General Mills, Inc. v. United States

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
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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. 	¶
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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 	NAFTA-
originating 	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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
%FDFNCFS 
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