ERWIN HYMER GROUP NORTH AMERICA, INC., FKA ROADTREK MOTORHOMES, INC., Plaintiff-Appellant
UNITED STATES, Defendant-Appellee
from the United States Court of International Trade in No.
1:16-cv-00133-CRK, Judge Claire R. Kelly.
Michael Peterson, Neville Peterson LLP, New York, NY, argued
for plaintiff-appellant. Also represented by Richard F.
Marcella Powell, International Trade Field Office, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, New York, NY, argued for defendant-appellee. Also
represented by Amy Rubin; Jeanne Davidson, Joseph H. Hunt,
Washington, DC; Michael W. Heydrich, Office of the Assistant
Chief Coun- sel, United States Bureau of Customs and Border
Protection, United States Department of Homeland Security,
New York, NY.
Dyk, Reyna, and Chen, Circuit Judges.
Hymer Group North America, Inc., appeals the final judgment
of the United States Court of International Trade granting
the Government's motion for judgment on the agency
record. The Court of International Trade's assertion of
residual jurisdiction under 28 U.S.C. § 1581(i) was
improper because a civil action for contesting the denial of
protests could have been available under 28 U.S.C. §
1581(a), and the remedy provided under § 1581(a) is not
manifestly inadequate. Because the Court of International
Trade lacked jurisdiction, we reverse and remand with
instructions to dismiss.
2014, Erwin Hymer Group North America, Inc.,
("Hymer") imported 149 vehicles into the United
States from Canada. In 2015, the United States Customs and
Border Protection ("Customs") liquidated the
entries, classifying them under subheading 8703.24.00 of the
Harmonized Tariff Schedule of the United States (2014)
("HTSUS"). Subheading 8703.24.00 applies a tariff
of 2.5% ad valorem to "motor vehicles
principally designed for transporting persons" and with
a "spark-ignition internal combustion reciprocating
piston engine . . . [o]f a cylinder capacity exceeding 3, 000
cc." Customs assessed duties accordingly.
October 2015, Hymer timely filed a protest under 19 U.S.C.
§ 1514, contesting Customs' classification of the
vehicles. The protest materials included, among other things,
a cover letter, a standard form ("Protest Form"),
a memorandum in support of the protest. Hymer argued in its
protest that the entries were entitled to duty-free treatment
under HTSUS subheading 9802.00.50 and Article 307 of the
North American Free Trade Agreement, a provision known as
"American Goods Returned." This provision generally
relates to preferential tariff treatment for qualifying goods
that reenter the United States customs territory after
repairs or alterations in Canada or Mexico. See 19
C.F.R. § 181.64(a).
cover letter attached to its protest, Hymer requested that
Customs "suspend action on th[e] protest" until the
Court of International Trade ("CIT") issued a
decision in a different case, Roadtrek Motorhomes, Inc.
v. United States, No. 11-00249. See J.A. 5, 51.
The CIT had stayed the Roadtrek case pending final
disposition of a test case on the issues raised:
Pleasure-Way Indus., Inc. v. United States, 38
I.T.R.D. 1889 (BNA), 2016 WL 6081818 (Ct. Int'l Trade
2016) ("Pleasure-Way I"),
aff'd, 878 F.3d 1348 (Fed. Cir. 2018)
Pleasure-Way I, the CIT's jurisdiction was based
on 28 U.S.C. § 1581(a). The CIT addressed whether
certain van-based motorhomes-similar to the vehicles at issue
in this case-qualified for preferential tariff treatment
under HTSUS subheading 9802.00.50. Pleasure-Way I,
2016 WL 6081818, at *3. The CIT decided that HTSUS subheading
9802.00.50 did not apply, and on January 5, 2018, this court
affirmed that decision. Pleasure-Way II, 878 F.3d at
1349-50. Subsequently, entries of the vehicles were
liquidated at a rate of 2.5% ad valorem, the same
rate that Customs argues should apply in this case.
Pleasure-Way was pending, a Customs Import
Specialist reviewed Hymer's protest, and on December 31,
2015, checked a box labeled "Approved" in Field 17
of the Protest Form. Customs sent a copy of the Protest Form
with the checked box to Hymer but did not include a refund
check or offer any explanations.
January 5, 2016, a Customs Entry Specialist forwarded
Hymer's protest for review by a supervisor. On January
11, 2016, while the matter was pending before the Entry
Specialist, Hymer received a copy of the Protest Form with
the "Approved" box checked. On the same day, a
Supervisor Import Specialist emailed an Entry Director asking
her to locate Hymer's protest and explaining that
reliquidation should not occur because the protest was
suspended. The Entry Director in turn advised other Customs
employees not to reliquidate the entries. The following day,
on January 12, 2016, the Entry Director informed the
Supervisor Import Specialist that the protest had been
returned to the Import Specialist who initially reviewed the
protest because the protest had not been signed by the
Supervisor Import Specialist. On January 21, 2016, the Import
Specialist updated Customs' electronic system to reflect
that, per Hymer's request, the protest was suspended
pending resolution of the Roadtrek case.
March 17, 2016, Hymer's counsel emailed the Import
Specialist indicating that, on January 11, 2016, counsel had
received a copy of the Protest Form with the
"Approved" box checked, and asked whether the
protest was suspended. On March 27, 2016, the Import
Specialist replied and confirmed that the protest was
suspended pending resolution of Roadtrek.
18, 2016, approximately 7 months from the date it learned of
the checked-box, no-refund-check circumstance, Hymer sued the
Government in the CIT, seeking an order of mandamus directing
Customs to reliquidate the entries of the vehicles under
HTSUS subheading 9802.00.50. Hymer asserted CIT jurisdiction
under 28 U.S.C. § 1581(i)(1) and (i)(4),  and on grounds
that Customs' failure to provide a refund check
constituted unlawfully withheld action under the
Administrative Procedure ...