The Harrison Steel Castings Company v. United States

Slip Op. 21-73
UNITED STATES
COURT OF INTERNATIONAL TRADE
ARP MATERIALS, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 20-00144
THE HARRISON STEEL
CASTINGS CO.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Court No. 20-00147
Before: M. Miller Baker, Judge
OPINION
[Defendant’s motion to dismiss for lack of subject-mat-
ter jurisdiction is granted.]
Dated: June 11, 2021
Jamie L. Shookman, Trial Attorney, Commercial Liti-
gation Branch, Jeffrey Bossert Clark, Acting Assistant
Attorney General, Jeanne E. Davidson, Director, and
L. Misha Preheim, Civil Division, U.S. Department of
Justice of New York, NY, on the briefs for Defendant.
Of counsel on the briefs were Philip Butler, Associate
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Ct. Nos. 20-00144, 20-00147 	Page 2
General Counsel, Office of General Counsel, Office of
the U.S. Trade Representative of Washington, DC, and
Paula 	Smith, 	Assistant 	Chief 	Counsel, 	Edward
Maurer, Deputy Assistant Chief Counsel, and Valerie
Sorensen-Clark, Attorney, Office of the Assistant Chief
Counsel, International Trade Litigation, U.S. Customs
and Border Protection of New York, NY.
Christopher M. Kane, Daniel J. Gluck, and Mariana
del Rio Kostenwein, Simon Gluck & Kane LLP of New
York, NY, on the brief for Plaintiffs.
Baker, Judge: In these cases, two importers invoke
28 U.S.C. § 1581(i)—a jurisdictional grant of last re-
sort—seeking to compel refunds of retaliatory tariffs
that the U.S. Trade Representative imposed on their
goods 	from 	China 	and 	then 	later 	rescinded. 	The
USTR’s rescission of the tariffs rendered U.S. Customs
and Border Protection’s classification of these goods
(as subject to the tariffs) erroneous.
Based on the USTR’s rescission of the retaliatory
tariffs, one of the importers timely protested Customs’
classification decision as to certain of the goods in
question. Customs duly reclassified the goods as ex-
empt from the tariffs and the importer received a re-
fund after this litigation began. As to those goods, the
importer’s refund claim is moot and the court lacks
constitutional subject-matter jurisdiction.
As to the remaining goods at issue in these suits,
the importers could have timely protested Customs’
classification decisions. If Customs had denied such
protests, the importers then could have sought relief
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Ct. Nos. 20-00144, 20-00147 	Page 3
in 	this 	court 	by 	invoking 	its 	jurisdiction 	under
§ 1581(a). The importers, however, failed to timely pro-
test Customs’ classification decisions. Because juris-
diction would have existed under § 1581(a) had the im-
porters timely protested, the court lacks statutory sub-
ject-matter 	jurisdiction 	under 	§ 	1581(i). 	The 	court
therefore grants the government’s motion to dismiss.
Statutory and Regulatory Background
A. The classification of imported goods
Goods imported into the United States are subject
to a process known as “classification.” This statutorily-
mandated 	process 	requires 	Customs 	to 	determine
where 	such 	goods 	fit 	into 	the 	Harmonized 	Tariff
Schedule of the United States (HTSUS), 19 U.S.C.
§ 1202. See 19 U.S.C. § 1500(b) (requiring Customs to
“fix the final classification and rate of duty applicable
to [imported] merchandise”).
The HTSUS is a systematic organizational code of
headings and subheadings: “[T]he headings set forth
general categories of merchandise, and the subhead-
ings provide a more particularized segregation of the
goods within each category.” Wilton Indus., Inc. v.
United States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). In
effect, the HTSUS is for imported goods what the
Dewey Decimal System is for library books.
In classifying imported goods for tariff purposes,
Customs assigns them to an HTSUS subheading code,
which determines the applicable duty rate. See Alex-
ander W. Koff, Tina Potuto Kimble, & Gus Coritsidis,
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Ct. Nos. 20-00144, 20-00147 	Page 4
“International Trade Disputes,” in International As-
pects of U.S. Litigation, A Practitioner’s Deskbook 934
(2017). Customs’ determination of which HTSUS sub-
heading to assign is critical because the applicable
duty, or tariff, can vary considerably depending on
which HTSUS subheading applies. See id. at 934 n.66.
Customs assigns the HTSUS code applicable to the im-
port on the date of entry. 19 C.F.R. § 141.69. 1
By statute, “decisions of [Customs], including the
legality of all orders and findings entering into the
same,” as to, inter alia, “the classification and rate and
amount of duties chargeable,” even if that decision is
erroneous, “shall be final and conclusive upon all per-
sons . . . unless a protest is filed in accordance with
this section, or unless a civil action contesting the de-
nial of a protest, in whole or in part, is commenced in
the United States Court of International Trade” in a
timely fashion. 19 U.S.C. § 1514(a)(2). A protest, in-
cluding 	a 	protest 	challenging 	a 	classification, 	see
19 C.F.R. § 174.11 (permitting protests as to “[t]he
classification and rate and amount of duties chargea-
ble”), “shall be filed with [Customs] within 180 days
after but not before—(A) date of liquidation or reliqui-
dation.” 19 U.S.C. § 1514(c)(3)(A).
1 “Within 15 days of arrival in the United States, foreign
merchandise is ‘entered,’ meaning that documentation of
the importation is filed with Customs.” Thyssenkrupp Steel
N. Am., Inc. v. United States, 886 F.3d 1215, 1218 (Fed. Cir.
2018) (citing 19 U.S.C. § 1484(a); 19 C.F.R. §§ 141.0a(a),
141.4(a), 141.5, 141.11(b)).
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Ct. Nos. 20-00144, 20-00147 	Page 5
“Liquidation” refers to the process by which an im-
porter’s liability is fixed based on duties owed upon the
date of entry. Upon entry of goods, the importer must
deposit estimated duties and fees with Customs. Sub-
sequently, Customs “liquidates” the entry to make a
“final computation or ascertainment of duties owed” on
that entry of merchandise. 19 C.F.R. § 159.1; see also
19 U.S.C. § 1500.
Liquidation also necessarily includes Customs’ fi-
nal determination regarding classification of that en-
try of merchandise. See Corporate Counsel’s Guide to
Importation Under the U.S. Customs Law § 1:112
(2020); see also Chemsol, LLC v. United States, 755
F.3d 1345, 1350 (Fed. Cir. 2014) (“This court has con-
firmed that liquidation is the final challengeable event
and findings related to liquidation . . . merge with the
liquidation.”) (cleaned up); Volkswagen of Am., Inc. v.
United States, 532 F.3d 1365, 1370 (Fed. Cir. 2008)
(characterizing circuit precedent as standing for the
proposition that “all aspects of entry [are] merged in
the liquidation”) (citing United States v. Utex Int’l,
Inc., 857 F.2d 1408, 1409–10, 1412 (Fed. Cir. 1988)).
Liquidation normally occurs within one year of entry,
though it may occur later under certain circumstances.
19 C.F.R. § 159.12.
Following liquidation, Customs either collects any
additional 	amounts 	due, 	with 	interest, 	if 	the 	im-
porter’s deposit was lower than the final assessment
or refunds any excess deposit, with interest, if the de-
posit was higher than the final assessment. 19 U.S.C.
§ 1505(b). Thus, the protest statute requires that if an
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Ct. Nos. 20-00144, 20-00147 	Page 6
importer believes Customs made a mistake by classi-
fying its goods under the wrong HTSUS code, the im-
porter must file a protest within 180 days after Cus-
toms liquidates the entry (thus fixing the final amount
due) or else lose the right to challenge the classifica-
tion. See 19 U.S.C. § 1514(a)(2).
A protest challenging classification may lead to “re-
liquidation.” As the term implies, reliquidation means
Customs re-assesses the duties and fees due. If Cus-
toms grants the protest and reclassifies the entry un-
der an HTSUS code subject to a lower rate of duty,
Customs must recalculate the amount due—hence,
“reliquidation.”
B. The USTR’s imposition of Section 301
duties
Section 301 of the Trade Act of 1974 authorizes the
USTR to take various actions to protect U.S. interests
when foreign trade partners violate trade agreements
or otherwise take actions adverse to U.S. trade inter-
ests. See 19 U.S.C. § 2411(a)(1). Pursuant to this au-
thority, in 2017 the USTR undertook a Section 301 in-
vestigation of Chinese trade practices. Initiation of
Section 301 Investigation; Hearing; and Request for
Public Comments: China’s Acts, Policies, and Practices
Related to Technology Transfer, Intellectual Property,
and Innovation, 82 Fed. Reg. 40,213, 40,213 (USTR
Aug. 24, 2017).
After finding that China’s conduct was actionable
under the statute, the USTR proposed an additional
25 	percent 	ad 	valorem 	duty 	on 	various 	products
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Ct. Nos. 20-00144, 20-00147 	Page 7
imported from that country. Notice of Determination
and Request for Public Comment Concerning Proposed
Determination 	of 	Action 	Pursuant 	to 	Section 	301:
China’s Acts, Policies, and Practices Related to Tech-
nology Transfer, Intellectual Property, and Innovation,
83 Fed. Reg. 14,906, 14,907 (USTR Apr. 6, 2018).
The USTR later imposed Section 301 tariffs on
goods from China via a series of “tranches,” or “lists,”
referred to as List 1 through List 4B. The USTR im-
posed the tariffs by inserting new subheadings into the
HTSUS to encompass the articles on the lists. See, e.g.,
Notice of Action Pursuant to Section 301: China’s Acts,
Policies, and Practices Related to Technology Transfer,
Intellectual Property, and Innovation, 83 Fed. Reg.
40,823, 40,825 (USTR Aug. 16, 2018) (inserting sub-
heading 9903.88.02 as part of the List 2 process).
These cases involve Lists 2 2 and 3. 3
The USTR’s imposition of Section 301 duties was
not self-executing, however. To effectuate these duties
2 See id. at 40,823–24 (giving notice of List 2 action).
3 See Notice of Modification of Section 301 Action: China’s
Acts, Policies, and Practices Related to Technology Trans-
fer, Intellectual Property, and Innovation, 83 Fed. Reg.
47,974, 47,974 (USTR Sept. 21, 2018) (giving notice of List
3 action and imposition of 10 percent duties); see also No-
tice of Modification of Section 301 Action: China’s Acts, Pol-
icies, and Practices Related to Technology Transfer, Intel-
lectual Property, and Innovation, 84 Fed. Reg. 20,459,
20,459 (USTR May 9, 2019) (announcing that duties on
List 3 articles would be increased to 25 percent beginning
the following day).
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Ct. Nos. 20-00144, 20-00147 	Page 8
as to any given entry of imports, Customs first had to
classify the entries under the applicable HTSUS sub-
headings. Any importer that contended Customs erro-
neously classified its imports under the subheadings
subject to Section 301 tariffs could, after the entries
liquidated, 	protest 	such 	classification 	as 	discussed
above.
C. The USTR’s retroactive exclusions from
Section 301 duties
The 	USTR’s 	notices 	of 	Section 	301 	duties 	also
stated that importers could request that specific prod-
ucts classified within an affected tariff heading be ex-
cluded 	(that 	is, 	exempted) 	from 	such 	duties. 	See
83 Fed. Reg. at 40,824 (List 2); 4 84 Fed. Reg. at 20,460
(List 3). 5
4 For List 2, the USTR announced that any granted exclu-
sion requests would be retroactive to August 23, 2018, the
effective date of the List 2 tariffs. Procedures to Consider
Requests for Exclusion of Particular Products from the Ad-
ditional Action Pursuant to Section 301: China’s Acts, Pol-
icies, and Practices Related to Technology Transfer, Intel-
lectual Property, and Innovation, 83 Fed. Reg. 47,236,
47,236 (USTR Sept. 18, 2018).
5 For List 3, the USTR announced that any granted exclu-
sion requests would be retroactive to September 24, 2018,
the effective date of the List 3 tariffs. Procedures for Re-
quests to Exclude Particular Products from the September
2018 Action Pursuant to Section 301: China’s Acts, Policies,
and Practices Related to Technology Transfer, Intellectual
Property, and Innovation, 84 Fed. Reg. 29,576, 29,576
(USTR June 24, 2019).
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Ct. Nos. 20-00144, 20-00147 	Page 9
The notices directed importers seeking exclusions
to identify “the particular product in terms of the phys-
ical characteristics . . . that distinguish it from other
products within the covered 8-digit subheading,” and
noted that the USTR would “not consider [exclusion]
requests that identif[ied] the product at issue in terms
of the identity of the producer, importer, ultimate con-
sumer, actual use or chief use, or trademark or trade-
names.” 83 Fed. Reg. at 47,236–37.
For both the List 2 and List 3 processes, the USTR
posted web pages further notifying importers that
“[a]n exclusion, if granted, will apply to the particular
product covered by the exclusion, and will not be tied
to particular producers or exporters.” List 2 FAQs
at 4; 6 List 3 FAQs at 5 (same). 7
Thus, because exclusions were “product-specific,”
the grant of an exclusion in response to one importer’s
application could apply to like products imported by
other entities. The USTR implemented exclusions by
inserting new subheadings into the HTSUS to encom-
pass the articles covered by granted exclusions. See,
e.g., Notice of Product Exclusions: China’s Acts, Poli-
cies, and Practices Related to Technology Transfer, In-
tellectual 	Property, 	and 	Innovation, 	84 	Fed. 	Reg.
6 	https://ustr.gov/sites/default/files/enforcement/301Investigations
/Additional%20%2416%20Billion%20Trade%20Action%20Exclusion
%20Process%20FAQs.pdf (accessed June 9, 2021).
7 	https://ustr.gov/sites/default/files/enforcement/301Investigations/%24200
_Billion_Trade_Action_Exclusion_Process_FAQs.pdf (accessed June 9,
2021).
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Ct. Nos. 20-00144, 20-00147 	Page 10
37,381, 37,382 (USTR July 31, 2019) (creating such a
new subheading).
Just as the USTR’s initial imposition of Section 301
duties was not self-executing as to any entry of goods
and instead depended upon Customs’ classification of
the entry as subject to such duties, the USTR’s retro-
active exclusions were not self-executing as to the eli-
gible goods. See id. at 37,381 (“[T]he exclusions are
available for any product that meets the description in
the Annex, regardless of whether the importer filed an
exclusion 	request.”) 	(emphasis 	added). 	The 	USTR
stated that Customs “will issue instructions on entry
guidance and implementation.” Id.
Customs in turn issued instructions for obtaining
refunds of Section 301 duties as to eligible imports:
To request a refund of Section 301 duties paid on
previous 	imports 	of 	duty-excluded 	products
granted by the USTR, importers . . . may protest
the liquidation.
U.S. Customs and Border Protection, Cargo Systems
Messaging Service, CSMS #39169565—GUIDANCE:
Seventh Round of Products Excluded from Section 301
Duties (Tranche 2); 8 see also U.S. Customs and Border
Protection, Cargo Systems Messaging Service, CSMS
#42181055—GUIDANCE: 	Section 	301 	Tranche 	3—
$200B Eleventh Round of Product Exclusions from
8 	https://content.govdelivery.com/bulletins/gd/USDHSCBP-
255ae1d?wgt_ref=USDHSCBP_WIDGET_2 (accessed June 9,
2021).
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Ct. Nos. 20-00144, 20-00147 	Page 11
China (substantively identical instructions). 9 That is,
an importer wishing to seek a refund of Section 301
duties had to protest Customs’ liquidation classifying
the imports as subject to those duties.
Customs also stated that it would postpone ruling
on any protests that included claims based on pending
product exclusions until after the USTR ruled on the
exclusion requests, at which time Customs would pro-
cess the protests pursuant to the USTR’s decision.
“That is, [Customs] will refrain from denying or grant-
ing a party’s protest before the importer receives a fi-
nal determination from [the] USTR regarding its prod-
uct exclusion request.” U.S. Customs and Border Pro-
tection, 	Cargo 	Systems 	Messaging 	Service, 	CSMS
#19-000260—Section 301 Products Excluded from Du-
ties—Liquidation Extension Request. 10 This allowed
importers confronting a looming protest deadline to
file a protective protest to obtain the benefit of a pend-
ing exclusion request that the USTR might grant after
the deadline had passed.
In short, the USTR and Customs established a sys-
tem under which parties could apply for exclusions
and could benefit from other parties’ exclusion re-
quests granted by the USTR. Insofar as the exclusions
applied retroactively to entries for which importers
had 	previously 	paid 	Section 	301 	tariffs, 	Customs
9 	https://content.govdelivery.com/accounts/USDHSCBP/
bulletins/283a1bf (accessed June 9, 2021).
10 	https://content.govdelivery.com/accounts/USDHSCBP/
bulletins/246a1d3 (accessed June 9, 2021).
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Ct. Nos. 20-00144, 20-00147 	Page 12
would effectuate the exclusions by reclassifying im-
ports to Section 301-duty-free HTSUS subheadings
upon an importer’s timely protest of the entry’s origi-
nal liquidation.
Factual and Procedural Background 11
A. Facts relating to ARP
ARP Materials, Inc., alleges that it made five en-
tries 	(importations) 	of 	merchandise 	under 	HTSUS
subheading 3901.90.1000 12 that were subject to Sec-
tion 301 tariffs on the dates of entry. Case 20-144,
ECF 14, ¶¶ 11–13 & Exhibit. That is, Customs’ classi-
fication of the merchandise under that subheading
rendered the entries liable for Section 301 duties.
On July 31, 2019—after ARP’s five entries at is-
sue—the USTR granted exclusion requests submitted
by other importers that covered the same category of
products (as well as other products). Notice of Product
Exclusions, 84 Fed. Reg. at 37,382. The USTR’s notice
created a new HTSUS tariff schedule subheading,
9903.88.12, 13 	applicable 	to 	articles 	covered 	by 	the
11 These facts are derived from the allegations of Plaintiffs’
complaints and extrinsic evidence submitted by the govern-
ment in form of a declaration by a Customs official. See
Case 20-144, ECF 21-1 (Declaration of Mary Pugh) (“Pugh
Decl.”); Case 20-147, ECF 20-1 (same).
12 HTSUS 3901.90.1000 refers to “[p]olymers of ethylene,
in primary forms: Other: Elastomeric.”
13 Subheading 9903.88.12 refers to “[a]rticles the product of
China, as provided for in U.S. note 20(o) to this subchapter,
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Ct. Nos. 20-00144, 20-00147 	Page 13
exclusion and exempted that new heading from the
Section 301 duties. 84 Fed. Reg. at 37,382. The exclu-
sions were retroactive to August 23, 2018—prior to
ARP’s entries—and were to remain effective until July
31, 2020, i.e., one year after the date on which the no-
tice of exclusions was published in the Federal Regis-
ter. Id. at 37,381.
As noted above, the USTR’s exclusions were not
self-executing. 14 	To 	take 	advantage 	of 	them, 	ARP
each covered by an exclusion granted by the U.S. Trade
Representative.” The referenced U.S. note 20(o) contains a
list of specific products for which the USTR granted exclu-
sions. Among those products is “[c]hlorinated polyethylene
elastomer, in white or pale yellow powder form, containing
28 to 44 percent by weight of chlorine (described in statis-
tical reporting number 3901.90.1000).” HTSUS Chapter
99, Subchapter III, U.S. note 20(o)(1). This description is
the same one cited in ARP’s complaint. See Case 20-144,
ECF 14, ¶¶ 9, 11. In short, the products covered by sub-
heading 9903.88.12 (subject to an exclusion) were a narrow
carve-out from the broader category of products subject to
Section 301 duties under subheading 3901.90.1000.
14 The exclusions were limited exclusions—Section 301 tar-
iffs still applied generally, meaning that ARP needed to
demonstrate to Customs that its entries fell under the ap-
plicable HTSUS subheading carved out as exempt from
Section 301 duties. See, e.g., 83 Fed. Reg. at 47,236–37 (re-
quiring importers seeking exclusions to identify their prod-
uct in terms of particular characteristics distinguishing it
from other products within the same 8-digit HTSUS sub-
heading); 84 Fed. Reg. at 37,381 (stating that “exclusions
[were] available for any product that meets the description
in the Annex”); compare also above note 12 (citing broad
HTSUS subheading subject to Section 301 tariffs that
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Ct. Nos. 20-00144, 20-00147 	Page 14
needed to file protests within 180 days of the various
liquidation dates of these five entries. 15 ARP did ex-
actly that as to entry ’7552-2, as it filed a protest less
than 180 days after that entry’s liquidation. Customs
granted the protest, reclassified the entry, and ARP
received a refund of Section 301 duties for that entry.
Case 20-144, ECF 21-1, Pugh Decl. ¶ 12; Case 20-144,
ECF 23, at 18 (Plaintiffs conceding the government’s
factual chronology).
As to its four remaining entries, ARP took untimely
action or no action. ARP protested Customs’ assess-
ment of Section 301 duties on entries ’4968-3 and
’5369-3, but it did so more than 180 days after those
entries’ liquidation. Customs denied the protest as un-
timely. Case 20-144, ECF 21-1, Pugh Decl. ¶ 9; 16 Case
ARP’s entries were classified under) with above note 13
(citing narrower exclusion with HTSUS subheading appli-
cable to specific products, including ARP’s entries).
15 The USTR published its exclusion notice only five days
after the liquidation of one of ARP’s entries (leaving ARP
175 days to protest as to that entry) and before liquidation
of ARP’s four remaining entries (leaving ARP a full 180
days to protest as to those entries).
16 Plaintiffs’ amended complaints list only the entry num-
bers and the entry dates. They do not refer to the liquida-
tion dates, the dates on which Plaintiffs filed protests, or
the dates on which Customs decided the protests. For that
matter, the amended complaints do not even mention the
protests—nowhere do they say anything whatsoever about
Plaintiffs having filed protests, much less Customs’ rulings
on those protests. This information was placed in the rec-
ord by the government through the Pugh declaration. See
Case 20-144, ECF 21-1.
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Ct. Nos. 20-00144, 20-00147 	Page 15
20-144, ECF 23, at 18 (Plaintiffs conceding the govern-
ment’s factual chronology). ARP did not file protests
for entries ’5259-6 and ’5611-8. See Case 20-144, ECF
21-1, Pugh Decl. ¶¶ 10–11 (citing these entries and not
discussing any protests, unlike the other entries for
which the declaration cites protest dates and out-
comes); Case 20-144, ECF 23, at 18 (Plaintiffs conced-
ing that ARP did not file protests for these two en-
tries).
The following chart 17 summarizes ARP’s entries at
issue here that were eligible for reclassification based
on the USTR’s July 31, 2019, exclusion notice:
17 Case 20-144, ECF 21-1, Pugh Decl. ¶¶ 7–12; Case 20-144,
ECF 21, at 12 (government motion summarizing Pugh dec-
laration); Case 20-144, ECF 23, at 16, 18 (ARP response
summarizing same dates). There was a discrepancy be-
tween 	the 	entry 	dates 	found 	in 	the 	exhibit 	to 	ARP’s
amended complaint and the dates found in the govern-
ment’s motion and attached Pugh declaration. See Case
20-144, ECF 14, Exhibit; Case 20-144, ECF 21, at 12; see
generally Case 20-144, ECF 21-1 (Pugh declaration setting
forth entry, liquidation, and protest dates, as well as pro-
test outcomes). The dates in Plaintiffs’ response to the gov-
ernment’s motion match the dates the government sup-
plied. See Case 20-144, ECF 23, at 16. The court, therefore,
presumes that ARP concedes the accuracy of the chronol-
ogy described in the Pugh declaration submitted by the
government.
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Ct. Nos. 20-00144, 20-00147 	Page 16
Entry # 	Entry
date
Liquidation
date
Protest status
F57-4005259-6 	Aug. 30,
2018
July 26, 2019 	None filed
F57-4004968-3 	Sept. 21,
2018
Aug. 16, 2019 	Filed March 2,
2020; denied as
untimely
F57-4005369-3 	Sept. 24,
2018
Aug. 16, 2019 	Filed March 2,
2020; denied as
untimely
F57-4005611-8 	Sept. 27,
2018
Aug. 23, 2019 	None filed
F57-4007552-2 	July 17,
2019
June 12,
2020
Filed June 27,
2020; granted
B. Facts relating to Harrison
Harrison Steel Castings Co. alleges that it made
two entries of merchandise under HTSUS subheading
8302.30.3060 18 that were subject to Section 301 tariffs.
Case 20-147, ECF 14, ¶¶ 11–13 & Exhibit. That is,
Customs’ classification of the merchandise under that
subheading rendered the entries liable for Section 301
duties.
18 HTSUS 8302.30.3060 refers to “[b]ase metal mountings,
fittings and similar articles suitable for furniture, doors,
staircases, windows, blinds, coachwork, saddlery, trunks,
chests, caskets or the like; base metal hat racks, hat-pegs,
brackets and similar fixtures; castors with mountings of
base metal; automatic door closers of base metal; and base
metal parts thereof: Other mountings, fittings and similar
articles suitable for motor vehicles, and parts thereof:
Other.”
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Ct. Nos. 20-00144, 20-00147 	Page 17
After the two entries in question, Customs granted
exclusion requests submitted by other importers that
covered the same category of products as Harrison’s
(as well as other products). Notice of Product Exclu-
sions: China’s Acts, Policies, and Practices Related to
Technology Transfer, Intellectual Property, and Inno-
vation, 85 Fed. Reg. 17,158 (USTR Mar. 26, 2020). The
notice created a new HTSUS tariff schedule subhead-
ing, 9903.88.43, 19 applicable to articles covered by the
exclusions and exempted that new heading from the
Section 301 duties. 85 Fed. Reg. at 17,160. The exclu-
sions were retroactive to September 24, 2018—prior to
Harrison’s entries—and were to remain effective until
August 7, 2020. Id. at 17,158.
The 	USTR 	published 	its 	exclusion 	notice 	on
March 26, 2020, more than 180 days after the liquida-
tion of Harrison’s entries. To protect its right to take
19 HTSUS 9903.88.43 applies to “[a]rticles the product of
China, as provided for in U.S. note 20(vv) to this subchap-
ter, each covered by an exclusion granted by the U.S. Trade
Representative.” The referenced U.S. note 20(vv) contains
a list of specific products for which the USTR granted ex-
clusions. Among those products are “[m]ountings and fit-
tings suitable for motor vehicles of iron or steel, of alumi-
num or of zinc, other than pneumatic cylinders (described
in statistical reporting number 8302.30.3060).” HTSUS
Chapter 99, Subchapter III, U.S. note 20(vv)(96). This de-
scription is the same one cited in Harrison’s complaint. See
Case 20-147, ECF 14, ¶ 9. In short, the products covered by
subheading 9903.88.43 (subject to an exclusion) were a
narrow carve-out from the broader category of products
subject 	to 	Section 	301 	duties 	under 	subheading
8302.30.3060.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 17 of 38

Ct. Nos. 20-00144, 20-00147 	Page 18
advantage of these exclusions, which as noted above
were not self-executing, 20 Harrison needed to file pro-
tective protests based on the then-pending exclusion
requests prior to the 180-day protest deadline. As such
exclusion requests were filed and pending prior to liq-
uidation of Harrison’s entries, Harrison had the full
180 days to file protective protests as to the classifica-
tion of both of its entries. 21
On March 31, 2020—five days after Customs pub-
lished notice of the relevant exclusion but more than
180 days after the liquidation dates of the two entries
at issue—Harrison filed a protest challenging Cus-
toms’ assessment of Section 301 duties on these en-
tries and two other entries not included in Harrison’s
20 See above note 14; compare also above note 18 (citing
broad HTSUS subheading subject to Section 301 tariffs
that Harrison’s entries were classified under) with above
note 19 (citing narrower exclusion with HTSUS subhead-
ing applicable to specific products, including Harrison’s en-
tries).
21 Both the government and Plaintiffs agree that another
importer filed the relevant exclusion requests on August
12, 2019, that the USTR granted them on March 21, 2020,
and that they were published in the Federal Register on
March 26, 2020. Case 20-147, ECF 20, at 16–17; Case
20-147, ECF 22, at 22. The government also notes that
these exclusion requests were publicly available via the
USTR’s website, which would have allowed Harrison to
learn of the requests. Case 20-147, ECF 20, at 16. The ex-
clusion requests were filed prior to the liquidation date for
either of Harrison’s entries, meaning Harrison had the full
180 days available to file protective protests as to both en-
tries.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 18 of 38

Ct. Nos. 20-00144, 20-00147 	Page 19
complaint. Case 20-147, ECF 20-1, Pugh Decl. ¶¶ 4–6;
Case 20-147, ECF 22, at 25 (Harrison conceding accu-
racy of dates stated in Pugh declaration). Customs de-
nied the protest as untimely as to the two entries at
issue but granted the protest as to the other two en-
tries. 22 Case 20-147, ECF 20-1, Pugh Decl. ¶ 6; Case
20-147, ECF 22, at 26.
The following chart 23 summarizes Harrison’s en-
tries at issue here that would have been eligible for re-
classification based on the USTR’s March 26, 2020, ex-
clusion notice had Harrison filed protective protests to
preserve its rights pending the USTR’s consideration
of the relevant exclusion requests:
22 Harrison’s protest as to the two entries not at issue here
was successful because it was timely. Case 20-147, ECF 20-
1, Pugh Decl. ¶ 6 (“[Customs] accepted Protest No. 3901-
20-109473 as timely with respect to the two other entries,
which are not at issue here, and for which Harrison Steel
received a refund.”); Case 20-147, ECF 22, at 26 (Harrison
conceding that Customs “granted the protest with respect
to the other two entries that are not at issue”).
23 Harrison’s amended complaint alleges an entry date of
October 15, 2020, for entry ’6818-9, Case 20-147, ECF 14,
Exhibit, but its opposition to the government’s motion
states—consistent with the Pugh declaration—that Octo-
ber 12 was the entry date. Case 20-147, ECF 22, at 25.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 19 of 38

Ct. Nos. 20-00144, 20-00147 	Page 20
Entry # 	Entry
date
Liquidation
date
Protest status
555-0666283-6 	Sept. 27,
2018
Aug. 23, 2019 	Filed March 31,
2020; denied as
untimely
555-0666818-9 	Oct. 12,
2018
Sept. 6, 2019 	Filed March 31,
2020; denied as
untimely
C. These suits
After Customs denied their protests, ARP and Har-
rison brought these suits. As amended, their substan-
tially identical complaints allege that they were the
importers of record for the merchandise identified in
the charts above and that they paid Section 301 duties
on such merchandise. ECF 14, ¶¶ 4, 8, 11, 12. 24 With-
out articulating any legal theory or cause of action,
they assert in their cryptic complaints that the U.S.
government is “in wrongful possession of the [S]ection
301 duties on [the relevant] merchandise as the USTR
has determined that no such duties apply ab initio to
the date of implementation of 301 duties on [Lists 2
and 3] of the affected items previously announced by
the USTR.” Id. ¶ 13. Plaintiffs seek a refund of “monies
24 Because the two amended complaints are substantively
identical aside from references to the plaintiffs’ names and
a few minor wording differences, the paragraph numbering
is the same in both amended complaints, and both appear
at CM/ECF docket entry 14 in their respective cases, cita-
tions herein to the amended complaints refer simply to
ECF 14.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 20 of 38

Ct. Nos. 20-00144, 20-00147 	Page 21
originally collected beginning on August 23, 2018 pur-
suant to the authority of [Section 301].” Id. ¶ 5. 25
The government moves to dismiss both cases under
Rule 12(b)(1) for lack of subject-matter jurisdiction
and, alternatively, under Rule 12(b)(6) for failure to
state a claim. Case 20-144, ECF 21, at 4 (citing USCIT
R. 12(b)(1) and 12(b)(6)); Case 20-147, ECF 20 (same).
Plaintiffs oppose. Case 20-144, ECF 23; Case 20-147,
ECF 22. 26 As no party has requested oral argument,
the court decides the motion on the papers.
Standard of Review
A Rule 12(b)(1) motion to dismiss for lack of subject-
matter jurisdiction may take either of two general
forms—it may present a “facial” attack on the pleading
25 ARP’s amended complaint includes entry ’7552-2 as
among those entries for which it is entitled to a refund. Af-
ter ARP filed its amended complaint, as discussed above
Customs granted ARP’s protest and refunded Section 301
duties for that entry. ARP acknowledges this fact. See ECF
23, at 18. Therefore, as to that entry, ARP’s suit is moot,
and the court lacks constitutional subject-matter jurisdic-
tion. Cf. Umanzor v. Lambert, 782 F.2d 1299, 1301 n.2 (5th
Cir. 1986) (Gee, J.) (“Whether there exists an Article III
case or controversy, and thus Constitutional subject-mat-
ter jurisdiction, is analytically distinct from whether the
pertinent . . . statutes confer statutory subject-matter ju-
risdiction.”).
26 The government’s motion and the plaintiffs’ response
thereto are identical in both cases. Accordingly, citations to
the parties’ briefing from this point forward in this opinion
are to the filings in Case 20-144, ECF 21 (government’s mo-
tion) and ECF 23 (plaintiffs’ response).
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 21 of 38

Ct. Nos. 20-00144, 20-00147 	Page 22
or a challenge to the “factual” basis for the court’s ju-
risdiction. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d
1573, 1583 (Fed. Cir. 1993). In either situation, the
plaintiff has the burden of establishing jurisdiction.
Id.
A “facial” challenge is one in which the movant
“simply challenges the court’s subject matter jurisdic-
tion based on the sufficiency of the pleading’s allega-
tions,” in which case the allegations are accepted as
true and construed in a light most favorable to the
complainant. Id. (citing Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)). The same standard governs a Rule
12(b)(6) motion to dismiss for failure to state a claim.
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1166
(Fed. Cir. 2018) (describing Rule 12(b)(6) standard as
requiring the court to accept all well-pleaded facts as
true and view them in the light most favorable to the
plaintiff, who must plead sufficient facts to state a
claim to relief that is plausible on its face).
A “factual” challenge, in contrast, is one in which
the movant “denies or controverts the pleader’s allega-
tions of jurisdiction,” and in those cases “the movant is
deemed to be challenging the factual basis for the
court’s subject matter jurisdiction.” Id. In cases involv-
ing “factual” challenges, “the allegations in the com-
plaint are not controlling and only uncontroverted fac-
tual allegations are accepted as true for purposes of
the motion.” Id. (cleaned up) (citing, inter alia, Gibbs
v. Buck, 307 U.S. 66, 72 (1939)); see also Aerolineas Ar-
gentinas v. United States, 77 F.3d 1564, 1572 (Fed. Cir.
1996) 	(“A 	party 	may 	challenge 	the 	court’s
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 22 of 38

Ct. Nos. 20-00144, 20-00147 	Page 23
jurisdictional authority by denying or controverting
necessary jurisdictional allegations. When such chal-
lenge is made the court may consider evidence outside
the pleadings to resolve the issue.” (cleaned up and cit-
ing, inter alia, KVOS, Inc. v. Associated Press, 299 U.S
269, 278 (1936))).
Discussion
Plaintiffs’ amended complaints invoke 28 U.S.C.
§ 1581(i) 27 as the basis for subject-matter jurisdiction.
ECF 14, ¶ 2. This provision facially confers jurisdic-
tion, as both complaints assert claims that arise from
Section 301 duties that the USTR imposed “on the
27 Section 1581(i) provides in relevant part:
(1) In addition to the jurisdiction conferred upon the
[CIT] by subsections (a)–(h) of this section and subject
to the exception set forth in subsection (j) of this sec-
tion, the [CIT] shall have exclusive jurisdiction of any
civil action commenced against the United States, its
agencies, or its officers, that arises out of any law of the
United States providing for—
(A) revenue from imports or tonnage;
(B) tariffs, duties, fees, or other taxes on the impor-
tation of merchandise for reasons other than the rais-
ing of revenue;
(C) embargoes or other quantitative restrictions on
the importation of merchandise for reasons other
than the protection of the public health or safety; or
(D) administration and enforcement with respect to
the matters referred to in subparagraphs (A) through
(C) of this paragraph and subsections (a)–(h) of this
section.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 23 of 38

Ct. Nos. 20-00144, 20-00147 	Page 24
importation of merchandise for reasons other than the
raising of revenue.” 28 U.S.C. § 1581(i)(1)(B).
In its motion to dismiss for lack of subject-matter
jurisdiction, 	the 	government 	argues 	that 	Plaintiffs
challenge “the tariff classification and applicable duty
rate that [Customs] applied to these entries at liquida-
tion.” ECF 21, at 28. The government further argues
that Customs’ classification of these entries was a
protestable decision by Customs, meaning that Plain-
tiffs could have protested Customs’ classification deci-
sions and then brought this suit under jurisdiction
conferred by § 1581(a). Id. Therefore, according to the
government, because jurisdiction would have existed
under § 1581(a) had Plaintiffs timely protested, 28 ju-
risdiction is absent under § 1581(i). ECF 21, at 22–
23. 29
As a preliminary matter, Plaintiffs acknowledge
that § 1581(i) is a jurisdictional grant of last resort. See
ECF 23, at 2 (“The Federal Circuit’s ‘unambiguous
precedents . . . make clear that [§ 1581(i)’s] scope is
strictly limited,’ and that statutory procedures ‘cannot
be 	easily 	circumvented.’ 	” 	(alterations 	Plaintiffs’)
(quoting Int’l Custom Prods., Inc. v. United States, 467
28 “Section 1515 requires an aggrieved party to file a pro-
test under section 1514, which Customs must either grant
or deny, before the party may sue under section 1581(a).”
Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973,
976 (Fed. Cir. 1994).
29 As the government’s motion relies on extrinsic evidence,
it constitutes a factual challenge to subject-matter jurisdic-
tion.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 24 of 38

Ct. Nos. 20-00144, 20-00147 	Page 25
F.3d 1324, 1327 (Fed. Cir. 2006))). It is well estab-
lished that “[w]hen relief is prospectively and realisti-
cally available under another subsection of 1581, invo-
cation of subsection (i) is incorrect. Where another
remedy is or could have been available, the party as-
serting § 1581(i) jurisdiction has the burden to show
that the remedy would be manifestly inadequate.”
Sunpreme Inc. v. United States, 892 F.3d 1186, 1191
(Fed. Cir. 2018) (cleaned up).
Without this limiting interpretation, the court’s re-
sidual jurisdiction under § 1581(i) “ ‘would threaten to
swallow the specific grants of jurisdiction contained
within the other subsections and their corresponding
requirements.’ ” Chemsol, LLC v. United States, 755
F.3d 1345, 1349 (Fed. Cir. 2014) (quoting Norman G.
Jensen, Inc. v. United States, 687 F.3d 1325, 1329
(Fed. Cir. 2012)).
Thus, determining whether jurisdiction exists un-
der § 1581(i) involves two questions. First, the court
must “consider whether jurisdiction under a subsec-
tion other than § 1581(i) was available.” Erwin Hymer
Group N. Am., Inc. v. United States, 930 F.3d 1370,
1375 (Fed. Cir. 2019) (cleaned up). “Second, if jurisdic-
tion was available 	under a different 	subsection of
§ 1581, [the court must] examine whether the remedy
provided under that subsection is ‘manifestly inade-
quate.’ If the remedy is not manifestly inadequate,
then jurisdiction under § 1581(i) is not proper.” Id.
(cleaned up).
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 25 of 38

Ct. Nos. 20-00144, 20-00147 	Page 26
The court therefore considers whether § 1581(a)
conferred jurisdiction over Plaintiffs’ claims as the
government contends, and if so whether it provided an
adequate remedy.
I.
Section 1581(a) provides that the CIT shall have
“exclusive jurisdiction of any civil action commenced to
contest the denial of a protest, in whole or in part, un-
der section 515 of the Tariff Act of 1930.” 28 U.S.C.
§ 1581(a). Section 515 of the Tariff Act in turn estab-
lishes procedures for Customs to allow or deny a pro-
test filed in accordance with 19 U.S.C. § 1514 and au-
thorizes suing in the CIT to challenge a denial of any
such protest. See 19 U.S.C. § 1515; see also 28 U.S.C.
§ 2631(a) (authorizing suit in the CIT to contest Cus-
toms’ denial of a protest filed under 19 U.S.C. § 1514).
The government argues that Plaintiffs’ challenge is
to Customs’ “liquidation of their entries in a manner
that did not account for the product exclusions granted
by the USTR.” ECF 21, at 25. Specifically, the govern-
ment contends that Plaintiffs’ challenge is to Customs’
liquidation of their entries based on the wrong HTSUS
tariff classification. Id. at 28. Thus, according to the
government, “this process involved a protestable deci-
sion by [Customs],” id. at 25, meaning that § 1581(a)
provides the applicable jurisdictional grant. In support
of this argument, the government cites authority for
the proposition that Customs “may make protestable
decisions 	in 	the 	process 	of 	implementing 	another
agency’s instructions or orders.” See ECF 21, at 26–27
(citing Xerox Corp. v. United States, 289 F.3d 792, 795
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 26 of 38

Ct. Nos. 20-00144, 20-00147 	Page 27
(Fed. Cir. 2002), overruled on other grounds by Sun-
preme Inc. v. United States, 946 F.3d 1300 (Fed. Cir.
2020); Belgium v. United States, 551 F.3d 1339, 1347
(Fed. Cir. 2009)).
Plaintiffs do not dispute the principle that Customs
can make protestable decisions while implementing
another 	agency’s 	instructions. 	Instead, 	they 	retort
that their mere filing—and Customs’ entertaining—of
protests as to some of the entries at issue in this suit
(and 	others) 	does 	not 	foreclose 	jurisdiction 	under
§ 1581(i) if Customs’ role in implementing Section 301
tariffs and exclusions was ministerial rather than sub-
stantive for § 1581(a) purposes. ECF 23, at 41–46.
They characterize Customs’ role as ministerial be-
cause the USTR first imposed and then later rescinded
the Section 301 tariffs, and “there is no reason to re-
quire exhaustion of [Customs’] administrative proce-
dures when a party challenges a decision in which
[Customs] played no part and over which [Customs]
ha[d] no control.” Id. at 45. In support of these argu-
ments, Plaintiffs cite United States v. U.S. Shoe Corp.,
523 U.S. 360 (1998); Gilda Industries, Inc. v. United
States, 	446 	F.3d 	1271 	(Fed. 	Cir. 	2006); 	Industrial
Chemicals, Inc. v. United States, 941 F.3d 1368 (Fed.
Cir. 2019); and Mitsubishi Electronics America, Inc. v.
United States, 44 F.3d 973 (Fed. Cir. 1994).
In U.S. Shoe, an exporter brought an action in the
CIT under § 1581(i) challenging the constitutionality
of a harbor maintenance tax after Customs denied its
protest. The Supreme Court held that § 1581(i), rather
than § 1581(a), conferred jurisdiction, reasoning that
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 27 of 38

Ct. Nos. 20-00144, 20-00147 	Page 28
while “[a] protest [under § 1514] is an essential pre-
requisite when one challenges an actual Customs de-
cision,” 	the 	exporter 	challenged 	no 	such 	decision.
523 U.S. at 365 (emphasis added). In collecting the
harbor maintenance tax, Customs “perform[ed] no ac-
tive role, . . . undert[ook] no analysis or adjudication,
issue[d] no directives,” and “impose[d] no liabilities.”
Id. (cleaned up). “[I]nstead, Customs merely passively
collect[ed]” the tax payments. Id. Thus, Customs’ es-
sentially ministerial function in collecting tax pay-
ments was not an “actual” Customs decision for § 1514
purposes.
In Gilda, an importer brought an action in the CIT
under § 1581(i) after Customs denied its protest of Sec-
tion 301 retaliatory duties imposed at the direction of
the USTR. The importer’s suit challenged the USTR’s
authority to impose the duties and sought refunds as
to the protested entries as well as prospective relief as
to future entries (by removal of its products from the
USTR’s retaliatory list).
On appeal, the Federal Circuit held that § 1581(i)
rather than § 1581(a) conferred jurisdiction. The court
reasoned that because Customs played no role in the
USTR’s issuance of the retaliatory list, there was no
reason “to require exhaustion of Customs’ administra-
tive procedures” as Customs had no authority to over-
turn the USTR’s decision and to “grant [retrospective]
relief in a protest action challenging imposition of the
duty.” 446 F.3d at 1276. Put another way, the im-
porter’s protest did not challenge Customs’ classifica-
tion of its entries per se or any other decision within
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 28 of 38

Ct. Nos. 20-00144, 20-00147 	Page 29
Customs’ purview, but rather the USTR’s authority to
impose the Section 301 duties in the first instance,
which Customs had no authority to overturn. Moreo-
ver, insofar as the importer sought prospective relief
in the form of termination of the USTR’s retaliatory
list or removal of its goods from that list, such relief
was “beyond the scope of issues that could be protested
under 19 U.S.C. § 1514(a).” Id. at 1277.
In Industrial Chemicals, retroactive legislation ex-
empted an importer’s entries from duties but imposed
a deadline to request a refund. The importer unsuc-
cessfully requested refunds from Customs after the
statutory 	deadline, 	and 	thereafter 	protested. 	After
Customs denied the protest, the importer brought an
action under § 1581(a) in the CIT, which dismissed the
case for lack of jurisdiction. The Federal Circuit af-
firmed, holding that § 1581(a) did not supply jurisdic-
tion because Customs’ denial of the protests was a
ministerial decision mandated by statute—Customs
lacked authority to extend the deadline to seek a re-
fund. See 941 F.3d at 1372. 30
In Mitsubishi, an importer brought an action in the
CIT challenging Customs’ denial of its protest of its
30 The importer did not invoke § 1581(i) as an alternative
basis for subject-matter jurisdiction in the CIT and unsuc-
cessfully attempted to do so on appeal. See 941 F.3d at 1373
n.3. But cf. 28 U.S.C. § 1631 (providing that when a federal
court lacks jurisdiction, “the court shall, if it is in the inter-
est of justice, transfer such action or appeal to any other
such court . . . in which the action or appeal could have been
brought at the time it was filed or noticed”).
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 29 of 38

Ct. Nos. 20-00144, 20-00147 	Page 30
antidumping duty rate and invoked § 1581(a) jurisdic-
tion. The Federal Circuit held that because the Com-
merce 	Department 	determined 	antidumping 	duty
rates, Customs’ role in collecting those duties was
“ministerial” rather than “a decision under section
1514(a),” and § 1581(a) did not confer jurisdiction.
44 F.3d at 977.
Given the teaching of U.S. Shoe, Gilda, Industrial
Chemicals, 	and 	Mitsubishi, 	jurisdiction 	under
§ 1581(a) turns on whether Plaintiffs challenge an “ac-
tual 	Customs 	decision” 	for 	purposes 	of 	19 	U.S.C.
§ 1514(a)(2), U.S. Shoe, 523 U.S. at 365, or instead
challenge a decision of the USTR (or something else).
To answer that, the court must determine the “true
nature of the action,” Hutchison Quality Furniture,
Inc. v. United States, 827 F.3d 1355, 1360 (Fed. Cir.
2016), “to discern the particular agency action that is
the source of the alleged harm so that [a court] may
identify which subsection of § 1581 provides the appro-
priate 	vehicle 	for 	judicial 	review.” 	Id. 	(emphasis
added). This determination “depend[s] upon the at-
tendant facts asserted in the pleadings.” Id.
ARP’s complaint 31 alleges in relevant part:
4. Plaintiff, ARP, is the importer of record of the
merchandise upon which the retaliatory duties
31 Harrison’s complaint is identical in all material respects
except as to the applicable merchandise, HTSUS subhead-
ing (8302.30.3060), USTR list, and dates. See Case 20-147,
ECF 14, ¶¶ 4–6, 11–13.
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 30 of 38

Ct. Nos. 20-00144, 20-00147 	Page 31
that are the subject of this action were assessed
and paid.
5. This case is brought to compel the Defendant
United States to refund monies originally col-
lected beginning on August 23, 2018 pursuant to
the authority of 19 U.S.C. § 2411.
6. Subsequently on July 31, 2019 (84 Fed. Reg.
37381 et seq.) the USTR announced certain ret-
roactive exclusions from the effects of retaliatory
duties under USTR Docket 2018-0018, including
products 	imported 	under 	subheading
3901.90.1000, Harmonized Tariff of the United
States [sic] (“HTSUS”).
* * *
11. The imported merchandise involved in this
claim consists of the items entered through the
Ports of the United States on or after August 23,
2018 under subheading 3901.90.1000, HTSUS.
See Exhibit.
12. The regular duties, taxes and fees plus USTR
applied duties under section 301 of the Trade
Act of 1974 have been paid.
13. The United States remains in wrongful pos-
session of the section 301 duties on ARP’s en-
tries of 3901.90.1000, HTSUS, merchandise as
the USTR has determined that no such duties
apply ab initio to the date of implementation of
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 31 of 38

Ct. Nos. 20-00144, 20-00147 	Page 32
301 duties on “List 2” of the affected items pre-
viously announced by the USTR.
Case 20-144, ECF 14, ¶¶ 4–6, 11–13 (emphasis added).
On the face of Plaintiffs’ complaints, “the particular
agency action that is the source of the alleged harm” is
the entry of the merchandise under the HTSUS sub-
headings subject to Section 301 duties. That is, Plain-
tiffs challenge Customs’ classification of the merchan-
dise under HTSUS subheadings 3901.90.1000 (in the
case of ARP) and 8302.30.3060 (as to Harrison). Ac-
cording to Plaintiffs, the USTR’s retroactive exclusions
rendered Customs’ classification of their merchandise
under those subheadings “wrongful.”
Plaintiffs’ response to the government’s motion con-
firms this reading of their complaints. They repeatedly
emphasize that they seek to “enforce” the USTR’s Sec-
tion 301 exclusions. See ECF 23, at 18 (stating that in
filing its protests, “ARP was seeking to enforce the
USTR’s retroactive exclusion decision”); at 42 (“Plain-
tiffs here seek enforcement of the USTR’s decisions to
retroactively rescind 301 duties that the USTR deter-
mined never should have been assessed and collected
in the first instance”); at 44 (“[I]t is the USTR’s deci-
sions that Plaintiffs seek to enforce in their cases”);
at 46 (“Defendant’s motion, if granted, would deny
Plaintiffs access to the Court to enforce the USTR’s de-
cisions relative to their imports of goods retroactively
excluded from . . . 301 duties, and make the decisions
of the USTR subject to an absurd interpretation by
[Customs].” (emphasis added)).
Case 1:20-cv-00147-MMB Document 24 Filed 06/11/21 Page 32 of 38

Ct. Nos. 20-00144, 20-00147 	Page 33
Unlike the importer in Gilda, Plaintiffs do not chal-
lenge the USTR’s authority to impose retaliatory tar-
iffs; instead, they seek to enforce the USTR’s exclusion
decisions. Their quarrel is with what they characterize
as Customs’ “absurd interpretation” of the USTR’s re-
taliatory list, i.e., classification of their entries, given
the exclusions. Thus, unlike Gilda where the chal-
lenged source of the harm to the importer was the
USTR’s retaliatory list, “the particular agency action
that is the source of” Plaintiffs’ harm here is Customs’
classifications of their entries under HTSUS subhead-
ings tagged with Section 301 duties—classifications
that the USTR’s retroactive exclusions rendered erro-
neous. In “seeking to enforce” the USTR’s retroactive
exclusions, Plaintiffs challenge Customs’ classification
decisions.
But Customs’ classifications of Plaintiffs’ entries
were protestable “decisions” of that agency by statu-
tory definition. See 19 U.S.C. § 1514(a)(2) (Customs’
“decisions” as to “classification . . . shall be final and
conclusive upon all persons . . . unless a protest is filed
in accordance with this section”); see also Xerox Corp.
v. United States, 289 F.3d 792, 794 (Fed. Cir. 2002)
(“[F]indings of Customs as to ‘the classification and
rate and amount of duties chargeable’ are protestable
to Customs under 19 U.S.C. § 1514(a)(2).”), overruled
on other grounds by Sunpreme Inc. v. United States,
946 F.3d 1300 (Fed. Cir. 2020).
Customs’ classification determinations as to Plain-
tiffs’ entries were necessarily protestable “decisions”
because 	the 	agency 	had 	to 	“[f]irst, 	ascertain[] 	the
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Ct. Nos. 20-00144, 20-00147 	Page 34
meaning of specific terms in the [HTSUS] provision[,]
and 	second, 	determin[e] 	whether 	the 	goods 	come
within the description of those terms.” StoreWALL,
LLC v. United States, 644 F.3d 1358, 1361–62 (Fed.
Cir. 2011) (noting that “[p]roper classification of goods
under the HTSUS entails a two step process”). The for-
mer 	determination 	was 	a 	question 	of 	law, 	Baxter
Healthcare Corp. of P.R. v. United States, 182 F.3d
1333, 1337 (Fed. Cir. 1999), while the latter was a
question of fact, see id. (“Determining whether a par-
ticular imported item falls within the scope of the var-
ious classifications as properly construed is a question
of fact.” (quoting Bauerhin Techs. Ltd. P’ship v. United
States, 110 F.3d 774, 776 (Fed. Cir. 1997))).
Unlike in U.S. Shoe or Mitsubishi, Customs here
performed more than a passive or ministerial function;
in classifying Plaintiffs’ entries under HTSUS sub-
headings subject to Section 301 duties, it made sub-
stantive legal (interpreting the HTSUS subheadings)
and 	factual 	(determining 	whether 	the 	entries 	fell
within those subheadings) determinations that it had
the authority to make. These determinations required
Customs to exercise “genuine interpretive or compara-
ble judgments.” Thyssenkrupp, 886 F.3d at 1225.
Accordingly, this case “presents exactly the sce-
nario in which § 1514’s protest provisions can be in-
voked because Customs engaged in some sort of deci-
sion-making process.” Chemsol, LLC v. United States,
755 F.3d 1345, 1351 (Fed. Cir. 2014) (cleaned up).
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Ct. Nos. 20-00144, 20-00147 	Page 35
And unlike in Gilda and Industrial Chemicals, Cus-
toms indisputably had the authority to grant Plaintiffs
their requested relief in these protest actions—reclas-
sification of their entries under different subheadings
that were not subject to the retaliatory duties, result-
ing in the refund of the previously paid duties. Indeed,
precisely because Customs had and exercised such au-
thority after ARP timely protested as to one entry, see
above note 25, this suit is partially moot.
Because Plaintiffs contend that the USTR’s exclu-
sions rendered Customs’ classification of their entries
erroneous, they were statutorily obligated to timely
protest under 19 U.S.C. § 1514(a)(2). That Customs’
classification decisions became retroactively errone-
ous due to the USTR’s exclusions rather than some
other reason is immaterial; the obligation to protest a
Customs classification error does not turn on whether
it was erroneous ab initio or later became erroneous
due to retroactive legislation or (as here) administra-
tive action. Therefore, as to Plaintiffs’ claims for re-
funds of Section 301 duties that are not moot, jurisdic-
tion would have existed here under § 1581(a) had
Plaintiffs timely protested Customs’ classification de-
cisions that resulted in their erroneous liability for
Section 301 duties.
II.
Even if jurisdiction otherwise exists under another
subsection of § 1581, subject-matter jurisdiction will
nevertheless attach under subsection (i) if “the remedy
provided under that other subsection would be mani-
festly inadequate.” Int’l Custom Prods., Inc. v. United
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Ct. Nos. 20-00144, 20-00147 	Page 36
States, 467 F.3d 1324, 1327 (Fed. Cir. 2006) (quoting
Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d
356, 359 (Fed. Cir. 1992)).
“[T]o be manifestly inadequate, the protest must be
an exercise in futility, or incapable of producing any
result; failing utterly of the desired end through in-
trinsic defect; useless, ineffectual, vain.” Sunpreme
Inc. v. United States, 892 F.3d 1186, 1193–94 (Fed.
Cir. 2018) (cleaned up and quoting Hartford Fire Ins.
Co. v. United States, 544 F.3d 1289, 1294 (Fed. Cir.
2008)). It is axiomatic that a party’s failure to timely
invoke a remedy does not make it inadequate. Juice
Farms, Inc. v. United States, 68 F.3d 1344, 1346 (Fed.
Cir. 1995) (citing Omni U.S.A., Inc. v. United States,
840 F.2d 912, 915 (Fed. Cir. 1988)).
ARP’s moot claim (due to its successful protest) as
to entry ’7552-2 and Harrison’s successful protests as
to two entries not included in its complaint amply
demonstrate that far from being exercises in futility,
timely protests on their part as to the remaining en-
tries at issue in these suits were opportunities for pick-
ing low-hanging fruit. Cf. Carbon Activated Corp. v.
United States, 6 F. Supp. 3d 1378, 1380 (CIT 2014)
(finding the remedy adequate where §1581(a) “would
have been available to Plaintiff” if it had filed a protest
within 180 days of liquidation, but Plaintiff filed a pro-
test “three years after the alleged erroneous liquida-
tion”), aff’d, 791 F.3d 1312 (Fed. Cir. 2015). Here, as in
Carbon Activated, “Plaintiff[s] had an adequate rem-
edy for [their] alleged erroneous liquidation[s], but
[they] 	lost 	that 	remedy 	because 	[their] 	protest[s]
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Ct. Nos. 20-00144, 20-00147 	Page 37
w[ere] untimely” or not made at all, “not because the
remedy was inadequate.” Id.
Juice Farms is also instructive. In that case, Com-
merce suspended liquidation of an importer’s entries
pending completion of an antidumping investigation,
but Customs mistakenly liquidated 20 entries while
the suspension orders remained in effect and issued
“bulletin notices” advising of the liquidations. The im-
porter, however, did not diligently check for bulletin
notices and learned of the liquidations only after the
protest period had expired. 68 F.3d at 1345.
The Federal Circuit observed that by statute, “all
liquidations, whether legal or not, are subject to the
timely protest requirement” and found that the bulle-
tin notices constituted adequate notice to the importer
to trigger the protest period. Id. at 1346. Notably, the
court also explained that “the importer[ ] bears the
burden to check for posted notices of liquidation and to
protest timely. Juice Farms cannot circumvent the
timely protest requirement by claiming that its own
lack 	of 	diligence 	requires 	equitable 	relief 	under
28 U.S.C. § 1581(i).” Id. (cleaned up).
The same is true here—Plaintiffs had adequate no-
tice of the procedures they were to follow to correct
Customs’ erroneous classification decisions, and the
record shows that they did follow those procedures to
receive refunds as to certain entries, thus partially
mooting this litigation. As to the entries remaining at
issue here, however, Plaintiffs regrettably dropped the
ball. Cf. Degussa Canada Ltd. v. U.S., 87 F.3d 1301,
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Ct. Nos. 20-00144, 20-00147 	Page 38
1304 (Fed. Cir. 1996) (“Degussa’s unfortunate situa-
tion of having paid a duty that, it subsequently turned
out, it should not have paid, is of its own making. De-
gussa could have avoided the problem if it had filed a
timely protest to the . . . classification [of its entry].”).
Conclusion
For the reasons explained above, the court lacks
constitutional subject-matter jurisdiction as to one of
ARP’s entries and statutory subject-matter jurisdic-
tion as to the remainder of its and Harrison’s entries. 32
The 	court 	therefore 	grants 	the 	government’s 	Rule
12(b)(1) motions to dismiss and will enter judgment
dismissing these cases. See USCIT R. 58(a).
Dated: 	June 11, 2021 	M. Miller Baker
New York, NY 	M. Miller Baker, Judge
32 Because subject-matter jurisdiction is absent here, the
court lacks authority to address the government’s alterna-
tive Rule 12(b)(6) grounds for dismissal on the merits. See
Friends of the Everglades v. U.S. E.P.A., 699 F.3d 1280,
1288 (11th Cir. 2012) (Pryor, J.) (“[A]n inferior court must
have both statutory and constitutional jurisdiction before
it may decide a case on the merits . . . .”) (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998)).
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