Canadian Reynolds Metals Co. v. United Stateser , 28 Ct. Int'l Trade 1072 ( 2004 )

Slip Op. 04-85
United States Court of International Trade
CANADIAN REYNOLDS METALS COMPANY,
c/o REYNOLDS METALS COMPANY,
Plaintiff,
Before: Pogue, Judge
v.
Court No. 00-00444
UNITED STATES,
Defendant.
[Defendant’s motion to dismiss denied.]
Decided: July 14, 2004
LeBoeuf, Lamb, Greene & MacRae, LLP (Gary P. Connelly, Melvin S.
Schwechter) for Plaintiff.
Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,
Acting Attorney-in-Charge, International Trade Field Office, James
A. Curley, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Yelena Slepak, Attorney, Of Counsel,
Office of Assistant Chief Counsel, U.S. Bureau of Customs and
Border Protection, for Defendant.
OPINION
Pogue, Judge: Plaintiff Canadian Reynolds Metals Company
(“CRMC” or “Plaintiff”) seeks to invoke this Court’s jurisdiction
pursuant to subsection (a) of 28 U.S.C. § 1581 (2000) to challenge
the denial of its administrative protest filed pursuant to 19
Court No. 00-00444 Page 2
U.S.C. § 1514 (2000).1 That protest sought to challenge
Defendant’s imposition of certain Merchandise Processing Fees
(“MPF”) on Plaintiff’s imports.
Defendant United States Bureau of Customs and Border
Protection2 (“Customs” or “Defendant”) moves for dismissal claiming
lack of subject matter jurisdiction because Plaintiff failed to
properly and timely file its protest. The Court also inquires into
whether the instant action was timely filed with the Court.
Because Plaintiff’s protest was timely filed, and because
Plaintiff’s case was timely filed, Defendant’s motion to dismiss is
3
denied
1
Because Plaintiff filed its summons in 2000, Summons of CRMC at
2, the Court will refer to the 2000 versions of the statutes or
regulations. The Court acknowledges, however, that because the
events related to this action took place over an extended period
of time, various versions of each of the statutes and regulations
involved may apply. Accordingly, the Court has reviewed the
versions from 1994 until the present and found that no amendments
affecting the outcome of this case have occurred. The Court
notes that subsection (c) of 28 U.S.C. § 1491, see infra note 25,
was redesignated from subsection (b) to subsection (c) in 1996.
See Administrative Dispute Resolution Act of 1996, Pub. L. No.
104-320 § 12, 110 Stat. 3870, 3874 (codified as amended at 28
U.S.C. § 1491 (2000)).
2
Effective March 1, 2003, the United States Customs Service was
renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
3
In Canadian Reynolds Metals Co. v. United States, slip. op. 04-
39 (CIT Apr. 23, 2004), the Court granted Defendant's motion.
However, pursuant to USCIT R. 59(a) ( stating that a "rehearing
may be granted . . . in an action finally determined”), the
Court No. 00-00444 Page 3
I. Background
Plaintiff’s administrative protest has a ten-year history, a
review of which is necessary background for the motion at issue
here. On December 15, 1992, CRMC made a voluntary disclosure to
Customs under 19 U.S.C. § 1592(c)(4), admitting that it had failed
to pay certain MPF on unwrought aluminum products imported into the
United States between 1990 and the date of disclosure. Def.’s Mem.
Supp. Mot. Dismiss at 1-2 (“Def.’s Mot.”); Pl.’s Opp’n to Mot.
Dismiss at 1 (“Pl.’s Opp’n”). To perfect its voluntary disclosure,
Customs requested that CRMC tender $54,487.69, which CRMC paid on
October 6, 1994. See Letter from John Barry Donohue, Jr., Assoc.
Gen. Counsel, Reynolds Metals Co., to William D. Dietzel, Dist.
Dir., Customs, Pl.’s Ex. A at 1,4 3 (Oct. 6, 1994) (“October 6
Letter”).5
Along with its payment, CRMC submitted a letter in which it
Court, on June 8, 2004, ordered reconsideration of its April 23
opinion, and now, hereby, vacates the judgment granted therein
and the opinion on which it was based.
4
Documents appended to Pl.’s Opp’n are referred to as “Pl.’s Ex.”
followed by the corresponding letter. Documents appended to
Plaintiff’s supplemental letter brief are referred to as “Pl.’s
Supp. Ex.” followed by the corresponding letter.
5
The record shows that all correspondence and documentation
referred to in this decision was either addressed to or sent by
Reynolds Metals Company, in its capacity as owner of Canadian
Reynolds Metals Company. Reynolds Metals Company also owns
Aluminerie Becancour, Inc., which is the Plaintiff in a companion
case before this Court. Aluminerie Becancour, Inc. v. United
States, Court No. 00-00445, slip op. ______ (CIT July 14, 2004)
(pending).
Court No. 00-00444 Page 4
advised Customs of its intent to appeal the MPF determination, as
it considered its entries exempt from the MPF rate demanded by
Customs. Id. at 1. CRMC argued that the unwrought aluminum
products were of Canadian origin, and thus qualified for special
treatment pursuant to the United States-Canada Free Trade Agreement
(“USCFTA”). Letter from Rufus E. Jarman, Jr., Barnes, Richardson
& Colburn, to Dist. Dir., Customs, Pl.’s Ex. D at 4, 4-5 (Feb. 1,
1995) (“February 1 Letter”).6 Customs, on the other hand, had
previously concluded that due to a non-Canadian additive, CRMC’s
entries failed to qualify for the reduced MPF rate provided by the
USCFTA. Id. at 5. CRMC, in turn, argued that pursuant to the
doctrine of de minimis non curat lex, the foreign additive in the
Canadian entries should be disregarded for country of origin
purposes. Id. CRMC informed Customs in its payment tender letter
that it expected a full refund of the tender amount along with
accrued interest in the event that subsequent litigation was
successful. October 6 Letter, Pl.’s Ex. A at 1.
Customs responded in a letter dated November 8, 1994, stating
that it had received CRMC’s tender of MPF, but rejected all
conditions imposed by CRMC in connection to this payment. Letter
from Charles J. Reed, Fines, Penalties & Forfeitures Officer, on
behalf of William D. Dietzel, Dist. Dir., Customs, to John Barry
6
Barnes, Richardson & Colburn was Plaintiff’s legal
representative at the time. See February 1 Letter, Pl.’s Ex. D
at 4.
Court No. 00-00444 Page 5
Donohue, Reynolds Metals Co., Pl.’s Ex. B at 1 (Nov. 8, 1994)
(“November 8 Letter”). Subsequently, Customs and CRMC concluded an
escrow agreement on December 20, 1994, in which they agreed to let
the decision in a designated test case7 control whether a full
refund of CRMC’s MPF payment was appropriate. Agreement between
Canadian Reynolds Metals Company and U.S. Customs Service, Pl.’s
Ex. C at 1 (Dec. 20, 1994) (“Escrow Agreement”). In the event that
the test case decision was favorable to CRMC, Customs further
agreed to refund the full tendered amount “together with such
interest as may be required by law.” Id. at 1-2.
On February 6, 1995, CRMC filed an administrative protest.
See Letter from Frederic D. Van Arnam, Jr., Barnes, Richardson &
Colburn, to Dist. Dir., Customs, Pl.’s Ex. D. at 1 (Feb. 6, 1995)
(“February 6 Letter”); Protest No. 0712-95-100131, Pl.’s Ex. D at
3 (Feb. 6, 1995) (“Protest Form”).8 In its protest, Plaintiff
7
In subsequent amendments to the escrow agreement, concluded on
October 28, 1996, and July 13, 1998, the parties identified the
designated test case as Alcan Aluminum Corp. v. United States, 21
CIT 1238, 986 F. Supp. 1436 (1997), originally referred to as St.
Albans Protest No. 0201-93-100281 (HQ 955367) and subsequently
appealed to the Federal Circuit Court of Appeals. Letter from
Charles D. Ressin, Chief, Penalties Branch, Int’l Trade
Compliance Div., to Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, Pl.’s Ex. C at 3, 4 (Oct. 30, 1996); Letter
from Charles D. Ressin, Chief, Penalties Branch, Int’l Trade
Compliance Div., to Frederic D. Van Arnam, Jr., Barnes,
Richardson & Colburn, Pl.’s Ex. C at 5, 6 (July 13, 1998); Alcan
Aluminum Corp. v. United States, 165 F.3d 898 (Fed. Cir. 1999).
8
The “protest package” provided as Exhibit D by Plaintiff
contains copies of two letters along with a copy of a completed
Customs Form 19 (Protest No. 0712-95-100131); the first letter is
dated February 1, 1995, and the second letter is dated February
Court No. 00-00444 Page 6
appeared to make three objections to Customs’ actions. First,
Plaintiff stated that it objected to the assessment and payment of
MPF. February 1 Letter, Pl.’s Ex. D at 4. Second, it protested
“contingencies not anticipated in the [escrow] [a]greement[,] or
unanticipated frustration” of the same. Id. at 5-6. Plaintiff
then appears to have made a third objection, referring to Customs’
acceptance of payment. Id. at 4. In support of this third
objection, Plaintiff noted that a copy of Customs’ letter dated
November 8, 1994, as well as a receipt of payment made out by
Customs on November 7, 1994, was enclosed with the protest. Id.;
see also Collection Receipt from U.S. Bureau of Customs & Border
Prot., to Canadian Reynolds Metals Co., Pl.’s Ex. A at 5 (Nov. 7,
1994) (“Receipt”). Plaintiff clarified in its protest that it did
not expect Customs to act in response to its objections until final
6, 1995. See Pl.’s Ex. D. Accordingly, it appears as though
Plaintiff first attempted to forward a protest to Customs on
February 1, 1995, but that for reasons unclear to the Court, the
protest was not filed until February 6, 1995, the date Customs
received and stamped the protest form. Protest Form, Pl.’s Ex. D
at 3. The implementing regulation for filing of protests
confirms that a protest is considered filed on the date it is
received by Customs. 19 C.F.R. § 174.12(f) (“The date on which a
protest is received by the Customs officer with whom it is
required to be filed shall be deemed the date on which it is
filed.”). Additionally, both parties agree that the protest was
filed on February 6, 1995. See Def.’s Mot. at 2; Pl.’s Opp’n at
3. As the February 6 Letter merely serves as a complement to the
original protest attempt on February 1, 1995, however, the Court
will treat the letter dated February 1, 1995, as part of the
protest filed on February 6, 1995. See February 6 Letter, Pl.’s
Ex. D at 1 (“[W]e forwarded protests, dated February 1, 1995, in
which CRMC . . . protested the assessment and payment of
Merchandise Processing Fee (‘MPF’).”).
Court No. 00-00444 Page 7
judgment was rendered in the pending test case. February 1 Letter,
Pl.’s Ex. D at 6.
On January 5, 1999, the Federal Circuit Court of Appeals
issued its decision in the test case, Alcan Aluminum Corp. v.
United States, 165 F.3d 898 (Fed. Cir. 1999). The Alcan Aluminum
Corp. Court held that the foreign additive in question was subject
to the principle of de minimis non curat lex, and therefore, the
entries were considered of Canadian origin. 165 F.3d at 902. The
Alcan Aluminum Corp. decision became final on April 5, 1999. Pl.’s
Opp’n at 4.
Because CRMC’s entries qualified for preferential trade status
under the USCFTA as a result of the favorable decision in Alcan
Aluminum Corp., Customs refunded to CRMC the deposited MPF amount
in full “[o]n or about” February 7, 2000.9 Compl. of CRMC at 3.
Customs, however, failed to tender interest pursuant to the
escrow agreement when it made the refund to CRMC. Def.’s Mot. at
2; Pl.’s Opp’n at 4. CRMC then sent, on February 10, 2000, a
request for accelerated disposition of its protest. See Pl.’s
Opp’n at 4; Letter from F. D. “Rick” Van Arnam, Jr., Barnes,
Richardson, & Colburn, to Port Dir., Customs, Pl.’s Supp. Ex. A
(Feb. 9, 2000); Certified Mail Receipt, Pl.’s Supp. Ex. B. (Feb.
10, 2000) Following what CRMC considered a denial of the original
protest by operation of law, it filed a summons with the Court on
9
No supporting exhibit was provided, but Defendant does not deny
this statement. See Def.’s Mem. at 2.
Court No. 00-00444 Page 8
September 7, 2000. Summons of CRMC at 2. Plaintiff subsequently,
on September 30, 2002, filed its complaint seeking relief. Compl.
of CRMC at 6. The thrust of Plaintiff’s complaint is that Customs
failed to pay interest on the refunded MPF. Id. at 3-4. As noted
above, Defendant Customs moves to dismiss for lack of subject
matter jurisdiction.
II. Standard of Review
Because Plaintiff is seeking to invoke the Court’s
jurisdiction, it has the burden to establish the basis for
jurisdiction. See Former Employees of Sonoco Prods. Co. v. United
States Sec’y of Labor, 27 CIT ____, ____, 273 F. Supp. 2d 1336,
1338 (2003) (citing McNutt v. Gen. Motors Acceptance Corp., 298
U.S. 178, 189 (1936)). At the same time, because Defendant’s
motion to dismiss challenges the sufficiency of Plaintiff’s
pleadings (as opposed to the factual basis underlying the
pleadings), the Court will accept all facts alleged in Plaintiff’s
pleading as true. Corrpro Cos. v. United States, slip. op. 03-59,
at 4 (CIT June 4, 2003).
III. Discussion
Defendant moves to dismiss, alleging that because CRMC failed
to timely protest any Customs decision, subject matter jurisdiction
under 28 U.S.C. § 1581(a) is lacking. See Def.’s Mot at 3-4.
Court No. 00-00444 Page 9
Furthermore, even in the event that the CRMC timely protested a
Customs decision, this Court can only exercise subject matter
jurisdiction if the case was timely filed with the Court. See 28
U.S.C. § 2636(a); USCIT R. 3(a). The Court will therefore discuss
each of these timing issues in turn.
A. Plaintiff Timely Protested a Customs Decision
Plaintiff seeks to invoke the Court’s jurisdiction under 28
U.S.C. § 1581(a), which provides for the review of the denial of a
protest made under section 515 of the Tariff Act of 1930, as
amended at 19 U.S.C. § 1515.. Compl. of CRMC at 1; 28 U.S.C. §
1581(a). Subsection (a) of § 1515 authorizes Customs “to review
and deny or allow a protest as long as it is filed in accordance
with 19 U.S.C. § 1514. 19 U.S.C. § 1515(a). A suit attempting to
invoke the Court’s jurisdiction under 28 U.S.C. § 1581(a) must
therefore be based on a protest which complies with the
requirements of § 1514.
Title 19 U.S.C. § 1514 governs the timing of protests. 19
U.S.C. § 1514. Section 1514 specifically provides that, where no
notice of liquidation is involved, a protest must be filed no more
than ninety days after the protested decision.10 Both parties to
10
Title 19 U.S.C. § 1514(c)(3) provides as follows:
A protest of a decision, order, or finding described
in subsection (a) of this section shall be filed with
the Customs Service within ninety days after but not
before--
(A) notice of liquidation or reliquidation,
or
Court No. 00-00444 Page 10
this action agree there is no notice of liquidation in this matter;
therefore, it is necessary to determine whether Plaintiff’s protest
challenged any Customs decision made within ninety days prior to
the protest’s filing. See Def.’s Mot. at 3; Pl.’s Opp’n at 5.
In its protest, Plaintiff appears to make three objections.
See February 1 Letter, Pl.’s Ex. D at 4-6. First, Plaintiff
protests the assessment and payment of MPF. Id. at 4. The MPF
tender, however, occurred on October 6, 1994, October 6 Letter,
Pl.’s Ex. A at 3, while Plaintiff filed its protest on February 6,
1995. Protest Form, Pl.’s Ex. D at 3. Because a time period of
more than ninety days elapsed between those two events, Plaintiff’s
protest fails to present a timely challenge to the assessment and
payment of MPF.
Second, Plaintiff protests unanticipated frustration of, and
contingencies not foreseen in, the escrow agreement. February 1
Letter, Pl.’s Ex. D at 5-6. Title 19 U.S.C. § 1514(c)(3) states,
however, that parties must file protests “within ninety days after
but not before . . . the date of the decision as to which protest
is made.” Id. (emphasis added). The decision the protesting
party objects to must therefore occur prior to the filing of the
(B) in circumstances where subparagraph (A)
is inapplicable, the date of the decision as
to which protest is made.
19 U.S.C. § 1514(c)(3).
Court No. 00-00444 Page 11
protest. As previously stated, CRMC filed its protest on February
6, 1995. Protest Form, Pl.’s Ex. D at 3. To the extent that
Plaintiff objects to the unanticipated event of Customs’ decision
to refund MPF without interest in February 2000, that event had not
yet occurred at the time the protest was filed.11 Accordingly,
under a plain reading of 19 U.S.C. § 1514(c)(3), Plaintiff’s
protective protest was untimely and invalid. See A.N. Deringer,
Inc. v. United States, 12 CIT 969, 972, 698 F. Supp. 923, 925
(1988) (holding that a protest was invalid either because it was
filed the day before Customs denied a previous claim for relief or
barred by the provision allowing only one protest per entry of
merchandise).
Third, Plaintiff appears to object to Customs’ acceptance of
its MPF tender. See February 1 Letter, Pl.’s Ex. D at 4. In its
protest, Plaintiff alleges that Customs accepted its payment on
November 8, 1994, and specifies that the protest was filed within
11
Plaintiff claims that Customs made the decision not to pay
interest as early as November 8, 1994, the day it sent the
November 8 Letter. See Pl.’s Opp’n at 6. However, the parties
subsequently signed the escrow agreement, where Customs agreed to
refund the MPF amount and “interest as may be required by law” if
related litigation was successful. Escrow Agreement, Pl.’s Ex. C
at 1-2. Thus, even presuming that Customs made the decision to
deprive CRMC of interest at such an early stage, that decision
was later vitiated by the terms of the escrow agreement before
the filing of the protest. Moreover, even if the escrow
agreement did not vitiate Customs’ original rejection of any
conditions on the payment of MPF, the language of the protest –
objecting to unanticipated frustration of the escrow agreement –
clearly refers to decisions which had not yet been made, and not
to the November 8 Letter.
Court No. 00-00444 Page 12
ninety days of that date. Id. Plaintiff’s February 1 Letter
further states that Plaintiff attached a copy of the November 8
Letter to the protest, as well as a copy of the receipt from
Customs. Id. The receipt, however, shows that Customs received
Plaintiff’s MPF payment on November 7, 1994. Receipt, Pl.’s Ex. A
at 5. The November 8 Letter, on the other hand, indicates that
Customs acknowledged the MPF tender, and that Customs intended not
to accept the tender’s contingencies. November 8 Letter, Pl.’s Ex.
B at 1. Consequently, the Court cannot conclude that Customs’
acceptance of Plaintiff’s tender took place on November 8, 1994.
Rather, acceptance occurred a day prior, when Customs received
payment and made out the receipt. Customs therefore, on November
7, 1994, made the decision Plaintiff attempted to protest; November
7 was ninety-one days prior to the filing of the protest in
question here. However, February 5, 1995, the ninetieth day from
November 7, 1994, fell on a Sunday. Under USCIT R. 6(a), when this
Court computes any period of time prescribed by statute, and where
the last day falls on a Saturday, Sunday or holiday, the last day
of the period shall not be included in the computation, but the
allowable time period shall run to the next business day. See
USCIT R. 6(a). Therefore, Plaintiff’s protest was timely filed on
February 6, 1995.12
12
The Court’s opinion here does not reach the question of whether
Plaintiff’s protest is susceptible of the relief desired by
Plaintiff. Defendant has argued that by failing to directly
challenge the nonpayment of interest, Plaintiff has failed to
Court No. 00-00444 Page 13
B. The Case Was Timely Filed With the Court
The timeliness of the protest does not itself mean that
jurisdiction is proper in this case. Having found that the protest
itself was timely filed, the Court turns to the question of whether
the instant case was timely filed with the Court. A case arising
from the denial of a properly filed protest must be commenced
within 180 days of mailing of the denial of the protest, or within
180 days of denial of the protest by operation of law. See 28
U.S.C. § 2636(a). A case arising under 19 U.S.C. § 1581(a) is
considered commenced when the summons is filed. See USCIT R.
3(a)(1). The summons in this case was filed on September 7, 2000.
See Summons of CRMC at 2. All that remains in order to know
whether that summons was timely, is to discover whether denial
occurred, and if so, whether the filing of the case meets the
requirements of 28 U.S.C. § 2636(a).
Protests may be denied either by an affirmative act or, where
a request for accelerated disposition has been sent by certified
mail, by operation of law. See 28 U.S.C. § 2636(a), 19 U.S.C. §
make a protest that can result in the desired relief. See Def.’s
Mot at 4-5. Plaintiff argues that Customs’ failure to pay
interest is in violation of 19 U.S.C. § 1505(c), Pl.’s Opp’n at
11, which in pertinent part holds,“[i]nterest on excess moneys
deposited shall accrue, at a rate determined by the Secretary,
from the date the importer of record deposits estimated duties,
fees, and interest.” 19 U.S.C. § 1505(c). This statute might
allow the protest of acceptance of tender to properly result in
repayment of interest. However, in this opinion, the Court
limits itself to discussion of the timeliness of Plaintiff’s
protest and case.
Court No. 00-00444 Page 14
1515(b). Title 19 U.S.C. § 1515(b) provides that where a request
for accelerated disposition has not been allowed or denied within
thirty days of its certified mailing, it will be denied by
operation of law:
[a] request for accelerated disposition of a protest
filed in accordance with section 1514 of this title
may be mailed by certified or registered mail. . .
any time after ninety days following the filing of
such protest. . . . [A] protest which has not been
allowed or denied in whole or in part within thirty
days following the date of mailing by certified or
registered mail of a request for accelerated
disposition shall be deemed denied on the thirtieth
day following mailing of such request.
19 U.S.C. § 1515(b).13 CRMC mailed by certified mail a request for
accelerated disposition of its protest to Customs on February 10,
2000. See Certified Mail Receipt, Pl.’s Supp. Ex B.14 CMRC’s
protest was denied by operation of law, then, on March 11, 2000,
the thirtieth day from the mailing of the request. That day,
however, was a Saturday, so under USCIT R. 6(a), March 13, 2000,
13
Title 19 U.S.C. § 1515(a) states that “within two years from
the date a protest was filed in accordance with section 1514 of
this title, [Customs] shall review the protest and shall allow or
deny such protest in whole or in part.” 19 U.S.C. § 1515(a).
The section does not state that protests not allowed or denied
within two years are denied by operation of law. However, when
read in context with 28 U.S.C. § 2636(a), it appears that section
1515(b) provides the means by which a protest may be denied by
operation of law. See U.S.C. § 1515(b); see also Knickerbocker
Liquors Corp. v. United States, 78 Cust. Ct. 192, 193-95, 432 F.
Supp. 1347, 1349-50 (1977).
14
The Domestic Return Receipt provided by CMRC indicates that the
request for accelerated disposition of protest was received by
Customs on February 14, 2000. See Domestic Return Receipt, Pl.’s
Supp. Ex. B (Feb. 14, 2000).
Court No. 00-00444 Page 15
the following Monday, is officially the day upon which the protest
was denied by operation of law. Fewer than 180 days elapsed
between March 13, 2000 and September 7, 2000, the day the summons
was filed. Therefore, this action was timely commenced with this
Court.
The protest upon which this case was timely filed, as was the
case itself. Accordingly, Customs’ motion to dismiss is hereby
denied.
So ordered.
/s/Donald C. Pogue
Donald C. Pogue,
Judge
Dated: July 14, 2004
New York, New York
ERRATUM
Please make the following change to Canadian Reynolds Metals Co. v. United States,
Slip Op. 04-85, July 14, 2004, Court No. 00-00444:
On page 8, the last sentence of the Standard of Review section,
At the same time, because Defendant’s motion to dismiss challenges the sufficiency of Plaintiff’s
pleadings (as opposed to the factual basis underlying the pleadings), the Court will accept all
facts alleged in Plaintiff’s pleading as true. Corrpro Cos. v. United States, slip. op. 03-59, at 4
(CIT June 4, 2003).
should be struck and replaced with the following:
At the same time, “the Court assumes ‘all well-pled factual allegations are true,’ construing ‘all
reasonable inferences in favor of the nonmovant.’” United States v. Islip, 22 CIT 852, 854, 18 F.
Supp. 2d 1047, 1051 (1998) (quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.
Cir. 1991)).
August 10, 2004