RIDGWAY, Judge:
In this action, plaintiff Chrysal USA, Inc. ("Chrysal") seeks to challenge the tariff classification of "flower food" which was among the various products included in 17 entries of merchandise that Chrysal imported into the United States in 2008. See generally Complaint. Chrysal invokes 28 U.S.C. § 1581(a), which vests the U.S. Court of International Trade with exclusive jurisdiction over "any civil action commenced to contest the denial of a protest." See id. ¶ 1; 28 U.S.C. § 1581(a) (2006);
Now pending before the Court is Defendant's Motion to Dismiss for want of jurisdiction. Emphasizing that jurisdiction pursuant to 28 U.S.C. § 1581(a) is predicated on the Bureau of Customs and Border Protection's denial of a valid protest,
As discussed in detail below, the Government's motion must be granted, and this action dismissed.
Because the filing of a timely, valid protest is a condition precedent to the exercise of jurisdiction under 28 U.S.C. § 1581(a), the Government's pending Motion to Dismiss turns on whether an August 2009 letter to Customs from Chrysal's Dutch parent company constituted a "protest," as defined by the applicable statute and regulation. See 19 U.S.C. § 1514(c)(1)(A)-(D) (establishing statutory requirements for contents of a protest); 19 C.F.R. § 174.13(a)(1)-(6) (establishing regulatory requirements for contents of protest).
At issue in this action are 17 entries of merchandise that Chrysal imported into the United States in 2008. See Summons; Complaint ¶¶ 1, 12; Pl.'s Brief at 1.
At the time of importation, Chrysal filed entry documents with Customs claiming that the various products in the 17 subject entries were classifiable under assorted specified provisions of the Harmonized Tariff Schedule of the United States ("HTSUS"). See Def.'s Motion to Dismiss at 1 (citing entry papers).
Some months later (in mid-April 2009), before the subject entries were liquidated, Chrysal filed post summary adjustments with Customs, asserting that "flower food" was "wrongly classified" and seeking a refund of duties. See Complaint, Exh. A (post summary adjustment filed for Entry HG8-0119669-9, submitted as example of all relevant post summary adjustments); Complaint ¶ 7; Pl.'s Brief at 1; Def.'s Motion to Dismiss at 2.
By email message to Chrysal in late April 2009,
In late August 2009, Chrysal International BV — Chrysal's Dutch parent company — sent Customs a letter, which Chrysal contends is the formal "protest" that 28 U.S.C. § 1581(a) requires as a basis for invoking this court's jurisdiction. See Complaint, Exh. C (letter to Customs from Chrysal International BV, dated Aug. 26, 2009); Complaint ¶ 12; Pl.'s Brief at 2; Def.'s Motion to Dismiss at 3; 28 U.S.C. § 1581(a) (vesting Court of International Trade with exclusive jurisdiction over civil action contesting "the denial of a protest").
Id. Roughly 17½ months later, in mid-February 2011, counsel for Chrysal sent Customs
This action followed, in which Chrysal invokes jurisdiction to contest the denial of a protest pursuant to 28 U.S.C. § 1581(a), claims that the August 2009 letter from its parent company to Customs constituted the requisite protest, and asserts that the "flower food" in the 17 subject entries should have been classified under HTSUS subheading 1702.30.40, dutiable at the rate of 2.2¢/kg. See Complaint ¶¶ 1, 12, & "Wherefore" clause; Def.'s Motion to Dismiss at 1-2, 3; Subheading 1702.30.40, HTSUS.
Where — as here — subject matter jurisdiction is in dispute, the party asserting jurisdiction bears "the burden of showing that he is properly in court." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, p. 211 (3d ed. 2004). In the case at bar, jurisdiction rests upon 28 U.S.C. § 1581(a), which, "[b]y its terms,... limits the jurisdiction of the Court of International Trade to appeals from denials of valid protests." See Koike Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed.Cir.1999); see also DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1319 (Fed.Cir.2006); 28 U.S.C. § 1581(a). In the instant case, Chrysal never filed a protest. Hence, there was no denial of a protest to be appealed, and the Court of International Trade lacks jurisdiction to hear Chrysal's complaint.
Chrysal maintains that the August 26, 2009 letter from its Dutch parent company to Customs constituted a valid protest. See Complaint ¶ 12; Id., Exh. C; Pl.'s Brief at 2, 5. It is, however, no exaggeration to say — as the Government does here — that the August 2009 letter "contains none of the requisite elements of a protest" which are established both by statute and by regulation. See Def.'s Reply Brief at 1 (emphasis added); see also 19 U.S.C. § 1514(c)(1); 19 C.F.R. § 174.13(a); Def.'s Motion to Dismiss at 5-13; Def.'s Reply Brief at 1-8. As discussed below, this action therefore must be dismissed for lack of jurisdiction.
Moreover, the restrictions imposed by statute are not confined to a protest's contents. The statute also imposes restrictions as to timing, and expressly prohibits the filing of a protest "before ... [the] date of liquidation." 19 U.S.C. § 1514(c)(3)(A); see also 19 C.F.R. § 174.12(e) (requiring filing of any protest "within 90 days after" a specified protestable decision or event) (emphasis added). Thus, even if the August 2009 letter somehow were found to satisfy the statutory and regulatory requirements governing the contents of a protest (which it does not), the letter was premature as to three entries which were not liquidated until
By statute, a protest must include certain necessary information. In particular, 19 U.S.C. § 1514(c)(1) requires, in relevant part, that:
19 U.S.C. § 1514(c)(1) (emphasis added). The implementing regulation promulgated by Customs — expressly authorized by 19 U.S.C. § 1514(c)(1)(D), and set forth at 19 C.F.R. § 174.13(a) — expands, and elaborates upon, the elements required for a valid protest, providing, in relevant part:
19 C.F.R. § 174.13(a).
The applicable statute and regulation thus make it clear, in no uncertain terms, that every protest must set forth — "distinctly and specifically" — "the nature of each objection and the reasons therefor." 19 U.S.C. § 1514(c)(1)(C); see also 19 C.F.R. § 174.13(a)(6) (requiring that protest detail "[t]he nature of, and justification for[,] the objection set forth distinctly and specifically ...") (emphasis added). The statute further mandates that every protest identify — again, "distinctly and specifically" — the particular Customs decision(s) being protested, as well as "each category of merchandise affected" by each protested decision. See 19 U.S.C. § 1514(c)(1)(A)-(B).
The regulation highlights the need for specificity as to each element of a protest and requires that every protest provide additional practical information, including the name and address of the protestant (19 C.F.R. § 174.13(a)(1)); the protestant's importer number (19 C.F.R. § 174.13(a)(2)); both the entry number and the date of the entry at issue (19 C.F.R. § 174.13(a)(3)); the date of liquidation (19 C.F.R. § 174.13(a)(4)); and "[a] specific description of the merchandise affected" (19 C.F.R. § 174.13(a)(5)).
The Court of Appeals has emphasized that these statutory and regulatory requirements governing the sufficiency
Id., 96 U.S. at 151 (emphases added) (quoted with approval in, inter alia, Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1367 (Fed.Cir.2006); Koike Aronson, 165 F.3d at 908). Accordingly, every protest must provide the requisite "distinct" and "specific" information, so as to apprise Customs of the nature and character of the protestant's complaint.
Courts have considered the sufficiency of protests in a wide range of contexts, and have not hesitated to dismiss cases where the protest failed to include information required by statute or regulation. In Koike Aronson, for example, although the protest specified "the classification to which objection was made," the protest "did not identify any preferred alternative [classification] or give any details about the nature of the objection or the reasons for it." Koike Aronson, Inc. v. United States, 21 CIT 1056, 1056, 976 F.Supp. 1035, 1036 (1997), aff'd, 165 F.3d 906 (Fed. Cir.1999). The case was therefore dismissed for lack of subject matter jurisdiction. Id., 21 CIT at 1057, 976 F.Supp. at 1037. The Court of Appeals affirmed, highlighting the skeletal nature of the protest at issue:
Koike Aronson, 165 F.3d at 908-09. The Court of Appeals emphasized that "[t]he requirements for a valid protest that are contained in [the statute] and the implementing regulation ... are mandatory, and Koike's protest plainly failed to satisfy them." Id., 165 F.3d at 909.
XL Specialty Insurance is another example of a case dismissed for lack of jurisdiction due to the insufficiency of the protest. See XL Specialty Ins. Co. v. United States, 28 CIT 858, 341 F.Supp.2d 1251 (2004). The protest in that case had been submitted on Customs' official protest form, with three additional pages attached presenting several "alternative arguments" challenging Customs' liquidation of the subject entries. See id., 28 CIT at 860-61, 341 F.Supp.2d at 1253-54 (setting forth the main text of the protest). The protest provided much of the information required by statute and regulation, including the relevant entry numbers, the dates of entry, the dates of liquidation, the decisions being protested, and "the nature of the objection[s]." See id., 28 CIT at 860, 868, 341 F.Supp.2d at 1253, 1260. The court nevertheless dismissed the case, concluding that
To the same effect is Washington International Insurance, which was also dismissed for want of jurisdiction due to the lack of a valid protest. See Washington Int'l Ins. Co. v. United States, 16 CIT 599, 1992 WL 175731 (1992). Like the protest in XL Specialty Insurance, the protest in Washington International Insurance was filed on Customs' official protest form. See Washington Int'l Ins. Co., 16 CIT at 600-01. The importer had checked the box on the form to indicate that the protest concerned the classification of the subject merchandise. See id., 16 CIT at 600. However, the protest "neglected to provide any description whatsoever of [the importer's] classification objection." See id., 16 CIT at 603. In addition, the protest failed to "indicate why [the importer] felt Customs' classification was incorrect and did not even hint at the classification rate or tariff provision under which [the importer] was claiming." See id. The court concluded that the lack of information required by 19 U.S.C. § 1514(c)(1)(C) and 19 C.F.R. § 174.13(a)(6) rendered the protest "fatally deficient," and mandated dismissal of the case. See id., 16 CIT at 601-02, 603, 605; 19 U.S.C. § 1514(c)(1)(C) (requiring specification of "the nature of each objection and the reasons therefor"); 19 C.F.R. § 174.13(a)(6) (requiring specification of "[t]he nature of, and justification for[,] the objection").
Similarly, in Tail Active Sportswear, the court dismissed the case for lack of jurisdiction because the underlying protest failed to "identify[] specifically ... the category of merchandise in the entry under protest affected by [the challenged Customs decision]," as required by 19 U.S.C. § 1514(c)(1)(B). See Tail Active Sportswear v. United States, 16 CIT 504, 507, 793 F.Supp. 325, 328 (1992). Although the one-page protest raised objections as to the classification and rate of duty assessed on women's apparel, it was silent as to men's apparel, which was the subject of the lawsuit. Id., 16 CIT at 504-05, 793 F.Supp. at 325-26. The plaintiff asserted that the Customs import specialist had understood that the protest was missing a second page, which (the plaintiff maintained) was supposed to have been a page raising objections as to men's apparel, but which — according to the plaintiff — had been mistakenly duplicative of the first page (and thus covered only women's apparel). See id., 16 CIT at 505-07, 793 F.Supp. at 326-28. Emphasizing that "[p]rotest as to classification of the women's wearing apparel [did] not constitute protest as to the men's wearing apparel," the court ruled that, "even assuming arguendo that the alleged duplicative second page was attached [to the protest], the ... protest simply did not distinctly and specifically set forth men's wearing apparel as the category of merchandise as to which the classification, rate of duty and liquidation was protested." Id., 16 CIT at 507-08, 793 F.Supp. at 328. The court rejected the plaintiff's arguments to the contrary as "frivolous." Id., 16 CIT at 507, 793 F.Supp. at 327.
The letter thus is not designated as a "protest"; nor does it even reference the term "protest." See Complaint, Exh. C; see also 19 C.F.R. § 174.12(b) (requiring, inter alia, that every protest be "clearly labeled `Protest'"); Ammex Inc. v. United States, 27 CIT 1677, 1685, 288 F.Supp.2d 1375, 1382 (2003) (dismissing claim for lack of jurisdiction, based on, inter alia, determination that alleged protest was not "sufficiently labeled as `Protest' and addressed to the appropriate Customs official to satisfy the requirements of 19 C.F.R. § 174.12(b)").
As the Government correctly points out, the August 2009 letter includes none of the elements of a protest set forth by statute and regulation. See Def.'s Motion to Dismiss at 10, 12-13; Def.'s Reply Brief at 1, 4, 5. The August 2009 letter thus stands in stark contrast to the alleged protests in the cases discussed above, and in other similar cases. Unlike the letter here, all of those other alleged protests included at least some of the requisite information. Those protests were nevertheless determined to be insufficient and therefore not valid. By comparison, the August 2009 letter to Customs from Chrysal's parent company is far more deficient.
Further, the letter includes no reference to any specific "category of merchandise" that is the subject of protest. See Complaint, Exh. C; 19 U.S.C. § 1514(c)(1)(B); see also 19 C.F.R. § 174.13(a)(5) (requiring protest to include "[a] specific description of the merchandise" that is subject to protest); see generally Def.'s Motion to Dismiss at 10, 11, 12; Def.'s Reply Brief at 4. To the extent that Customs might have gone beyond the four corners of the August 2009 letter and reviewed HQ 955771 (the Customs ruling to which the August 2009 letter referred), that reference still does not suffice to adequately identify the merchandise. See Complaint, Exh. C; HQ 955771 (Jan. 2, 1996); see generally Def.'s Motion to Dismiss at 11. HQ 955771, which makes no mention of Chrysal, dealt with "powdered cut flower food" of a specified chemical composition. See HQ 955771. And, even assuming that it were somehow possible to surmise that the August 2009 letter — which includes no entry numbers or dates of entry or other identifying information — was intended to refer to the 17 entries at issue in this action, the entry papers for the 17 entries reflect the importation of a range of various products, not just a single item. See Complaint, Exh. C; Def.'s Motion to Dismiss at 1, 11; Def.'s Reply Brief at 6. Moreover, none of the invoices associated with the 17 entries identify any of the products therein as "flower food." See Def.'s Motion to Dismiss at 11; Def.'s Reply Brief at 6; invoices. Thus, even if the August 2009 letter were to be read in conjunction with HQ 955771 (to which the letter referred), the August 2009 letter does not adequately identify any specific "category of merchandise" that is the subject of a challenge, and thus fails to comply with 19 U.S.C. § 1514(c)(1)(B).
The August 2009 letter similarly gives no notice of "the nature of [Chrysal's] objection and the reasons therefor," and is insufficient under the statute for that reason as well. See Complaint, Exh. C; 19 U.S.C. § 1514(c)(1)(C); see also 19 C.F.R. § 174.13(a)(6) (requiring protest to state "[t]he nature of, and justification for[,] the objection"); see generally Def.'s Motion to Dismiss at 10, 12; Def.'s Reply Brief at 1, 4. As such, the August 2009 letter fails to
The August 2009 letter from Chrysal's parent company fares no better when judged against the six specific regulatory criteria that supplement the statutory criteria. See 19 C.F.R. § 174.13(a)(1)-(6). The regulation — which is expressly authorized by Congress — requires protestants to provide certain very practical information that is needed to afford Customs "an opportunity to correct the mistake and cure the defect, if it was one which could be obviated." See 19 U.S.C. § 1514(c)(1)(D) (requiring that protest include "any other matter required by [Customs] by regulation"); Davies v. Arthur, 96 U.S. at 151.
In particular, the regulation requires that every protest include "[t]he name and address of the protestant," "[t]he importer number of the protestant," and "[t]he number and date of the entry" at issue, as well as "[t]he date of liquidation of the entry." See 19 C.F.R. § 174.13(a)(1)-(4). Whether the August 2009 letter is read alone or together with HQ 955771 (the Customs ruling to which the letter refers), the August 2009 letter fails to provide any of this most basic information. See Complaint, Exh. C; HQ 955771; see generally Def.'s Motion to Dismiss at 10; Def.'s Reply Brief at 1, 4, 6. In addition, because the August 2009 letter does not adequately identify any particular "category of merchandise" that is the subject of a protest (see discussion of 19 U.S.C. § 1514(c)(1)(B), above), it goes without saying that the letter does not satisfy the more detailed regulatory requirement to provide "[a] specific description of the merchandise." See 19 C.F.R. § 174.13(a)(5). Similarly, the August 2009 letter — which fails to specify "the nature of each objection and the reasons therefor" (see discussion of 19 U.S.C. § 1514(c)(1)(C), above) — by definition also fails to state "[t]he nature of, and justification for[,] the objection," as the regulation requires. See 19 C.F.R. § 174.13(a)(6).
In short, any fair reading of the August 2009 letter must conclude that the letter was purely informational. The letter is not labeled a "protest," nor does it use that term. It is utterly barren of anything that might fairly inform Customs of any dispute of any type vis-a-vis any specific importations by Chrysal. Even if read in the context of HQ 955771, the August 2009 letter reflects no suggestion of any grievance on the part of Chrysal and no objection by Chrysal to any particular decision by Customs. Conspicuously absent is any request for relief. The letter lacks even the most fundamental information required of any protest by statute and regulation, such as the protestant's name and address, the protestant's importer number, the number and date of the entry at issue, and the date of liquidation.
Only now — with the benefit of Chrysal's complaint — is it possible to understand that Chrysal had a classification dispute with Customs, involving two subheadings of the HTSUS, relating to imported "flower food." The August 2009 letter cannot reasonably be read to convey any of that information.
For its part, Chrysal makes no attempt to argue that the August 2009 letter satisfies the "mandatory" criteria for protests prescribed by statute and by regulation. See Koike Aronson, 165 F.3d at 909; 19 U.S.C. § 1514(c)(1)(A)-(C); 19 C.F.R. § 174.13(a)(1)-(6). Chrysal implicitly concedes that the August 2009 letter does not meet those requirements. See Pl.'s Brief at 2-3. But, relying on Cisco Systems and Mattel, Chrysal argues that protests are to be construed liberally and should be found to be "valid even though they do not meet the strict criteria of [the statute and the regulation]." Id. at 3; Cisco Systems, Inc. v. United States, 35 CIT ___, 804 F.Supp.2d 1326
The Government does not dispute that "technical precision" is not required in a protest, and that protests are to be liberally construed. See Def.'s Reply Brief at 5-6, 7-8. The salient point is that, here, there is simply nothing to be construed.
This is not a case of a protest that is "cryptic, inartistic, or poorly drawn," but that nevertheless "conveys enough information to apprise knowledgeable officials of the importer's intent and the relief sought." See Mattel, 72 Cust.Ct. at 262, 377 F.Supp. at 960 (quoted in Saab, 434 F.3d at 1365); see also Mattel, 72 Cust.Ct. at 265, 377 F.Supp. at 963 (noting that, in that case, "each of plaintiff's letters contain all the required elements of a protest"). Quite to the contrary, as detailed above, this is a case where the asserted protest — the August 2009 letter from Chrysal's parent company — satisfies not a single one of the applicable statutory and regulatory requirements. And, historically, the courts have been "unwilling to vitiate the protest requirements mandated by Congress ... in the guise of endorsing a liberal construction of protests." CR Industries v. United States, 10 CIT 561, 564, 1986 WL 9273 (1986) (quoted in, inter alia, Tail Active Sportswear, 16 CIT at 508, 793 F.Supp. at 328).
Chrysal's reliance on Cisco Systems and Mattel does nothing to advance its cause. Both cases are readily distinguished from the facts of this case. In both Cisco Systems and Mattel, the nature of the claim against Customs was clear, as was the relief that was sought. See generally Cisco Systems, 35 CIT ___, 804 F.Supp.2d 1326; Mattel, 72 Cust.Ct. 257, 377 F.Supp. 955.
The question presented in Cisco Systems was not whether there was an objection sufficient to notify Customs of the existence, nature, and character of a dispute, which is the question presented here. Rather, the sole question in Cisco Systems was whether "networking equipment and parts thereof" (a term used in the protests) constituted a "category of merchandise" within the meaning of 19 U.S.C. § 1514(c)(1)(B), which requires that a protest identify "each category of merchandise affected by each [protested] decision." See Cisco Systems, 35 CIT at ___, ___, 804 F.Supp.2d at 1328, 1332-33. That the protests in Cisco Systems satisfied all other statutory and regulatory requirements for protests was not in issue. In contrast, the alleged protest in this case — the August 2009 letter from Chrysal's parent company — satisfies none of the statutory and regulatory requirements.
Chrysal's invocation of Mattel is equally unavailing. Mattel dealt with whether certain letters to Customs contesting classification decisions could be considered protests, even though the author had framed them as "section 520(c) request letters" (rather than protests under 19 U.S.C. § 1514). See Mattel, 72 Cust.Ct. at 257, 377 F.Supp. at 956-57. As the Mattel court noted, the letters at issue there "contain[ed] all the required elements of a protest." Id., 72 Cust.Ct. at 265, 377 F.Supp. at 963 (emphasis added). The facts of Mattel are thus far from comparable to the facts of the case at bar, where the August 2009 letter contains none of those required elements.
Chrysal seeks to make much of an April 2009 email message from Customs' Import Specialist, alleging that the message proves that Customs "was aware that Chrysal was challenging the classification of its flower food." See Pl.'s Brief at 5; Complaint, Exh. B (email message to Chrysal from Customs Import Specialist, dated April 28, 2009). But Chrysal tries to read far too much into that communication. As explained in section I above, that email message did nothing more than note the chemical composition of the "powdered cut flower food" at issue in HQ 955771 and distinguish it from the chemical composition of a product that the email message identified as "Chrysal Clear Professional 2 T-bag." See section I, supra. No reasonable construction of the April 2009 email message suggests that it constitutes an acknowledgment by Customs' Import Specialist that Chrysal was asserting a protest as to any specific entries on any particular grounds.
More importantly, even if the April 2009 email message could be read to indicate that the Import Specialist "was aware that Chrysal was challenging the classification of its flower food," the argument still could not carry the day. The Court of Appeals has expressly held that Customs' actual knowledge of a protestant's grievance is irrelevant to an analysis of the sufficiency of an asserted protest. See Koike Aronson, 165 F.3d at 909. In Koike Aronson, the plaintiff argued that "Customs was fully informed ... as to the substance of Koike's position," both "through prior discussions" and through "pre-protest correspondence." Id.
Id. There is thus no merit to Chrysal's attempts here to establish the validity of its asserted protest by resort to "the surrounding circumstances." See id.
Moreover, in the authority on which Chrysal relies, the protest was otherwise complete. See Estee Lauder, 35 CIT at ___ & n. 4, 2011 WL 770001 *2 & n. 4 (quoting relevant excerpts from protest). It is another matter entirely to suggest, as Chrysal apparently does, that Customs has an obligation to investigate and formulate an importer's protest essentially ab initio. In XL Specialty Insurance, where the sole issue was whether the (otherwise sufficient) protest adequately stated the "reasons" and "justifications for the objection," the court dismissed a similar suggestion:
In sum, it is true that "denial of jurisdiction for insufficiency of protest is a severe action which should be taken only sparingly." Eaton Mfg. Co. v. United States, 60 CCPA 23, 469 F.2d 1098, 1104 (1972) (cited in block quote in Pl.'s Brief at 3). On the other hand, as the Court of Appeals has underscored:
Koike Aronson, 165 F.3d at 909 (quoting Computime, Inc. v. United States, 772 F.2d 874, 878 (Fed.Cir.1985)); see also, e.g., Saab, 434 F.3d at 1367 (quoting Koike Aronson concerning distinction between the statutory and regulatory standards applicable to protests and the much more lenient "notice pleading" standards).
As outlined above, notwithstanding the fact that the mandatory statutory and regulatory requirements governing the validity of a protest are "straightforward" and "not difficult to satisfy," the August 2009 letter from Chrysal's Dutch parent company nevertheless failed to satisfy any of them. The otherwise "harsh" consequence of the dismissal of Chrysal's complaint for lack of jurisdiction must necessarily follow. See Koike Aronson, 165 F.3d at 909.
As set forth above, the August 2009 letter to Customs from Chrysal's Dutch parent company did not constitute a valid protest, because the letter failed to satisfy the applicable statutory and regulatory requirements governing the contents of a protest. See section II.A, supra. However, even if the contents of the August 2009 letter had sufficed to constitute a protest, the letter nevertheless could not constitute
The statute expressly provides that a protest is to be filed with Customs "within 180 days after but not before ... [the] date of liquidation" of the entry at issue. 19 U.S.C. § 1514(c)(3)(A) (emphasis added); see also 19 C.F.R. § 174.12(e) (requiring filing of any protest "within 90 days after" a specified protestable decision or event) (emphasis added). Here, Entries HG8-0120126-7, HG8-0120127-5, and HG8-0120150-7 were not liquidated until mid-September 2009 — several weeks after the August 2009 letter. See Summons; Def.'s Motion to Dismiss at 13.
In sum, without regard to the sufficiency of the contents of the August 2009 letter, there was no valid protest as to Entries HG8-0120126-7, HG8-0120127-5, and HG8-0120150-7. And, absent a valid protest, jurisdiction under 28 U.S.C. § 1581(a) cannot lie. The timing of the August 2009 letter thus constitutes a second, wholly independent basis for dismissal as to three of the 17 entries at issue in this action.
For all of the foregoing reasons, jurisdiction over this challenge to Customs' liquidation of "flower food" in the subject entries of merchandise will not lie. The Government's Motion to Dismiss therefore must be granted, and this action dismissed for lack of subject matter jurisdiction.
Judgment will enter accordingly.
As the Government notes, not all of the post summary adjustments filed by Chrysal related to "flower food." See Def.'s Motion to Dismiss at 2 n. 2. Chrysal's post summary adjustment for Entry HG8-0118630-2, for example, sought to change the classification of "BLG Pokon Leafshine" from HTSUS subheading 2942.00.10 (a provision covering "Other organic compounds: Aromatic or modified aromatic: Other: Other") to subheading 3824.90.92. See id.
In any event, the Import Specialist's email message stated that she had reviewed the "Material Safety Data Sheets" (plural) for a product identified as "Chrysal Clear Professional 2 T-bag," which had a chemical composition of "Alliphatic acid 10-20%" and a "Mixture of nonhazardous ingredients 80-90%." See Complaint, Exh. B. As the email message further noted, the "powdered cut flower food" at issue in HQ 955771 consisted of "approximately: 82 to 91.3 percent dextrose monohydrate, 4.7 to 13 percent water, 1.5 percent potassium, and 2.5 percent other inorganic materials" was properly classifiable as a "glucose" product under subheading 1702.30.40 of the HTSUS. See HQ 955771; Complaint, Exh. B.
Appended to Chrysal's brief in response to the pending Motion to Dismiss are copies of what Chrysal now identifies as "the Material Safety Data Sheet referred to in the [Import Specialist's email" and "a declaration of composition from Chrysal for the flower food." See Pl.'s Brief at 2; id., Exh. A (Material Safety Data Sheet for "Chrysal Clear Professional 2," dated "09/29/08"); id., Exh. B ("Declaration of Composition" for "Chrysal Clear Professional 2," dated "08-04-2011"); Complaint, Exh. B (email message to Chrysal from Customs Import Specialist).
The Material Safety Data Sheet attached to Chrysal's brief states that "Chrysal Clear Professional 2" is composed of 1-5% "Aliphatic acid" and 95-99% "Non-Hazardous Ingredients." See Pl.'s Brief, Exh. A (Material Safety Data Sheet for "Chrysal Clear Professional 2"). In its brief, Chrysal asserts that "[t]he aliphatic acid of 1-5% [specified in the Material Safety Data Sheet attached to its brief] would equate to the 1.5% potassium and 2.5% other inorganic materials" referred to in the Import Specialist's email message and in HQ 955771. See Pl.'s Brief at 2; Complaint, Exh. B (email message to Chrysal from Customs Import Specialist); HQ 955771. Chrysal's brief further asserts that "[t]he non-hazardous ingredients of 95-99% [specified in the Material Safety Data Sheet attached to its brief] would equate to the glucose and water" to which the Import Specialist's email message and HQ 955771 refer. See Pl.'s Brief at 2; Complaint, Exh. B; HQ 955771; see also Pl.'s Brief, Exh. B ("Declaration of Composition" for "Chrysal Clear Professional 2," stating that composition of product is 31% "Sugars," 4% "Acidifier (citric acid)," 0.2% "Additives (preservative, salts)," and 65% "Water").
Chrysal's brief never offers any explanation of the significance of this information. It is nevertheless noteworthy that even a cursory comparison of the Material Safety Data Sheet for "Chrysal Clear Professional 2" appended to Chrysal's brief reveals that it is not the same as the Material Safety Data Sheets (plural) for "Chrysal Clear Professional 2 T-bag" that the Import Specialist reviewed in her email message — and, moreover, that the Material Safety Data Sheets appear to be for two different products. Specifically, as explained above, the Import Specialist's email message indicated (among other things) that the Material Safety Data Sheets that she reviewed were for a product that was composed of 10-20% "Alliphatic acid," whereas the Material Safety Data Sheet attached to Chrysal's brief is for a product made up of only 1.5% aliphatic acid. Compare Complaint, Exh. B (email message to Chrysal from Customs Import Specialist) with Pl.'s Brief, Exh. A (Material Safety Data Sheet for "Chrysal Clear Professional 2," dated "09/29/08").
The Government quite properly objects to the "Material Safety Data Sheet" and the "Declaration of Composition" attached to Chrysal's brief. See Def.'s Reply Brief at 2 n. 1; Pl.'s Brief, Exhs. A & B. Even if those documents were to be considered, however, they would not affect the outcome here.
19 C.F.R. § 174.12(b) (second emphasis added). Pursuant to this regulation and "existing and long standing case law," "a separate letter containing the information required in the regulations and clearly labeled as a protest ... [may] suffice[] [to constitute a protest] so long as the letter [is] in conformity with the importer's obligations under the statutory scheme and [is] `sufficient to notify the [duty] collector of [the objection's] true nature and character.'" Ammex, 27 CIT at 1686 n. 11, 288 F.Supp.2d at 1382 n. 11 (emphasis added) (quoting Davies, 96 U.S. at 151).
See also, e.g., XL Specialty Ins. Co., 28 CIT at 870, 341 F.Supp.2d at 1261 (rejecting plaintiff's contention that its protest "`must have been sufficiently informative,' because of the written response of the Customs official on the protest form"; quoting Sony Elecs., Inc. v. United States, 26 CIT 286, 287, 2002 WL 312774 (2002) for the proposition that "`[t]he test for determining the validity and scope of a protest is objective and independent of a Customs official's subjective reaction to it'"); Ammex, 27 CIT at 1682, 1685, 288 F.Supp.2d at 1380, 1382 (rejecting plaintiff's claim that "the parties' prior communications" and "`surrounding circumstances' could help to ascertain the content" of protest); Power-One Inc. v. United States, 23 CIT 959, 964, 83 F.Supp.2d 1300, 1305 (1999) (stating that "[t]he test for determining if a submission is a protest is objective and independent of a Customs official's subjective reaction to it"); Washington Int'l Ins. Co., 16 CIT at 602-04 (holding that plaintiff's "fatally deficient protest cannot be resuscitated by plaintiff's conjecture that Customs had `actual knowledge' of [plaintiff's] claimed classification"); Mattel, 72 Cust.Ct. at 266, 377 F.Supp. at 963 (explaining that "[t]he test for determining the sufficiency of a protest under [the statute] ... is an objective one and is not dependent upon the district director's subjective reaction thereto"); cf. Estee Lauder, Inc. v. United States, 35 CIT ___, ___, 2011 WL 770001 *6 (2011) (in evaluating Government's argument, noting that "[c]ollateral information may not be considered when determining the jurisdictional sufficiency of a protest" and that "a determination of protest sufficiency employs an objective and not a subjective test").
Any suggestion that Customs has any sort of independent obligation to scour the entire administrative record of each of the 29 million entries that it processes each year in order to "divine potential objections and supporting arguments" has no foundation in reality. See XL Specialty Ins. Co., 28 CIT at 869-70, 341 F.Supp.2d at 1261 (quoting Washington Int'l Ins. Co., 16 CIT at 604).
