Slip Op. 14-

UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________

GENERAL MILLS, INC., :

:

Plaintiff, : Before: Nicholas Tsoucalas,

 : Senior Judge 

v. :

: Court No.: 14-00096 

UNITED STATES, :

 : 

Defendant.____________:

OPINION

[Defendant’s motion to dismiss for lack of subject matter 

jurisdiction is granted.] 

Dated:'HFHPEHU

John M. Peterson, Maria E. Celis, and Elyssa R. Emsellem, Neville 

Peterson LLP of New York, NY, for the plaintiff. 

David S. Silverbrand, Trial Attorney, Commercial Litigation 

Branch, Civil Division, U.S. Department of Justice, of Washington, 

DC, for defendant. With him on the brief were Stuart F. Delery,

Assistant Attorney General, Jeanne E. Davidson, Director, and 

Patricia M. McCarthy, Assistant Director. Of counsel on the brief 

was Beth C. Brotman, Attorney, Office of the Assistant Chief 

Counsel, U.S. Customs and Border Protection, of Washington, DC. 

Tsoucalas, Senior Judge: Defendant, United States (the 

“Government” or “Defendant”), moves to dismiss Plaintiff General 

Mills, Inc.’s (“General Mills” or “Plaintiff”) complaint for lack 

of subject matter jurisdiction. General Mills brought its case 

before the court seeking review of Headquarters Ruling Letter 

H212286 of January 7, 2014, issued by U.S. Customs and Border 

Patrol (“CPB”) concerning its frozen Brussels sprouts. For the 
Court No. 14-00096 Page 2 

following reasons, Defendant’s motion is granted. See Pl.’s Comp.,

ECF No. 4 (Apr. 9, 2014). 

BACKGROUND

General Mills imports frozen Brussels sprouts and frozen 

butter sauce chips “packaged together and sold as Green Giant brand 

‘baby Brussels sprouts & butter sauce’” (the “Product”). See

Customs Headquarters Ruling Letter H212286 at 92 (January 7,

2014)(“HRL H212286”). General Mills describes production of the 

Product in the following manner: 

First, General Mills sources sauce chips in the United 

States and the supplier qualifies the sauce chips as 

NAFTA eligible. The chips are then shipped to Irapuato, 

Mexico to be proportionately mixed and combined with 

Brussels sprouts. Brussels sprouts, either of Mexican or 

Belgian origin, are acquired and frozen to sustain 

important vitamins and avoid nutrient loss. The 

challenged ruling concerns only the NAFTA eligibility of 

products made with Belgian Brussels sprouts.

See Pl.’s Compl. ¶ 11. 

General Mills then imports the Product back into the 

United States. Id. ¶ 12. If the Brussels sprouts are treated as 

originating goods under the North American Free Trade Agreement

(“NAFTA”), the Product is classified as “Special” and receives 

duty treatment as a product of Mexico. See HRL H212286 at 95-6.

In December 2011, General Mills requested a ruling 

regarding the tariff classification and eligibility of the Product 

for NAFTA duty free tariff rates when made using frozen Belgian 

Brussels sprouts with the butter sauce chips. See Pl. Compl. ¶ 
Court No. 14-00096 Page 3 

13. General Mills alleges that the Product should be classified

under HTS subheading 2004.90.85, which provides for “Other 

vegetables prepared or preserved otherwise than by vinegar or 

acetic acid, frozen, other than products of heading 2006: Other 

vegetables and mixtures of vegetables; Other, including mixtures.” 

Id. In accordance with such classification, General Mills further 

maintains that the Product should be “qualified as a NAFTAoriginating product, since the frozen Belgian Brussels sprouts, 

classifiable under HTS subheading 0710.80.85, underwent the 

qualifying change in tariff classification required for goods of 

HTS Heading 2004, to wit, ‘a change to headings 2001 through 2007 

from any other chapter,’ as per Note 12(t)/20 to the HTS.” Id. ¶ 

14.

General Mills alleges that in March 2012, CBP issued New 

York Ruling Letter (“NYL”) N202500, in which it found that the 

Product would be classified as “put up in sets for retail sale” 

and, pursuant to General Rule of Interpretation 3(b) to the HTS, 

was classifiable as though it consisted solely of that single 

article which imparted the “essential character” to the set. Id. 

¶ 15. Because the Brussels sprouts imparted the “essential 

character” to the Product, and were a product of Belgium, CBP found 

that the Product was not NAFTA-originating when made with Belgian 

sprouts. Id. ¶ 15. 
Court No. 14-00096 Page 4 

General Mills requested reconsideration of NYL N202500

and alleged that: the Product was not a “set,” but rather a 

“prepared vegetable product” classifiable under 2004.90.85; the 

Belgian Brussels sprouts undergo a tariff shift due to the 

packaging with ice chips in Mexico; and General Note 12(s) of the 

HTSUS does not apply because the Belgian sprouts are not prepared 

or preserved “merely by freezing, by packing (including canning) 

in water, brine, or natural juices, or by roasting, either dry or 

in oil.” Id. ¶ 16. 

In January 2014, CBP published Customs Headquarters 

Ruling H212296 in the Customs Bulletin. See HRL H212296 at 92.

CBP reclassified the Product as a prepared vegetable product under 

2004.90.85. Id. at 97. However, it continued to find that the 

Product, when produced using Belgian sprouts, was not eligible for 

NAFTA duty free treatment because it was not a NAFTA-originating

product. Id. at 97. Specifically, CBP found that despite the 

change in tariff classification, an exception to the NAFTA duty

treatment applied under General Note 12(s)(ii). Id. at 95. 

According to the CBP, under General Note 12(s)(ii) the Product

does not undergo a qualifying change in Mexico because the Belgian 

Brussels sprouts are already frozen when they arrive in Mexico, 

and are prepared by packing in butter, which is “akin to a natural 

juice”. Id. at 96.
Court No. 14-00096 Page 5 

In April 2014, General Mills filed Court No. 14-00096 to 

contest HRL H212296 under 28 U.S.C. § 1581(i), seeking a ruling on 

the record of the CBP’s determination. See Pl.’s Compl. ¶ 1–9.

The Government moves to dismiss General Mills’ complaint for lack 

of subject matter jurisdiction. See Def.’s Mem. in Supp. of its 

Mot. to Dismiss at 1 (“Def.’s Mem.”). According to the Government, 

“because section 1581(a) jurisdiction is available to General

Mills, this Court lacks jurisdiction to entertain this action 

pursuant to 28 U.S.C. § 1581(i).” Id. 

STANDARD OF REVIEW 

“Subject matter jurisdiction constitutes a ‘threshold 

matter’ in all cases, such that without it, a case must be 

dismissed without proceeding to the merits.” Demos v. United 

States, 31 CIT 789, 789 (2007) (not reported in the Federal 

Supplement) (citing Steel Co. v. Citizens for a Better Env't, 523 

U.S. 83, 94 (1998)). “The burden of establishing jurisdiction lies 

with the party seeking to invoke th[e] Court's jurisdiction.” 

Bhullar v. United States, 27 CIT 532, 535, 259 F. Supp. 2d 1332, 

1334 (2003) (citing Old Republic Ins. Co. v. United States, 14 CIT 

377, 379, 741 F. Supp. 1570, 1573 (1990)). 

“To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 
Court No. 14-00096 Page 6 

544, 570 (2007)). “For the purposes of a motion to dismiss, the 

material allegations of a complaint are taken as admitted and are 

to be liberally construed in favor of the plaintiff(s).” Humane

Soc’y of the U.S. v. Brown, 19 CIT 1104, 1104, 901 F. Supp. 338, 

340 (1995) (citing Jenkins v. McKeithen, 395 U.S. 411, 421–22

(1969)).

DISCUSSION

I. Legal Framework 

Plaintiff seeks judicial review of HRL H212286 in 

accordance with Section 625(c) of the Tariff Act of 1930, as

amended 19 U.S.C. § 1625(c), and the Administrative Procedure Act. 

Pl.’s Comp. at 1. Plaintiff invoked jurisdiction pursuant to 28 

U.S.C. § 1581(i)(4). Id. Defendant moves to dismiss for lack of 

subject matter jurisdiction. Def.’s Mem. at 1. 

This Court’s jurisdiction is set forth in 28 U.S.C. §§ 

1581 (a)–(i). Subsection (a) vests the United States Court of 

International Trade (“CIT”) with “exclusive jurisdiction of any 

civil action commenced to contest the denial of a protest [by 

Customs]”. 28 U.S.C. § 1581 (2012). Subsections (b) through (g) 

delineate other specifics grants of jurisdiction. Id. Subsection

1581(h) vests the CIT with “exclusive jurisdiction of any civil 

action commenced to review, prior to the importation of the goods 

involved, a ruling issued by the Secretary of the Treasury, or a 

refusal to issue or change such a ruling. . .” Id. Subsection
Court No. 14-00096 Page 7

1581(i) jurisdiction is known as “residual jurisdiction,” and it 

is well-settled that “jurisdiction under subsection 1581(i) may 

not be invoked if jurisdiction under another subsection of section

1581 is or could have been available, unless the other subsection 

is shown to be manifestly inadequate.” Hartford Fire Ins. Co. v. 

United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008) (citing Int'l

Custom Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed. 

Cir. 2006)). “[W]here a litigant has access to [the CIT] 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.” Id. The litigant “cannot 

circumvent the prerequisites of 1581(a) by invoking jurisdiction 

under 1581(i),” unless such traditional means are manifestly 

inadequate. Id. Therefore, this Court will not entertain a claim 

under § 1581(i) where “another subsection of 1581 is or could have 

been available, unless the other subsection is shown to be 

manifestly inadequate.” Id.

“A litigant asking the court to exercise jurisdiction 

over his or her claim has the burden of establishing that 

jurisdiction exists.” Chemsol, LLC v. U.S., 755 F.3d 1345, 1349

(2014)(citations omitted).

II. Relief is Available to Plaintiff Under 28 U.S.C. § 1581(a)

As discussed above, in order to invoke jurisdiction 

under § 1581(i) Plaintiff must establish that another subsection 
Court No. 14-00096 Page 8

of § 1581 was not, and could not, have been available to the 

litigant at the time it filed its claim. See Hartford Fire Ins. 

Co., 544 F.3d. at 1292. Plaintiff contends that at the time this 

case was filed, there were no liquidated entries or pending 

protests which could have formed the predicate for bringing an

action pursuant to § 1581(a). Pl.’s Br. at 9. Plaintiff notes 

that the availability of a particular form of jurisdiction is 

determined by the “time of filing” rule, and seeks to support its 

argument by relying on the Court of Appeals for the Federal Circuit 

(“CAFC”) decision in Ford Motor Co. v. United States, 688 F.3d 

1319, 1328 (Fed. Cir. 2012). Id.

In Ford, the CAFC found jurisdiction under § 1581(i) was

available for a deemed liquidation claim in which Customs’ inaction 

was at issue. Ford, 688 F.3d. at 1321. The CAFC noted that “it 

is undisputed that at the time of filing of Ford’s complaint, 

[Customs] had not affirmatively liquidated any of the nine entries. 

It is also undisputed that the general one-year time period imposed 

by Congress for liquidating such entries had long since expired”.

Ford, 688 F.3d. at 1321-2. Under such circumstances, the CAFC 

held that § 1581(i) jurisdiction was available because the 

“importer could not have asserted jurisdiction under any of the 

other enumerated provisions of § 1581”. Id.

The facts presented in Ford are unlike the instant case. 

Whereas the importers in Ford were unable to pursue an 
Court No. 14-00096 Page 9

administrative appeal because Customs unlawfully failed to make a 

decision on any entries held for over one year, here, General Mills 

was fully capable of making an entry and pursuing the proper 

procedural path in order to obtain jurisdiction under § 1581(a).

See id. at 1327.

Plaintiff also relies heavily on this Court’s decision 

in Best Key Textiles Co. v. United States. Best Key Textiles Co. 

v. United States, 37 CIT __, __, Slip Op. 13-148 (Dec. 13, 2013) 

(“Best Key I”), vacated in part on reconsideration, 38 CIT __, 

__, Slip Op. 14-22 (Feb. 25, 2014) (“Best Key II”). In Best Key

I, plaintiff, Best Key Textiles (“Best Key”), a producer of

metallized yarn, brought an action seeking “pre-importation

declaratory judgment” on a product known as the “Johnny Collar” 

shirt. Best Key I at 1. Best Key invoked jurisdiction under 28 

U.S.C § 1581(h), or in the alternative § 1581(i). Id. at 2. 

Ultimately, the Court granted defendant’s motion to dismiss for 

lack of subject matter jurisdiction. See id. at 2–8.

In the Best Key litigation, Best Key obtained from the 

CBP a ruling (the “Yarn Ruling”) on its proprietary “BKMY” yarn.

Id. In order to obtain “duty rate benefits” of the Yarn Ruling,

Best Key “made, or ordered made” a “Johnny Collar” shirt which was 

comprised of BKMY yarn, and requested from the CBP a ruling 

concerning the classification of the “Johnny Collar” shirt. Id.

at 3. Essentially, Best Key was not seeking a certain rate on its 
Court No. 14-00096 Page 10 

own product, the BKMY yarn, but rather on the products Best Key’s 

customers produced using its BKMY yarn. Id. at 5–6. 

Ultimately, in Best Key I, the Court found that Best Key 

could not demonstrate that the traditional approach of importing 

the goods and filing a protest in accordance with § 1581(a) was 

“manifestly inadequate” because it was not importing the goods, 

but rather it was trying to obtain a favorable classification for 

its customers. Id. at 8. The Court found that Best Key had no 

standing to assert the claims of those remote parties under 

1581(i). Id. at 6–8. 

However, in Best Key II, the Court subsequently granted 

Best Key’s motion for reconsideration of its holding on § 1581(i) 

jurisdiction. See Best Key II at 1–2. Although the Court’s

analysis of § 1581(i) jurisdiction was sparse, it stated the 

following:

The court agrees it is “highly questionable” whether a 

Customs’ ruling that lowers the rate of duty on a product 

the plaintiff has no expressed intention of importing 

can result in aggrievement or adverse effect to the 

plaintiff . . . While the court stands by its prior 

ruling in general, it is, nonetheless, the plaintiff’s 

product that is the subject of the ruling at issue, and 

the court has undoubted exclusive jurisdiction over the 

general administration and enforcement of this type of 

matter in 28 U.S.C. § 1581(i)(4).

Id. at 2. 

Plaintiff insists that the Best Key litigation supports 

its argument that § 1581(i)(4) jurisdiction is available to 
Court No. 14-00096 Page 11 

challenge HRL H212286. Pl.’s Br. at 15–18. Plaintiff contends 

that the instant case is analogous because as in Best Key II, here, 

Plaintiff has “no other means of jurisdiction” available to it 

which would “provide General Mills with the relief sought, namely 

APA review of the ruling.” Id. at 16. 

The court disagrees. Unlike in Best Key II where Best 

Key was not the importer of the subject merchandise, here Plaintiff 

would be the importer, and therefore, would meet the standing 

requirements pursuant to § 1581(a). Thus, whereas the unique 

circumstances presented in Best Key II limited jurisdiction to 

§ 1581(i), here § 1581(a) jurisdiction could have been available

to Plaintiff had it chosen to pursue the procedural requirements 

pursuant to § 1581(a). See Best Key II at 2.

Ultimately, General Mills could have chosen to import 

the product and, within one year of importation, file a claim for 

NAFTA duty-free treatment pursuant to 19 U.S.C. § 1520(d). 19 

U.S.C. § 1520(d) (2012). If Customs were to deny the § 1520(d) 

claim, General Mills could then choose to file a protest pursuant 

to 19 U.S.C. § 1514. 19 U.S.C. § 1514 (2012). If Customs were to 

deny General Mills’ protest, General Mills could then seek judicial 

review of the denied protest pursuant to 28 U.S.C. § 1581(a). 28 

U.S.C. § 1581(a). Plaintiff’s perceived likelihood of success in 

taking this administrative route does not foreclose its ability to 

do so. Because General Mills could have secured jurisdiction 
Court No. 14-00096 Page 12 

pursuant to 28 U.S.C. § 1581(a), the court therefore does not have 

jurisdiction pursuant to § 1581(i) unless it is demonstrated that 

§ 1581(a) is manifestly inadequate.

III. Relief Under 28 U.S.C. § 1581(a) is Not Manifestly

Inadequate

In order to be manifestly inadequate, a “protest must be 

an exercise in futility” or “incapable of producing any result”. 

See Hartford, 544 F.3d at 1294. “[A] belief that [a plaintiff] 

had no remedy under subsection 1581(a) [does] not make that remedy 

inadequate, and [parties] cannot take it upon [themselves] to 

determine whether it would be futile to protest or not”. Chemsol, 

755 F.3d at 1355 (citations omitted) (internal quotation marks 

omitted). “[T]he traditional avenue of approach to the court under 

28 U.S.C. § 1581(a) was not intended to be so easily circumvented, 

whereby it would become merely a matter of election by the 

litigant.” Am. Air Parcel Forwarding Co. v. United States, 718 

F.2d 1546, 1550 (Fed. Cir. 1983). 

Plaintiff argues that even if jurisdiction under 

§ 1581(a) is available, it is “manifestly inadequate” because it

would require General Mills to file a future entry of the Product, 

pay duties, sue for recovery based on CBP’s classification, and 

“incur mandatory changes in marking and administrative costs,

which would not be recouped even if it were successful.” Pl.’s 

Br. at 12. Furthermore, Plaintiff insists that § 1581(a) is 
Court No. 14-00096 Page 13 

inadequate because “it does not lead to judicial review under the 

APA standard of HRL H212286—rather, it would lead to some future 

review of a different agency determination, on the basis of a 

different record, and subject to a different standard of review.”

Pl.’s Br. at 9 (footnotes omitted).

The court is not persuaded by Plaintiff’s arguments. 

First, Plaintiff alleges various forms of financial hardship which 

it contends would eliminate its ability to be “made whole” from 

proceeding under § 1581(a). Pl.’s Br. at 12. Plaintiff insists 

that “on several prior occasions, this Court has held that the 

irrevocable cost of sourcing differently or creating new packaging 

makes protest remedies inadequate and justifies, either as 

aggrievement or even ‘irreparable harm’, the direct review of 

Customs rulings on the record before the Court”. Id. at 13 (citing 

CPC Int’l Corp. v. United States, 19 CIT 978, 979-80 (1995); Ross 

Cosmetics Distrib. Ctrs. V. United States, 18 CIT 979 (1994); Am. 

Frozen Food Inst. v. United States, 18 CIT 565, 570-71 (1994)). 

Plaintiff fails to call to the court’s attention the fact that all 

of the cases it relies on in support of its “irreparable harm” 

argument confer jurisdiction on the basis of § 1581(h) and not on 

§ 1581(i). Furthermore, it is well settled that “mere allegations

of financial harm, or assertions that an agency failed to follow 

a statute, do not make the remedy established by Congress 
Court No. 14-00096 Page 14 

manifestly inadequate”. See Int'l Custom Products, Inc. v. United 

States, 467 F.3d 1324, 1327 (Fed. Cir. 2006) (citations omitted).

Furthermore, the court does not agree with Plaintiff 

that because § 1581(a) jurisdiction does “not lead to judicial 

review under the APA”, it renders the remedy manifestly inadequate. 

Pl.’s Br. at 9. “[C]lear precedent exists that the APA is not a 

jurisdictional statute . . . Thus the APA does not give an 

independent basis for finding jurisdiction in the Court of 

International Trade.” Am. Air Parcel Forwarding Co., 718 F.2d at 

1552.

Ultimately, this court finds that neither the procedural 

and administrative costs inherent in § 1581(a), nor General Mill’s 

desire to obtain APA review, render the remedy manifestly

inadequate.

IV. Transfer to U.S. District Court for the District of

Columbia

Lastly, Plaintiff contends that if it is determined that 

subject matter jurisdiction does not exist before this Court, the 

case should be transferred to the U.S. District Court for the 

District of Columbia (“USDCDC”) pursuant to 28 U.S.C. § 1631. See 

Pl.’s Br. at 22-25. Because this Court finds that § 1581(a)

jurisdiction could have been available to Plaintiff it would be 

inappropriate to transfer this case to the USDCDC. See Conoco, 

Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1586 
Court No. 14-00096 Page 15 

(Fed. Cir. 1994) (“If jurisdiction can be found to lie under the 

provisions of § 1581, such jurisdiction would place exclusive 

judicial review of the issues raised by the appellants in the Court 

of International Trade. Only if no jurisdictional grant can be 

found in the Court of International Trade would it be appropriate 

to invoke the general administrative review function of the 

district courts in such cases.”). 

Conclusion

For the reasons stated above, this court finds that 

jurisdiction under § 1581(a) was available and was not manifestly 

inadequate, rendering jurisdiction under § 1581(i) improper.

Defendant’s motion to dismiss is GRANTED. Plaintiff’s complaint 

is dismissed. Judgment will be entered accordingly.

 /s/ Nicholas Tsoucalas

Nicholas Tsoucalas 

 Senior Judge 

Dated:

New York, New York 

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