Slip Op. 19-

UNITED STATES COURT OF INTERNATIONAL TRADE 

ASPECTS FURNITURE 

INTERNATIONAL, INC., 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant. 

Before: Mark A. Barnett, Judge 

Court No. 18-00222 

OPINION AND ORDER

[Defendant’s partial motion to dismiss for lack of subject matter jurisdiction is denied.] 

Dated: June 21, 2019

Robert W. Snyder and Leanne R. E. Torres, Law Offices of Robert W. Snyder, of Irvine, 

CA, for Plaintiff. 

Marcella Powell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, for Defendant. With her on the brief were 

Amy M. Rubin, Assistant Director, and Joseph H. Hunt, Assistant Attorney General. 

Barnett, Judge: In this action, Plaintiff, Aspects Furniture International, Inc. 

(“Plaintiff” or “AFI”), contests the denial of two protests1 challenging U.S. Customs and 

Border Protection’s (“CBP” or “Customs”) allegedly untimely liquidation of ten entries 

associated with those protests. See generally Compl., ECF No. 2. The matter is before 

the court on Defendant’s (“the Government”) partial motion to dismiss the complaint for 

1 AFI contests the denial of Protest No. 5201-18-100098, covering nine entries, and 

Protest No. 5201-18-100100, covering one entry. Summons, ECF No. 1; see also

Confidential Protest Number 5201-18-100098 (“1st Subject Protest”), ECF No. 9-1; 

Confidential Protest Number 5201-18-100100 (“2nd Subject Protest”), ECF No. 9-2. 
Court No. 18-00222 Page 2 

lack of subject matter jurisdiction pursuant to United States Court of International Trade 

(“USCIT” or “CIT”) Rule 12(b)(1) with respect to eight entries covered by the 1st Subject 

Protest. See Def.’s Partial Mot. to Dismiss for Lack of Jurisdiction (“Def.’s Mot.”), ECF 

No. 14. AFI opposes the motion. See Pl. Aspect Furniture Int’l, Inc.’s Opp’n to Def. 

United States’ Partial Mot. to Dismiss for Lack of Jurisdiction [and] Mem. of P&A in 

Supp. (“Pl.’s Opp’n”), ECF No. 18; see also Decl. of Robert W. Snyder (“Snyder Decl.”) 

and Exs. In Supp. Thereof (“Pl.’s Ex.”), ECF No. 18-1. For the reasons discussed 

herein, Defendant’s motion is denied. 

BACKGROUND

The imported merchandise at issue in this case consists of wooden bedroom 

furniture from the People’s Republic of China (“the PRC” or “China”). Compl. ¶ 7. AFI 

is the importer of record. Id. ¶ 4. On various dates in January, February, July, and 

December of 2014, AFI made ten entries of wooden bedroom furniture. See 1st Subject 

Protest at 6, 19, 29, 40, 50, 61, 72, 80, 91 (entry summary headers); 2nd Subject 

Protest at 5 (entry summary header).2

On April 11, 2016, the U.S. Department of Commerce (“Commerce”) published 

the final results of its tenth administrative review of the antidumping duty order on 

wooden bedroom furniture from China. Compl. ¶ 11 (citing Wooden Bedroom Furniture 

From the People’s Republic of China, 81 Fed. Reg. 21,319 (Dep’t Commerce Apr. 11, 

2016) (final results and final determination of no shipments, in part; 2014 admin. review) 

 

2 For ease of reference, the court uses the ECF pages numbers stamped on the entry 

summaries appended to the protest information. 
Court No. 18-00222 Page 3 

(“Final Results”)). The review covered 18 companies; Commerce determined that 11 

companies had no shipments during the period of review, and the remaining 7 did not 

establish their eligibility for a separate rate.3 Final Results, 81 Fed. Reg. at 21,319-20. 

Commerce indicated that it would instruct CBP to liquidate suspended entries of subject 

merchandise at the assessment rate of 216.01 percent, which is the rate assigned to 

the PRC-wide entity. Id. at 21,320. 

On April 27, 2016, the CIT preliminarily enjoined liquidation of certain entries in 

connection with a lawsuit filed to challenge the Final Results. Compl. ¶¶ 12-13; see 

also Am. Furniture Mfrs. Comm. for Legal Trade, et al. v. United States, Court No. 16-

00070 (CIT March 13, 2017). The case was ultimately dismissed on March 13, 2017. 

Compl. ¶ 16. 

On November 24, 2017, CBP liquidated nine entries (Entry Nos. W69-3325900-

5, W69-3325953-4, W69-3326026-8, W69-3329300-4, W69-3329302-0, W69-3329955-

5, W69-3343109-1, W69-3345392-1, and W69-3368746-0). Compl. ¶ 19; Snyder Decl. 

¶ 3; Pl.’s Ex. 1 at 3. On December 1, 2017, CBP liquidated one additional entry (Entry 

No. W69-3327386-5). Compl. ¶ 20. 

3 In antidumping duty proceedings involving a nonmarket economy country, such as 

China, “Commerce presumes all respondents are government-controlled and therefore 

subject to a single country-wide rate.” Ad Hoc Shrimp Trade Action Comm. v. United 

States, 802 F.3d 1339, 1353 (Fed. Cir. 2015). A respondent may rebut that 

presumption and obtain a “separate” antidumping duty rate by demonstrating the 

absence of both de jure (in law) and de facto (in fact) government control over its export 

activities. See id. at 1353. 
Court No. 18-00222 Page 4 

On April 6, 2018, AFI filed the 1st Subject Protest. Compl. ¶ 21; 1st Subject 

Protest at 1. On April 16, 2018, AFI filed the 2nd Subject Protest. Compl. ¶ 22; 2nd 

Subject Protest at 1. 

In the narrative portion of the 1st Subject Protest, AFI stated that it: 

respectfully protests [CBP’s] noticed rate advance and interest assessed 

against Entry No. W69-3325900-5, as liquidated on 11/24/2017. [AFI] 

disputes the amount of interest that [CBP] has assessed on its subject 

goods and maintains that said goods are not subject to anti-dumping and 

countervailing liquidation duties due to the construction of the imported 

product. 

Lastly, as the liquidation date for Entry No. W69-3325900-5 did not occur 

until 11/24/2017, the rate advance noticed and applied to this importer’s 

previously entered subject goods by CBP is untimely. Such liquidation is 

not in compliance with 19 U.S.C. § 1504(d), after removal of suspension of 

liquidation for wooden bedroom furniture imported in 2014 from 

manufacturer Shanghai Jian Pu Import & Export Co., Ltd. [(“Jian Pu”)], in 

the [PRC], occurred on or about April 11, 2016, in accordance with the 

[Final Results]. While an injunction on liquidation of the aforementioned 

goods was later imposed due to USCIT Case No. 16-00070 (sometime 

after April 26, 2016), that injunction was dissolved on 05/12/2017 after 

determination of USCIT Case No. 16-00070, as reflected in CBP Message 

No. 7150306. As a result, the asserted liquidation date of 11/24/2017 

occurred more than six (6) months after receiving the notice of the 

removal of the suspension of liquidation; and more than six (6) months 

after the injunction was dissolved. 

Therefore, in consideration of the foregoing, [AFI] asserts it should be 

granted relief from the noticed rate advance and assessed interest by 

CBP for Entry No. W69-3325900-5 due to non-conformance with 19 

U.S.C. § 1504(d). 

1st Subject Protest at 1, 5. AFI used the “Add Additional Entry Numbers” feature in 

CBP’s Automated Commercial Environment (“ACE”) system to identify eight additional 

entry numbers (“the Contested Entries”) with the protest; to wit, Entry Nos. W69-

3325953-4, W69-3326026-8, W69-3329300-4, W69-3329302-0, W69-3329955-5, W69-
Court No. 18-00222 Page 5 

3343109-1, W69-3345392-1, and W69-3368746-0, along with their corresponding dates 

of entry and liquidation. See Pl.’s Ex. 1 at 3; Pl.’s Opp’n at 1; Pl.’s Opp’n at 6 

(discussing Customs’ guidelines).4 

CBP denied AFI’s protests on May 10, 2018. Compl. ¶¶ 21-22; 1st Subject 

Protest at 1; 2nd Subject Protest at 1. According to CBP, AFI provided “[i]nsufficient 

information . . . about the ‘construction of the imported product’” for CBP to reevaluate 

the propriety of antidumping duties. See, e.g., 1st Subject Protest at 2. CBP did not 

address AFI’s challenge to the timeliness of liquidation. See id. On October 27, 2018, 

AFI timely initiated this action challenging the denial of its protests. See Summons; 

Compl. The court has jurisdiction to consider this motion pursuant to 28 U.S.C. 

§ 1581(a).5

DISCUSSION

I. Legal Standard

To adjudicate a case, a court must have subject-matter jurisdiction over the 

claims presented. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 

4 Plaintiff points to several sources of information, including, for example, U.S. Customs 

and Border Protection, Office of Trade, Quick Reference Guide: Automated Commercial 

Environment (ACE): ACE Protest for Trade (2016) (“ACE Guide”), available at 

https://www.cbp.gov/sites/default/files/assets/documents/2016-Aug/ACE-EntrySum%20-

%20Trade%20-%20Protest%20QRG_2.pdf (last visited June 13, 2019). The ACE 

Guide instructs importers to include the “lead entry number” in the “Entry Number” field, 

and, if appropriate, to add additional entry numbers using the “Add Additional Entry 

Numbers” feature. ACE Guide 19. 

5 “A court always has jurisdiction to determine jurisdiction . . . .” Bunting v. Mellen, 541 

U.S. 1019, 1026 (2004) (Scalia, J., dissenting) (citing United States v. Mine 

Workers, 330 U.S. 258, 291 (1947)); see also Bush v. United States, 717 F.3d 920, 928 

(Fed. Cir. 2013). 
Court No. 18-00222 Page 6 

(1998). A plaintiff bears the burden of establishing subject-matter jurisdiction. See 

Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). When, 

as here, the “motion challenges a complaint’s allegations of jurisdiction, the factual 

allegations in the complaint are not controlling and only uncontroverted factual 

allegations are accepted as true.” Shoshone Indian Tribe of Wind River Reservation, 

Wyo. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012).6 To “resolv[e] these 

disputed predicate jurisdictional facts, a court is not restricted to the face of the 

pleadings, but may review evidence extrinsic to the pleadings.” Id. (internal quotation 

marks and citation omitted). 

In this case, the Government challenges the existence of jurisdiction over the 

Contested Entries. See Def.’s Mot. at 2-3, 5-6. Therefore, the court may consider 

extrinsic evidence, if necessary. Shoshone Indian Tribe, 672 F.3d at 1030. 

II. Analysis

A. Requirements for Jurisdiction

Pursuant to 28 U.S.C. § 1581(a), the court has “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,” 19 U.S.C. § 1515. “[A] prerequisite to [CIT] jurisdiction . . 

. is the denial of a valid protest.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 

1365 (Fed. Cir. 2006) (second alteration in original) (citation omitted). A valid protest 

6 In contrast, when the motion challenges the sufficiency of the pleadings, the court 

assumes that the allegations within the complaint are true. H & H Wholesale Servs., 

Inc. v. United States, 30 CIT 689, 691, 437 F. Supp. 2d 1335, 1339 (2006). 
Court No. 18-00222 Page 7 

satisfies the requirements set forth in 19 U.S.C. § 1514(c)(1) and 19 C.F.R. § 174.13(a). 

Koike Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed. Cir. 1999) (per curiam). 

Pursuant to 19 U.S.C. § 1514, 

[a] protest must set forth distinctly and specifically—(A) each decision . . .

as to which protest is made; (B) each category of merchandise affected by

each decision . . .; (C) the nature of each objection and the reasons

therefor; and (D) any other matter required by [CBP] by regulation.

19 U.S.C. § 1514(c)(1). Customs implementing regulations provide that a protest must 

contain, inter alia: 

(1) The name and address of the protestant, i.e., the importer of record or

consignee, and the name and address of his agent or attorney if signed by

one of these; (2) The importer number of the protestant. If the protestant is

represented by an agent having power of attorney, the importer number of

the agent shall also be shown; (3) The number and date of the entry;

(4) The date of liquidation of the entry, or the date of a decision not

involving a liquidation or reliquidation; (5) A specific description of the

merchandise affected by the decision as to which protest is made; (6) The

nature of, and justification for the objection set forth distinctly and

specifically with respect to each category, payment, claim, decision, or

refusal . . . . 

19 C.F.R. § 174.13(a)(1)-(6). When, as here, multiple entries are at issue, 

[a] single protest may be filed with respect to more than one entry with

CBP, either at any port or electronically, if all such entries involve the

same protesting party, and if the same category of merchandise and a

decision or decisions common to all entries are the subject of the

protest. In such circumstances, the entry numbers, dates of entry, and

dates of liquidation of all such entries should be set forth as an attachment

to the protest.

Id. § 174.13(b). 

Protests must “be construed generously in favor of finding them valid, but [] a protest is 

defective if it gives no indication of the reasons why the collector’s action is alleged to 
Court No. 18-00222 Page 8 

be erroneous.” Saab, 434 F.3d at 1365-66 (internal quotation marks and citation 

omitted). 

B. Parties’ Contentions

In its motion, the Government seeks dismissal on the basis that AFI filed a valid 

protest only as to Entry No. W69-3325900-5 and failed to “seek relief for any other 

entry.” Def.’s Mot. at 2; see also Def.’s Reply Mem. in Further Supp. of Partial Mot. to 

Dismiss (“Def.’s Reply”) at 6, ECF No. 22.7 According to the Government, AFI never 

protested the liquidation of Entry Nos. W69-3325953-4, W69-3326026-8, W69-

3329300-4, W69-3329302-0, W69-3329955-5, W69-3343109-1, W69-3345392-1, and 

W69-3368746-0, Def.’s Mot. at 2, because the 1st Subject Protest “expressly cover[ed]” 

Entry No. W69-3325900-5 alone and “cannot be expanded to cover liquidations that 

were never challenged or even mentioned in the protest,” id. at 3; see also id. at 5-6 

(the 1st Subject Protest “is directed to a single entry” and does not satisfy statutory and 

regulatory requirements for the eight additional entries). 

AFI responds that the Government “failed to disclose the critical fact that” AFI 

listed the Contested Entries using the “Add Additional Entry Numbers” function in CBP’s 

ACE system, which is a valid method of protesting multiple entries in one protest. Pl.’s 

Opp’n at 5. According to AFI, it is not necessary to explicitly list additional entry 

7 In its reply, the Government characterizes the 1st Subject Protest as deficient with 

respect to Entry No. W69-3325900-5. Def.’s Reply at 6. However, the Government 

goes on to assert that “Entry No. W69-3325900-5 is the only entry that was properly 

protested,” and seeks dismissal as to the eight Contested Entries associated with the 

1st Subject Protest. Id. Accordingly, the court addresses those entries. 
Court No. 18-00222 Page 9 

numbers in the narrative portion of the protest; rather, CBP’s regulation provides that 

additional entries are to “be set forth as an attachment to the protest.” Id. at 8 (quoting 

19 C.F.R. § 174.13(b)). When “the requirements have been met as to a lead entry,” AFI 

asserts, “they have also been met as to the other entries attached to a protest.” Id. at 9; 

see also id. at 10-12 (discussing compliance with statutory and regulatory protest 

requirements). 

The Government replies that listing additional entry numbers in the ACE system 

is insufficient to properly protest the liquidation of those entries. Def.’s Reply at 2-3. 

According to the Government, while subsection (b) of CBP’s regulation “eliminates the 

burden of filing a separate protest for each entry,” protestants must nevertheless 

“comply[] with the specificity requirements of [19 U.S.C. § 1514] with respect to all 

entries covered by a protest.” Id. at 3. The Government contends that the 1st Subject 

Protest is not specific as to the Contested Entries because it is limited to Entry No. 

W69-3325900-5 and does not indicate that the entry is representative of all entries. Id.

at 4. Through its narrative, the Government asserts, “AFI conveyed that the protest 

language should be construed narrowly” and AFI “should be held to the language of its 

protest.” Id. (“[W]here an importer states with specificness his objections he is limited 

thereby. He is bound by the allegations of his protest.”) (quoting United States v. Troy 

Laundry Mach. Co., 5 Ct. Cust. App. 430, 431 (1914)). The Government further points 
Court No. 18-00222 Page 10 

to statements made in connection with AFI’s application for further review to bolster its 

contention the Contested Entries were never properly protested. Id. at 5.8

C. The Government’s Motion is Denied; the Court Has Jurisdiction Over

the Contested Entries Pursuant to 28 U.S.C. § 1581(a)

The Government’s motion is premised on the factually incorrect notion that AFI 

never protested the liquidation of the eight Contested Entries. See Def.’s Mot. at 2 

(“The protest did not seek relief for any other entry. . . . [T]he liquidation of [the 

Contested Entries] were [sic] never protested.”); id. at 3 (A protest that expressly covers 

the liquidation of a single entry cannot be expanded to cover liquidations that never 

challenged or even mentioned in the protest.”) (italicization added). The Government 

shifts gears in its reply, asserting the “absence of a valid protest” in connection with the 

Contested Entries. See Def.’s Reply at 1-2 (emphasis added).9 The Government 

argues that compliance with 19 U.S.C. § 1514—in particular, its specificity 

requirement—requires protestants to discuss each protested entry in the narrative 

portion of the protest or otherwise indicate that the cited entry is “representative of all 

the entries.” Id. at 3-4. Case law on the requirements for properly protesting multiple 

8 AFI submitted an application for further review of the 1st Subject Protest, which was 

denied by CBP. See 1st Subject Protest at 3. In its request for reconsideration of the 

denial, AFI referenced “the entry” CBP allegedly failed to timely liquidate. See id.; Def.’s 

Reply at 5. 

9 The protest information on the court docket explicitly references all nine entries, see

1st Subject Protest at 1-2, and a printout from CBP’s ACE system shows that the 

protest was denied as to all nine entries, see Pl.’s Ex. 1 at 3. “The test for determining 

the sufficiency of a protest under [19 U.S.C. § 1514]” is, however, “an objective one,” 

Mattel, Inc. v. United States, 72 Cust. Ct. 257, 266, 377 F. Supp. 955, 963 (1974); thus, 

CBP’s apparent awareness that the Contested Entries were included in the protest is 

not dispositive of the jurisdictional question. 
Court No. 18-00222 Page 11 

entries in a single protest is scarce.10 Nevertheless, the court rejects the Government’s 

arguments and finds that it has jurisdiction over the eight Contested Entries. 

In 1993, the Customs Modernization Act (“Mod Act”)11 made several changes to 

the customs laws. Those changes included the implementation of “automated customs 

transactions” and the introduction of “the concept of ‘informed compliance,’” which 

represents the idea “that importers have a right to be informed about customs rules and 

regulations, as well as interpretive rulings, and to expect certainty that [CBP] will not 

unilaterally change the rules without providing importers proper notice and an 

opportunity for comment.” S. Rep. No. 103–189 at 63-64 (1993).12 

10 Plaintiff relies on Lykes Pasco, Inc. v. United States, 22 CIT 614, 615, 14 F. Supp. 2d 

748, 749 (1998), for the proposition that the court “will not look to the narrative 

statement to determine the entries intended to be covered by a protest,” but will “instead 

look[] only to the list of additional entries.” Pl.’s Opp’n at 8-9. Lykes Pasco is factually 

distinguishable and legally inapposite because it does not address the specificity 

requirement in the context of multiple entries protested electronically pursuant to 19 

C.F.R. § 174.13(b).

11 The Mod Act was enacted as Title VI to the North American Free Trade Agreement

(“NAFTA”) Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993).

12 The Mod Act substantially amended 19 U.S.C. § 1625, which now directs CBP to

make available written or electronic materials providing the “advice necessary for

importers and exporters to comply with the Customs laws.” 19 U.S.C. § 1625(e); see

also Precision Specialty Metals, Inc. v. United States, 25 CIT 1375, 1388, 182 F. Supp.

2d 1314, 1328 (2001). Then-Commissioner of CBP (formerly the U.S. Customs

Service) framed the amendment in terms of the “shared responsibility” between

Customs and the trade community. Precision Specialty Metals, 25 CIT at 1388, 182 F.

Supp. 2d at 1328 (quoting Customs Modernization and Informed Compliance Act:

Hearing on H.R. 3935 Before the Subcomm. on Trade of the H. Comm. on Ways and

Means, 102d Cong. 91 (1992) (statement of Commissioner Carol Hallett, United States

Customs Service)). Shared responsibility means that “Customs must do a better job of

informing the trade community of how Customs does business; and the trade

community must do a better job to assure compliance with U.S. trade rules.” Id. To that

end, “informed compliance” means that “[i]mporters have the right to be informed about

Customs rules and regulations, and its interpretive rulings and directives, and to expect
Court No. 18-00222 Page 12 

Here, AFI adhered to Customs’ regulatory provisions regarding protesting 

multiple entries together when it included Entry No. W69-3325900-5 as the “lead entry” 

and manually added the Contested Entries in the ACE system along with their 

respective dates of entry and liquidation. See Pl.’s Ex. 1 at 3; Pl.’s Opp’n at 6; supra

note 4. In this way, AFI asserted that the regulatory conditions for protesting multiple 

entries together in a single protest were met. See 19 C.F.R. § 174.13(b) (requiring 

entries protested together to involve the same protestant, category of merchandise, and 

decision(s) forming the basis of the protest).13 When considered as a whole and in 

accordance with the “general rule that customs protests are to be construed generously” 

and deemed “defective” only when they afford “no indication” of the basis for the protest, 

Saab, 434 F.3d at 1365-66 (internal quotation marks and citation omitted), it is readily 

apparent that AFI’s grounds for protesting Entry No. W69-3325900-5 apply likewise to 

the Contested Entries. AFI’s protest does not run afoul of the specificity required by 19 

U.S.C. § 1514 or merit the “severe” consequence of denial of subject matter jurisdiction 

over the Contested Entries. See Estee Lauder, Inc. v. United States, 35 CIT 258, 264–

65 (2011) (citation omitted); Mattel, 72 Cust. Ct. at 262, 377 F. Supp. at 960 (the court’s 

“liberal posture” towards protest sufficiency holds “that, however cryptic, inartistic, or 

poorly drawn a communication may be, it is sufficient as a protest for purposes of [19 

U.S.C. § 1514] if it conveys enough information to apprise knowledgeable officials of the 

certainty that the ground rules would not be unilaterally changed by Customs without 

the proper notice and an opportunity to respond.” Id. 13 The Government does not argue that the Contested Entries were ineligible for 

inclusion in the 1st Subject Protest because of differences in the enumerated criteria. 
Court No. 18-00222 Page 13 

importer’s intent and the relief sought”). This is particularly true given AFI’s compliance 

with CBP’s guidance in this area. See supra note 12 (discussing CBP’s obligation to 

provide clear and consistent guidance to importers to promote compliance with the 

Customs laws). 

The court finds that the Government’s interpretation of CBP’s regulation is 

unreasonable.14 The Government asserts that the court should disregard the attached 

list of entry numbers, entry dates, and liquidation dates and consider only the entry 

number identified in the narrative as meeting the specificity requirements of 19 C.F.R. 

§ 174.13(a)(1)-(6). See Def.’s Reply at 3-4. If, however, section 174.13(a) was

interpreted as requiring an enumeration of every entry number, entry date, and 

liquidation date in the narrative portion of the protest, any identification of additional 

entry numbers, entry dates, and liquidation dates by means of an attachment to the 

protest pursuant to section 174.13(b) would be superfluous. To the extent that the 

Government’s objection is that AFI did not include a statement explicitly linking the 

narrative to the eight entries in the attachment, such an express statement is not 

required by the regulations and the linkage is adequately inferred by the inclusion of the 

14 The Government’s interpretation is not entitled to deference pursuant to Auer v. 

Robbins, 519 U.S. 452 (1997). While Auer calls for deference to an agency’s “fair and 

considered” interpretation of its own ambiguous regulation, 519 U.S. at 461-62, there 

are limits to this rule, see Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 

(2012) (Auer deference “does not apply in all cases”). The Government’s interpretation 

of 19 C.F.R. § 174.13 was not adopted by CBP when it denied AFI’s protests and there 

is no indication that it represents CBP’s “fair and considered judgment on the matter in 

question.” Id. (quoting Auer, 519 U.S. at 462). Instead, the interpretation “is nothing 

more than a ‘convenient litigating position’” adopted by the U.S. Department of Justice 

in its reply. Id. (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213 (1988). 
Court No. 18-00222 Page 14 

entries in the attachment. Moreover, any differences in the enumerated criteria 

between the lead entry and those entries identified in the attachment would provide 

CBP a basis for denying the protest as to such entries. Thus, the court rejects the 

Government’s interpretation of the regulation as unreasonable. 

The Government’s reliance on Troy Laundry lacks merit. See id. at 4. While an 

importer that protests a classification decision by pointing to a particular tariff provision 

may waive its ability to later assert the propriety of a different tariff provision, Troy 

Laundry, 5 Ct. Cust. App. at 431, that is not what happened here. AFI is not asserting 

any objection not discussed in its protest. The Government’s reliance on AFI’s request 

for reconsideration of CBP’s denial of its application for further review of its protest also 

lacks merit. See Def.’s Reply at 5. Further review of a protest is governed by different 

regulatory provisions (19 C.F.R. §§ 174.23-174.25) and has no bearing on the validity of 

the underlying protest or this court’s jurisdiction over the underlying protest. 

CONCLUSION & ORDER

For the reasons discussed herein, the Government’s partial motion to dismiss for 

lack of subject matter jurisdiction is hereby DENIED. 

/s/ Mark A. Barnett 

Mark A. Barnett, Judge 

Dated: __June 21, 2019 

New York, New York