CIT Rules "No Jurisdiction" on Case Involving Late-Filed NAFTA Certificate

In Ford Motor Company v. U.S., the Court of International Trade ruled that it did not have subject matter jurisdiction to address the merits of a post-entry claim for a NAFTA refund, as the late filing of the NAFTA Certificate of Origin is not a protestable "decision" of U.S. Customs and Border Protection.

Ford had argued that an importer may submit the NAFTA certificates of origin any time before the underlying entry liquidations are final. Ford also contended that, even if it submitted the certificates more than one year from the date of importation, CBP could grant the company's 19 USC 1520(d) claim (post-importation NAFTA claims) under either 19 CFR 181.31-32 or the NAFTA Reconciliation Program. Ford added that 19 CFR 10.112 (filing free entry/reduced duty documents after entry) compels CBP to accept the untimely filed certificates.

The CIT considered only one of Ford's entries (dated June 27, 1997), as representative to resolve the legal issue involved. Ford electronically filed a post-entry claim on this entry on May 13, 1998 seeking a refund under NAFTA pursuant to 19 USC 1520(d). The claim did not include the pertinent NAFTA certificate of origin, which was submitted to CBP on November 5, 1998, over a year after the date of importation. CBP denied Ford's claim stating that the NAFTA Certificate of Origin was not furnished within one year of the date of importation. Ford subsequently filed a protest to this action, which CBP also denied on the same grounds.

1. USC 1520(d) states that a post-importation claim for a NAFTA refund must be filed by the importer within one year after the date of importation and that the claim should include supporting documentation, including all applicable NAFTA Certificates of Origin. Ford argued that it raised a proper claim by means of an electronic filing, even though the relevant certificates were not filed within one year after the date of importation.

The Court considered two prior cases (Xerox Corp. v. U.S. CAFC 05-1076 dated 09/19/05 and Corrpos Cos, Inc. v. CAFC 05-1073 dated 01/03/06). In Xerox Corp., the CAFC agreed with the decision made by the CIT, explaining that the NAFTA Agreement, the implementing statute, the legislative history, and the applicable regulations made it clear that any claim for NAFTA treatment must be made within the one year time period and must include the applicable certificates of origin to be valid.

In Corrpro Cos., Inc., a case with similar facts, the CAFC followed the same reasoning, adding that there must be a protestable decision as to NAFTA eligibility before jurisdiction is conferred under 28 USC 1581(a). This occurs only when the importer has made a valid claim for NAFTA treatment, either at entry or within the one year period, with a written declaration and applicable NAFTA certificates of origin presented in a timely manner, and CBP has engaged in some sort of a decision-making process in considering the merits of the claim.

The CIT stated that CBP must reach a "decision" on the protest before a party may sue under Section 1581(a). Further, CBP cannot address the merits of a protest, and therefore make a protestable decision, in the absence of a claim filed in accordance with law.

Ford also argued that the Court had jurisdiction over its claim under 28 USC 158(i), but the CIT stated that the Court may not exercise jurisdiction pursuant to Section 1581 (i) where jurisdiction "is or could have been available" under another subsection of 1581.

Having determined that there was no subject matter jurisdiction under any subsection of 28 USC 1581, the CIT granted the motion to dismiss.

(See ITT's Online Archives or 02/06/06 news, 06020620, for BP summary of CAFC decision regarding Xerox and 05/18/06 news, 06051830, for BP summary of CAFC decision on Corrpro Cos.)

Slip Op. 10-4 (dated 01/12/10) available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-4.pdf