Ford Motor Company v. United States , 811 F.3d 1371 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
FORD MOTOR COMPANY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-1726
______________________
Appeal from the United States Court of International
Trade in No. 1:09-cv-00151-MAB, Judge Mark A. Barnett.
______________________
Decided: 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. BRANDA.
______________________
2 FORD MOTOR COMPANY v. US
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 exercise its discretionary jurisdiction to issue
declaratory relief for the remainder of Ford’s claims.
We hold that we need not address the statute of limi-
tations 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.
BACKGROUND
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 esti-
mated duty payments with Customs and Border Protec-
tion (“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 between 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
FORD MOTOR COMPANY v. US 3
“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 demonstrates 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 maxi-
mum extended period of four years, it is deemed liquidat-
ed by operation of law. See 19 U.S.C. § 1504(b); 19 C.F.R.
§ 159.12(f). When an entry is deemed liquidated, Cus-
toms forfeits the ability to recalculate 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 origi-
nal rate was correct.
On April 15, 2009, Ford filed suit in the CIT to chal-
lenge Customs’ treatment of its nine reconciliation en-
tries, arguing that Customs had failed to properly extend
the liquidation period in accordance with 19 U.S.C.
1 “A reconciliation is treated as an entry for purpos-
es of liquidation, reliquidation, recordkeeping, and pro-
test.” 19 U.S.C. § 1401(s).
4 FORD MOTOR COMPANY v. US
§ 1504(b) and therefore could not recalculate the duty. 2
Customs 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 liquidate any of Ford’s
nine entries. Because there were no liquidation 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 availa-
ble. 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.
2 As relevant to this appeal, Ford’s pleadings con-
sist 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 B
and 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 appraise-
ment or amount of duty as required by § 1500(a) and (c).
3 See Ford Motor Co. v. United States, 688 F.3d
1319, 1323 (Fed. Cir. 2012) (“Ford II”).
FORD MOTOR COMPANY v. US 5
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
government’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) jurisdic-
tion was proper but declined to issue discretionary declar-
atory relief, explaining 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 re-
maining 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 liquidated 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 liqui-
dated 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 liquidating the en-
tries may have opened up a new avenue for judicial re-
view 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
6 FORD MOTOR COMPANY v. US
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 judgment authority] on remand.”
Id.
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 govern-
ment’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 reason-
ably 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 discretionary jurisdic-
tion. 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 liqui-
dations 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
FORD MOTOR COMPANY v. US 7
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 declara-
tory 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).
DISCUSSION
I
As to Claims 1–4 and 6 concerning Ford’s 2005 en-
tries, 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 preclud-
ed 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.”
8 FORD MOTOR COMPANY v. US
In SKF USA, Inc. v. U.S. Customs and Border Protec-
tion, 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 procedural
rules, including time bars, cabin a court’s power only if
Congress has clearly stated as much.” Id. at 1632 (inter-
nal quotation marks and citations omitted). Absent such
a clear statement, “courts should treat [a] restriction as
nonjurisdictional.” Id. (internal quotation 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 jurisdictional.” 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 provision within the statutory scheme,
Henderson, 562 U.S. at 439, and “context, including
[Supreme Court] interpretations of similar provisions in
many years past,” Auburn Reg’l, 133 S. Ct. at 825 (inter-
nal quotation marks and citations omitted), are indicative
of whether a provision is jurisdictional.
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).
FORD MOTOR COMPANY v. US 9
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 Dis-
putes 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 jurisdictional.” Id. at 1321
(internal quotation marks and citations omitted). Be-
cause 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 jurisdic-
tional 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 provide clear evidence, that the provision was
meant to carry jurisdictional 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 authority.” Kwai Fun Wong, 135 S. Ct. at 1633(internal quotation marks and citations omitted). Indeed,
10 FORD MOTOR COMPANY v. US
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 statu-
tory scheme provide any indication that the provision is
jurisdictional. The Court has “often explained that Con-
gress’s separation of a filing deadline from a jurisdictional
grant indicates that the time bar is not jurisdictional.”
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 juris-
diction 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 condi-
tions 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 stat-
ute.” Id.
Finally, nothing in the history of the statute suggests
that it is jurisdictional. Unlike John R. Sand & Gravel
Co. v. United States, 552 U.S. 130, 139 (2007), or Bowles
v. Russel, 551 U.S. 205, 209 (2007), where “stare decisis”
required following a long line of cases holding that the
particular statutes of limitations were jurisdictional, this
is not a situation in which longstanding precedent has
interpreted the provision as jurisdictional. See Sikorsky,
773 F.3d at 1321–22. Accordingly, because Congress
“failed to provide anything like the clear statement [the]
Court has demanded before deeming a statute of limita-
FORD MOTOR COMPANY v. US 11
tions” jurisdictional, we hold that § 2636(i) is not jurisdic-
tional. Kwai Fun Wong, 135 S. Ct. at 1633. We thus need
not address the limitations issue if the CIT properly
dismissed the claims on other grounds.
II
We first address whether the CIT abused its discre-
tion in declining to issue declaratory relief for Ford’s
claims with respect to Claim 5 and all claims directed to
the 2006 entries. We review a trial court’s decision to
decline declaratory relief for abuse of discretion. Wilton,
515 U.S. at 289–90; Sony Elecs., 497 F.3d at 1288. An
abuse of discretion “may occur when the trial court’s
decision was based on an incorrect conclusion of law or
clearly erroneous findings of fact, was devoid of any
evidence in the record upon which the court rationally
could have based its decision, or was clearly unreasonable
or arbitrary.” Serco Servs. Co., L.P. v. Kelley Co., Inc., 51
F.3d 1037, 1039 (Fed. Cir. 1995) (internal quotation
marks and citation omitted).
The Declaratory Judgment Act provides that “[i]n a
case of actual controversy within its jurisdiction . . . any
court of the United States, upon the filing of an appropri-
ate pleading, may declare the rights and other legal
relations of any interested party seeking such declara-
tion.” 28 U.S.C. § 2201. Trial courts retain “unique and
substantial discretion” in deciding whether to exercise
jurisdiction to issue declaratory relief. Wilton, 515 U.S. at
286. “[T]here is no absolute right to a declaratory judg-
ment, for the statute specifically entrusts courts with
discretion to hear declaratory suits or not depending on
the circumstances.” Serco Servs. Co., L.P., 51 F.3d at
1039. Trial courts “must determine whether hearing the
case would serve the objectives for which the Declaratory
Judgment Act was created,” namely, allowing “a party
who is reasonably at legal risk because of an unresolved
12 FORD MOTOR COMPANY v. US
legal dispute[] to obtain judicial resolution of that dispute
without having to await the commencement of legal
action by the other side.” Capo, Inc. v. Dioptics Med.
Prods., Inc., 387 F.3d 1352, 1354–55 (Fed. Cir. 2004)
(internal quotation marks and citations omitted). There
“must be well-founded reasons for declining to entertain a
declaratory judgment action.” Id.In the original appeal, while we vacated the CIT’s dis-
cretionary dismissals of the declaratory claims, we re-
manded “with the understanding that the Court of
International Trade retains authority, but no obligation,
to revisit this question on remand.” Ford II, 688 F.3d at
1321, 1330. On remand, the CIT again declined to issue
discretionary declaratory relief for most of Ford’s claims,
explaining that “adjudicating the claims would not be an
efficient and effective use of the court’s time and re-
sources,” because Ford “retains the ability to seek relief”
for these claims in its pending protest and § 1581(a)
action. Ford III, 992 F. Supp. 2d at 1359. The CIT fur-
ther 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
contends that the CIT abused its discretion in declining to
exercise discretionary jurisdiction because of the general
rule favoring first-filed actions and because it would be
less efficient to defer resolution until the § 1581(a) ac-
tions. We disagree.
As Ford points out, first-filed actions are generally
preferred “unless considerations of judicial and litigant
economy, and the just and effective disposition of dis-
putes, require otherwise.” Serco, 51 F.3d at 1039 (inter-
nal quotation marks and citations omitted). Accordingly,
the “trial court’s discretion tempers the preference for the
FORD MOTOR COMPANY v. US 13
first-filed suit, when such preference should yield to the
forum in which all interests are best served.” Id. (internal
quotation marks and citations omitted). Here the first-
filed suit—the declaratory action—does not provide a
venue for resolution of the correct amount of duty for the
entries. Section 1581(i) only allows Ford to challenge
whether its entries deemed liquidated as a matter of law.
It does not permit Ford to challenge the correctness of
Customs’ actual duty calculations if the entries are not
deemed liquidated as a matter of law. See Ford II, 688
F.3d at 1328. On the other hand, Ford’s protest action
pursuant to § 1581(a) encompasses both questions—the
deemed liquidation issue and the proper rate of duty if the
entries were not deemed liquidated.
All of Ford’s entries have now liquidated, and by filing
a protest Ford has challenged the merits of those entries
before Customs. Customs denied the protest for Ford’s
2005 entries, and Ford has already filed a § 1581(a) action
challenging that denial. Section 1581(a) will be available
for Ford’s protest of its 2006 entries when Customs acts
on that protest, which Customs has said it will do upon
resolution of this appeal. See J.A. 139. The CIT did not
abuse its discretion in dismissing Ford’s declaratory
claims in favor of addressing both the issue of whether
Ford’s entries deemed liquidated and the correct rate of
duty in one streamlined § 1581(a) action.
We have previously held that § 1581(a) is a suitable
avenue for resolving challenges, like Ford’s, to Customs’
extensions of liquidation and issues of deemed liquidation.
See, e.g., Chemsol, LLC v. United States, 755 F.3d 1345,
1355 (Fed. Cir. 2014); Ford Motor Co. v. United States,
286 F.3d 1335, 1339 (Fed. Cir. 2002). Indeed under these
circumstances, § 1581(a) is likely to provide a superior
forum even as to the deemed liquidation issue, because
§ 1581(a) review is de novo and conducted based on a
complete record developed before the court, see 28 U.S.C.
14 FORD MOTOR COMPANY v. US
§ 2640(a)(1), whereas § 1581(i) review is confined to the
more limited record developed before Customs, see 28
U.S.C. § 2640(e). While the existence of another adequate
remedy does not necessarily bar a declaratory judgment,
see, e.g., Powell v. McCormack, 395 U.S. 486, 499–500
(1969), district courts may refuse declaratory relief where
an alternative remedy is better or more effective. See,
e.g., Serco, 51 F.3d at 1039; Aetna Cas. & Sur. Co. v.
Jefferson Tr. & Sav. Bank of Peoria, 993 F.2d 1364 (8th
Cir. 1993). Here the alternative remedy would be more
effective, and the CIT was justified in refusing declaratory
relief.
Notwithstanding Ford’s argument, Capo is not to the
contrary. In Capo we held that the district court’s refusal
to afford declaratory relief was an abuse of discretion
because there was a direct charge of infringement by the
patentee, Capo was continually threatened by the pro-
spect of an infringement suit, and no infringement action
had been commenced. 387 F.3d at 1355–56, 1358. Be-
cause dismissal left Capo “helpless and immobile so long
as the patent owner refuses to grasp the nettle and sue,”
we held that the district court’s dismissal contravened the
purpose of the Declaratory Judgment Act. Id. at 1358(internal quotation marks and citation omitted). See also
Genentech, Inc. v. Eli Lilly & Co., 998 F.2d 931, 936–39
(Fed. Cir. 1993). Here, on the other hand, Ford is not
forced to “await the commencement of legal action by the
other side,” Capo, 387 F.3d at 1352, because Ford itself
has already protested Customs’ liquidations and its
protests will be acted on upon resolution of this appeal. 5
5 If Customs does not act promptly, Ford will not be
without a remedy. A protestor may request an accelerat-
ed disposition of protest at any time “concurrent with or
following the filing of” its protest under § 1515(b), which
FORD MOTOR COMPANY v. US 15
See J.A. 139. The CIT did not abuse its discretion in
declining declaratory relief.
III
The CIT’s reasoning for declining to exercise its dis-
cretionary jurisdiction applies equally to Claims 1–4 and
6 relating to Ford’s 2005 entries, which the CIT found
time-barred. Indeed, these claims are even more clearly
amenable to resolution in a future § 1581(a) action than
the claims relating to Ford’s 2006 entries because Cus-
toms has already rejected Ford’s protest with respect to
its 2005 entries and Ford has already brought a § 1581(a)
action directly challenging that denial, which is currently
pending before the CIT. See Ford Motor Co. v. United
States, Ct. Int’l Trade No. 10-00138. Where the CIT
dismisses for lack of subject matter jurisdiction and it is
clear that the CIT would have declined to exercise its
discretionary jurisdiction in any event, we need not re-
mand. Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir.
1998) (a reviewing court may “affirm[] an agency decision
on a ground different from the one used by the agency” if
“the agency would have reached the same ultimate result
had it considered the new ground”) (internal quotation
marks and citations omitted). Here, the CIT already
refused to exercise its discretionary jurisdiction over
Claim 5 as directed to Ford’s 2005 entries, and explicitly
stated that the same reasoning applies to the other claims
directed to Ford’s 2005 entries that it found time-barred.
compels Customs to act on the protest within thirty days.
A protest “which has not been allowed or denied in whole
or in part within thirty days . . . shall be deemed denied.”
19 U.S.C. § 1515(b). A protestor may then appeal under
§ 1581(a). See, e.g., Norman G. Jensen, Inc. v. United
States, 687 F.3d 1325, 1329–30 (Fed. Cir. 2012).
16 FORD MOTOR COMPANY v. US
[Ford] retains the ability to seek relief for [the
time-barred] claims in the § 1581(a) case pending
before the court. . . . In addition to being an ade-
quate vehicle for the court to address the issues
[Ford] raised within the time-barred claims, liti-
gating the claims pursuant to § 1581(a) would
provide a more complete avenue for judicial re-
view of Customs’ actions. The § 1581(a) case will
allow [Ford] to challenge not only the question of
whether the entries in question were deemed liq-
uidated, but the substance of any actual liquida-
tions or reliquidations that occurred (i.e., the
merits of [Ford’s] reconciliation claims), an option
not available in this declaratory judgment case.
Ford III, 992 F. Supp. 2d at 1359 (citation omitted).
Because the CIT would have dismissed on discretionary
grounds the same claims it found time-barred, a remand
is unnecessary. We may and do affirm the dismissal on
that ground as being within the CIT’s discretion.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
FORD MOTOR COMPANY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-1726
______________________
Appeal from the United States Court of International
Trade in No. 1:09-cv-00151-MAB, Judge Mark A. Barnett.
______________________
NEWMAN, Circuit Judge, dissenting.
It is not seriously disputed by the Customs Service, or
by the panel majority, or by government counsel, that
Ford overpaid import duties by 6.2 million dollars, and
timely filed for reconciliation and refund. The govern-
ment has for nine years avoided refunding the overpay-
ment. Even on this appeal, the government does not
dispute the merits of the claim, and the record filed with
the Court of International Trade is replete with timely,
full and compelling documentation of Ford’s entitlement
to the refund. Thus I respectfully dissent from my col-
leagues’ holding that Ford must now repeat this adminis-
trative process; it is time that the refund be paid.
2 FORD MOTOR COMPANY v. US
In two trips to the Court of International Trade, as
summarized by Ford, “the CIT has twice dismissed Ford’s
claims, holding the first time that Ford was not patient
enough with Customs to allow the administrative process
to unfold, and thus filed its claims too early, and the
second time that Ford was too patient with Customs’
inaction, and thus filed its claims too late.” Ford Br. 2.
The administrative record, upon its release to the Court of
International Trade, reveals multiple internal verifica-
tions of Ford’s refund entitlements.
Ford’s reconciliation methodology and entries were
not disputed, and were accepted for Ford entries of a
different product. Two separate divisions of Customs, the
Area Director of the Port of Newark and the National
Commodities Specialist Division, confirmed Ford’s enti-
tlement to refund in early 2006. However, these internal
notices were followed by nearly three years of silence and
inaction, although Ford apparently pressed Customs for
response. Customs issued no decision that could be
protested, requiring Ford to file suit in the Court of Inter-
national Trade under 28 U.S.C. §1581(i). Thereafter
Customs apparently withdrew its prior internal approv-
als.
These procedures appear to be irregular. This is not a
complicated claim; Ford overestimated the expected value
of Jaguar imports and, after the value was accurately
determined, according to appraisement methods found
acceptable, Ford entered the statutory reconciliation
procedure and documented the $6.2 million in overpay-
ments. The reconciliation statute and regulations provide
that Customs has one year to liquidate the reconciliation
entries, 19 U.S.C. § 1504(a)(1), or to extend liquidation for
up to three years if Customs lacks the information neces-
sary to complete the liquidation. The statute and regula-
tion only permit Customs to extend liquidation if “the
information needed for the proper appraisement or classi-
FORD MOTOR COMPANY v. US 3
fication of the imported or withdrawn merchandise . . . or
for ensuring compliance with applicable law, is not avail-
able.” 19 U.S.C. § 1504(b); see 19 C.F.R. § 159.12(a)(1), (d).
The only times Customs requested additional information
was in 2005, which was promptly provided, and in July
2009 after Ford filed this suit. There is no objection to
Ford’s data, price information, or anything else.
The Customs actions are devoid of support. On this
appeal, the government brief is silent; no justification is
offered, although it appears that statute and regulation
have not been met.
In 2009, during these legal proceedings, Customs re-
liquidated Ford’s entries, refusing to pay the refund. The
reason given is that Ford did not provide certain docu-
mentation that was requested, with one month’s deadline,
after three years of silence and inaction. The re-
liquidations were not based on any position that Ford’s
appraisement and reconciliation were flawed. Although
the panel majority announces that “Customs seeks to
recalculate the duty owed, urging that the original rate
was correct,” Maj. Op. at 3, that is strange, for nowhere
does Customs state that the overpayments were correct.
The government, in its brief on this appeal, presents
no argument that the duty should be recalculated—
leaving uncertainty as to the source of my colleagues’
statement. Customs simply re-liquidated the entry at the
original overpaid amount, ignoring the law and regula-
tions of reconciliation and refund and ignoring its own
internal documents that refunds were due.
The government’s brief does not mention the over-
payment, the litigation history, or the statute or regula-
tions. Although my colleagues now hold that the claim
requires resolution, their proposal is that Ford should
start again, to request the refund that was first requested
in 2005. However, the record of overpayment and refund
4 FORD MOTOR COMPANY v. US
obligation is not now challenged. The government does
not now argue otherwise.
The judicial role is to bring the matter to a close, not
to start again. 28 U.S.C. § 2106 (appellate court may
“reverse any judgment . . . and direct the entry of such
appropriate judgment, decree, or order . . . as may be just
under the circumstances”); see also Chief Justice John
Roberts, 2015 Year-End Report on the Federal Judiciary
at 7, 11 (Dec. 31, 2015) (judges should “take on a steward-
ship role” to achieve “speedy, fair and efficient justice”).
The panel majority apparently agrees that Ford is enti-
tled to the refund. Indeed, the government does not
dispute the merits of Ford’s entitlement, after six years of
this litigation. On the unanimous holding that Ford is
not barred from receiving the refund, the appropriate
judicial role is to order the refund, and close the case.