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  • Customs Bulletin, Vol. 52, No. 46 - US Customs and Border ...

Customs Bulletin, Vol. 52, No. 46 - US Customs and Border ...

U.S. Court of Appeals for the
Federal Circuit

Appeal No. 2014-1726
Appeal from the United States Court of International Trade in No. 1:09-cv-00151-
MAB, Judge Mark A. Barnett.
Dated: February 3, 2016
Stephanie A. Douglas, Bush Seyferth & Paige, PLLC, Troy, MI, argued for plaintiff-
appellant. Also represented by Matthew Caligur, Baker & Hostetler LLP, Houston, TX.
Justin Reinhart Miller, International Trade Field Office, Commercial Litigation
Branch, Civil Division, United States Department of Justice, New York, NY, argued for
defendant-appellee. Also represented by Amy M. Rubin, Jeanne E. Davidson, Joyce R.
Before Newman, Dyk, and O'Malley, Circuit Judges.
Opinion for the court filed by Circuit Judge Dyk.
Dissenting opinion filed by Circuit Judge Newman.
Dyk, Circuit Judge.
Ford Motor Company ("Ford") appeals from a final judgment of the
Court of International Trade ("CIT") dismissing all of its claims. Ford
Motor Co. v. United States, 992 F. Supp. 2d 1346 (Ct. Int'l Trade 2014)
("Ford III"). The CIT dismissed some of Ford's claims as barred by the
statute of limitations under 28 U.S.C. ? 2636(i) and declined to exer-
cise its discretionary jurisdiction to issue declaratory relief for the
remainder of Ford's claims.
We hold that we need not address the statute of limitations issue
because the statute is not jurisdictional. We further hold that the CIT
did not abuse its discretion in declining to issue declaratory relief.
While the CIT did not reach the declaratory judgment issue with
respect to some of Ford's claims, we conclude that the CIT would have
denied all claims on that ground, and that a remand is therefore
unnecessary. Accordingly, we affirm.
In 2004 and 2005, Ford imported Jaguar-brand cars from the
United Kingdom into the United States. On the cars' entry into the
United States, Ford deposited estimated duty payments with Cus-
toms and Border Protection ("Customs"). Ford later concluded that it
overpaid the duty actually owed because its estimates had been too
high. Ford then filed nine reconciliation entries with Customs be-
tween June 2005 and October 2006, seeking a total refund of about
$6.2 million.
Customs may liquidate an entry, which involves a determination of
the amount of duty owed, based on any "just, impartial, and uniform
appraisement" prescribed by the Secretary of the Treasury. 19 U.S.C.
? 1502. Customs has one year from the time of filing to liquidate an
entry under 19 U.S.C. ? 1504(a). It may extend that period if it needs
additional information to properly appraise or classify the imported
merchandise or if the importer requests an extension and demon-
strates good cause. See 19 U.S.C. ? 1504(b). Customs is entitled to a
maximum of three one-year extensions. 19 C.F.R. ? 159.12(a), (d), (e).
If not extended before the expiration of any one-year period, the entry
"shall be deemed liquidated at the rate of duty, value, quantity and
amount of duties asserted by the importer of record." 19 U.S.C. ?
1504(a)(1). Similarly, if Customs has not liquidated an entry after the
maximum extended period of four years, it is deemed liquidated by
operation of law. See 19 U.S.C. ? 1504(b); 19 C.F.R. ? 159.12(f). When
an entry is deemed liquidated, Customs forfeits the ability to recal-
culate the duty owed; instead, the duty is calculated based on the
importer's own asserted rate, value, and quantity. See 19 C.F.R. ?
159.12(f). Here the rate "asserted" by the importer is the rate asserted
in its reconciliation entries rather than the rate asserted at the time
of original entry.1 Customs seeks to recalculate the duty owed, urging
that the original rate was correct.
On April 15, 2009, Ford filed suit in the CIT to challenge Customs'
treatment of its nine reconciliation entries, arguing that Customs had
failed to properly extend the liquidation period in accordance with 19
U.S.C. ? 1504(b) and therefore could not recalculate the duty.2 Cus-
toms contended that it had extended the liquidation periods, which
did not expire until between June 29, 2009, and October 4, 2010, four
years after entry. At the time Ford filed suit, Customs had yet to
1 "A reconciliation is treated as an entry for purposes of liquidation, reliquidation, record-
keeping, and protest." 19 U.S.C. ? 1401(s).
2 As relevant to this appeal, Ford's pleadings consist of six claims. Claim 1 alleges that
Customs failed to extend liquidation; Claim 2 alleges that even if Customs did extend
liquidation, it never issued notices as required by 19 U.S.C. ? 1504(b) and (c); Claim 3
alleges that, even if customs issued notices, the notices lacked reasons for extension as
required by ? 1504(b) and (c); Claim 4 alleges that even if Customs did extend, it had no
valid reason to extend under ? 1504(b); Claim 5 applies only to Entries Band C, which
liquidated on June 19, 2009, and July 17,2009, respectively, and alleges that Customs'
purported reliquidations of these entries occurred more than four years after filing, in
violation of ? 1504(b); Claim 6 applies only to Entry D, which was liquidated on August 14,
2009, and alleges that Customs failed to fix the final appraisement or amount of duty as
required by ? 1500(a) and (c).
liquidate any of Ford's nine entries. Because there were no liquida-
tion decisions to protest under 28 U.S.C. ? 1581(a), Ford brought its
challenge under 28 U.S.C. ? 1581(i). The CIT's residual jurisdiction
provision is available only when jurisdiction under subsections (a)
through (h) of ? 1581 is not available.3
Ford sought a declaratory judgment that its entries had deemed
liquidated as a matter of law, and, therefore, that it was entitled to a
$6.2 million refund based on its duty calculation asserted in the
reconciliation entries. During the pendency of that action, Customs
liquidated five of the nine entries. The government moved to dismiss
Ford's claims for lack of jurisdiction. The CIT granted the govern-
ment's motion as to those entries that had already liquidated, ruling
that ? 1581(a), not ? 1581(i), was the proper basis to challenge those
entries. Ford Motor Co. v. United States, 716 F. Supp. 2d 1302, 1310
(Ct. Int'l Trade 2010) ("Ford I"). As to the four entries that remained
unliquidated, the CIT recognized that ? 1581(i) jurisdiction was
proper but declined to issue discretionary declaratory relief, explain-
ing that Ford would have ample opportunity to assert claims for those
entries in a future? 1581(a) action.
Shortly after Ford I, Customs liquidated Ford's remaining entries,
declining to provide Ford with any refund. Ford protested the merits
of all nine of Customs' liquidations. Customs denied the protest for
Ford's 2005 entries, and Ford commenced a separate court action
challenging that denial under ? 1581(a), which is pending as of the
time of this appeal. Ford Motor Co. v. United States, Ct. Int'l Trade
No. 10-00138. Ford's protest for its 2006 entries is currently held
before Customs pending the outcome of this appeal.
Ford appealed from the CIT's decision in Ford I dismissing its
claims for a declaratory judgment that its entries had deemed liqui-
dated as a matter of law at Ford's asserted rate. See Ford II, 688 F.3d
at 1321. We reversed the CIT's dismissal on jurisdictional grounds of
those claims relating to the five entries that were liquidated during
the pendency of the CIT action. Id. at 1324. We held that, based on the
"time-of-filing rule," "the government's post-filings actions in liquidat-
ing the entries may have opened up a new avenue for judicial review
under [28] U.S.C. ? 1581(a), but the actions cannot defeat subject
matter jurisdiction under ? 1581(i)." Id. at 1327. We vacated the CIT's
discretionary dismissal of Ford's claims that remained unliquidated
because the CIT's analysis "extended in significant part from its
flawed jurisdictional analysis." Id. at 1330. We explained that the CIT
"retains authority, but no obligation, to revisit [its declaratory judg-
ment authority] on remand." Id.
3 See Ford Motor Co. v. United States, 688 F.3d 1319, 1323 (Fed. Cir. 2012) ("Ford II").
On remand at the CIT, the government again moved to dismiss, this
time arguing that Ford's claims directed to its 2005 entries were
barred by the two-year statute of limitations under 28 U.S.C. ?
2636(i), which governs ? 1581(i) actions. The CIT again granted the
government's motion to dismiss for all claims directed to the 2005
entries except Claim 5, finding that Ford's action was barred by the
two-year limitations period, having been commenced more than two
years after Ford reasonably should have known about the existence of
those claims. Ford III, 992 F. Supp. 2d at 1356-57. Regarding Claim
5 and the claims directed to Ford's 2006 entries-- as to which there
was no statute of limitations issue--the CIT recognized that ? 1581(i)
jurisdiction was available but again declined to exercise its discre-
tionary jurisdiction. See id. at 1359.
The CIT explained that "adjudicating the claims would not be an
efficient and effective use of the court's time and resources," because
Ford "retains the ability to seek relief" for all of its claims in its
pending protest and? 1581(a) action. Id. The CIT further explained
that "[t]he ? 1581(a) case will allow [Ford] to challenge not only the
question of whether the entries in question were deemed liquidated,
but the substance of any actual liquidations or reliquidations that
occurred (i.e., the merits of [Ford's] reconciliation claims), an option
not available in this declaratory judgment case." Id. Ford appealed.
We have jurisdiction pursuant to 28 U.S.C. ? 1295(a)(5). We review
the CIT's dismissal for lack of subject matter jurisdiction de novo.
Heartland By-Prods., Inc. v. United States, 424 F.3d 1244, 1250 (Fed.
Cir. 2005). We review the CIT's decision not to issue declaratory relief
for abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277, 289-90
(1995); Sony Elecs., Inc. v. Guardian Media Techs., Ltd., 497 F.3d
1271, 1288 (Fed. Cir. 2007).
As to Claims 1-4 and 6 concerning Ford's 2005 entries, we first
consider whether the statute of limitations under 28 U.S.C. ? 2636(i)
is jurisdictional, such that we must address it before considering the
merits. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94
(1998). Ford argues that our mandate in Ford II precluded the CIT
from considering the statute of limitations because we reversed the
CIT's dismissal for lack of subject matter jurisdiction, and the statute
of limitations is jurisdictional. The government argues that the CIT
was "powerless to adjudicate Ford's claims" because they fell outside
of the CIT's authority under ? 2636(i), and that the mandate in the
original appeal is not a bar even though "the statute of limitations is
. . . jurisdictional." Appellee's Br. at 31. We disagree with both parties.
Section 1581(i)'s two-year statute of limitations is not jurisdictional.
Section 2636(i) of title 28 provides that a "civil action of which the
Court of International Trade has jurisdiction under section 1581 of
this title, other than an action specified in subsections (a)-(h) of this
section, is barred unless commenced in accordance with the rules of
the court within two years after the cause of action first accrues."
In SKF USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d
1337, 1348 (Fed. Cir. 2009), we assumed without deciding that this
statute of limitations was jurisdictional. In recent years, the Supreme
Court has articulated a more stringent test for determining when
statutory time limits are jurisdictional. United States v. Kwai Fun
Wong, 135 S. Ct. 1625, 1632-33 (2015), is the latest in a series of
Supreme Court opinions developing this test.4 The Court explained
that there is a "high bar to establish that a statute of limitations is
jurisdictional. In recent years, we have repeatedly held that proce-
dural rules, including time bars, cabin a court's power only if Con-
gress has clearly stated as much." Id. at 1632 (internal quotation
marks and citations omitted). Absent such a clear statement, "courts
should treat [a] restriction as nonjurisdictional." Id. (internal quota-
tion marks and citations omitted). While Congress need not "incant
magic words," it must "do something special, beyond setting an
exception-free deadline, to tag a statute of limitations as jurisdic-
tional." Id.(internal quotation marks and citations omitted). This is
true "even when the time limit is important (most are) and even when
it is framed in mandatory terms (again, most are)." Id. The statutory
language, see Arbaugh, 546 U.S. at 515-16, placement of the provi-
sion within the statutory scheme, Henderson, 562 U.S. at 439, and
"context, including [Supreme Court] interpretations of similar provi-
sions in many years past," Auburn Reg'l, 133 S. Ct. at 825 (internal
quotation marks and citations omitted), are indicative of whether a
provision is jurisdictional.
Recently in Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315,
1320-22 (Fed. Cir. 2014), we followed those cases and held that the
six-year limitations set forth in 41 U.S.C. ? 7103(a)(4)(A) governing
the Contract Disputes Act was not jurisdictional. We explained that
the statute, which provides that "[e]ach claim by a contractor against
the Federal Government relating to a contract . . .shall be submitted
within 6 years after the accrual of the claim," did "not speak in
jurisdictional terms," nor did its context "suggest that it is jurisdic-
4 See, e.g., Sebelius v. Auburn Reg'l Med. Ctr., 133 S. Ct. 817 (2013); Henderson v. Shinseki,
562 U.S. 428 (2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010); Arbaugh v. Y &
H Corp., 546 U.S. 500 (2006).
tional." Id. at 1321 (internal quotation marks and citations omitted).
Because no "long-standing interpretation by the Supreme Court"
counseled to the contrary, we thus held that the statute lacked "any
special characteristic that would warrant making an exception to the
general rule that filing deadlines are not jurisdictional." Id. at 1322.
Here, ? 2636(i) similarly "does not speak in jurisdictional terms."
Id. at 1321 (quoting Auburn Reg'l, 133 S. Ct. at 825). While the first
clause of ? 2636(i) references the CIT's "jurisdiction under section
1581 of this title," it does so only to distinguish the reach of ? 2636(i)
from ? 2636(a)-(h), which covers all ? 1581 actions other than the
residual provision of ? 1581(i). The remainder of ? 2636(i), which
provides the actual time limitation at issue here, simply provides that
? 1581(i) actions are "barred unless commenced in accordance with
the rules of the court within two years after the cause of action first
accrues." 28 U.S.C. ? 2636(i). This does not "suggest, much less pro-
vide clear evidence, that the provision was meant to carry jurisdic-
tional consequences." Henderson, 562 U.S. at 438. Like the time
limitations addressed in Kwai Fun Wong and Sikorsky, ? 2636(i)
"reads like an ordinary, run-of-the-mill statute of limitations, spelling
out a litigant's filing obligations without restricting the court's au-
thority." Kwai Fun Wong, 135 S. Ct. at 1633 (internal quotation
marks and citations omitted). Indeed, the text is even clearer here
than in Kwai Fun Wong and Sikorsky, because the first clause of ?
2636(i) provides that jurisdiction has already been established in all
cases governed by the two-year limitations provision: "A civil action of
which the Court of International Trade has jurisdiction under section
1581 . . . is barred unless" commenced within two years after accrual.
28 U.S.C. ? 2636(i) (emphasis added).
Nor does the placement of ? 2636(i) within the statutory scheme
provide any indication that the provision is jurisdictional. The Court
has "often explained that Congress's separation of a filing deadline
from a jurisdictional grant indicates that the time bar is not jurisdic-
tional." Kwai Fun Wong, 135 S. Ct. at 1633. Whereas ? 2636 provides
the time limitations for civil actions against the United States, a
different section of title 28 confers jurisdiction on the CIT to hear such
actions. See, e.g., ? 1581(i) (The CIT "shall have exclusive jurisdiction
of any civil action commenced against the United States, its agencies,
or its officers."). As in Kwai Fun Wong, "[n]othing conditions the
jurisdictional grant on the limitations periods, or otherwise links
those separate provisions." 135 S. Ct. at 1633. Treating ? 2636(i)'s
time bar as jurisdictional would thus "disregard the structural divide
built into the statute." Id.

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