NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1531

INTERNATIONAL CUSTOM PRODUCTS, INC., Plaintiff-Appellant,

v.
UNITED STATES, Defendant-Appellee.
Simeon M. Kriesberg , Mayer, Brown, Rowe & Maw LLP, of Washington, DC, for plaintiff-appellant. With him on the brief were Andrew A. Nicely and Priti Seksaria Agrawal

. Edward F. Kenny , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Departm ent of Justice, of New York, New York, for defendant-appellee. With him on the brief were Peter D. Keisler , Assistant Attorney General and David M. Cohen , Director, of Washington, DC, Also on the brief was Barbara S. Williams , Attorney in charge, International Trade Field Office, United States Department of Justice, of New York, New York . Of counsel on the brief was Yelena Slepak , Attorney, Office of Assistant Chief Counsel, United St ates Customs and Bord er Protection, of New York, New York. Appealed from: United States Court of International Trade Judge Richard K. EatonNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1531

INTERNATIONAL CUSTOM PRODUCTS, INC., Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________________

DECIDED: January 25, 2007

__________________________

Before MICHEL, Chief Judge , DYK and PROST, Circuit Judges

. MICHEL, Chief Judge. International Custom Products, Inc. (“ICP ”) appeals from a fina l judgment of the Court of International Trade (“C IT”) dismissing Count I of it s complaint under 28 U.S.C. § 1581(i) for lack of subject matter jurisdiction. Int’l Custom Prods., Inc. v. United States , No. 05-00615 (Ct. Int’l Trade July 18, 2006) . In an unpublish ed order, the CIT held that it did not have subject matter ju risdiction over Count I of ICP’s complaint because the case should have been broug ht under 28 U.S.C. § 1581(a) instead. Int’l Custom Prods., Inc. v. United States , No. 05-00615 (Ct. Int’l Trade June 20, 2006) (“ Order ”). Because the appellant’s arguments in support of reversal of the CIT’sjudgment are foreclosed by this court’s decision in Int’l Custom Prods., Inc. v. United States , 467 F.3d 1324 (Fed. Cir. 2006), we affirm the CIT’s finding of no jurisdiction under 28 U.S.C. § 1581(i).
I ICP is an importer and distributor of a milk-fat based product that is used as an ingredient in sauces, salad dres sings, dips, and other food products. Prior to importing its product, ICP requested t hat the United States Bur eau of Customs and Boarder Protection (“Customs”) issue an advance classi fication letter cla ssifying ICP’s product as a “sauce and preparation therefor” under the Harmonized T a riff Schedule of the United States (“HTSUS”). Customs gr anted the request and issued an advanc e classification letter in J anuary 1999, classify ing ICP’s pr oduct as a “white sauce” under HTSUS 2103.90.9091. In Apr il 1999, ICP commenced importation of its product. In April 2005, Customs iss ued a Notice of Action notify ing ICP t h at Customs was reclassifying its product under HTSUS 0405.20.3000 as a “dairy spread.” On May 6, 2005, ICP commenced an act i on under 28 U. S. C. § 1581(i) against Customs challenging the validity of t he Notice of Action. In June 2005, the CIT found t he Notic e of Action to be null and void for failure of the agency to follow the prescribed statutory and regulat o ry procedures for lawf ully revoking an advance ruling. Int’l Custom Prods., Inc. v. United States , 374 F. Supp. 2d 1311, 1326 (Ct. In t’l Trade 2005). T h e CIT als o held that the advanc e classific a tion letter re mained “in full force and effect” until modified or revoked in complianc e with Cu stoms’ own r e gulati ons and procedures. Id.
at 1333.

2006-1531 2The gover nment appealed and on October 17, 2006, this court reversed the CIT’s holding of juris d iction, vacated its j udgment on the merits, and remanded for dismissal of the complaint. Int’l Custom Prods. , 467 F.3d at 1326. We held that the remedy provided by 28 U.S. C. § 1581(a) was not m anifestly inadequate, and accordingly , the CIT lacked jurisdiction unde r § 1581(i) to determine the validity of the Notice of Action. Id. at 1327. This court rejected ICP’ s allegations of financial hardship and lack of prospectiv e relief under 28 U.S.C. § 1581(a), as well as ICP’s contention that delays inherent in pr oceeding under § 1581(a) would render any available relief manifestly inadequate due to its fi nancial dist ress. With regard to the latter, we held that “delays inherent in the stat utory process do not render it manifestly inadequate,” and that Congress provided for an accelerated protest disposition process which wa s available t o ICP for some of its entries. Id

. at 1327-28. Finally, since the CIT lacked jurisdiction, this court held that it did not have jurisdiction to reac h the merits of ICP’s complaint, i.e., whether Customs’ Notice of Action v i olated 19 U.S.C. § 1625(c). Id. at 1328. In the interim between the government ’s notice of appeal and this court’s decision in International Custom Products , Customs publis hed a Proposed Revocation notice in the Customs Bulletin in August 2005 in accordance wit h the procedures set forth in 19 U.S.C. § 1625(c) . Customs subsequently issued a Revocation letter on November 2, 2005 reclassifying ICP’s pr oduct as a “diary spread” under HTSUS 0405.20.3000. The Revocation became effective on January 2, 2006. On Novem ber 14, 2005, ICP filed another c o mplaint against Customs before the CIT. In Count I of the complaint, ICP as serted that as a matter of law, the 1999

2006-1531 3classification of its product as a “white s auc e” was correct and the 2005 reclassification thereof as a “dairy spread” was incorrect and vi olated U.S. tariff cla ssification law. The CIT ordered briefing on the i ssue of jurisdiction, and the gov ernment filed a motion t o dismiss all counts of the complaint for lack of subject matter jurisdiction. ICP argued that the court had jurisdiction under 28 U. S.C. § 1581(i) to ent ertain Count I. When the CIT issued its Or der on June 20, 2006, it did not hav e the benefit of this court’s decis ion in International Custom Products . Nevertheless, the CIT granted the government’s motion to dismiss Count I of ICP’s complaint for lack of subj ect matter jurisdiction under 28 U.S.C. § 1581(i). The CI T held that it did not have subject matter jurisdiction over Count I of ICP’s complaint because ICP fa iled to exhaus t its protest administrative remedie s under 1 5 U.S.C. §§ 1514 a nd 1515 pr ior to filing with the CIT. Order at 10. The CI T rejected ICP’s argum ents that following adm inistrative protest procedures and bringing an action against t he government under 28 U.S.C. § 1581(a) would result in an unacceptable delay. Order at 11-12. In doing so, the CIT stated that while those procedures may be “time cons uming and vexing, they are nonetheles s plaintiff’s route to relief.” Order at 11. ICP voluntarily dismis sed the remaining co unts of its complaint pursuant to Fed

. R. Civ. P. 41(a)(1), and final judgment was entered. This appeal followed. This court has jurisdiction under 28 U.S.C. § 1295(a)(5).
II As in this c ourt’s earlier opinion in International Custom Products , the sole is su e on appeal is whether the CIT pos sesses subjec t matter jurisdiction—here ove r Count I of ICP’s c o mplaint—under 28 U.S.C. § 1581(i). We review jurisd ictional determinations

2006-1531 4of the Court of International Trade without deference. DaimlerChrysler Corp. v. Unit e d States , 442 F.3d 1313, 1316 (F ed. Cir. 2006). Ju risdiction under 28 U.S. C. § 1581(i) may not be invoked unless jurisdiction under another subsection of § 1581 is either unavailable or manifestly inadequate. Int’l Custom Prods. , 467 F.3d at 1327 (citing Norcal/Crosetti Foods, Inc. v. United States , 963 F.2d 356, 359 (Fed. Cir. 1992)). ICP presents five arguments as to why § 1581(a) jurisdiction is manif e stly inadequate: (1) § 1581(a) jurisd iction “fundamentally alters the legal framework of the adjudication” because it requires that the court determine the correct classification of ICP’s product de novo; (2) § 1581(a) jurisd iction is incapable of holding Custo m s accountable for its failure to comply with the notice and comment process mandated by 19 U.S.C. § 1625(c); (3) § 1581(a) would lead to a more prolonged adjudication whic h is incompatible with ICP’s “need for urgent relief;” (4) § 1581( a) cannot assure ICP of prospective relief so that it may resume its business; and (5) § 1581(a) does not bind Customs to classify future entries in accordanc e with the court’s classificatio n determination. We reject ICP’s latter three arguments for the same reasons stated in this court’s earlier o p in ion. See Int’l Custo m Prods. , 467 F.3d at 1327-28. We will now addres s ICP’s remaining assertions. First, ICP contends that § 1581(a) jurisdicti on is manifestly inadequate because it requires a de novo c l assification determination by the CIT, and does not allow for review based on t he adminis trative record. Specifically , ICP alle ges tha t it is n o t s eeking a d e novo tariff classification of it s product, but rather is seeking judicial review o f Customs’ decision to revoke its advance classification ru ling. The fatal flaw in ICP’s ar gument is

2006-1531 5that it cannot by Count I seek judicial review of Customs’ decision to revoke its advance classification ruling because it has failed t o follow the express statutory scheme for doing s o . That is, ICP failed to file a pr ot est of Custom’s actions and avail itself of jurisdiction under § 1581(a). As this cour t held in its earlier opinion, the protest procedure is available to ICP such that § 1581(a) is not mani festly inadequate. Int’l Custom Prods. , 467 F.3d at 1327. ICP cannot avoid the protest procedure by artfully recharacterizing the is sue on appeal. Second, ICP argues that § 1581(a) jurisdic tion is manifestly inadequate because, by failing to hold Customs accountable for it s administrative determinations, the integrity of 19 U.S. C. § 1625(c) is undermined and ICP’s legal rights obt ained by virtue of Customs’ advance r u ling are effectively nullified. IC P argues that, because CIT classificatio n determinations are not lim ited to the agency record, Customs will be allowed to introduce new evid ence justifying its revocati on decis ion during a de novo trial held by the CIT. Under this scenario, ICP argues, § 1625(c) would have no purpose because Customs could simply rev o ke an adv ance c l assification ruling at will and avoid the consequences of its unlawfu l conduct by presenting new ev idence to support its decision during the ensui ng trial under Se ction 1581(a). ICP’s arguments with regard to 19 U.S.C. § 1625( c) are effectively rebutted by the government, whic h correctly points out t hat § 1581(a) is an adequate remedy, and that, even if it were not, jurisdiction under § 1581(h) would be the on ly remedy available to challenge the validit y of Customs’ Notice of Action wi thout requiring prior importation

2006-1531 6of goods. ∗ The government also points out t hat Count I is not rela t e d to violations of 19 U.S.C. § 1625(c), but c hallenges the classification of ICP’ s goods as a matter of law. Finally, ICP contends that the fact that there were no pr ior entries of its product distinguishes the ins t ant appeal from our earlier decision in International Custom Products . Specifically , ICP argu es that the protest and re view scheme contemplated under § 15 81(a) is un available b e cause it d i d not impo rt any product prior to filing th is action and has not imported any product sinc e. However, ICP’s dec ision to ha lt importation of its product is its own doing. The government indic a ted that it was willing to allow ICP to import a test shipment, whic h would be liquidated on the sam e day. ICP could have filed a protest on that day, whic h Customs was willing to deny on the sam e day. ICP cannot manufacture jurisdiction under § 1581(i) by willfully avoiding the prerequisit e s of § 1581(a). Therefore, for the reasons set forth above, the final judgment of the Court of International Trade dismissing Count I of IC P’s complaint for lack of subject matter jurisdiction is affirmed

.

∗ Under 28 U.S.C. § 1581(h) , the CIT has exc l usiv e jurisdiction over an action seek ing a pre-importation review of a classification ruling is sued by the Secretary of the Treasury, or a refusa l to issue or c hange s u c h a ru ling, so long as the party commencing the civil action demonstrates ir reparable harm unless gi ven an opportunity to obtain judicial review prior to i m portation. 28 U.S.C. § 1581(h).

2006-1531 7