Alcan Aluminum Corp. v. U.S.

• Decision Date: 09 August 2004
• Docket Number: Court No. 01-00095.,SLIP OP. 04-99.
• Citation: 342 F.Supp.2d 1339
• Parties: ALCAN ALUMINUM CORPORATION Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

342 F.Supp.2d 1339

ALCAN ALUMINUM CORPORATION Plaintiff, v. UNITED STATES, Defendant.

SLIP OP. 04-99.

Court No. 01-00095.

United States Court of International Trade.

August 9, 2004.

Lawrence A. Salibra, II and Elisa P. Pizzino, for Plaintiff.

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams, Attorney in Charge, International Trade Field Office, James A. Curley, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Yelena Slepak, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, for Defendant, of counsel.

OPINION

POGUE, Judge.

Plaintiff Alcan Aluminum Corporation ("Alcan") seeks to invoke the Court's jurisdiction under 28 U.S.C. § 1581(a) (2000)¹ to contest the denial of its administrative protest.² See Compl. of Alcan at paras. 1, 20. Defendant United States Bureau of Customs and Border Protection³ ("Customs") moves to dismiss this action for lack of subject matter jurisdiction, alleging that Alcan failed to timely file its protest and to comply with the procedural requirements for filing this lawsuit.

Because the Court concludes that the subject protest and this lawsuit were properly and timely filed, the Court has jurisdiction under 28 U.S.C. § 1581(a); therefore, for the reasons explained below, Defendant's motion to dismiss is denied.

BACKGROUND

This dispute began with Alcan's December 24, 1992, voluntary disclosure informing Customs that it did not pay the Merchandise Processing Fee ("MPF") on imports of unwrought aluminum products entered into the United States before 1993.⁴ See Def.'s Mem. Supp. Mot. Dismiss at 1-2 ("Def.'s Mot."); Compl. of Alcan at para. 4. In response to Alcan's disclosure, on October 18, 1994, Customs requested that Alcan remit $378,496.53 to satisfy its obligation to pay the MPF. See October 18 Letter; Compl. of Alcan at para. 5. Alcan paid the requested amount to Customs on or about November 11. See Compl. of Alcan at para. 6. Customs accepted Alcan's tender and issued a receipt for the same on November 15, 1994. See Receipt.

Recognizing a dispute between them regarding payment of MPF, on December 12, 1994, Alcan and Customs entered into an escrow agreement. See Agreement; Compl. Of Alcan at para. 8. Under that Agreement, Customs agreed to refund the tendered MPF with "interest as may be required by law," if it was later determined upon resolution of a designated test case that the tendered amount was not owed. See Agreement at paras. 1-2.⁵

Subsequent to the Agreement, on February 8, 1995, Alcan filed an administrative protest. See Def.'s Mot. at 2; Compl. of Alcan at para. 12. Alcan protested Customs'"assessment and [Alcan's] payment ... of $378,496.53 for Merchandise Processing Fee." February 6 Letter, Protest Package, Ex. 1 to Def.'s Supp. Br. Letter at 1 (May 4, 2004). In addition, Alcan protested the "possibility of contingencies not anticipated in the Agreement or unanticipated frustration" of the same. Id. at 3. Finally, Alcan protested "Customs' decision to accept [Alcan's] tender[ ]" relating to the pre-1993 entries. See id. at 1-2. Despite these objections, Alcan requested that Customs refrain from taking action on the subject protest until after resolution of the test case. See id. at 3.

Ruling in that test case, on January 5, 1999, the United States Court of Appeals for the Federal Circuit reversed the decision of the Court of International Trade, and held that the non-Canadian additive in the subject imports was subject to the principle of de minimis non curat lex, and that, therefore, the imported merchandise was of Canadian origin. See Alcan Aluminum Corp. v. United States, 165 F.3d 898, 905 (Fed.Cir.1999). Because the parties previously agreed that the decision in this case would control the handling of the pre-1993 entries (See Agreement, Ex. C to February 6 Letter, Protest Package, Ex. 1 to Def.'s Supp. Br. Letter at 1 (May 4, 2004); Amend. to Agreement, Ex. 1 to Pl.'s Supp. Br. Letter (May 3, 2004)), in February, 2000, Customs refunded the tendered MPF to Alcan for those entries.⁶ See Def.'s Mot. at 2; Compl. of Alcan at paras. 16, 23. However, Customs failed to remit to Alcan the "interest as may be required by law," as outlined in the Agreement. See Agreement, Ex. C to February 6 Letter, Protest Package, Ex. 1 to Def.'s Supp. Br. Letter at 1-2 (May 4, 2004).; Def.'s Mot. at 2; Compl. of Alcan at paras. 17, 23.

In response to Customs' action, on September 11, 2000, Alcan filed a request for accelerated disposition of its February 8, 1995 protest. See Compl. of Alcan at para. 18; Letter from F.D. "Rick" Van Arnam, Jr., Barnes, Richardson & Colburn, to Port Dir., Customs, Re: Protest Number 3801-95-100775, Date Filed: February 8, 1995 (Sept. 11, 2000) and Certified Mail Receipt for Article Sent from Alcan Aluminum Corp. to Port Dir., Customs (Sept. 11, 2000), Ex. B to June 18 Letter. The protest was denied by Customs on September 27, 2000. See Compl. of Alcan at para. 19; Protest Form (as marked and stamped by Customs), Protest Package, Ex. 1 Def.'s Supp. Br. Letter (May 4, 2004). On March 23, 2001, Alcan filed its Summons, and thereby commenced this action to recover the interest accrued on the refunded MPF. See Summons of Alcan at 2. As noted above, Defendant Customs now moves to dismiss for lack of subject matter jurisdiction.

STANDARD OF REVIEW

Alcan seeks to invoke the Court's jurisdiction under 28 U.S.C. § 1581(a). Compl. of Alcan at para. 1. Accordingly, Alcan has the burden of establishing the basis upon which jurisdiction lies in this Court. See Juice Farms, Inc. v. United States, 68 F.3d 1344, 1345 (Fed.Cir.1995) (citation omitted). Because Customs' motion to dismiss challenges "the sufficiency of the pleadings," and not the factual basis underlying the same, the Court will accept all facts alleged in Alcan's pleadings as true. Corrpro Cos. v. United States, 2003 WL 21293819 (CIT June 4, 2003).

DISCUSSION

Customs contends that the Court lacks subject matter jurisdiction under § 1581(a) because Alcan's protest and this lawsuit were untimely filed. See Def.'s Mot. at 3-4.⁷ Accordingly, the Court will first discuss the timeliness of the protest, and then will discuss the timeliness of this action.⁸

A. The Subject Protest was Timely Filed

Alcan asserts that the Court has jurisdiction over this case under 28 U.S.C. § 1581(a), which grants the Court exclusive jurisdiction over "any civil action commenced to contest the denial of a protest [by Customs]...." See Compl. of Alcan at para. 1; 28 U.S.C. § 1581(a). However, in order to invoke the Court's jurisdiction under § 1581(a), a civil action must be based on the denial of a valid protest filed in accordance with 19 U.S.C. § 1514. See Koike Aronson, Inc. v. United States, 165 F.3d 906, 908-909 (Fed.Cir.1999). Title 19 U.S.C. § 1514 contains, among other things, the statutory requirements for a timely protest. See 19 U.S.C. § 1514.

For a protest to be valid within the meaning of section 1514, an importer must file its protest within ninety days after the protested decision. See 19 U.S.C. § 1514(c)(3).⁹ Without a timely filed protest, the Court lacks jurisdiction. See Castelazo & Assocs. v. United States, 126 F.3d 1460, 1461 (Fed.Cir.1997). Accordingly, the Court will now analyze whether the subject protest conforms to the requirements outlined in section 1514. Specifically, Alcan's objections will be analyzed to determine whether such objections were made within the requisite ninety-day statutory period. See 19 U.S.C. § 1514(c).

In its protest, Alcan essentially objected to three separate determinations. See February 6 Letter at 1-3. It objected to Customs' assessment and its own payment of the MPF, any "unanticipated frustration" of the Agreement, and Customs' acceptance of Alcan's tendered MPF. Id. The Court will discuss all three objections in turn.

First, Alcan protested Customs' assessment and its own payment of the MPF.¹⁰ See id. at 1. Customs assessed the MPF pursuant to 19 C.F.R. 162.74(h), and, in its letter dated October 18, 1994, demanded the amount of $378,496.53 as payment of the MPF. See Compl. of Alcan at para. 5; October 18 Letter, Ex. A to February 6 Letter, Protest Package, Ex. 1 to Def.'s Supp. Br. Letter (May 4, 2004). Alcan tendered the same on November 11, 1994. See Compl. of Alcan at para. 6. Alcan filed its protest on February 8, 1995, one hundred and thirteen days after Customs' October 18, 1994 demand. See Protest form (as stamped by Customs), Protest Package, Ex. 1 to Def.'s Supp. Br. Letter (May 4, 2004); Compl. of Alcan at para. 12; see also Def.'s Mot. at 3. Therefore, because Alcan's protest of Customs' assessment was not filed within ninety days following Customs' demand, the protest of Customs' assessment of the MPF was untimely.

Second, with respect to the "unanticipated frustration" objection, Alcan protested the "possibility of contingencies not anticipated in the Agreement." February 6 Letter, Protest Package, Ex. 1 to Def.'s Supp. Br. Letter at 3 (May 4, 2004). According to 19 U.S.C. § 1514(c)(3), "[a] protest ... shall be filed with the Customs Service within ninety days after but not before ... the date of the decision as to which protest is made." (emphasis added). 19 U.S.C. § 1514(c)(3). The protest was filed on February 8, 1995. See Protest Form (as stamped by Customs), Protest Package, Ex. 1 to Def.'s Supp. Br. Letter (May 4, 2004); Compl. of Alcan at para. 12. Customs refunded Alcan's tender without interest in February, 2000.¹¹ See Compl. of Alcan at paras. 16, 17. Therefore, even if Customs' nonpayment of interest were categorized an "unanticipated frustration" of the Agreement, Alcan filed its protest before Customs' nonpayment of interest. Accordingly, the protest as to this determination was untimely. See 19 U.S.C. § 1514(c)(3); see also A.N. Deringer, Inc. v. United States, 12 CIT 969, 972, 698 F.Supp. 923, 925 (1988) (protest was rendered invalid because it was prematurely...