## United States Court of Appeals for the Federal Circuit

05-1073 CORRPRO COMPANIES, INC., Plaintiff-Appellee,

v. UNITED STATES, Defendant-Appellant.

Jerry P. Wiskin , Simons & Wiskin, of South Amboy, New Jersey, argued for plaintiff-appellee. With him on the brief was Philip Y. Simons

. Aimee Lee , Attorney, Commercial Litigation Branc h, Civil Division, Department of Justice, of New York, New York, argued fo r defendant-appellant. With her on the brief were Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director, of Washington, DC; and Barbara S. Williams , Attorney in Charge, of New York, New York. Of counsel on the brief was Beth C. Brotman , Attorney, Office of Assistant Chief Counsel, International Trade Litigation, Unit ed States Customs and Border Protection, of New York, New York. Appealed from: United States Court of International Trade Senior Judge Richard W. Goldberg

## United States Court of Appeals for the Federal Circuit

05-1073 CORRPRO COMPANIES, INC., Plaintiff-Appellee,

v. UNITED STATES, Defendant-Appellant.

_____________________ DECIDED: January 3, 2006

_____________________ Before LOURIE, CLEVENGER, and LINN, Circuit Judges

. LOURIE, Circuit Judge

. The United States appeals fr om the decision of the United States Court of International Trade denying the government’s mo tion to dismiss for la ck of jurisdiction, granting Corrpro Companies, Inc.’s (“Co rrpro’s”) motion for summary judgment, and classifying the subject merchandise under Harmonized Tariff Schedule of the United States (“HTSUS”) MX 8543.40.00, duty-free. Corrpro Cos. v. United States , slip op. 04- 116 (Ct. Int’l Trade Sept. 10, 2004) (“Decision ”). Because Customs did not make a protestable decision as to North American Free Trade Ag reement (“NAFTA”) eligibility giving rise to jurisdiction in the Court of International Trade under 28 U.S.C. § 1581(a),

we reverse.BACKGROUND This case arises from Corrpro’s attemp t to claim preferential treatment under NAFTA for certain entries of sacrificia l magnesium anodes. Enacted on December 8, 1993, NAFTA is an agreement between the United States, Canada, and Mexico to promote the free flow of goods through a reduction or phased elimination of tariffs and non-tariff barriers to trade. 19 U.S.C. § 3312 (1994) (approving and implementing NAFTA). See Xerox v. United States , 423 F.3d 1356, 1359 (Fed. Cir. 2005). Preferential tariff treatment under NAFTA allows importers to enter qualified goods into the United States free of duty. Under NAFTA, an importer’s right to pref erential tariff treatment for qualifying goods does not vest automat ically on entry. Id. at 1361. As provided in Articles 501(1) and 503(1) of NAFTA, implemented in 19 C. F.R. § 181.21(a), an importer seeking preferential tariff treatment under NAFTA mu st make a written declaration that the goods qualify for NAFTA treatment and must base that declaration on a properly executed NAFTA “Certificate of Origin” that covers the goods being imported. 19 C.F.R. §§ 181.11(a), 181.21(a) (2005) (“A Ce rtificate of Origin shall be employed to certify that a good being exported either from the United States into Canada or Mexico or from Canada or Mexico into the United States qua lifies as an originati ng good for purposes of preferential tariff treatment under the NAFTA.”). However, an importer is not required to submit a written declaration and the appropriate NAFTA Certificates of Origin i mmediately upon entry of the subject goods. Xerox , 423 F.3d at 1361. Under Article 502(3) of NAFTA, codified at 19 U.S.C. § 1520(d), an importer who does not make a NAFTA claim at the time of entry may

05-1073 -2-nevertheless apply for a “refund of any ex cess duties paid” on a good qualifying for NAFTA treatment by submitting a written dec laration and the appropriate Certificates of Origin “within 1 year after the date of impor tation.” 19 U.S.C. § 1520( d) (2000). In this case, Corrpro claims that its imported goods are entitled to NAFTA treatment even though it did not make a NAFTA claim at the time of entry or within one year of entry. On August 16, 1999, Corrpro began impor ting magnesium anodes into the United States. Decision , slip op. at 2-3. The United St ates Bureau of Customs and Border Protection (“Customs”) ∗ classified the goods under HT SUS 8104.19.00 as “[m]agnesium and articles thereof, including waste and scr ap: Unwrought magnesi um: Other” at the rate of 6.5 percent ad valorem . Id. Corrpro did not make a claim for NAFTA treatment at the time of entry under 19 C.F.R. § 181.21(a). Id. , slip op. at 3. On June 30, 2000, Customs liquidated the subject merchandise under 19 U.S.C. § 1500. Customs did not accord the goods any preferential tr eatment under NAFTA because Corrpro had not yet raised the issue. Id. Corrpro also did not claim preferential treatment under NAFTA within one year of the date of importation under 19 U.S.C. § 1520(d). Howeve r, on September 12, 2000, Corrpro filed protests to Customs’ liqui dation under 19 U.S.C. § 1514(a), arguing that the goods were classifiable as HTSUS MX 8543.30.00, free of dut y under NAFTA. Id. Section 1514(a) is a procedural mechanism by which an importer may protest Customs’ decision pertaining to the classification, rate, and amount of dutie s, but it does not specifically relate to NAFTA eligibility. See Xerox , 423 F.3d at 1365 (dismissing for lack

∗ Effective March 1, 2003, the United St ates Customs Service was renamed the United States Bureau of Cust oms and Border Protection. Homeland Security Act of 2002, Pub. L. No. 107-296, § 1502, 116 Stat. 2135, 2308-09 (2002).

05-1073 -3-of jurisdiction “a post-impor tation [NAFTA] claim under the guise of a 19 U.S.C. § 1514(a) protest more than a year after entry”). Corrpro claimed preferential treatm ent under NAFTA in its 19 U.S.C. § 1514(a) protest without fili ng a written declaration or Certificates of Origin substantiating its assertion of NAFTA eligib ility. On August 13 , 2001, Customs denied Corrpro’s protests in full. Decision , slip op. at 3. Later in 2002, for the first time, Corrpro submitted to Customs Certificates of Or igin covering the goods, after it had filed a complaint in the Court of International Trade. Id. , slip op. at 18 n.3 (noting that the parties dispute whether the Ce rtificates of Origin were filed on February 4, 2002, as stated in the affidavit atta ched to the Certificates, or on June 27, 2002, the date indicated on the certificates themselves). Corrpro had filed its complaint in the Court of International Trade seeking preferential duty treatment for the imported goods on Sept ember 6, 2001. In its complaint, Corrpro asserted that the tria l court had jurisdiction under 28 U.S.C. § 1581(a) because of its 19 U. S.C. § 1514(a) protest challenging the “classification and the rate and amount of duties chargeable.” Id. , slip op. at 3. Corrpro then moved for summary judgment that the subject merchandi se was entitled to preferential duty treatment under NAFTA. Id. , slip op. at 1-2. On S eptember 10, 2004, the Court of International Trade held that it had jurisdiction to entertain the action and granted Corrpro’s motion for summary judgment. In determining whether Customs had made a protestable decision that conferred jurisdiction over Corrpro’s NAFTA claims, the trial court first held that Customs’ initial classification of the goods was a decision on NAFTA eligibility that could be protested,

05-1073 -4-even though Customs had not expressly c onsidered the question of preferential treatment under NAFTA at that time. Id. , slip op. at 13-14. The trial court reasoned that this inference was warranted because Corrpro had been precluded by Customs Headquarters Ruling Letter (“HQ”) 557046 from ma king a NAFTA claim at the time of entry. Id. HQ 557046, which provi des that anodes classifiable in HTSUS 8104.19.00 are not eligible for duty-fr ee treatment under t he Generalized System of Preferences, was issued on May 17, 1993, prior to t he enactment of NAFTA (although it was retracted on October 10, 2001). The trial c ourt therefore concl uded that Corrpro had acted properly under a standard of reasonable care in not s eeking NAFTA treatment at the time of entry or within one year of entry. Id. , slip op. at 9-10. Second, the trial court held that Corrpro’s post-importation submission of NAFTA Certificates of Origin met the procedural requirements of 19 C.F.R. § 10.112 because Corrpro’s delay in submission had resulted from its adherence to Cust oms’ classification ruling. Id. , slip op. at 17-18. Third, the trial court held that the subject merchandise satisfied NAFTA’s rules of origin and thus was eligible for preferential treatm ent under NAFTA as a matter of law. Id. , slip op. at 22-24. The government timely appealed. We hav e jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION We review the Court of International Trade’s jurisdictional ruling based on its interpretation of 19 U.S.C. §§ 1514 and 1520(d) de novo . Xerox v. United States , 423 F.3d 1356, 1359 (Fed. Cir. 2005). We also re view that court’s grant of summary

05-1073 -5-judgment de novo . Int'l Trading Co. v. United States , 412 F.3d 1303, 1307 (Fed. Cir. 2005). The government makes three argument s on appeal. First, the government contends that the Court of International Trade should have dismissed the complaint for lack of jurisdiction because there was no pr otestable decision by Customs regarding NAFTA eligibility. The government asserts t hat, contrary to the reasoning of the trial court, HQ 557046 did not preclude Corrpro from making a NAFTA claim at the time of entry or within one year of the date of importation becaus e (1) had Corrpro filed a protest against the initial classification, Corrpro could then have filed a 19 U.S.C. § 1520(d) petition that woul d have been protestable even th ough it would be held in suspension pending the outcome of the cl assification decision, and (2) HTSUS 8104.19.00 allows duty-free entry of the goods in question under NAFTA. Second, the government argues that even if the Court of International Trade had jurisdiction over the case, Corrpro’s NAFTA claims should have been denied because Corrpro did not satisfy the requirement s of 19 U.S.C. § 1520( d) and 19 C.F.R. §§ 181.31 and 181.32 to file a pr otest within one year of importation and to submit Certificates of Origin at t he time of the protest. Finally , the government argues that if the trial court had jurisdiction over this ma tter, remand is appropriate to determine the merits of NAFTA eligibility because Custom s did not meaningfully review Corrpro’s NAFTA claim. Corrpro responds that the Court of Inter national Trade correctly held that it had jurisdiction because the “liquidations of the s pecific entries of Corrpro’s merchandise, including the decisions merged into liquidati on” were protestable decisions. In the

05-1073 -6-alternative, Corrpro contends that the initial classification decision by Customs was a protestable decision, as dete rmined by the trial court. Seco nd, Corrpro argues that it acted reasonably in not claiming NAFTA treatm ent at entry or withi n one year of entry because making a NAFTA claim while HQ 550746 was in effect would have subjected Corrpro to the possible imposition of civil penal ties. Corrpro also asserts that Congress did not intend that 19 U.S. C. § 1520(d) be the exclusiv e means for seeking NAFTA treatment subsequent to time of entry and that Corrpro could submit supporting documentation at a later time in complianc e with the procedural requirements of 19 C.F.R. § 10.112. Finally, Corrpro argues that remand is unnecessary because the Court of International Trade correctly det ermined the classification of the imported anodes under de novo review. We agree with the government that the Court of In ternational Trade lacked jurisdiction over the complaint for lack of a protestable decision by Customs. 28 U.S.C. § 1581(a) establishes jurisdiction over protest able decisions, providing that the “Court of International Trade shall have exclusive juri sdiction of any civil action commenced to contest the denial of a protes t, in whole or in part, under section 515 of the Tariff Act of 1930.” However, we recently held in Xerox that Customs’ liqui dation of an importer’s entries was not a protestabl e decision with respect to preferential treatment under NAFTA because “Customs at no time consider ed the merits of NAFTA eligibility, nor could it [have] without a valid claim by [the importer] for su ch eligibility.” 423 F.3d at 1363 (emphasis added). We observed, “[i]n the absence of a proper claim for NAFTA treatment, either at entry or within a year of entry . . . Customs cannot make a protestable decision to deny an importer preferential NAFTA treatment.” Id. at 1365.

05-1073 -7-We concluded that because “t he existence of a protest able decision of the type enumerated in 19 U.S.C. § 1514(a) is a condition precedent for jurisdiction to lie in the Court of International Trade under section 1581(a),” Xerox’s appeal of an invalid protest was properly dismissed for lack of jurisdiction. Id. Accordingly, under our precedent, there is a protestable decision as to NAFTA eligibility that confers jurisdiction in the Court of International Tr ade under 28 U.S.C. § 1581(a) only when the importer has made a valid claim for NAFTA treatment, either at entry or within a y ear of entry, with a written declaration and Certificates of Origin presented in a timely fashion, and Customs has engaged in “some sort of decision-maki ng process” expressly considering the merits of that claim. Id. at 1363 (quoting U.S. Shoe Corp. v. United States , 114 F.3d 1564, 1569 (Fed. Cir. 1997)). Corrpro concedes that it did not make a post-importation NAFTA claim within a year of entry under 19 U.S. C. § 1520(d). Corrpro argues , however, that its late submission is excused because, under a standard of reasonable care, it could not make a NAFTA claim until after HQ 557046 was revo ked. We will not decide that question; even assuming that Corrpro could have made a valid claim after the expiration of the one-year time limit, Corrpro cannot establis h that Customs engaged in some sort of decision-making on the merits of a valid NAFTA claim. In order to make a valid NAFTA claim, an importer must submit a written declaration and the app ropriate Certificates of Origin. 19 CFR §§ 181.11(a), 181.32. An impor ter may not circumvent these statutory and regulatory requirements. Corrpro did not submit the appropriate Certificates of Origin until 2002. Thus, neither Customs’ initial classification decision, made in 1999, nor its liquidation of goods, m ade in 2000, could have been a decision on the merits of a

05-1073 -8-valid NAFTA claim, as no valid NAFTA claim ex isted at that time. As we held in Xerox , “[t]here is simply no basis for attributing to Customs a decision denying [a NAFTA] claim that did not exist.” 423 F.3d at 1363. Mor eover, there is no evi dence that Customs in fact considered Corrpro’s NAFTA claim after the Certificates of Origin were submitted in 2002, while Corrpro’s action was pending in the C ourt of International Trade. Therefore, Customs did not make a protestable decisi on establishing jurisdiction under 28 USC § 1581(a). In holding that it had jurisdiction over Corrp ro’s claim, the Court of International Trade erred in concluding that the initial cl assification decision by Customs in 1999 was a protestable decision. We re cognize, of course, that Xerox was decided after the trial court rendered its decision in this case. In any event, the trial court’s reasoning assumed that Corrpro had made a valid NAFTA claim at the time of entry, even though Corrpo had not yet raised that i ssue. But we cannot attribute to Customs a decision on a NAFTA claim that did not yet exist. Be cause Customs could not have considered and did not consider the merits of NAFTA eligibility in the initial classification decision, it did not make a protestable decisi on at that time. For the same reason, we disagree with Corrpro’s argument that Custom s’ liquidation of the goods is a protestable decision. Customs could not have engaged in any sort of decision-making as to NAFTA eligibility in liquidating the goods because Corrpro had not yet raised the NAFTA issue. Finally, Corrpro attempts to distinguish Xerox based on the Court of International Trade’s determination that ther e was “no discernible evidence that Corrpro’s NAFTA claim was not considered by Customs in [C ustoms’ denial of Corrpro’s 19 U.S.C. § 1514(a)] protest.” Decision , slip op. at 14-15. That finding misses the point. We held

05-1073 -9-in Xerox that Customs cannot make a protes table decision to deny an importer preferential NAFTA treatment in the absence of a proper claim for NAFTA treatment. 423 F.3d at 1365. Accordingl y, our decision turns on whether Customs engaged in any decision-making on a valid NAFTA claim by Corrpro in 2002, not on whether there was a lack of evidence that Customs had not cons idered the issue of NAFTA eligibility when denying Corrpro’s 19 U.S.C. § 1514(a) protes t in 2001. No such decision-making occurred. Because the Court of International Tr ade did not have jurisdiction over this matter, the denial of the gover nment’s motion to dismiss is reversed, and the remaining issues raised on appeal are moot. CONCLUSION Because Corrpro did not satisfy the stat utory requirements in order to make a valid NAFTA claim until 2002, Customs could not have and did not consider the merits of that claim in its initial classification decis ion or liquidation. Acco rdingly, there was no protestable decision conferring jurisdiction on the Court of Inter national Trade under 28 U.S.C. § 1581(a). The decisi on of that court denying t he government’s motion to dismiss and granting summary judgm ent for Corrpro is therefore REVERSED.

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