Ford Motor Co. v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Citation635 F.3d 550
Docket NumberNo. 2010–1238.,2010–1238.
PartiesFORD MOTOR COMPANY, Plaintiff–Appellant,v.UNITED STATES, Defendant–Appellee.
Decision Date21 March 2011

635 F.3d 550
32 ITRD 2025

FORD MOTOR COMPANY, Plaintiff–Appellant,
UNITED STATES, Defendant–Appellee.

No. 2010–1238.

United States Court of Appeals, Federal Circuit.

March 21, 2011.

[635 F.3d 551]

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, New York, argued for plaintiff-appellant. With him on the brief were Robert B. Silverman and Joseph M. Spraragen. Of counsel on the brief was Paulsen K. Vandevert, The Ford Motor Company, of Dearborn, Michigan.Justin R. Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, New York, argued for defendant-appellee. With him on the brief were Barbara S. Williams, Attorney in Charge; and Tony West, Assistant Attorney General, and Jeanne E. Davidson, Director, of Washington, DC. Of counsel was Edward F. Kenny, Attorney. Of counsel on the brief was Beth C. Brotman, Office of Assistant Chief Counsel, United States Customs and Border Protection, of New York, New York.Before LOURIE, LINN, and DYK, Circuit Judges.DYK, Circuit Judge.

Ford Motor Company (“Ford”) appeals from a final judgment of the United States Court of International Trade (“Trade Court”). The Trade Court dismissed for lack of jurisdiction Ford's action challenging the denial by U.S. Customs and Border Protection (“Customs”) of Ford's claims for post-entry duty refunds under the North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993) [hereinafter NAFTA]. Ford Motor Co. v. United States, No. 03–00115, slip op. 10–4, 2010 WL 98699 (Ct. Int'l Trade Jan. 12, 2010). We reverse the Trade Court's jurisdictional decision and remand for further proceedings consistent with this opinion.


NAFTA is a trade agreement between the United States, Canada, and Mexico which seeks to promote the free flow of goods between the member countries. Imports that qualify for preferential treatment under NAFTA are permitted to enter the United States duty free. Pursuant to Article 502(1) of NAFTA, imports are eligible for preferential treatment if the importer:

[635 F.3d 552]

a) make[s] a written declaration, based on a valid Certificate of Origin, that the good qualifies as an originating good;

b) ha[s] the Certificate in its possession at the time the declaration is made;

c) provide[s], on the request of that Party's custom administration, a copy of the Certificate; and

d) promptly make[s] a corrected declaration and pay[s] any duties owing where the importer has reason to believe that a Certificate on which a declaration was based contains information that is not correct.

NAFTA, art. 502(1), 32 I.L.M. at 358. This provision is implemented in the NAFTA Implementation Act, Pub.L. No. 103–182, 107 Stat. 2057 (1993) (codified as amended at 19 U.S.C. §§ 3301–3473), and 19 C.F.R. § 181.21. An importer that does not meet these requirements at the time of entry is not barred from making a claim for preferential treatment. Under NAFTA Article 502(3), an importer that does not claim preferential treatment at the time of entry may nonetheless qualify for a post-entry duty refund. NAFTA, art. 502(3), 32 I.L.M. at 358. That provision is implemented by 19 U.S.C. § 1520(d), which provides:

Notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties ... paid on a good qualifying under the rules of origin set out in section 3332 of this title ... for which no claim for preferential tariff treatment was made at the time of importation if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes

(1) a written declaration that the good qualified [for preferential treatment] at the time of importation;

(2) copies of all applicable NAFTA Certificates of Origin (as defined in section 1508(b)(1) of this title) ...; and

(3) such other documentation and information relating to the importation of the goods as the Customs Service may require.

19 U.S.C. § 1520(d) (emphases added).

This case arises from Ford's attempt to claim preferential treatment under NAFTA for certain shipments of automotive parts imported into the United States from Canada. Ford imported the shipments from Canada between January 1997 and January 1999. The parties have agreed to use Entry No. 231–2787386–9, which entered the United States on June 27, 1997, as a test case. Ford did not assert at the time of entry that its goods were eligible for preferential treatment under NAFTA. Ford electronically filed a post-entry duty refund claim on May 13, 1998, less than one year after the date of importation, asserting that it was entitled to reliquidation and a duty refund under § 1520(d). However, Ford's May 13th claim did not include copies of pertinent NAFTA certificates of origin as required by 19 U.S.C. § 1520(d)(2). Ford did not submit the relevant certificates of origin to Customs until November 5, 1998, over a year after the date of importation. Customs denied Ford's claim, stating that “[t]he NAFTA Certificate of Origin was not furnished within one year of the date of importation.” J.A. 224. Ford filed a protest to contest the denial, and Customs denied the protest on the same grounds. J.A. 134. Ford appealed Customs' decision to the Trade Court.

Before the Trade Court, Ford argued, inter alia, that even though it submitted its certificates of origin more than a year

[635 F.3d 553]

after importation, it filed a “claim” within one year as required by § 1520(d), and the certificates of origin were not an essential part of that claim for jurisdictional purposes. Ford argued that Customs should have accepted its late-filed certificates pursuant to 19 C.F.R. § 10.112, which provides that,

[w]henever a free entry or a reduced duty document, form, or statement required to be filed in connection with the entry is not filed at the time of the entry or within the period for which a bond was filed for its production, but failure to file it was not due to willful negligence or fraudulent intent, such document, form, or statement may be filed at any time prior to liquidation of the entry or, if the entry was liquidated, before the liquidation becomes final.

Id. (emphasis added). The government disagreed and moved to dismiss for lack of subject matter jurisdiction, arguing that the submission of NAFTA certificates of origin within one year was a jurisdictional prerequisite.

The Trade Court granted the government's motion, reasoning that, under 28 U.S.C. § 1581(a), “Customs must reach a ‘decision’ on [a] protest” before the Trade Court may exercise jurisdiction, and “Customs cannot address the merits of a protest, and therefore make a protestable decision, in the absence of a claim filed in accordance with law.” Ford, slip op. at 14. The Trade Court found that Ford had not filed a valid § 1520(d) claim based on this court's decisions in Xerox Corp. v. United States, 423 F.3d 1356 (Fed.Cir.2005), and Corrpro Cos., Inc. v. United States, 433 F.3d 1360 (Fed.Cir.2006). As discussed below, these cases held that the timely filing of a claim under § 1520(d) was a jurisdictional prerequisite, but they did not involve claims—such as Ford's—that were timely filed but lacking certificates of origin. Nonetheless, the Trade Court interpreted Xerox and Corrpro as “unambiguously requir[ing] that any claim for NAFTA treatment made pursuant to [§ 1520(d) ] must include timely filed certificates of origin to be valid.” Ford, slip op. at 16. Because Ford failed to file its certificates within one year of importation, the court found that Ford had not filed a valid § 1520(d) claim from which Customs could have rendered a jurisdiction-conferring protestable decision. Ford, slip op. at 16.

Ford timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).


The question presented in this case is whether the Trade Court lacks jurisdiction to review a Customs decision denying an importer's § 1520(d) post-entry rebate claim where the importer filed a claim with Customs within one year after the date of entry, but did not file the pertinent certificates of origin within that one year period. We hold that Ford's untimely filing of its certificates of origin did not deprive the Trade Court of jurisdiction to hear Ford's claim.


It is clear that 19 U.S.C. § 1520(d) requires importers to file “a claim” within one year after the date of importation. Under 28 U.S.C. § 1581(a), the Trade Court has “exclusive jurisdiction [over] any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” In Xerox and Corrpro, we held that, for there to be a “protestable decision” giving rise to § 1581(a) Trade Court jurisdiction, claims under § 1520(d) must be timely filed within one year of importation. See Xerox, 423 F.3d at 1363; Corrpro, 433 F.3d at 1365.

[635 F.3d 554]

In Xerox, we found that there was no protestable decision giving rise to § 1581(a) Trade Court jurisdiction because the petitioner had failed to “raise[ ] in the first instance a claim for preferential treatment under NAFTA” within one year after entry. 423 F.3d at 1363. That is, unlike the present case, it was not until more than a year after importation that the petitioner in Xerox asserted “for the first time ... that its entries were entitled to a duty-free preference.” Id. at 1358. Similarly, in Corrpro, we again found there to be no protestable decision because the petitioner “concede[d] that it did not make a post-importation NAFTA claim within a year of entry.” 433 F.3d at 1365. Thus, in both Xerox and Corrpro, the importers did not file notice of any § 1520(d) claims at all until more than one year after their dates of importation. In contrast, Ford imported its representative shipment on June 27, 1997, and filed notice...

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