CANADIAN REYNOLDS METALS COMPANY,

c/o REYNOLDS METALS COMPANY, Plaintiff,

v. UNITED STATES, Defendant. Slip Op. 04-39 United States Court of International Trade

Before: Pogue, Judge Court No. 00-00444

[Defendant’s motion to dismiss granted; action dismissed.] Decided: April 23, 2004 LeBoeuf, Lamb, Greene & MacRae, LLP ( Gary P. Connelly , Melvin S. Schwechter ) for Plaintiff. Peter D. Keisler , Assistant Attorney General, Barbara S. Williams , ActingAttorney-in-Charge, International Trade Field Office, James A. Curley , Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Yelena Slepak , Att orne y, Of Counsel, Office of As sistant Chief Counsel, U.S. Bureau of Customs and Border Protection, for Defendant.

OPINION Pogue, Judge: Plaintiff Canadian Reynolds Metals Company (“CRMC” or “Plaintiff”) seeks to invoke this Court’s jurisdiction pursua nt to eit her subsections (a) or (i) of 28 U.S.C. § 1581 (2000) to challenge the denial of its administrative protest filedCourt No. 00-00444 Page 2

1 Because Plaintiff filed its summons in 2000, Summons of CRMC at 2, the Court will refer to the 2000 versions of the statutes or regulations. The Court acknowledges, however, that because the events related to this action took place over an extended period of time, various versions of each of the statutes and regulations involved may apply. Accordingly, the Court has reviewed the versions from 1994 until the present and found that no amendments affecting the outcome of this case have occurred. The Court notes that subsection (c) of 28 U.S.C. § 1491, see infra note 25, was redesignated from subsection (b) to subsection (c) in 1996. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320 § 12, 110 Stat. 3870, 3874 (codified as amended at 28 U.S.C. § 1491 (2000)) . 2 Effective March 1, 2003, the United States Customs Service was renamed the United States Bureau of Customs and Border Protection. See Homeland Security Act of 2002, Pub. L. No. 107- 296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308; Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. No. 108-32, at 4 (2003).

3 For the pertinent text of the statute, see infra note 21.

4 For the pertinent text of the statute, see infra note 22. pur suant to 19 U.S.C. § 1514 (2000). 1 Defendant United State s Bureau of Customs and Border Protection 2 (“Customs” or “Defendant”)

moves for dismissal claiming lack of subject matter jurisdi ctio n because Plaintiff faile d to properly and timely file its protest and failed to follow court rules in filing this case. In the event that the Court finds jurisdiction lacki ng , Plaintiff requests transfer of its suit to the United States Court of Federal Claims pursuant to 28 U.S.C. § 1631, 3 asserting that the United States Court of Federal Claims has concurrent jurisdiction under 28 U.S.C. § 1491. 4 For the reasons statedbelow, Defendant’s motion to dismiss isCourt No. 00-00444 Page 3

5 The record shows that all correspondence and documentation referred to in this decision was either addressed to or sent by Reynolds Metals Company, in its capacity as owner of Canadian Reynolds Metals Company. Reynolds Metals Company also owns Aluminerie Becancour, Inc., which is the Plaintiff in a companion case before this Court. Aluminerie Becancour, Inc. v. United States , Court No. 00-00445, slip op. ______ (CIT Apr. 23, 2004) (pending). granted.

I. Background Plaintiff’s administrative protest has a ten-year history, a reviewof which is necessary background for the motion at issue here. On D ecemb er 15, 1992, CRMC made a voluntary disclosure to Customs under 19 U.S.C. § 1592(c)(4), admitting that it had failed to pay certain Merchandise Processing Fees (“MPF”) on unwrought aluminumproducts imported into the United States between 1990 and the date of discl osur e. Def.’s Mem. Supp. Mot. Dismiss at 1-2 (“Def.’s Mot.”); Pl.’s Opp’n to Mot. Dismiss at 1 (“Pl.’s Opp’n”). To perfect its volu ntary disclosure, Customs requested that CRMC tender $54,487.69, which CRMC paidon October 6, 1994. See Letter fromJohn Barry Donohue, Jr., Assoc. Gen. Counsel, Reynolds Metals Co., to William D . Die tzel, Dist. Dir., U.S. Bureau of Customs & Border Prot., Pl.’s Ex. A at 1, 3 (Oct. 6, 1994) (“October 6 Letter”). 5 Alongwith its payment, CRMC submitted a letter in which it advised Customs of its intent to appeal the MPF determination, as it considered its entries exempt from the MPF rate demanded byCourt No. 00-00444 Page 4

6 Barnes, Richardson & Colburn was Plaintiff’s legal representative at the time. See February 1 Letter, Pl.’s Ex. D at 4. Customs. Id. at 1. CRMC argued that the unwro ugh t aluminum products were of Canadian origin, andthus qualified for special treatment pursuant to the United States-Canada Free Trade Agreement (“USCFTA”). Letter from Rufus E. Jarman, Jr., Barnes, Richardson & Colburn, to Dist. Dir., U.S. Bureau o f Cus toms & Border Prot., Pl.’s Ex. D at 4, 4-5 (Feb. 1, 1995) (“Feb ruary 1 Letter”). 6 Customs, on the other hand, had previously concluded that due to a non-Canadian additive, CRMC’s entries failed to qualify for the reducedMPFrate provided by the USCFTA. Id. at 5. CRMC, in turn, argued that pursuant to the doctrine of de minimis non curat lex , the foreign additive in the Canadian entries should be disregarded for country of origin purposes. Id. CRMC informed Customs in its payment tender letter that it expected a full refund of the tender amount along with accrued interest in the event tha t subsequent litigation was successful. October 6 Letter, Pl.’s Ex. A at 1. Customs responded in a letter dated November 8, 1994, stating that it had received CRMC’s tender of MPF, but rejected all conditions imposed by CRMC in connection to this payment. Letter fromCharles J. Reed, Fines , Pena lties & Forfeitures Officer, on behalf of William D. Dietzel, Dist. Dir., U.S. Bureau of Customs & Border Prot., to John Barry Donohue, Reynolds Metals Co., Pl.’s Ex. B at 1 (Nov. 8, 1994) (“November 8 Letter”). Subsequently, CustomsCourt No. 00-00444 Page 5

7 In subsequent amendments to the escrow agreement, concluded on October 28, 1996, and July 13, 1998, the parties identified the designated test case as Alcan Aluminum Corp. v. United States , 21 CIT 1238, 986 F. Supp. 1436 (1997), originally referred to as St. Albans Protest No. 0201-93-100281 (HQ 955367) and subsequently appealed to the Federal Circuit Court of Appeals. Letter from Charles D. Ressin, Chief, Penalties Branch, Int’l Trade Compliance Div., to Frederic D. Van Arnam, Jr., Barnes, Richardson & Colburn, Pl.’s Ex. C at 3, 4 (Oct. 30, 1996); Letter from Charles D. Ressin, Chief, Penalties Branch, Int’l Trade Compliance Div., to Frederic D. Van Arnam, Jr., Barnes, Richardson & Colburn, Pl.’s Ex. C at 5, 6 (July 13, 1998); Alcan Aluminum Corp. v. United States , 165 F.3d 898 (Fed. Cir. 1999).

8 The “protest package” provided as Exhibit D by Plaintiff contains copies of two letters along with a copy of a completed Customs Form 19 (Protest No. 0712-95-100131); the first letter is dated February 1, 1995, and the second letter is dated February 6, 1995. See Pl.’s Ex. D. Accordingly, it appears as though Plaintiff first attempted to forward a protest to Customs on andCRMC concluded an escrow agreement on December 20, 1994, in which they agreed to let the decision in a d esignated test case 7 control whether a full refund of CRMC’s MPF p ayment was appropriate. Agr eeme nt between Canadian Reynolds Metals Company andU.S. Customs Service, Pl.’s Ex. C at 1 (Dec. 20, 1994) (“Escrow Agreement”). In the event that the test case decision was favorable t o C RMC, Customs further agreed to refund the full tenderedamount “together with such interest as may be required by law.” Id. at 1-2. On February 6, 1995, CRMC filed an administrative protest. See Letter from Frederic D. Van Arnam, Jr., Barnes, Richardson & Colburn, to Dist. Dir., U.S. Bureau of Customs & Border Prot., Pl.’s Ex. D. at 1 (Feb. 6, 1995) (“February 6 Letter”); Protest No. 0712-95-100131, Pl.’s Ex. D at 3 (Feb. 6, 1995) (“Protest Form”). 8Court No. 00-00444 Page 6

February 1, 1995, but that for reasons unclear to the Court, the protest was not filed until February 6, 1995, the date Customs received and stamped the protest form. Protest Form, Pl.’s Ex. D at 3. The implementing regulation for filing of protests confirms that a protest is considered filed on the date it is received by Customs. 19 C.F.R. § 174.12(f) (“The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed.”). Additionally, both parties agree that the protest was filed on February 6, 1995. See Def.’s Mot. at 2; Pl.’s Opp’n at 3. As the February 6 Letter merely serves as a complement to the original protest attempt on February 1, 1995, however, the Court will treat the letter dated February 1, 1995, as part of the protest filed on February 6, 1995. See February 6 Letter, Pl.’s Ex. D at 1 (“[W]e forwarded protests, dated February 1, 1995, in which CRMC . . . protested the assessment and payment of Merchandise Processing Fee (‘MPF’).”). In its protest, Plaintiff appeared to make three objections to Customs’ actions. First, Plaintiff stated that it objected to the assessment and payment of MPF. February 1 Letter, Pl.’s Ex. D at 4. Second, it protested “contingencies not anticipated in the [escrow] [a]greement[,] or unanticipated frustration” of the same. Id. at 5-6. Plaintiff then appears to have made a third objection, referringto Customs’ acceptance of payment. Id. at 4. In support of this third objection, Plaintiff noted that a copy of Customs’ letter dated November 8, 1994, as well as a receipt of payment made out by Customs on November 7, 1994, was enclosedwith the protest. Id. ; see also Collection Receipt from U.S. Bureau of Customs & Border Pr ot., to Canadian Reynolds Metals Co., Pl.’s Ex. A at 5 (Nov. 7, 1994) (“Receip t”) . Plaintiff clarified in its protest that it did not expect Customs to act in response to its objections until final judgment was rendered in the pending test case.Court No. 00-00444 Page 7

9 No supporting exhibit was provided, but Defendant does not deny this statement. See Def.’s Mem. at 2.

10 Plaintiff failed to provide the Court a copy of this letter. However, as the letter is not a determinative factor in this action, this lack of evidence has no effect on the Court’s decision. February 1 Letter, Pl.’s Ex. D at 6. On January 5, 1999, the Federal Circuit C ourt o f Appeals issuedits decision in the test case, Alcan Aluminum Corp. v. UnitedStates , 165 F.3d 898 (Fed. Cir. 1999). The Alcan Aluminum Corp. Court held that the foreign additive in question was subject to the principle of de minimis non curat lex , and therefore, th e entries were considered of Canadian origin. 165 F.3d at 902. The Alcan Aluminum Corp. decision became final on April 5, 1999. Pl.’s Opp’n at 4. Because CRMC’s entries qualifiedfor preferential trade status under the USCFTA as a result of the favorable decision in Alcan Aluminum Corp. , Customs refunded to CRMC the deposited MPF amount in full “[o]n or about” February 7, 2000. 9 Compl. of CRMC at 3. Customs, however, failed t o te nder interest pursuant to the escrow agreement when it made the refund to CRMC. Def.’s Mot. at 2; Pl.’s Opp’n at 4. CRMC claims i t t hen sent, on February 10, 2000, a request for accelerated disposition of its protest. 10 Pl.’s O pp’n at 4. Following what CRMC considered a denia l of th e original protest by operation of law, it filed a summons with the Court on September 7, 2000. Summons of CRMC at 2. PlaintiffCourt No. 00-00444 Page 8

subsequently, o n Se ptember 30, 2002, filed its complaint seeking relief. Compl. of CRMC at 6. The thrust of Plaintiff’s complaint is that Customs failed to pay interest on the refunded MPF. Id. at 3-4. Defendant Customs moved to dismiss for lack of subject matter jurisdiction.

II. Standard of Review Beca use Plaintiff is seeking to invoke the Court’ s jurisdiction, it has th e burd en to establish the basis for jurisdiction. See Former Employees of Sonoco Prods. Co. v. United States Sec’y of Labor , 27 CIT ____, ____, 273 F. Supp. 2d 1336, 1338 (2003) ( ci ting McNutt v. Gen. Motors Acceptance Corp. , 298 U.S. 178, 189 (1936)). At the same time, as Defendant’s motion to dismiss challenges the sufficiency of Plaintiff’s pleadings (a s opposed to the factual basis underlying the pleadings), the Court will accept all facts alleged in Plaintiff’s pleading as true. Corrpro Cos. v. United States , slip. op. 03-59, at 4 (CIT June 4, 2003).

III. Discussion Plaintiff seeks to inv oke the Court’s jurisdiction under 28 U.S.C. § 1581(a), or alternativ ely un der 28 U.S.C. § 1581(i). Compl. o f CRMC at 1. Title 28 U.S.C. § 1581(a) confers jurisdiction over actions based on denials of protests. Title 28Court No. 00-00444 Page 9

U.S.C. § 1581(i), on the other hand, is a residual provision that confers jurisdiction over certain international trade-related disputes not covered by s ubsections (a)-(h). Id. In the event that the Court fi nds jurisdiction lacking, Plaintiff argues that the Court should transfer this action to the United States Court of Fe deral Claims, as it considers that court to have concu rren t jurisdiction under 28 U.S.C. § 1491. Pl.’s Opp’n at 8-11. The Court first discusses subject matter jurisdiction under § 1581(a) and § 1581(i), and then discusses the prospect of transfer to the United States Court of Federal Claims.

A. Subject Matter Jurisdiction Plaintiff seeks t o in voke the Court’s jurisdiction under 28 U.S.C. § 1581(a), or altern ativel y under 28 U.S.C. § 1581(i). Compl. of CRMC at 1. Defendant makes four arguments in its motion for lack of subject matter jurisdiction. First, it argues that jurisdict ion is lacking under 28 U.S.C. § 1581(a), because Plaintiff failed to timely and properly file a protest. Def.’s Mot. at 3-4. Second, Defendant claims that 28 U.S.C. § 1581(i) does not confer jurisdiction, as Plaintiff failed to follow procedural requirements for filing an action under this statutory provision. Id. at 6. Third, Defendant argues that subsection (i) of 28 U.S.C. § 1581 cannot confer jurisdiction where a remedy was potentiallyavailable under subsection (a). Id. at 5. Fourth,Court No. 00-00444 Page 10

Defendant argues that the action under 28 U.S.C. § 1581(i) was untimely commenced. Id. at 9. The Court will discuss separately the two statutory provisions involved. First, the Court will discuss jurisdiction under 28 U.S.C. § 1581(a). Subsequently, it will briefly address jurisdiction pursuant to 28 U.S.C. § 1581(i),

as well as the prospects for transfer to the United States Court of Federal Claims.

1. 28 U.S.C. § 1581(a) In its complaint, Plaintiff initially alleges that the Court has jurisdiction pursuant to 28 U.S.C. § 1581(a), which provides as follows: “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.” 28 U.S.C. § 1581(a). Section 515 of the Tariff Act of 1930, as amended at 19 U.S.C. § 1515, provides for administrative reviewof protests. 19 U.S.C. § 1515. Subsect ion (a) of § 1515 stipulates that Customs “shall review the protest and shall allow

or deny such protest in whole or in part” as long as it is filed in accordance with 19 U.S.C. § 1514. 19 U.S.C. § 1515(a). Title 19 U.S.C. § 1514 describes the requirements for filing protests. 19 U.S.C. § 1514. A suit attempting to invoke the Court’s jurisdiction under 28 U.S.C. § 1581(a) must therefore be based on a protest which complies with the requirements of § 1514.Court No. 00-00444 Page 11

11 Title 19 U.S.C. § 1514(c)(1) provides in pertinent part: 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 the Secretary by regulation. Id.

12 The implementing regulation 19 C.F.R. § 174.13(a) specifies in pertinent part that protests must contain: (1) The name and address of the protestant . . . ;

. . . (3) The number and date of the entry;

. . . (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. Id. Amongother thing s, § 1514 establishes two requirements for protests: contents and timi ng. 19 U.S.C. § 1514(c). Title 19 U.S.C. § 1514(c)(1) 11 and title 19 C.F.R. § 174.13(a) 12 of th e agency’s regulations both govern the contents of p rot ests. The Court liberally construes the requirements of 19 U.S.C. § 1514(c)(1). Ammex, Inc. v. United States , 27 CIT ____, ____, 288 F. Supp. 2d 1375, 1382 (2003) (acknowledging that there is a “long line of cases taking a l iberal pos ture as to what constitutes a validprotest”). In Mattel, Inc. v. United States , for example, the Court h eldthat a letter requesting reliquidation under the wrongstatutory provision constituteda valid protest, despite itsCourt No. 00-00444 Page 12

error. 72 Cust. Ct. 257, 266, 377 F. Supp. 955, 963 (1974). Further, the Mattel, Inc. Court concl udedthat “however cryptic, inartistic, or poorly drawn a comm uni cation may be, it is sufficient as a protest for purposes of [19 U.S.C. § 1514] if it conveys enough information to apprise k nowl edgeable officials of the importer’s intent and the relief sought.” Mattel, Inc. , 72 Cust. Ct. at 262, 377 F. Supp. at 960. Directlyrelevant to this dispute, 19 U. S.C. § 1514 governs the timing of protests. Title 19 U.S.C. § 1514(c)(3) provides as follows: Aprotest of a decisio n, order, or finding describedin su bsectio n (a) of this section shall be filedwith the Customs Service within ninety days after but not before--

(A) notice of liquidation or reliquidation, or (B) in circumstances where subparagraph (A) is inapplicable, the date o f the decision as to which protest is made. 19 U.S.C. § 1514(c)(3). Both parties to this action agree that because Plaintiff’s entries were never liquidated, subparagraph (B) of 19 U.S.C. § 1514(c)(3) applies. Def.’s Mot. at 3; Pl.’s Opp’n at 5. As a sovereign entity, the United States is immune from suit unless it consents to be sued. United States v. Mitchell , 445 U.S. 535, 538 (1980) ( quoting United States v. Sherwood , 312 U.S. 584, 586 (1941)). Title 28 U.S.C. § 1581(a) constitutes an explicit waiver of immunity by the United States. US JVC Corp. v. United States , 22 CIT 687, 694, 15 F. Supp. 2d 906, 913 (1998). PreviousCourt No. 00-00444 Page 13

judicial decisi ons have therefore held that the statutory timing requirement for protests is a mandatory term of the United States’ consent to suit pursuant to 28 U.S.C. § 1581(a). United States v. Boe , 64 Ct. Cust. App. 11, 15-16, 543 F.2d 151, 154-55 (1976 ) (holdingthat the Customs Court lacked jurisdiction when Plaintiff failedto comply with all terms of co nsent by t he United States mandated by 28 U.S.C. § 1582 (1976), the predecessor to 28 U.S.C. § 1581(a) (2000) ). Accordingly, the Court must construe the timing requirement strictly. Boe , 64 Ct. Cust. App. at 15, 543 F.2d at 154; see also Star Sales & Distrib. Corp. v. United States , 10 CIT 709, 710, 663 F. Supp. 1127, 1128 (1986) (h oldin g that the Court does not have jurisdiction over an action contesting the denial of

a protest filed more than ninety days after notice of liquidation) . The Court now conside rs Pla intiff’s protest in light of the provisions of § 1514. To apply the requirements of 19 U.S.C. § 1514 to this case, it i s necessary to review the contents of Plaintiff’s protest, an d determine whether that protest challenges any decision by Customs

ma de within the ninety-day period prior to its filing, i.e. , whether the protest was within the statutory time period. In its protest, Plaintiff appears to make three o bjec tions. See February 1 Letter, Pl.’s Ex. D at 4-6 . First, Plaintiff protests the assessme nt and payment of MPF. Id. at 4. The MPF tender, however, occurred on October 6, 1994, Oct ober 6 Letter,Court No. 00-00444 Page 14

13 Plaintiff claims that Customs made the decision not to pay interest as early as November 8, 1994, the day it sent the November 8 Letter. See Pl.’s Opp’n at 6. However, the parties subsequently signed the escrow agreement, where Customs agreed to refund the MPF amount and “interest as may be required by law” if related litigation was successful. Escrow Agreement, Pl.’s Ex. C at 1-2. Thus, even presuming that Customs made the decision to deprive CRMC of interest at such an early stage, that decision was later vitiated by the terms of the escrow agreement before the filing of the protest. Moreover, even if the escrow agreement did not vitiate Customs’ original rejection of any conditions on the payment of MPF, the language of the protest – objecting to unanticipated frustration of the escrow agreement – clearly refers to decisions which had not yet been made, and not Pl.’s Ex. A at 3, while Plaintiff filed its protest on February 6, 1995. Protest Form, Pl.’s Ex. D at 3 . B ecause a time period of

more than ninety days elapsed between those two events, Plaintiff’s protest fails to present a timely challenge to the assessment and payment of MPF. Second, Plaintiff protests unanticipated frustration of, and contingencies not f oresee n in, the escrow agreement. February 1 Letter, Pl.’s Ex. D at 5-6. Title 19 U.S.C. § 1514(c)(3) states, however, that parties must file protests “within ninety days after but not before . . . the date of the decision as to which protest is made.” Id. (emphasis added ). The decision the protesting p arty objects to must therefore occur prior to the filing of the protest. As previously stated, CRMC filed its protest on February 6 , 1995. Protest Form, Pl.’s Ex. D at 3. To the extent tha t Plaintiff objects to the unanticipated event of Customs’ decision to refund MPF without interest in February 2000, that event hadnot yet oc curred at the time the protest was filed. 13 According ly ,Court No. 00-00444 Page 15

to the November 8 Letter.

14 Plaintiff argues that Customs’ failure to pay interest is in violation of 19 U.S.C. § 1505(c), Pl.’s Opp’n at 10, which in pertinent part holds,“[i]nterest on excess moneys deposited shall accrue, at a rate determined by the Secretary, from the date the importer of record deposits estimated duties, fees, and interest.” 19 U.S.C. § 1505(c). However, as the Court does not have jurisdiction over this action, it will not discuss the legal basis of Plaintiff’s claim.

15 Title 19 U.S.C. § 1514(c) provides that parties may generally only file one protest per entry of merchandise. Although the Court does not so decide, it may have been possible for Plaintiff, even after filing the untimely protest at issue here, to file a second protest following Customs’ non-payment of under a plain reading of 19 U.S.C. § 1514(c)(3) , P laintiff’s protective protest was untimely and i nvalid . See A.N. Deringer, Inc. v. United States , 12 CIT 969, 972, 698 F. Supp. 923, 925 (1988) (holding that a protest was invalid either because it was filedthe day before Customs denieda previous claim for relief or barredby the provision allowing only one protest per entry of merchandise). Because the escrowagreement stipulated Customs’ obligation to refundPlaintiff the MPF tender along with “interest as may be require dby law” in the event that the test case decision wa s favorable to CRMC, Escrow Agreement, Pl.’s Ex. C at 1-2, the subsequent non-payment of interest in February 2000 could qualify

as an unanticipated event in light of the agreement. 14 However, for the reasons stated above, Plaintiff should have chosen to wait until after Customs’ decision not to pay interest before filing its protest. 15Court No. 00-00444 Page 16

interest, arguing that, as its previous protest was untimely filed, it was legally invalid, and therefore should not count against the single-protest rule. Third, Plaintiff appears to object to Customs’ acceptance of its MPF tender. See February 1 Letter, Pl.’s Ex. D at 4. In its protest, Plaintiff alleges that Customs accepted its payment on November 8, 1994, and specifies that the protest was filed within ninetydays of that date. Id. Pl aintiff’s February 1 Letter further states that Plaintiff attached a copy of the November 8 Letter to the protest, as well as a copy of the receipt from Customs. Id. The receipt, however, shows that Customs received Plaintiff’s MPF payment on November 7, 1994. Receipt, Pl.’s Ex. A at 5. The November 8 Letter, on the other hand, indicates that Customs acknowledged the MPF tender, and that Customs intended not to accept the tender’s contingencies. November 8 Letter, Pl.’s Ex. B at 1. Consequently, the Court cannot conclude that Customs’ acceptance of Plaintiff’s tender took place o n Nove mber 8, 1994. Rather, acceptance occu rred a day prior, when Customs received payment and made out the receipt. Customs therefore, on November 7, 1994, made the decision Plaintiff attemptedto protest; November 7 was, however, ninety-one days prior to the filing of the protest in question here. Accordingly, Plaintiff’s protest fails t o present a ti mely, valid challenge to Customs’ acceptance of MPF tender, as Plaintiff filed that protest more than ninety days after Customs’ decision.Court No. 00-00444 Page 17

16 Title 19 U.S.C. § 1515(b) states in pertinent part that “[a] request for accelerated disposition of a protest filed in accordance with section 1514 of this title may be mailed . . . any time after ninety days following the filing of such protest.” Id.

17 Additionally, Plaintiff could not have cured the timing defect through an amendment of the protest, as 19 U.S.C. § 1514(c)(1) states that an amendment must take place “any time prior to the expiration of the time in which such protest could have been filed.” Id. Therefore, because the original protest was untimely, any amendments to the protest were also untimely. Basedon the analysis above, the Court con cludes that Plaintiff’s protest dated February 6, 1995, was untimely filed, as Plaintiff failed to file it within ninety days of the Customs decisions that it seeks to challenge. Plaintiff, how ever, sets forth one additional argument to suppor t its contentions that it filed a timely protest. CRM C appe ars to argue that its subsequent actions cured the defects of the untimely protest. Plaintiff claims that it properly filed, on February 10, 2000, a request for accelerated disposition of protest pursuant to 19 U.S.C. § 1515(b). 16 Pl.’s Opp’n at 4. However, such a request cannot cure a timing defect in the underlyingprotest. For Plaintiff’s claim to be within the Court’s jurisdiction, the referenced protest must first be filed in accordance with 19 U.S.C. § 1514. As Plaintiff’s protest was untimely, Plaintiff’s subsequent request for accelerated disposition could not revive it. 17 The Court therefore holds that the protest dated February 6, 1995, was untimely and improperly filed. Moreover, Plaintiff’sCourt No. 00-00444 Page 18

subsequent acts failed to cur e or amend its original protest. Because Plaintiff f aile d to file a valid protest, Customs’ decisions are final and this Court lacks jurisdiction under 28 U.S.C. § 1581(a). New Zealand Lamb Co. v. United States , 40 F.3d 377, 380 (Fed. Cir. 1994) (holding that although the jurisdiction limitation also works to make decisions final and conclusive upon the government unless it acts to revise them within the limitations period, there was no such decision that t rigger ed the ninety-day period and consequently a failure to invoke jurisdiction); Hambro Auto. Corp. v. United States , 66 Ct. Cust. App. 113, 117, 603 F.2d 850, 853 (1979) (holding tha t refu sal by customs officials to reliquidate entries became final and conclusive upon the importer when it failed to file a protest within the previously mandated sixty-daylimitations period) ; Everflora Miami, Inc. v. Un ited States , 19 CIT 485, 487, 885 F. Supp. 243, 246 (1995), aff’d , 86 F.3d1174 (Fed. Cir. 19 96) (holding that the Court lacked jurisdiction over Customs’ allegedly erroneous duty assessments becau se t he importer failed to timely protest liquidation, which therebymade the Customs decision final and con clu sive upon the parties).

2. 28 U.S.C. § 1581(i) In th e event that jurisdiction under 28 U.S.C. § 1581(a ) fails, Pl aintif f argues that 28 U.S.C. § 1581(i) confers subjectCourt No. 00-00444 Page 19

18 Title 28 U.S.C. § 2632 provides in pertinent part: (a) Except for civil actions specified in subsections (b) and (c) of this section, a civil action in the Court of International Trade shall be commenced by filing concurrently with the clerk of the court a summons and complaint.” Id. Subsections (b) and (c) refer to actions filed under sections 515, 516, or 516A of the Tariff Act of 1930, and therefore are claims pursuant to 28 U.S.C. § 1581(a), (b), and (c). Cf. 19 U.S.C. § 1515-16 with 28 U.S.C. § 1581(a)-(c). Consequently, because Plaintiff seeks to invoke the Court’s jurisdiction under 28 U.S.C. § 1581(i), subsection (a) of 28 U.S.C. § 2632 applies.

19 Rule 3 of the Court’s rules states: (a) Commencement. A civil action is commenced by filing with the clerk of the court: (1) A summons in an action described in 28 U.S.C. § 1581(a) or (b); (2) A summons, and within [thirty] days thereafter a complaint, in an action described in 28 U.S.C. § 1581(c) to contest a determination listed in section 516A(a)(2) or (3) of the Tariff Act of 1930; or (3) A summons and complaint concurrently in all other actions. USCIT R. 3. Accordingly, in order to invoke jurisdiction under 28 U.S.C. § 1581(i), subsection (3) requires that a plaintiff files the summons and complaint concurrently. USCIT R. 3(a)(3). matter jurisdiction on the Court. Compl. of CRMC at 1. To invoke jurisdiction under 28 U.S.C. § 1581(i), however, Plaintiff must file its summons and complaint at the same time. See 28 U.S.C. § 2632(a); 18 USCIT R. 3 (a)(3) . 19 Plaintiff filed its summons on September 7, 2000, andsubsequently its complaint on September 30, 2002. Su mmons of CRMC at 2; Compl. of CRMC at 6. Because Plaintiff did not file the summons and complaint concurrently, itCourt No. 00-00444 Page 20

20 Defendant also argues that subsection (i) of 28 U.S.C. § 1581 cannot confer jurisdiction when another remedy was potentially available under subsection (a), and that any claim intended under subsection (i) was untimely filed. Def.’s Mot. at 5-9. However, it is not necessary for the Court to reach this issue.

21 Title 28 U.S.C. § 1631 stipulates in pertinent part, “[if a] court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer [the] action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed.” Id.

22 Title 28 U.S.C. § 1491(a)(1) provides in pertinent part, “[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States.” Id. Plaintiff argues that 28 U.S.C. § 1491(a)(1) confers jurisdiction over its claims, as they arise from the escrow agreement concluded by the parties. Pl.’s Opp’n at 10. fails to properly invok e juri sdiction pursuant to 28 U.S.C. § 1581(i). 20

B. Transfer to the United States Court of Federal Claims In the alternative, Plaintiff requests transfer of its action to the United States Court of Federal Claims, Pl.’s Opp’n at 8, arguingthat, in the interest of justice, 28 U.S.C. § 1631 permits transfer of the case where the Court does not have jurisdiction. 21 Id. at 9. Citing 28 U.S.C. § 1491(a)(1), Plainti ff argues that because it could have originally brought its action in the United States Court of Federal Claims, the action may now be transferred to that court. 22 Pl.’s Opp’n at 9-10. Congress, however, has conferred on the United States Court of International Trade exclusive jurisdiction over certain customs-Court No. 00-00444 Page 21

relatedmatters. K Mart Corp. v. Cartier, Inc. , 485 U.S. 176, 188 (1988). Jurisdiction may then lie either in the United States Court of International Trade or in another federal court, but not in both. In Vivi tar C orp. v. United States , the Federal Circuit laidout the analysis to be followed when it appears that both the UnitedStates C ourt of International Trade and another federal court, may have jurisdiction over a claim, stating: “[I]t is faulty analysis to look first to the jurisdiction of the district courts to determine whether the [United Sta tes C ourt of International Trade] has jurisdiction. . . . The focus must be solely on whether the cl aim falls within the language and intent of the ju risdiction grant to the [United States Court o f International Trade].” Vivitar Corp. v. United States , 761 F.2d 1552, 1559-60 (Fed. Cir. 1985), cert. denied , 474 U.S. 1055 (19 86). Accordingly, the correct approach for distinguishing actions invoking the jurisdiction grante d ex clusively to the United States Court of International Trade is to focus on whether a claim falls within the language of a statute conferrin g juri sdiction on this Court. Subsection (a) of 28 U.S.C. § 1581 confers exclusive jurisdiction on the United States Court of International Trade over actions involving the denial of a protest. 28 U. S.C. § 1581(a). Consequently, under the jurisdictional scheme established for the United States Court of International Trade, when an action arises under such a provision, that jurisdiction is exclusive and operates to the exclusion of all other courts. See K Mart Corp. , 485 U.S.Court No. 00-00444 Page 22

23 There is additional support for this conclusion in a previous decision by the United States Court of Federal Claims. See Macrotel Int’l Corp. v. United States , 34 Fed. Cl. 98, 99 (1995) (holding that because it fell within the exclusive jurisdiction of the United States Court of International Trade, the United States Court of Federal Claims lacked jurisdiction over a matter that was protested or “protestable”).

24 Title 19 U.S.C. § 1514(a) lists those decisions of Customs’ which are subject to protest. See 19 U.S.C. § 1514(a). They include all decisions relating to “charges and exactions of whatever character” and “the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein.” Even if Customs’ refusal to pay interest on the MPF refund did not constitute a charge or exaction under 19 U.S.C. § 1514(a)(3), it was clearly related to reconciliation of the liquidation of an entry under 19 U.S.C. § 1514(a)(5). See United States v. Universal Fruits & Vegetables Corp. , No. 02-55340, slip op. at 17 (9th Cir. 2004) (citing Heller, Ehrman, White & MacAuliffe v. Babbitt , 992 F.2d 360, 363-64( D.C. Cir. 1993); Conoco, Inc. v. United States Foreign-Trade Zones Bd. , 18 F.3d 1581, 1586-89 (Fed. Cir. 1994); J.C. Penney Co. v. United States Treas. Dep’t , at 182-83; Orleans Int’l, Inc. v. United States , 334 F.3d 1375, 1378 (Fed. Cir. 200 3); Vi vitar Corp. , 761 F.2d at 1559-60. Pursuant to 28 U.S.C. § 1581(a), the United States Court of International Tra de t herefore divests the United States Court of Federal Claims of jurisdiction over all actions involving the denial of a protest. 23 Although Plaintiff failed to properly invoke this Court ’s jurisdiction due to proc e dural flaws, Plaintiff’s action arises fromthe denial of a protest, and remains within the language of 28 U.S.C. § 1581(a). Moreover, although Plaintiff may claim a cause of action in the Court of Federal Claims under the escrow ag reement, Customs’ refusal to pay interest on Plaintiff’s MP F payment was clearly protestab l e. 24 Accordingly, this Court’sCourt No. 00-00444 Page 23

439 F.2d 63, 66-68 (2d. Cir 1971).

25 Title 28 U.S.C. § 1491(c), governing the jurisdiction of the Court of Federal Claims, provides in pertinent part, “[n]othing herein shall be construed to give the United States Court of Federal Claims jurisdiction of any civil action within the exclusive jurisdiction of the Court of International Trade.” 28 U.S.C. § 1491(c). jurisdiction continues to operate to t he exclusion of all other

cou rts. See 28 U.S.C. § 1491(c). 25 Consequently, because the UnitedStates Court of Federal Claims lacked jurisdicti on o ver Plaintiff’s actio n at the time it was filed with this Court, the Court denies Pl aintiff’s request to transfer its action to that Court. See 28 U.S.C. § 1631.

IV. Conclusion For the reasons stated above, Cu stoms’ motion to dismiss is granted. CRMC’s action is dismissed. /s/Donald C. Pogue Donald C. Pogue, Judge

Dated: April 23, 2004

New York, New York