Case: 21-2176 Document: 38 Page: 1 Filed: 09/06/2022
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ARP MATERIALS, INC.,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2021-2176
`______________________
`
`Appeal from the United States Court of International
`Trade in No. 1:20-cv-00144-MMB, Judge M. Miller Baker.
`
`
`-------------------------------------------------
`
`THE HARRISON STEEL CASTINGS COMPANY,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2021-2177
`______________________
`
`Appeal from the United States Court of International
`Trade in No. 1:20-cv-00147-MMB, Judge M. Miller Baker.
`
`

`

`Case: 21-2176 Document: 38 Page: 2 Filed: 09/06/2022
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`2
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`ARP MATERIALS, INC. v. US
`
`______________________
`
`Decided: September 6, 2022
`______________________
`
`CHRISTOPHER M. KANE, Simon Gluck & Kane LLP, New
`York, NY, argued for plaintiffs-appellants. Also repre-
`sented by MARIANA DEL RIO KOSTENWEIN, DANIEL J.
`GLUCK.
`
` SOSUN BAE, Commercial Litigation Branch, Civil Divi-
`sion, United States Department of Justice, Washington,
`DC, argued for defendant-appellee. Also represented by
`BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
`PREHEIM; VALERIE SORENSEN-CLARK, Office of Assistant
`Chief Counsel, International Trade Litigation, United
`States Customs and Border Protection, New York, NY.
` ______________________
`
`Before HUGHES, LINN, and STOLL, Circuit Judges.
`HUGHES, Circuit Judge.
`Importers ARP Materials, Inc. and The Harrison Steel
`Castings Company seek refunds of estimated duties they
`deposited with the United States Customs and Border Pro-
`tection for tariffs that the United States Trade Representa-
`tive retroactively rescinded. The United States Court of
`International Trade dismissed the importers’ amended
`complaints for lack of jurisdiction. ARP and Harrison ap-
`peal. The jurisdictional provision on which the importers
`rely, 28 U.S.C. § 1581(i), may not be invoked when jurisdic-
`tion under another subsection of § 1581 could have been
`available and would have provided an adequate remedy if
`timely invoked. We affirm the court’s dismissals because
`jurisdiction would have been available under § 1581(a) had
`the importers timely protested Customs’ classification de-
`cisions and because failure to invoke an available remedy
`
`

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`ARP MATERIALS, INC. v. US
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`3
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`within the timeframe prescribed does not render the rem-
`edy manifestly inadequate.
`
`I
`A
`Section 301 of the Trade Act of 1974 authorizes the Of-
`fice of the United States Trade Representative (USTR) to
`investigate and enforce domestic rights under trade agree-
`ments and to respond to certain foreign trade practices.
`19 U.S.C. § 2411. Under this authority, USTR began inves-
`tigating certain Chinese trade practices in August 2017. It
`found that some of China’s trade practices “related to intel-
`lectual property, innovation, and technology were unrea-
`sonable or discriminatory, and burden[ed] or restrict[ed]
`U.S. commerce.” U.S. Gov’t Accountability Off., GAO-21-
`506, Report to Congressional Requesters: U.S.–China
`Trade 3 (2021)). “To help obtain the elimination of” those
`trade practices, USTR, “at the direction of the President,
`placed additional tariffs on certain products from China
`starting in July 2018.” Id. at 1. USTR issued four lists of
`product categories subject to the new tariffs. Id. at 4. Rele-
`vant to this appeal, USTR imposed a 25% tariff on List 2
`product categories in August 2018 and a 10% tariff on
`List 3 product categories in September 2018. Id.
`“[T]o mitigate the potential harm of these tariffs on
`U.S. companies and workers,” USTR established, “for the
`first and only time,” an opportunity for domestic stakehold-
`ers “to request to exclude particular products from the ad-
`ditional tariffs.” Id. at 1, 6; see also 83 Fed. Reg. 40,823,
`40,824 (Aug. 16, 2018) (for List 2); 84 Fed. Reg. 20,459,
`20,460 (May 9, 2019) (for List 3). USTR informed importers
`that any exclusion granted would “apply to the particular
`product covered by the exclusion” rather than the “particu-
`lar producer[] or exporter[]” who requested the exclusion.
`ARP Materials, Inc. v. United States, 520 F. Supp. 3d 1341,
`1349 (Ct. Int’l Trade 2021) (Decision). These exclusions
`were thus “product-specific,” meaning that “the grant of an
`
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`ARP MATERIALS, INC. v. US
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`exclusion in response to one importer’s application could
`apply to like products imported by other entities.” Id.; see
`also 84 Fed. Reg. 37,381, 37,381 (July 31, 2019) (“[T]he ex-
`clusions are available for any product that meets the de-
`scription in the Annex, regardless of whether the importer
`filed an exclusion request.”). These exclusions were applied
`retroactively to the effective date of each tariff—August 23,
`2018 for List 21 and September 24, 2018 for List 3.2 See
`84 Fed. Reg. at 37,381; 84 Fed. Reg. 38,717, 38,717 (Aug. 7,
`2019).
`USTR declared that Customs “w[ould] issue instruc-
`tions on entry guidance and implementation,” and it in-
`structed importers to reach out to Customs directly.
`84 Fed. Reg. at 37,381. It further provided contact infor-
`mation for importers to do so—for answers to any specific
`questions importers might have about “[C]ustoms classifi-
`cation or implementation of the product exclusions.” Id.; see
`also Decision at 1349 (“Just as . . . USTR’s initial imposi-
`tion of [§] 301 duties was not self-executing as to any entry
`of goods and instead depended upon Customs’ classification
`of the entry as subject to such duties, . . . USTR’s retroac-
`tive exclusions were not self-executing as to the eligible
`goods.”).
`On May 22, 2019, Customs published instructions de-
`tailing how importers could obtain refunds of previously
`paid § 301 tariffs on eligible imports. See U.S. Customs &
`Border Prot., CSMS No. 19000260, Section 301 Products
`Excluded from Duties - Liquidation Extension Request
`(2019). For entries covered by granted product exclusions,
`Customs instructed importers as follows:
`
`
`1 ARP’s relevant merchandise was classified under
`List 2. Decision at 1350.
`2 Harrison’s relevant merchandise was classified un-
`der List 3. Decision at 1352.
`
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`ARP MATERIALS, INC. v. US
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`5
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`Once a product exclusion is granted by USTR, an
`Importer of Record (IOR) may request an adminis-
`trative refund by filing a Post Summary Correction
`(PSC) for unliquidated entries that are covered by
`the exclusion. If an entry is liquidated prior to the
`filing of a PSC, a party may file a protest.
`Id. For entries covered by pending product exclusion re-
`quests, Customs provided these instructions:
`As the IOR, if you have a pending product exclusion
`request with USTR, or are importing a product that
`is covered by such a pending exclusion request, and
`you are concerned that a corresponding entry may
`liquidate before USTR renders a decision on the ex-
`clusion request, you can:
`(1) request an extension of the liquidation
`deadline, and file a PSC no later than
`15 days before the extended date of liquida-
`tion; and/or
`(2) file a protest within the 180 day period
`following liquidation. When filing a pro-
`test, the protestant should identify the
`pending product exclusion decision from
`USTR as a basis for the protest. Upon re-
`ceiving USTR’s decision on the product ex-
`clusion, the protestant should submit the
`exclusion information to [Customs], as ad-
`ditional information pursuant to 19 C.F.R.
`[§] 174.28.
`If a protest is filed, [Customs] will postpone making
`a determination on protests that include a claim
`identifying a pending product exclusion. Once
`USTR completes the exclusion process, [i.e., rules
`on the product exclusion request,] [Customs] will
`process these protests pursuant to USTR’s exclu-
`sion determination. That is, [Customs] will refrain
`
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`ARP MATERIALS, INC. v. US
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`from denying or granting a party’s protest before
`the importer receives a final determination from
`USTR regarding its product exclusion request.
`Id. (emphases added). Customs reissued substantially sim-
`ilar instructions immediately following each notice of prod-
`uct exclusion that USTR published. See, e.g., U.S. Customs
`& Border Prot., CSMS No. 39169565, GUIDANCE: Sev-
`enth Round of Products Excluded from Section 301 Duties
`(Tranche 2) (2019) (“To request a refund of [§] 301 duties
`paid on previous imports of duty-excluded products
`granted by . . . USTR, importers . . . may protest the liqui-
`dation.”); U.S. Customs & Border Prot., CSMS
`No. 42181055, GUIDANCE: Section 301 Tranche 3 - $200B
`Eleventh Round of Product Exclusions from China (2020)
`(substantially identical instructions).
`B
`ARP “made five entries (importations) of merchandise”
`that Customs had
`classified under
`subheading
`3901.90.1000 (on List 2) of the Harmonized Tariff Schedule
`of the United States (HTSUS), “render[ing] the entries lia-
`ble for [§] 301 duties,” i.e., “subject to [§] 301 tariffs on the
`dates of entry.”3 Decision at 1350. On July 31, 2019, after
`the five entries were made, USTR granted exclusion re-
`quests submitted by other importers that covered the same
`category of products as ARP’s merchandise. 84 Fed. Reg.
`at 37,382. These exclusions applied retroactively to
`
`
`first entry of merchandise,
`its
`3 ARP made
`No. F57-4005259-6 (entry ’5259-6), on August 30, 2018; its
`second entry, No. F57-4004968-3 (entry ’4968-3), on Sep-
`tember 21, 2018; its third entry, No. F57-4005369-3 (en-
`try ’5369-3), on September 24, 2018; its fourth entry,
`No. F57-4005611-8 (entry ’5611-8), on September 27, 2018;
`and its fifth entry, No. F57-4007552-2 (entry ’7552-2) on
`July 17, 2019. Decision at 1352.
`
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`ARP MATERIALS, INC. v. US
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`7
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`August 23, 2018—before ARP’s entries—and remained in
`effect through July 31, 2020. On March 2, 2020, seven
`months after USTR had published its exclusion notice and
`199 days following liquidation,4 ARP protested Customs’
`assessment of § 301 duties on entries ’4968-3 and ’5369-3.
`Decision at 1351–52. Customs denied the protest as un-
`timely since ARP had failed to file the protest within
`180 days of the entries’ liquidation date. Id. at 1351; see
`also 19 U.S.C. § 1514(c)(3)(A) (“A protest of a decision, or-
`der, or finding described in subsection (a) shall be filed
`with [Customs] within 180 days after but not be-
`fore . . . [the] date of liquidation or reliquidation.”). On
`June 27, 2020, ARP timely filed a protest for entry ’7552-2.
`Decision at 1351–52. Since it had filed that protest just
`15 days after the entry’s liquidation,5 Customs granted the
`protest, reclassified the entry, and refunded ARP the § 301
`duties it had paid for that entry. Id. at 1351. “ARP did not
`file protests for entries ’5259-6 and ’5611-8.”6 Id.
`Harrison made two entries of merchandise—one on
`September 27, 2018, and the other on October 12, 2018—
`that Customs classified under HTSUS subheading
`8302.30.3060 (on List 3), rendering the entries liable for
`§ 301 duties. On March 26, 2020, USTR “granted exclusion
`requests submitted by other importers that covered the
`same category of products as Harrison’s.” Id. at 1352; see
`also 85 Fed. Reg. 17,158, 17,160 (Mar. 26, 2020). These ex-
`clusions applied retroactively to September 24, 2018—be-
`fore Harrison’s entries—and remained in effect through
`
`
`4 The liquidation date for entries ’4968-3 and ’5369-3
`was August 16, 2019. Decision at 1352.
`5 The liquidation date for entry ’7552-2 was June 12,
`2020. Decision at 1352.
`6 The liquidation date for entry ’5259-6 was July 26,
`2019. Decision at 1352. The liquidation date for entry
`’5611-8 was August 23, 2019. Id.
`
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`ARP MATERIALS, INC. v. US
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`August 7, 2020. On March 31, 2020, five days after USTR
`had published its exclusion notice but more than 180 days
`after the liquidation dates for the two entries at issue,7
`“Harrison filed a protest challenging Customs’ assessment
`of [§] 301 duties on these entries and two other entries not
`included in Harrison’s complaint.” Decision at 1353 & n.22.
`“Customs denied the protest as untimely as to the two en-
`tries at issue but granted the protest as to the other two
`entries.” Id.
`After Customs denied their protests, ARP and Harri-
`son commenced civil actions against the government in the
`Court of International Trade, both invoking 28 U.S.C.
`§ 1581(i) as the jurisdictional basis for their suits. In “their
`substantially identical complaints,” the importers alleged
`that the government was “in wrongful possession of” cer-
`tain § 301 duties they had paid since “USTR ha[d] deter-
`mined that no such duties apply ab initio to the date of
`implementation of [§] 301 duties on [Lists 2 and 3] of the
`affected items previously announced by . . . USTR.” Id. at
`1354 (third alteration in original); see also id. at 1354 n.24
`(explaining that “the two amended complaints are substan-
`tively identical aside from references to the plaintiffs’
`names and a few minor wording differences”). The import-
`ers seek to compel refunds for the § 301 duties that USTR
`had imposed but retroactively rescinded after Customs had
`liquidated them.
`The government moved to dismiss ARP’s and Harri-
`son’s actions, and the Court of International Trade granted
`
`
`7 The liquidation date for the first entry of merchan-
`dise, No. 555-0666283-6 (entry ’6283-6), was August 23,
`2019. Decision at 1354. The liquidation date for the second
`entry of merchandise, No. 555-0666818-9 (entry ’6818-9),
`was September 6, 2019. Id.
`
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`ARP MATERIALS, INC. v. US
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`9
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`the motions.8 The court held that it lacks subject matter
`jurisdiction under § 1581(i) as to the entries challenged in
`this appeal. In the court’s view, “jurisdiction would have
`existed here under § 1581(a) had [the importers] timely
`protested Customs’ classification decisions that resulted in
`their erroneous liability for [§] 301 duties,” and failure to
`timely invoke the importers’ available remedy under
`§ 1581(a) did not render the remedy inadequate. Id. at
`1361. The court pointed out that the importers “had ade-
`quate notice of the procedures they were to follow to correct
`Customs’ erroneous classification decisions.” Id. at 1362.
`Indeed, the court highlighted, the importers “did follow
`those procedures to receive refunds as to certain entries.”
`Id. They simply and “regrettably dropped the ball” when
`they failed to timely protest the classification decisions for
`“the entries remaining at issue here.” Id. Because a remedy
`would have been available under § 1581(a), the court de-
`termined that it lacked subject matter jurisdiction under
`the “catch-all” provision, § 1581(i). The court accordingly
`granted the government’s motions to dismiss under Fed-
`eral Rule of Civil Procedure 12(b)(1).
`ARP and Harrison appeal. Because they make the
`same arguments, we address them together. We have ju-
`risdiction pursuant to 28 U.S.C. § 1295(a)(5).
`II
`We review the Court of International Trade’s “decision
`to grant the government’s motions to dismiss for lack of
`subject matter jurisdiction de novo as a question of law.”
`Hutchison Quality Furniture, Inc. v. United States,
`827 F.3d 1355, 1359 (Fed. Cir. 2016) (cleaned up).
`
`
`8 The Court of International Trade consolidated
`ARP’s and Harrison’s actions on September 8, 2020, desig-
`nating these cases as “test cases” pursuant to United
`States Court of International Trade Rule 83(e).
`
`

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`ARP MATERIALS, INC. v. US
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`The Court of International Trade’s jurisdiction is gov-
`erned by 28 U.S.C. § 1581, with each of its subsections “de-
`lineat[ing] particular laws over which the Court of
`International Trade may assert jurisdiction.” Nat’l Corn
`Growers Ass’n v. Baker, 840 F.2d 1547, 1555 (Fed. Cir.
`1988). The two provisions relevant to this appeal are
`§ 1581(a) and (i).
`Section 1581(a) grants the Court of International
`Trade “exclusive jurisdiction [over] any civil action com-
`menced to contest the denial of a protest, in whole or in
`part, under [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a). “Sec-
`tion 1515 provides for Customs’ review and subsequent al-
`lowance or denial of protests that are ‘filed in accordance
`with’ 19 U.S.C. § 1514.” Fujitsu Gen. Am., Inc. v. United
`States, 283 F.3d 1364, 1371 (Fed. Cir. 2002) (quoting
`19 U.S.C. § 1515(a)). Section 1514 details the types of Cus-
`toms decisions “that may be the subject of protests,” includ-
`ing “decisions relating to ‘the liquidation or reliquidation of
`an entry.’” Id. (quoting 19 U.S.C. § 1514(a)(5)). “[T]he
`Court of International Trade’s authority to hear a claim un-
`der [§] 1581(a) depends upon the importer raising the claim
`in a valid protest filed with Customs within the prescribed
`[180]-day period, or alternatively, in a protest coming
`within an exception that excuses a failure to meet the dead-
`line.” Id.
`Section 1581(i) confers jurisdiction over a civil action
`arising out of any federal law providing for “tariffs, duties,
`fees, or other taxes on the importation of merchandise for
`reasons other than the raising of revenue.” 28 U.S.C.
`§ 1581(i)(1)(B). Though we describe § 1581(i) as a “catch-
`all” provision, “its scope is strictly limited.” Norcal/Crosetti
`Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir.
`1992). “Section 1581(i) jurisdiction may not be invoked
`when jurisdiction under another subsection of § 1581 is or
`could have been available, unless the remedy provided un-
`der that other subsection would be manifestly inadequate.”
`Id. (citation omitted). “This preserves the congressionally
`
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`ARP MATERIALS, INC. v. US
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`mandated procedures and safeguards provided in the other
`subsections, absent which litigants could ignore the pre-
`cepts of subsections (a)–(h) and immediately file suit in the
`Court of International Trade under subsection (i).” Id. (in-
`ternal citations omitted).
`An inquiry into § 1581(i) jurisdiction is thus a two-step
`process. “First, we consider whether jurisdiction under a
`subsection other than § 1581(i) was available.” Erwin
`Hymer Grp. N. Am., Inc. v. United States, 930 F.3d 1370,
`1375 (Fed. Cir. 2019). Second, “if jurisdiction was available
`under a different subsection of § 1581, we [then] examine
`whether the remedy provided under that subsection is
`‘manifestly inadequate.’” Id.
`A
`ARP and Harrison challenge the Court of International
`Trade’s decision holding that jurisdiction under § 1581(a)
`would have been available had the importers “timely pro-
`tested Customs’ classification decisions that resulted in
`their erroneous liability for [§] 301 duties.” Decision
`at 1361. The crux of ARP’s and Harrison’s arguments is
`that “the fundamental issues” they raise involve USTR’s
`exclusion decisions, “not the purely ministerial involve-
`ment of [Customs] in the effectuation of the decisions of . . .
`USTR under [§] 301.” Appellants’ Br. 3. So, they contend,
`they were not required to file protests. Id. at 18 (relying on
`Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347,
`1354–55 (Fed. Cir. 2006), “because it among many cases
`demonstrates that the challenge of decisions of an agency
`other than [Customs] does not require the filing of a pro-
`test”). In the importers’ view, Customs’ role was ministerial
`because Customs’ “hands were tied by the decisions of . . .
`USTR, without which [§] 301 duties could not be collected
`by [Customs].” Id. at 22; see also Indus. Chems., Inc. v.
`United States, 941 F.3d 1368, 1371 (Fed. Cir. 2019) (“‘Cus-
`toms must [have] engage[d] in some sort of decision-mak-
`ing process in order for there to be a protestable decision.’
`
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`ARP MATERIALS, INC. v. US
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`This is because Customs must have the ‘authority to grant
`relief in [the] protest action.’” (alterations in original) (cita-
`tions omitted)).
`But “the protest procedure cannot be [so] easily circum-
`vented.” Int’l Custom Prods., Inc. v. United States, 467 F.3d
`1324, 1327 (Fed. Cir. 2006); see Norsk Hydro Can.,
`472 F.3d at 1355 (“[A] party may not expand a court’s ju-
`risdiction by creative pleading.”). “To prevent usurpation of
`the protest scheme Congress has crafted, it is of utmost im-
`portance that mere recitation of a basis for jurisdiction not
`be controlling.” Hartford Fire Ins. Co. v. United States,
`544 F.3d 1289, 1293 (Fed. Cir. 2008). Instead, “[w]e look to
`the ‘true nature of the action’ in determining whether the
`[Court of International Trade] properly found jurisdiction
`lacking.” Hutchison, 827 F.3d at 1360 (citation omitted).
`This “will depend upon the attendant facts asserted in the
`pleadings.” Id. Thus, “[d]etermining the true nature of an
`action under § 1581” requires that we “discern the particu-
`lar agency action that is the source of the alleged harm so
`that we may identify which subsection of § 1581 provides
`the appropriate vehicle for judicial review.” Id.
`Here, the importers allege that the government “re-
`mains in wrongful possession of the [§] 301 duties on [the
`importers’] entries of [certain] merchandise as . . . USTR
`ha[d] determined that no such duties apply ab initio to the
`date of implementation of [such] duties.” Appx53, 59. And
`they request that the Court of International Trade “order
`refund of the monies due through reliquidation of the in-
`volved entries.” Appx54, 60. Thus, as characterized by the
`importers themselves, the source of their alleged harm is
`Customs’ classification decisions that “USTR’s retroactive
`exclusions rendered erroneous.” Decision at 1359–60 (“Ac-
`cording to Plaintiffs, the USTR’s retroactive exclusions
`rendered Customs’ classification of their merchandise un-
`der those subheadings ‘wrongful.’”). These classification
`decisions are necessarily protestable “decisions” because
`“[p]roper classification of goods under the HTSUS”
`
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`ARP MATERIALS, INC. v. US
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`requires the agency to “first ascertain[] the meaning of spe-
`cific terms in the tariff provisions and then determin[e]
`whether the subject merchandise comes within the descrip-
`tion of those terms”—the first question being one of law,
`the second being one of fact. Millenium Lumber Distrib.
`Ltd. v. United States, 558 F.3d 1326, 1328 (Fed. Cir. 2009).
`Customs made substantive legal determinations—inter-
`preting the HTSUS subheadings—and factual determina-
`tions—determining whether the entries fell within those
`subheadings—that it had the authority to make. See
`Hutchison, 827 F.3d at 1362 (“Indeed, when Customs
`makes a decision to liquidate, that decision is ‘[m]ore than
`passive or ministerial’ and ‘constitute[s] a “decision” within
`the context of § 1514(a).’” (alterations in original) (quoting
`Cemex, S.A. v. United States, 384 F.3d 1314, 1324
`(Fed. Cir. 2004))).
`Accordingly, this case “presents exactly the scenario in
`which § 1514’s protest provisions can be invoked because
`Customs engaged in some sort of decision-making process.”
`Chemsol, LLC v. United States, 755 F.3d 1345, 1351
`(Fed. Cir. 2014) (citation omitted) (cleaned up). Because
`the importers contend that USTR’s exclusions rendered
`Customs’ classifications of their entries erroneous, they
`were statutorily obligated to timely protest under
`19 U.S.C. § 1514(a)(2). That Customs’ classification deci-
`sions became erroneous after USTR granted retroactive ex-
`clusions is irrelevant. The obligation to protest a Customs
`classification error does not turn on whether it was errone-
`ous ab initio or became erroneous because of retroactive
`administrative action. It instead turns on whether Cus-
`toms’ classifications of the importers’ entries were protest-
`able “decisions” under 19 U.S.C. § 1514, and we hold that
`these classifications were such protestable “decisions.”
`B
`Because a remedy would have been available under
`§ 1581(a) had the importers timely protested Customs’
`
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`ARP MATERIALS, INC. v. US
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`classification decisions, ARP and Harrison cannot invoke
`the Court of International Trade’s residual jurisdiction un-
`der § 1581(i) unless they show that the relief in § 1581(a)
`would have been manifestly inadequate. Juice Farms, Inc.
`v. United States, 68 F.3d 1344, 1346 (Fed. Cir. 1995). But
`neither ARP nor Harrison can meet this burden because “a
`remedy is not inadequate ‘simply because [the importer]
`failed to invoke it within the time frame [that is] pre-
`scribe[d].’” Id. (citation omitted). “[T]o be manifestly inad-
`equate, the protest must be an exercise in futility, or
`incapable of producing any result; failing utterly of the de-
`sired end through intrinsic defect; useless, ineffectual,
`vain.” Sunpreme Inc. v. United States, 892 F.3d 1186,
`1193–94 (Fed. Cir. 2018) (cleaned up).
`Here, the importers’ successful protests, for example,
`for entry ’7552-2, were “far from being exercises in futility.”
`Decision at 1361. Had ARP protested within 180 days fol-
`lowing the liquidation for each entry now at issue, ARP
`would have had the opportunity to protest Customs’ assess-
`ments of § 301 duties underlying the challenged entries’
`liquidations. See Juice Farms, 68 F.3d at 1346 (“If Juice
`Farms had protested within ninety days of bulletin notices,
`it would have had an opportunity to protest the legality of
`Customs’ liquidations in the Court of International
`Trade.”). Indeed, ARP had ample opportunity to file such
`protests. Of its five entries at issue, ARP’s earliest protest
`deadline—i.e., 180 days after an entry’s liquidation—was
`January 22, 2020. Yet ARP did not protest any of Customs’
`classification decisions until March 2, 2020, more than
`seven months after USTR had issued the applicable rele-
`vant product exclusion notice. The opportunity to protest is
`not an inadequate remedy “simply because [ARP] failed to
`invoke it within the time frame . . . prescribe[d].” Id.
`at 1346 (citation omitted). ARP “had an adequate remedy
`for its alleged erroneous liquidation[s], but it lost that rem-
`edy because its protest[s] w[ere] untimely,” or not made at
`all, “not because the remedy was inadequate.” Carbon
`
`

`

`Case: 21-2176 Document: 38 Page: 15 Filed: 09/06/2022
`
`ARP MATERIALS, INC. v. US
`
`15
`
`Activated Corp. v. United States, 6 F. Supp. 3d 1378, 1380
`(Ct. Int’l Trade 2014), aff’d, 791 F.3d 1312 (Fed. Cir. 2015);
`see also Hutchison, 827 F.3d at 1362 (“The record demon-
`strates that Hutchison not only could have filed a protest,
`but that it in fact did so after Customs liquidated its en-
`tries. Hutchison’s incorrect ‘belief that it had no remedy
`under § 1581(a) [does] not make that remedy inadequate,’
`and in any event is belied by the actions Hutchison took
`prior to filing suit.” (alteration in original) (quoting Hart-
`ford Fire, 544 F.3d at 1294)).
`Similarly, had Harrison timely requested an extension
`of the liquidation deadlines for the entries at issue, Harri-
`son would have had the opportunity to request a refund by
`filing a Post Summary Correction “no later than 15 days
`before the extended date of liquidation.” U.S. Customs &
`Border Prot., CSMS No. 19000260, Section 301 Products
`Excluded from Duties - Liquidation Extension Request
`(2019) (providing instructions for importers that “have a
`pending product exclusion request with USTR, or are im-
`porting a product that is covered by such a pending exclu-
`sion request, and [who] are concerned that a corresponding
`entry may liquidate before USTR renders a decision on the
`exclusion request”). Thus, Harrison likewise could have
`had the opportunity to challenge Customs’ classification
`decisions had the importer done so promptly. See Juice
`Farms, 68 F.3d at 1346 (“Customs posted bulletin notices
`of these liquidations at the customshouse. The bulletin no-
`tices supply sufficient notice and thus trigger the ninety-
`day period for protests. . . . Juice Farms, the importer,
`bears the burden to check for posted notices of liquidation
`and to protest timely. Juice Farms cannot circumvent the
`timely protest requirement by claiming that its own lack of
`diligence requires equitable relief under 28 U.S.C.
`§ 1581(i).” (citations omitted)); cf. Int’l Custom Prods.,
`467 F.3d at 1328 (“Plaintiff cannot take it upon itself to de-
`termine whether it would be futile to protest or not. In or-
`der to protect itself, a protest should have been filed . . . .”).
`
`

`

`Case: 21-2176 Document: 38 Page: 16 Filed: 09/06/2022
`
`16
`
`ARP MATERIALS, INC. v. US
`
`III
`We have considered the parties’ remaining arguments
`and find them unpersuasive. We affirm the Court of Inter-
`national Trade’s decision dismissing ARP’s and Harrison’s
`amended complaints for lack of jurisdiction.
`AFFIRMED
`
`