prods., 467 F.3d at 1327. Therefore, “where a litigant has access to [the Court 

of International Trade] under traditional means, such as 28 U.S.C. § 1581(a), it must 

avail itself of this avenue of approach by complying with all the relevant prerequisites 

thereto. It cannot circumvent the prerequisites of 1581(a) by invoking jurisdiction under 

1581(i)” unless such traditional means are manifestly inadequate. Am. Air Parcel 

Forwarding Co. v. United States, 718 F.2d 1546, 1549 (Fed. Cir. 1983) (quoting Am. Air 

Parcel Forwarding Co. v. United States, 557 F. Supp. 605, 607 (Ct. Int’l Trade 1983)). 

Jurisdiction pursuant to subsection 1581(a) is available to litigants challenging 

the denial of a protest under 19 U.S.C. § 1515 (2006). Protests against Customs 

decisions can be filed against “any clerical error, mistake of fact, or other inadvertence, 

whether or not resulting from or contained in an electronic transmission, adverse to the 

importer, in any entry, liquidation, or reliquidation, and, decisions of the Customs 

Service, including the legality of all orders and findings entering into the same” 

concerning seven enumerated matters including “(3) all charges or exactions of 

whatever character within the jurisdiction of the Secretary of the Treasury.” 19 U.S.C. 

§ 1514(a) (2006) (emphasis added). Absent such a protest, the Customs decision is 

final. Id. A protestant must file a protest of a decision, order, or finding described in 

subsection 1514(a) within 180 days after but not before the date of liquidation or 

reliquidation. Id. § 1514(c)(3). 

The trial court found that Customs’ 2006 demand for payment was a charge 

within the meaning of 19 U.S.C. § 1514(a) to which Hartford then had 180 days to 

protest before the action became final. Hartford does not challenge that the demand for 

2008-1071 5
payment was a charge. Therefore, if the claims had been timely, they could have been 

asserted in a protest before Customs. The protest would have offered the opportunity 

to present any defenses to the charge, and if the protest resulted in a denial, it would 

have garnered jurisdiction in the Court of International Trade pursuant to subsection 

1581(a). Because Hartford could have secured jurisdiction pursuant to subsection 

1581(a), the court therefore does not have jurisdiction pursuant to subsection 1581(i) to 

entertain a challenge to the charge without a showing that subsection 1581(a) was 

manifestly inadequate. 

Hartford, however, argues that it is not challenging the charge in the 2006 

demand for payment, but rather is asking the court to find the bonds unenforceable. 

Couching its claim as a contract dispute between principal, surety, and the government, 

it claims therefore that jurisdiction under subsection 1581(a) is not available because 

adjudicating the enforceability of surety bonds is outside the scope of Customs 

decisions protestable under to 19 U.S.C. § 1514(a).3

 Instead it alleges that its claims 

sound in common law state suretyship and contract law, outside of Customs’ authority 

 3

 Hartford refers to the entire list in 19 U.S.C. § 1514(a) in alleging that their 

claim is included in none of the enumerated categories: 

(1) the appraised value of merchandise; 

(2) the classification and rate and amount of duties chargeable; 

(3) all charges or exactions of whatever character within the jurisdiction of the 

Secretary of the Treasury; 

(4) the exclusion of merchandise from entry or delivery or a demand for redelivery to 

customs custody under any provision of the customs laws, except a 

determination appealable under section 1337 of this title; 

(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues 

contained therein, or any modification thereof, including the liquidation of an 

entry, pursuant to either section 1500 or section 1504 of this title; 

(6) the refusal to pay a claim for drawback; or 

(7) the refusal to reliquidate an entry under subsection (d) of section 1520 of this 

title. 

2008-1071 6
to determine. Accordingly, it argues, this contract dispute lies solely within the broad 

grant of residual jurisdiction under subsection 1581(i). This argument fails for a number 

of reasons. 

While this court has described subsection 1581(i) as a “broad residual 

jurisdictional provision,” we have in the same breath said that “the unambiguous 

precedents of this court make clear that its scope is strictly limited, and that the protest 

procedure cannot be easily circumvented.” Int’l Custom Prods., 467 F.3d at 1327 

(internal quotations omitted). To prevent usurpation of the protest scheme Congress 

has crafted, it is of utmost importance that mere recitation of a basis for jurisdiction not 

be controlling. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 

2006). Just as we must look to the true nature of the action in a district court in 

determining jurisdiction on appeal, the trial court was correct to look to the true nature of 

the action in determining jurisdiction at the outset. See id. The true nature of the action 

is that Hartford seeks to avoid the payment of the demand. The unenforceability of the 

bonds it alleges in its complaint is merely a theory of defense upon which Customs may 

grant the relief of cancelling the charge. In other words, despite alleging otherwise, 

Hartford is challenging a charge. As described supra, the proper mechanism to 

challenge a charge is via a protest before Customs pursuant to 19 U.S.C. § 1514(a)(3). 

Re-casting the case as a request to declare the bonds unenforceable is merely “artful 

pleading.” Cf. Norsk Hydro, 472 F.3d at 1355. Hartford could have brought its claim 

through the protest mechanism, the denial of which would have triggered review 

pursuant to subsection 1581(a). Its failure to do so renders subsection 1581(i) 

unavailable. 

2008-1071 7
Hartford’s argument that determining the enforceability of the bonds is outside 

the scope of Customs’ powers is also without merit. Again couching its claim as a 

contract issue concerning private rights, it relies on Bank One Chic., N.A. v. Midwest 

Bank & Trust Co., 516 U.S. 264 (1995), to support its premise that agencies generally 

do not have the authority to adjudicate private claims. This is a false premise, however, 

because here the United States is a party to the action as the obligee on the bond, just 

as Hartford named the United States as the defendant. The situations described in 

Bank One Chic. concerned a bank attempting to sue another bank for dishonoring a 

check before the Federal Reserve Board, a creditor attempting to sue an insolvent 

savings and loan association before the Federal Savings and Loan Insurance Corp., 

and frequent flyers attempting to sue an airline before the Department of Transportation. 

Bank One Chic., 516 U.S. at 274-75; see also Coit Independence Joint Venture v. 

FSLIC, 489 U.S. 561 (1989); Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995). Those 

cases are not analogous. 

To the contrary, Customs does have broad authority over the administration and 

forms of bonds, including determining their validity and enforceability and a surety’s 

liability pursuant to the bonds. Am. Pillowcase & Lace Co. v. United States, 20 Cust. Ct. 

53, 61 (1948); see also 19 U.S.C. §§ 66, 1623 (2006). It has congressional 

authorization to “prescribe the conditions and form” of bonds. 19 U.S.C. § 1623(b). 

Customs has the authority that Hartford seeks to cancel any bond or a charge against a 

bond “in the event of a breach of any condition of the bond, upon the payment of such 

lesser amount or penalty or upon such other terms and conditions as [Customs] may 

deem sufficient.” Id. § 1623(c) (emphasis added); see also 19 C.F.R. § 113.51 (2008). 

2008-1071 8
This broad language clearly shows the ability of Customs to cancel a bond or a charge 

completely if a breach that should render the bond unenforceable occurs. 

In St. Paul Fire & Marine Insurance Co. v. United States, 959 F.2d 960 (Fed. Cir. 

1992), a surety sought to invoke jurisdiction in the Court of International Trade to nullify 

its bond obligations. It argued that the bonds should not be enforceable because the 

government had breached its duties by failing to disclose its investigations into the 

principal’s fraudulent conduct, causing it to insure a risk it would not otherwise have 

insured. Id. at 961. The trial court held that the demand on the bond was protestable 

as a charge within the meaning of 19 U.S.C. § 1514(a)(3), and we agreed stating, “there 

is . . . no question that a surety may protest the government’s demand for payment on 

its bond” provided it files such protest within the allowable time, now 180 days. Id. at 

963;4 see also 19 U.S.C. § 1514(c). 

Hartford alleges that the protest remedy would have been manifestly inadequate 

under subsection 1581(a) because interpretation of surety and contract law are outside 

the authority and competency of Customs. To be manifestly inadequate, the protest 

must be an exercise in futility, or “incapable of producing any result; failing utterly of the 

desired end through intrinsic defect; useless, ineffectual, vain.” Oxford English 

Dictionary (2d ed. 1989); cf. Int’l Custom Prods., 467 F.3d at 1328 (discussing the futility 

of a protest). Hartford claims that it is not challenging the statutory or regulatory terms 

of the bond, but rather that the contract between the importer, the government, and 

 4

 We did conclude in that case that jurisdiction was proper under subsection 

1581(i) however, because the surety’s claim did not accrue, that is, the investigation into 

the principal’s fraudulent activity did not surface, until after the protest allowance period 

had expired. Therefore, the surety was not circumventing the protest procedure 

required of subsection 1581(a). St. Paul Fire & Marine Ins. Co., 959 F.2d at 964. 

2008-1071 9
2008-1071 10

itself has been materially altered, thus releasing it from its obligations under common 

law suretyship and contract principles. It then argues that pursuing a remedy through a 

protest would have been futile. But Customs has the authority to cancel a bond or a 

charge against a bond in the event of the breach of any condition of the bond, the 

ultimate remedy Hartford seeks. 19 U.S.C. § 1623(c). 

Hartford never filed a protest to the charge. As we said in United States v. 

Uniroyal, Inc., 687 F.2d 467, 475 (C.C.P.A. 1982), a belief that it had no remedy under 

subsection 1581(a) would not make that remedy inadequate. Hartford simply made no 

attempt to use it. We are also not persuaded by Hartford’s unsupported suspicion that 

because Customs is financially interested in the result of the protest, it may be biased 

towards denying the remedy it seeks. Its reliance on McCarthy v. Madigan, 503 U.S. 

140 (1992), is misplaced because there, the Court stated that such a protest may be 

inadequate where “the administrative body is shown to be biased or has otherwise 

predetermined the issue before it.” Id. at 148 (emphasis added). Hartford has made no 

such showing. “Plaintiff cannot take it upon itself to determine whether it would be futile 

to protest or not. In order to protect itself, a protest should have been filed . . . .” Int’l

Custom Prods., 467 F.3d at 1328. 

CONCLUSION 

 Accordingly, the judgment of the United States Court of International Trade is 

affirmed. 

AFFIRMED