`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ERWIN HYMER GROUP NORTH AMERICA, INC.,
`FKA ROADTREK MOTORHOMES, INC.,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2018-1282
`______________________
`
`Appeal from the United States Court of International
`Trade in No. 1:16-cv-00133-CRK, Judge Claire R. Kelly.
`______________________
`
`Decided: July 22, 2019
`______________________
`
`JOHN MICHAEL PETERSON, Neville Peterson LLP, New
`York, NY, argued for plaintiff-appellant. Also represented
`by RICHARD F. O'NEILL.
`
` MARCELLA POWELL, 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 RUBIN;
`JEANNE DAVIDSON, JOSEPH H. HUNT, WASHINGTON, DC;
`MICHAEL W. HEYDRICH, Office of the Assistant Chief Coun-
`
`

`

`2
`
`ERWIN HYMER GROUP v. UNITED STATES
`
`sel, United States Bureau of Customs and Border Protec-
`tion, United States Department of Homeland Security,
`New York, NY.
` ______________________
`
`Before DYK, REYNA, and CHEN, Circuit Judges.
`REYNA, Circuit Judge.
`Erwin Hymer Group North America, Inc., appeals the
`final judgment of the United States Court of International
`Trade granting the Government’s motion for judgment on
`the agency record. The Court of International Trade’s as-
`sertion of residual jurisdiction under 28 U.S.C. § 1581(i)
`was improper because a civil action for contesting the de-
`nial of protests could have been available under 28 U.S.C.
`§ 1581(a), and the remedy provided under § 1581(a) is not
`manifestly inadequate. Because the Court of International
`Trade lacked jurisdiction, we reverse and remand with in-
`structions to dismiss.
`
`BACKGROUND
`In 2014, Erwin Hymer Group North America, Inc.,
`(“Hymer”) imported 149 vehicles into the United States
`from Canada. In 2015, the United States Customs and
`Border Protection (“Customs”) liquidated the entries, clas-
`sifying them under subheading 8703.24.00 of the Harmo-
`nized Tariff Schedule of the United States (2014)
`(“HTSUS”). Subheading 8703.24.00 applies a tariff of 2.5%
`ad valorem to “motor vehicles principally designed for
`transporting persons” and with a “spark-ignition internal
`combustion reciprocating piston engine . . . [o]f a cylinder
`capacity exceeding 3,000 cc.” Customs assessed duties ac-
`cordingly.
`In October 2015, Hymer timely filed a protest under 19
`U.S.C. § 1514, contesting Customs’ classification of the ve-
`hicles. The protest materials included, among other
`
`

`

`ERWIN HYMER GROUP v. UNITED STATES
`
`3
`
`things, a cover letter, a standard form (“Protest Form”),1
`and a memorandum in support of the protest. Hymer ar-
`gued in its protest that the entries were entitled to duty-
`free treatment under HTSUS subheading 9802.00.50 and
`Article 307 of the North American Free Trade Agreement,
`a provision known as “American Goods Returned.” This
`provision generally relates to preferential tariff treatment
`for qualifying goods that reenter the United States customs
`territory after repairs or alterations in Canada or Mexico.
`See 19 C.F.R. § 181.64(a).
`In the cover letter attached to its protest, Hymer re-
`quested that Customs “suspend action on th[e] protest” un-
`til the Court of International Trade (“CIT”) issued a
`decision in a different case, Roadtrek Motorhomes, Inc. v.
`United States, No. 11-00249. See J.A. 5, 51. The CIT had
`stayed the Roadtrek case pending final disposition of a test
`case on the issues raised: Pleasure-Way Indus., Inc. v.
`United States, 38 I.T.R.D. 1889 (BNA), 2016 WL 6081818
`(Ct. Int’l Trade 2016) (“Pleasure-Way I”), aff’d, 878 F.3d
`1348 (Fed. Cir. 2018) (“Pleasure-Way II”).2
`In Pleasure-Way I, the CIT’s jurisdiction was based on
`28 U.S.C. § 1581(a). The CIT addressed whether certain
`van-based motorhomes—similar to the vehicles at issue in
`this case—qualified for preferential tariff treatment under
`HTSUS subheading 9802.00.50. Pleasure-Way I, 2016 WL
`
`1 Hymer refers to the Protest Form as the “CF 19
`Protest Form,” and the Government refers to it as the “CBP
`Form 19.” Appellant Br. 4; Appellee Br. 3.
`2 Hymer, formerly known as Roadtrek Motorhomes,
`Inc., was the plaintiff in the Roadtrek case. In addition,
`Hymer’s counsel in this case also represented Roadtrek and
`Pleasure-Way in those cases. All three cases involve essen-
`tially the same issue: whether the vehicles in question
`qualify for duty-free treatment under HTSUS subhead-
`ing 9802.00.50. In both Roadtrek and Pleasure-Way, CIT
`jurisdiction was asserted under 28 U.S.C. § 1581(a).
`
`

`

`4
`
`ERWIN HYMER GROUP v. UNITED STATES
`
`6081818, at *3. The CIT decided that HTSUS subhead-
`ing 9802.00.50 did not apply, and on January 5, 2018, this
`court affirmed that decision. Pleasure-Way II, 878 F.3d at
`1349–50. Subsequently, entries of the vehicles were liqui-
`dated at a rate of 2.5% ad valorem, the same rate that Cus-
`toms argues should apply in this case.
`While Pleasure-Way was pending, a Customs Import
`Specialist reviewed Hymer’s protest, and on December 31,
`2015, checked a box labeled “Approved” in Field 17 of the
`Protest Form. Customs sent a copy of the Protest Form
`with the checked box to Hymer but did not include a refund
`check or offer any explanations.
`On January 5, 2016, a Customs Entry Specialist for-
`warded Hymer’s protest for review by a supervisor. On
`January 11, 2016, while the matter was pending before the
`Entry Specialist, Hymer received a copy of the Protest
`Form with the “Approved” box checked. On the same day,
`a Supervisor Import Specialist emailed an Entry Director
`asking her to locate Hymer’s protest and explaining that
`reliquidation should not occur because the protest was sus-
`pended. The Entry Director in turn advised other Customs
`employees not to reliquidate the entries. The following
`day, on January 12, 2016, the Entry Director informed the
`Supervisor Import Specialist that the protest had been re-
`turned to the Import Specialist who initially reviewed the
`protest because the protest had not been signed by the Su-
`pervisor Import Specialist. On January 21, 2016, the Im-
`port Specialist updated Customs’ electronic system to
`reflect that, per Hymer’s request, the protest was sus-
`pended pending resolution of the Roadtrek case.
`On March 17, 2016, Hymer’s counsel emailed the Im-
`port Specialist indicating that, on January 11, 2016, coun-
`sel had received a copy of the Protest Form with the
`“Approved” box checked, and asked whether the protest
`was suspended. On March 27, 2016, the Import Specialist
`
`

`

`ERWIN HYMER GROUP v. UNITED STATES
`
`5
`
`replied and confirmed that the protest was suspended
`pending resolution of Roadtrek.
`On July 18, 2016, approximately 7 months from the
`date it learned of the checked-box, no-refund-check circum-
`stance, Hymer sued the Government in the CIT, seeking
`an order of mandamus directing Customs to reliquidate the
`entries of
`the vehicles under HTSUS
`subhead-
`ing 9802.00.50. Hymer asserted CIT jurisdiction under 28
`U.S.C. § 1581(i)(1) and (i)(4),3 and on grounds that Cus-
`toms’ failure to provide a refund check constituted unlaw-
`fully withheld action under the Administrative Procedure
`Act, 5 U.S.C. § 706(1). The Government answered the com-
`plaint, and both parties filed competing motions for judg-
`ment in their favor.
`Hymer argued that the “Approved” box on the Protest
`Form constituted an “allowance” under 19 U.S.C.
`§ 1515(a),4 requiring Customs to refund Hymer’s excess
`
`
`3
`In relevant part, 28 U.S.C. § 1581(i) provides:
`In addition to the jurisdiction conferred upon the
`Court of International Trade by subsections (a)–(h)
`of this section and subject to the exception set forth
`in subsection (j) of this section, the Court of Inter-
`national Trade 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—
`(1) revenue from imports or tonnage;
`. . .
`(4) administration and enforcement with respect to
`the matters referred to in paragraphs (1)–(3) of this
`subsection and subsections (a)–(h) of this section.
`4
`In relevant part, 19 U.S.C. § 1515(a) provides:
`
`
`
`

`

`6
`
`ERWIN HYMER GROUP v. UNITED STATES
`
`duty deposit. Hymer asserted that the marking of the “Ap-
`proved” box definitively showed its protest was allowed.
`According to Hymer, this allowance in turn triggered non-
`discretionary reliquidation of its entries at the zero-duty
`rate advocated in Hymer’s protest. Hymer claimed it was
`due a refund check in the amount of the excess duties it
`deposited (2.5% ad valorem), which it claimed Customs
`was improperly withholding.
`The Government argued that the CIT lacked jurisdic-
`tion under § 1581(i). The Government noted that Hymer
`should have brought the action under § 1581(a), which
`gives the CIT jurisdiction over any civil action contesting
`the denial of a protest. In addition, the Government con-
`tended that, because Hymer’s protest remained pending,
`Hymer retained the option to file a request for an acceler-
`ated disposition of its suspended protest under 19 U.S.C.
`§ 1515(b), and if denied, had a right to appeal the denial at
`the CIT under § 1581(a). The Government asserted that
`Customs’ administrative actions in processing the protest,
`which included the checking of the “Approved” box, did not
`constitute an allowance under the statute and did not trig-
`ger a non-discretionary duty to reliquidate the entries and
`issue a refund.
`
`
`Unless a request for an accelerated disposition of a
`protest is filed in accordance with subsection (b) of
`this section the appropriate customs officer, within
`two years from the date a protest was filed in ac-
`cordance with section 1514 of this title, shall re-
`view the protest and shall allow or deny such
`protest in whole or in part. Thereafter, any duties,
`charge, or exaction found to have been assessed or
`collected in excess shall be remitted or refunded
`and any drawback found due shall be paid.
`
`

`

`ERWIN HYMER GROUP v. UNITED STATES
`
`7
`
`On November 3, 2017, the CIT denied Hymer’s motion
`for judgment on the pleadings and granted the Govern-
`ment’s motion for judgment on the agency record. Erwin
`Hymer Grp. N. Am., Inc. v. United States, 273 F. Supp. 3d
`1336, 1338 (Ct. Int’l Trade 2017) (“CIT Opinion”).
`First, the CIT rejected the Government’s argument
`that it lacked jurisdiction. The CIT agreed with Hymer
`that Hymer was not challenging the denial of a protest, but
`rather Customs’ authority to rescind, or renege on, a final
`decision to “allow” a protest. Id. at 1343–44, 1344 n.19.
`The CIT reasoned that Hymer’s challenge concerns the ad-
`ministration and
`enforcement
`of protests under
`§ 1581(i)(4), not the denial of a protest under § 1581(a). Id.
`The CIT further determined that jurisdiction under
`§ 1581(a) was not available because that section applies to
`appeals from denied protests, whereas Hymer was chal-
`lenging Customs’ failure to act on an allegedly allowed pro-
`test. Id. at 1344 n.19.
`Second, the CIT concluded that Customs was not obli-
`gated to refund the alleged excess duties paid. Id. at 1345–
`46. The CIT found that neither the statute nor the regula-
`tions defined what constitutes an allowance under
`§ 1515(a). Id. Rejecting Hymer’s argument to the contrary,
`the CIT held that “[t]he statutory and regulatory scheme[s]
`establish[] reliquidation as the act which allows a protest.”
`Id. at 1345. The CIT determined that although the Import
`Specialist’s checking of the “Approved” box may have indi-
`cated an initial determination, such checking did not trig-
`ger a mandatory allowance by Customs. Id. at 1346. Thus,
`there was no reliquidation of Hymer’s entries, and conse-
`quently, no allowed protest.
`Hymer appealed. We have jurisdiction under 28 U.S.C.
`§ 1295(a)(5).
`
`

`

`8
`
`ERWIN HYMER GROUP v. UNITED STATES
`
`DISCUSSION
`We address the issue of the CIT’s jurisdiction. The CIT
`asserted jurisdiction over this case under 28 U.S.C.
`§ 1581(i)(4). CIT Opinion, 273 F. Supp. 3d at 1344.5
`Whether the CIT has jurisdiction is a question of law,
`which we review de novo. Int’l Custom Prods., Inc. v.
`United States, 467 F.3d 1324, 1326 (Fed. Cir. 2006) (“ICP”).
`We often describe § 1581(i) as a “broad residual” grant
`of jurisdiction. ICP, 467 F.3d at 1327. But our precedent
`is “unambiguous [and] clear that [§ 1581(i)’s] scope is
`strictly limited.” Id. (quoting Norcal/Crosetti Foods, Inc.
`v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992)). This
`is so because an “overly broad interpretation” of § 1581(i)
`would otherwise “threaten to swallow the specific grants of
`jurisdiction contained within the other subsections.” Nor-
`man G. Jensen, Inc. v. United States, 687 F.3d 1325, 1329
`(Fed. Cir. 2012); accord Norcal, 963 F.2d at 359 (recogniz-
`ing strict limits upon the scope of § 1581(i) are necessary to
`“preserve[] the congressionally mandated procedures and
`safeguards provided in the other subsections” (internal ci-
`tation omitted)). Accordingly, this court has “repeatedly
`held that subsection (i)(4) ‘may not be invoked when juris-
`diction under another subsection of § 1581 is or could have
`been available, unless the remedy provided under that
`other subsection would be manifestly inadequate.” Ford
`Motor Co. v. United States, 688 F.3d 1319, 1323 (Fed. Cir.
`
`
`5 The Government challenged jurisdiction at the CIT
`but did not address or brief the issue on appeal. The issue
`arose during oral argument, and after argument, we or-
`dered the parties to submit supplemental briefing on
`whether jurisdiction is proper under 28 U.S.C. § 1581(i).
`The parties filed supplemental letter briefs addressing ju-
`risdiction. In its supplemental letter, the Government re-
`asserted its arguments before the CIT that the CIT lacks
`jurisdiction under § 1581(i).
`
`

`

`ERWIN HYMER GROUP v. UNITED STATES
`
`9
`
`2012) (quoting Miller & Co. v. United States, 824 F.2d 961,
`963 (Fed. Cir. 1987) (emphasis added)).
`An inquiry into § 1581(i) jurisdiction thus primarily in-
`volves two questions. First, we consider whether jurisdic-
`tion under a subsection other than §1581(i) was available.
`Id. Second, if jurisdiction was available under a different
`subsection of § 1581, we examine whether the remedy pro-
`vided under that subsection is “manifestly inadequate.” Id.
`If the remedy is not manifestly inadequate, then jurisdic-
`tion under § 1581(i) is not proper. The party asserting
`§ 1581(i) jurisdiction bears the burden of showing that an-
`other subsection is either unavailable or manifestly inade-
`quate. Sunpreme Inc. v. United States, 892 F.3d 1186, 1191
`(Fed. Cir. 2018) (citing Chemsol, LLC v. United States, 755
`F.3d 1345, 1349 (Fed. Cir. 2014)).
`The CIT concluded that jurisdiction under § 1581(a)
`was not available to Hymer. We disagree. At bottom,
`Hymer’s appeal is directed to Customs’ action in suspend-
`ing the protest. Generally, when an importer enters mer-
`chandise into the United States, the importer must deposit
`estimated duties with Customs. 19 C.F.R. §§ 141.101–03.
`Customs later liquidates the entries, meaning it conducts
`a “final computation or ascertainment of duties on entries
`for consumption or drawback entries.” Id. § 159.1. As part
`of the liquidation process, Customs classifies the entries ac-
`cording to the HTSUS. Id. § 152.11. If the importer disa-
`grees with Customs’ classification, the importer may,
`within 180 days of the date of liquidation, file a protest
`with Customs. Id. §§ 174.11–12. The protest must set
`forth in writing, among other things, the nature of each ob-
`jection and the reasons for those objections. 19 U.S.C.
`§ 1514(c). Through the protest process, importers may
`challenge Customs’ classification and the liquidation or re-
`liquidation of an entry. Id. § 1514(a)–(c); see also Fujitsu
`Gen. Am., Inc. v. United States, 283 F.3d 1364, 1371 (Fed.
`Cir. 2002).
`
`

`

`10
`
`ERWIN HYMER GROUP v. UNITED STATES
`
`Once a protest is filed, Customs must typically either
`allow or deny it within two years. 19 U.S.C. § 1515(a). An
`importer, however, may request an accelerated disposition
`of its protest at “any time concurrent with or following the
`filing of such protest.” Id. § 1515(b). If the protest is not
`allowed within thirty days after the mailing of the acceler-
`ated disposition request, the protest is deemed denied. Id.
`When an importer’s protest is denied under 19 U.S.C.
`§ 1515, in whole or in part, the importer may “contest [Cus-
`toms’] denial of [that] protest” by filing a civil action before
`the CIT under 28 U.S.C. § 1581(a). See 19 U.S.C. § 1515(a).
`If at the end of the process the protest is “allowed,” the im-
`porter receives a check in the amount of excess duties paid.
`The Government argues that § 1581(i) jurisdiction is
`not available because two administrative options remain
`available to Hymer under the protest regulatory frame-
`work, both of which lead to judicial review under § 1581(a).
`First, Hymer may wait until Customs takes final action on
`the protest. If the protest is allowed, then Hymer will re-
`ceive its refund check. If the protest is denied, Hymer may
`seek judicial review under § 1581(a). Second, Hymer may
`prompt Customs to act by pursuing an accelerated disposi-
`tion. If Customs does not act within thirty days, the protest
`will be deemed denied, thereby permitting judicial review
`under § 1581(a).
`Hymer claims it is barred from pursuing either option
`because Customs definitively concluded the protest pro-
`ceeding and allowed the protest when the Import Specialist
`checked the “Approved” box on the Protest Form. Hymer
`contends that § 1581(a) provides jurisdiction to review de-
`nials of protests, but not an allowance of a protest.
`We find Hymer’s argument inventive, but invalid. Im-
`portant to this case is that Hymer caused Customs to sus-
`pend the protest proceeding. Specifically, upon filing, the
`protest was suspended awaiting the outcome of Roadtrek,
`which in turn awaited resolution of the Pleasure-Way test
`
`

`

`ERWIN HYMER GROUP v. UNITED STATES
`
`11
`
`case. Pleasure-Way has been resolved, but Customs has
`not finally applied the outcome of that case to Hymer’s pro-
`test.
`Even assuming that Customs acted to allow the pro-
`test, Customs was within its authority to reconsider that
`action and restore the protest to the suspended status that
`Hymer requested. See Medtronic, Inc. v. Robert Bosch
`Healthcare Sys., Inc., 839 F.3d 1382, 1385 (Fed. Cir. 2016)
`(“[A]dministrative agencies possess inherent authority to
`reconsider their decisions, subject to certain limita-
`tions, regardless of whether they possess explicit statutory
`authority to do so.” (quoting Tokyo Kikai Seisakusho, Ltd.
`v. United States, 529 F.3d 1352 (Fed. Cir. 2008)); GTNX,
`Inc. v. INTTRA, Inc., 789 F.3d 1309, 1313 (Fed. Cir. 2015);
`Home Prods. Int’l, Inc. v. United States, 633 F.3d 1369,
`1377 (Fed. Cir. 2011).
`When asked during oral argument, the Government re-
`vealed that Hymer’s protest was still suspended awaiting
`only the decision of this court. Oral Arg. 16:12–16:19,
`25:15–25:40. This means that Hymer could potentially re-
`ceive a favorable ruling and a refund check, an outcome
`that would, of course, negate the need for Hymer to appeal.
`If the protest is denied, then Hymer would have an imme-
`diate avenue to appeal under § 1581(a) the very issue it
`raises before this court.6 See Norman, 687 F.3d at 1331
`(holding that jurisdiction under § 1581(i) was improper be-
`cause the party could have requested an accelerated dispo-
`sition under § 1515(b) and then asserted jurisdiction under
`§ 1581(a) if the protest was denied); cf. Hitachi Home Elecs.
`(Am.), Inc. v. United States, 661 F.3d 1343, 1349–51 (Fed.
`
`6 During oral argument, the Government asserted
`that, if Customs denies Hymer’s suspended protest, Hymer
`could sue under § 1581(a) and argue that the denial was
`improper in light of the Import Specialist’s checking of the
`“Approved” box. Oral Arg. 26:49–28:38.
`
`
`

`

`12
`
`ERWIN HYMER GROUP v. UNITED STATES
`
`Cir. 2011) (concluding that jurisdiction under § 1581(i) was
`improper where accelerated disposition under § 1515(b)
`was available to the importer). In sum, Congress estab-
`lished § 1581(a) as the jurisdictional route for the CIT to
`address challenges to protest denials, and this route re-
`mains open to Hymer.7 We conclude that Hymer has failed
`to meet its burden to demonstrate that relief under
`§ 1581(a) is manifestly inadequate in light of the true na-
`ture of this action.
`Importers such as Hymer should not be permitted to
`rest on artful or creative pleadings to expand the jurisdic-
`tional scope of § 1581(i), which Congress limited as a stat-
`utory basis for the CIT’s jurisdiction over protests. See
`Sunpreme, 892 F.3d at 1193 (quoting Norsk Hydro Can.,
`Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006));
`Am. Air Parcel Forwarding Co. v. United States, 718 F.2d
`1546, 1550–51 (Fed. Cir. 1983). To permit such expansion
`of jurisdiction would threaten to swallow § 1581(a) and
`would be contrary to this court’s precedent.
`CONCLUSION
`For the foregoing reasons, we reverse the judgment of
`the CIT and remand with instructions to dismiss the com-
`plaint for lack of jurisdiction.
`REVERSED AND REMANDED
`
`
`7 The court notes, but does not address, two underly-
`ing concerns: ripeness and failure to exhaust administra-
`tive remedies, both of which are entrenched in the
`suspension of the protest proceeding, which itself was
`caused by Hymer’s hand. Although important and perhaps
`even dispositive in this action, the court elects not to ad-
`dress those issues given its conclusion that the CIT lacked
`jurisdiction.
`
`

`

`ERWIN HYMER GROUP v. UNITED STATES
`
`13
`
`COSTS
`
`No costs.
`
`