Chrysal USA, Inc. v. United States

• Decision Date: 18 July 2012
• Citation: 853 F.Supp.2d 1314,34 ITRD 1800
• Parties: CHRYSAL USA, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

853 F.Supp.2d 1314

34 ITRD 1800

CHRYSAL USA, INC., Plaintiff,

v.UNITED STATES, Defendant.

United States Court of International Trade.

Slip Op. 12–96.

Court No. 11–00092.

July 18, 2012.

Peter S. Herrick, Peter S. Herrick, P.A., of Miami, FL, for Plaintiff.

Aimee Lee, Senior Trial Counsel, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, and Barbara S. Williams, Attorney in Charge, International Trade Field Office. Of counsel on the brief was Yelena Slepak, Office of the Assistant Chief Counsel, International Trade Litigation, Bureau of Customs and Border Protection, U.S. Department of Homeland Security, of New York, NY.

OPINION

RIDGWAY, Judge:

In this action, plaintiff Chrysal USA, Inc. (“Chrysal”) seeks to challenge the tariff classification of “flower food” which was among the various products included in 17 entries of merchandise that Chrysal imported into the United States in 2008. See generally Complaint. Chrysal invokes 28 U.S.C. § 1581(a), which vests the U.S. Court of International Trade with exclusive jurisdiction over “any civil action commenced to contest the denial of a protest.” See id. ¶ 1; 28 U.S.C. § 1581(a) (2006); ¹see also Plaintiff's Memorandum in Support of Its Opposition to Defendant's Motion to Dismiss (“Pl.'s Brief”) at 2.

Now pending before the Court is Defendant's Motion to Dismiss for want of jurisdiction. Emphasizing that jurisdiction pursuant to 28 U.S.C. § 1581(a) is predicated on the Bureau of Customs and Border Protection's denial of a valid protest,² the Government argues that no such protest was filed here. See Defendant's Memorandum in Support of Its Motion to Dismiss (“Def.'s Motion to Dismiss”) at 4–13; Defendant's Reply Memorandum (“Def.'s Reply Brief”) at 1–8.

As discussed in detail below, the Government's motion must be granted, and this action dismissed.³

I. Background

Because the filing of a timely, valid protest is a condition precedent to the exercise of jurisdiction under 28 U.S.C. § 1581(a), the Government's pending Motion to Dismiss turns on whether an August 2009 letter to Customs from Chrysal's Dutch parent company constituted a “protest,” as defined by the applicable statute and regulation. See19 U.S.C. § 1514(c)(1)(A)–(D) (establishing statutory requirements for contents of a protest); 19 C.F.R. § 174.13(a)(1)–(6) (establishing regulatory requirements for contents of protest).

At issue in this action are 17 entries of merchandise that Chrysal imported into the United States in 2008. See Summons; Complaint ¶¶ 1, 12; Pl.'s Brief at 1.⁴ According to the relevant invoices, the 17 entries included a range of various plant-related products—including “leafshine,” “Chrysal cleaner,” and “rose liquid,” to name a few. See Def.'s Motion to Dismiss at 1; invoices. According to Chrysal's complaint, the 17 entries also included “flower food,” although none of the invoices identify any item as “flower food.” See Complaint ¶ 6; Pl.'s Brief at 1–2; Def.'s Motion to Dismiss at 1, 11; invoices.

At the time of importation, Chrysal filed entry documents with Customs claiming that the various products in the 17 subject entries were classifiable under assorted specified provisions of the Harmonized Tariff Schedule of the United States (“HTSUS”). See Def.'s Motion to Dismiss at 1 ( citing entry papers).⁵ In particular, in the entry documents that it filed with Customs, Chrysal claimed that the imported “flower food” was properly classifiable under HTSUS subheading 3824.90.92 as a “chemical product[ ] [or] preparation[ ] of the chemical or allied industries” and thus subject to customs duties at the rate of 5.00% ad valorem. See Complaint ¶ 6; Pl.'s Brief at 1; Def.'s Motion to Dismiss at 2 ( citing entry papers); Subheading 3824.90.92, HTSUS.

Some months later (in mid-April 2009), before the subject entries were liquidated, Chrysal filed post summary adjustments with Customs, asserting that “flower food” was “wrongly classified” and seeking a refund of duties. See Complaint, Exh. A (post summary adjustment filed for Entry HG8–0119669–9, submitted as example of all relevant post summary adjustments); Complaint ¶ 7; Pl.'s Brief at 1; Def.'s Motion to Dismiss at 2.⁶ In its post summary adjustments, Chrysal did not identify the specific tariff provision that it sought to claim. See Complaint, Exh. A (example of post summary adjustment). However, the post summary adjustments referred to an “attached letter from the Rulings Division” of Customs. See id. (example of post summaryadjustment); see also Pl.'s Brief at 1; Def.'s Motion to Dismiss at 2; HQ 955771 (Jan. 2, 1996). In that 1996 ruling, denoted HQ 955771, Customs reviewed four potential classifications and concluded that “powdered cut flower food” of a particular chemical composition was classifiable as a “glucose” product under subheading 1702.30.40 of the HTSUS. See HQ 955771.⁷

By email message to Chrysal in late April 2009,⁸ Customs' Import Specialist noted the chemical composition of the “powdered cut flower food” at issue in HQ 955771 and distinguished it from the chemical composition of a product that the email message identified as “Chrysal Clear Professional 2 T-bag.” See Complaint, Exh. B (email message to Chrysal from Customs Import Specialist, dated April 28, 2009); Def.'s Motion to Dismiss at 2.⁹ Thereafter, Customs rejected Chrysal's post summary adjustments, and subsequently liquidated the “flower food” in the subject entries as entered by Chrysal, under subheading 3824.90.92. See Complaint, Exh. A (example of post summary adjustment, bearing Import Specialist's handwritten notation “Disagree” and the date “6/3/09”); Complaint ¶¶ 9, 11; Def.'s Motion to Dismiss at 2–3. ¹⁰

In late August 2009, Chrysal International BV—Chrysal's Dutch parent company—sent Customs a letter, which Chrysal contends is the formal “protest” that 28 U.S.C. § 1581(a) requires as a basis for invoking this court's jurisdiction. See Complaint, Exh. C (letter to Customs from Chrysal International BV, dated Aug. 26, 2009); Complaint ¶ 12; Pl.'s Brief at 2; Def.'s Motion to Dismiss at 3; 28 U.S.C. § 1581(a) (vesting Court of International Trade with exclusive jurisdiction over civil action contesting “the denial of a protest”).¹¹ Sent on the stationery of Chrysal's parent company, the August 2009 letter bore a “Subject” line that read simply “Product composition Chrysal Flowerfood.” See Complaint, Exh. C. In its entirety, the letter stated:

Dear reader,

I hereby state that since [HQ 955771, the Customs ruling] which was issued on January 2, 1996 we did not make any major changes to the ingredients and composition of the flower food we sell via our subsidiary company Chrysal USA.

Yours sincerely

CHRYSAL INTERNATIONAL BV

Daphne A. Witzel–Voorn

Manager QC and recipes

Id. Roughly 17 1/2 months later, in mid-February 2011, counsel for Chrysal sent Customsa letter characterizing the August 2009 letter from Chrysal's parent company as a “protest” and requesting its “accelerated disposition.” See Complaint, Exh. D (letter to Customs from counsel to Chrysal, dated Feb. 18, 2011); Complaint ¶ 13; Def.'s Motion to Dismiss at 3. ¹² Customs responded on April 21, 2011, advising Chrysal that the August 2009 letter could not be considered a valid protest. See Def.'s Motion to Dismiss at 3.

This action followed, in which Chrysal invokes jurisdiction to contest the denial of a protest pursuant to 28 U.S.C. § 1581(a), claims that the August 2009 letter from its parent company to Customs constituted the requisite protest, and asserts that the “flower food” in the 17 subject entries should have been classified under HTSUS subheading 1702.30.40, dutiable at the rate of 2.2¢/kg. See Complaint ¶¶ 1, 12, & “Wherefore” clause; Def.'s Motion to Dismiss at 1–2, 3; Subheading 1702.30.40, HTSUS.

II. Analysis

Where—as here—subject matter jurisdiction is in dispute, the party asserting jurisdiction bears “the burden of showing that he is properly in court.” McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, p. 211 (3d ed. 2004). In the case at bar, jurisdiction rests upon 28 U.S.C. § 1581(a), which, “[b]y its terms, ... limits the jurisdiction of the Court of International Trade to appeals from denials of valid protests.” See Koike Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed.Cir.1999); see also DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1319 (Fed.Cir.2006); 28 U.S.C. § 1581(a). In the instant case, Chrysal never filed a protest. Hence, there was no denial of a protest to be appealed, and the Court of International Trade lacks jurisdiction to hear Chrysal's complaint.

Chrysal maintains that the August 26, 2009 letter from its Dutch parent company to Customs constituted a valid protest. See Complaint ¶ 12; Id., Exh. C; Pl.'s Brief at 2, 5. It is, however, no exaggeration to say—as the Government does here—that the August 2009 letter “contains none of the requisite elements of a protest” which are established both by statute and by regulation. See Def.'s Reply Brief at 1 (emphasis added); see also19 U.S.C. § 1514(c)(1); 19 C.F.R. § 174.13(a); Def.'s Motion to Dismiss at 5–13; Def.'s Reply Brief at 1–8. As discussed below, this action therefore must be dismissed for lack of jurisdiction.

Moreover, the restrictions imposed by statute are not confined to a protest's contents. The statute also imposes restrictions as to timing, and expressly prohibits the filing of a protest “before ... [the] date of liquidation.” 19 U.S.C. § 1514(c)(3)(A); see also19 C.F.R. § 174.12(e) (requiring filing of any protest “within 90 days after ” a specified protestable decision or event) (...