Alcan Aluminum Corp. v. United States

Slip Op. 04-157

United States Court of International Trade

ALCAN ALUMINUM CORPORATION,

Plaintiff,

Before: Pogue, Judge

v.

Court No. 01-00095

UNITED STATES,

Defendant.

[Defendant’s motion to dismiss granted.]

Decided: December 8, 2004

Lawrence A. Salibra, II and Elisa P. Pizzino, for Plaintiff.

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,

Attorney in Charge, International Trade Field Office, James A.

Curley, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Yelena Slepak, Of Counsel, Office of

Assistant Chief Counsel, U.S. Customs and Border Protection, for

Defendant.

OPINION

Pogue, Judge: Plaintiff Alcan Aluminum Corporation (“Alcan”)

seeks to invoke the Court’s jurisdiction under 28 U.S.C.

§1581(a)(2000)1 to contest the denial of its February 8, 1995

1

Because Alcan filed its summons in 2001 (Summons of Alcan

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.

Court No. 01-00095 Page 2

administrative protest.2 See Compl. of Alcan at paras. 1, 20.

Defendant United States Bureau of Customs and Border Protection3

(“Customs”) moves to dismiss this action for lack of subject matter

jurisdiction, alleging that Alcan failed to timely file its

protest.

2

On February 10, 1995, Alcan filed a second administrative

protest. See Compl. of Alcan at paras. 12, 13. This second

protest is not properly before the Court for two reasons: first,

although it is discussed in the complaint, it is not mentioned in

the summons in this action. See id.; Summons of Alcan at 1.

Second, the February 10 protest appears to cover the same

entries as the first; however, 19 U.S.C. § 1514(c)(1) permits

only a single protest for any given entry or set of entries. See

19 U.S.C. § 1514(c)(1). In its complaint, Alcan alleged that the

first protest covered entries made at the port of Detroit,

Michigan, while the second protest covered entries made at the

port of Ogdensburg, New York. See Compl. of Alcan at paras. 12,

13. However, Alcan now concedes that the two protests cover the

same entries. See Letter from Lawrence A. Salibra, II, Senior

Counsel, Alcan Aluminum Corp., to Honorable Donald C. Pogue, Ct.

Int’l Trade, at 3 (June 18, 2004)(“June 18 Letter”). Because 19

U.S.C. § 1514(c)(1) precludes the filing of two protests relating

to the same entries and the same category of merchandise, “[t]o

effectuate the Congressional intent in the one protest per entry

rule. . .only the first protest received by Customs for filing

may practicably be treated as valid.” Russ Togs, Inc. v. United

States, 79 Cust. Ct. 119, 122 (1977) (emphasis in original).

Therefore, the Court will not address the second protest, dated

February 10, 1995.

3

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).

Court No. 01-00095 Page 3

Because the Court concludes that the subject protest was not

timely or properly filed, Defendant’s motion to dismiss is

granted.4

BACKGROUND

This dispute began with Alcan’s December 24, 1992, voluntary

disclosure informing Customs that it did not pay the Merchandise

Processing Fee (“MPF”) on imports of unwrought aluminum products

entered into the United States before 1993.5 See Def.’s Mem. Supp.

4

In Alcan Aluminum Corp. v. United States, slip. op. 04-99

(CIT Aug. 9, 2004), the Court denied Defendant's motion to

dismiss. However, the Court ordered the decision stayed pending

briefing by the parties on the effects of U.S. Shoe Corp. v.

United States, 114 F.3d 1564 (Fed. Cir. 1997) on the case, and

now withdraws its August 9 decision.

5

Facts related to Alcan’s voluntary disclosure are contained

in Alcan’s protest to Customs. That protest consisted of several

documents (“Protest Package”): a copy of Customs Form 19, as

filled out by Alcan (and later marked on and stamped by Customs),

a letter dated February 6, 1995, elaborating upon the reasons for

the protest, and several exhibits to that letter. See Protest

Package, Ex. 1 to Letter from James A. Curley, Trial Attorney, to

the Hon. Donald C. Pogue, Ct. Int’l Trade (May 4, 2004) (“Def.’s

Supp. Br. Letter”). In the explanatory letter which formed part

of the Protest Package, Alcan stipulated that the protested

entries were of unwrought aluminum products imported from Canada

between January 1, 1989 and December 31, 1992. See Letter from

Rufus E. Jarman, Jr., Barnes, Richardson & Colburn, to Dist. Dir.

of Customs, United States Customs Service (February 6,

1995)(“February 6 Letter”), Protest Package, Ex. 1 to Def.’s

Supp. Br. Letter at 2 (May 4, 2004).

The exhibits to the February 6 Letter are labeled A, B, and

C. See February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp.

Br. Letter at Exs. A-C. (May 4, 2004). Exhibit A is a letter

from Customs to Alcan, dated October 18, 1994. See Letter from

Charles J. Reed, Fines, Penalties & Forfeitures Officer, U.S.

Customs Service, on behalf of William D. Dietzel, Dist. Dir., to

Court No. 01-00095 Page 4

Mot. Dismiss at 1-2 (“Def.’s Mot.”); Compl. of Alcan at para. 4.

In response to Alcan’s disclosure, on October 18, 1994, Customs

requested that Alcan remit $378,496.53 to satisfy its obligation to

pay the MPF. See October 18 Letter, Ex A. to February 6 Letter,

Protest Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004);

Compl. of Alcan at para. 5. Alcan paid the requested amount to

Customs on or about November 11. See Compl. of Alcan at para. 6.

Customs accepted Alcan’s tender and issued a receipt for the same

on November 15, 1994.6 See Receipt, Attachment to Ex. B to

February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp. Br.

Letter (May 4, 2004).

Recognizing a dispute between them regarding payment of MPF,

on December 12, 1994, Alcan and Customs entered into an escrow

Peter Shea, Alcan Aluminum Ltd. (“October 18 Letter”), Ex A. to

February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp. Br.

Letter (May 4, 2004). Exhibit B consists of a letter from

Customs to Barnes, Richardson & Colburn, dated November 17, 1994.

See Letter from Charles J. Reed, Fines, Penalties & Forfeitures

Officer, on behalf of William D. Dietzel, Dist. Dir., United

States Customs Service, to Rufus E. Jarman, Barnes, Richardson &

Colburn (November 17, 1994)(“November 17 Letter”), Ex. B. to

February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp. Br.

Letter (May 4, 2004). In addition, attached to the November 17

Letter is a Customs receipt memorializing acceptance of

$378,496.53 paid by Alcan. See Collection Receipt from U.S.

Customs Service to Alcan Aluminum Corp.(November 15,

1994)(“Receipt”), Attachment to Ex. B to February 6 Letter,

Protest Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004).

Finally, Exhibit C is the escrow agreement executed by Alcan and

Customs, dated December 12, 1994 (“Agreement”). Agreement, Ex.

C. to February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp.

Br. Letter (May 4, 2004).

6

See notes 12 and 14, infra.

Court No. 01-00095 Page 5

agreement. See Agreement, Ex. C. to February 6 Letter, Protest

Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004); Compl. Of

Alcan at para. 8. Under that Agreement, Customs agreed to refund

the tendered MPF with “interest as may be required by law,” if it

was later determined upon resolution of a designated test case that

the tendered amount was not owed. See Agreement, Ex. C. to

February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp. Br.

Letter (May 4, 2004) at paras. 1-2.7

7

In an amendment to the Agreement, the parties designated

Alcan Aluminum Corp. v. United States, 21 CIT 1238, 986 F. Supp.

1436 (1997), as the test case. See Amend. To Agreement, Ex. 1 to

Letter from Elisa P. Pizzino, Alcan Aluminum Corp. To Hon. Donald

C. Pogue, Ct. Int’l Trade (May 3, 2004) (“Pl.’s Supp. Br.

Letter”). In that case, Alcan contested the MPF imposed by

Customs on imports of unwrought aluminum that entered the United

States during 1993. See Test Case Summons of Alcan (Court No.

94-09-00539 at 1-4 (Sept. 14, 1994) (on file with Court).

Customs imposed the MPF rate required for “goods not originating

in the territory of Canada.” See Alcan Aluminum Corp, 21 CIT at

1238-39, 996 F. Supp. at 1437-38. This rate was imposed because

Alcan’s merchandise contained a small amount of a non-Canadian

additive in addition to Canadian materials. Id.

But for this additive, Alcan’s merchandise would have been

classified as “goods originating in Canada.” Id. at 1239, 986 F.

Supp. at 1438. Alcan argued that the additive should have been

disregarded pursuant to the doctrine of de minimis non curat

lex., and its imported merchandise classified as “goods

originating in Canada” that qualified for the reduced MPF rate

under the United States-Canada Free Trade Agreement

Implementation Act of 1988. Id. at 1240, 986 F. Supp. at 1438-

1439. However, the Court of International Trade affirmed

Customs’ assessment of the higher rate. Id. at 1247, 986 F. Supp.

at 1444. Thereafter, Alcan appealed the decision of the Court of

International Trade to the Federal Circuit, which reversed the

Court of International Trade decision. See Alcan Aluminum Corp.

v. United States, 165 F.3d 898 (Fed. Cir. 1999).

Court No. 01-00095 Page 6

Subsequent to the Agreement, on February 8, 1995, Alcan filed

an administrative protest. See Def.’s Mot. at 2; Compl. of Alcan

at para. 12. Alcan protested Customs’ “assessment and [Alcan’s]

payment. . .of $378,496.53 for Merchandise Processing Fee.”

February 6 Letter, Protest Package, Ex. 1 to Def.’s Supp. Br.

Letter at 1 (May 4, 2004). In addition, Alcan protested the

“possibility of contingencies not anticipated in the Agreement or

unanticipated frustration” of the same. Id. at 3. Finally, Alcan

protested “Customs’ decision to accept [Alcan’s] tender[]” relating

to the pre-1993 entries. See id. at 1-2. Despite these

objections, Alcan requested that Customs refrain from taking action

on the subject protest until after resolution of the test case.

See id. at 3.

Ruling in that test case, on January 5, 1999, the United

States Court of Appeals for the Federal Circuit reversed the

decision of the Court of International Trade, and held that the

non-Canadian additive in the subject imports was subject to the

principle of de minimis non curat lex, and that, therefore, the

imported merchandise was of Canadian origin. See Alcan Aluminum

Corp. v. United States, 165 F.3d 898, 905 (Fed. Cir. 1999).

Because the parties previously agreed that the decision in this

case would control the handling of the pre-1993 entries (See

Agreement, Ex. C to February 6 Letter, Protest Package, Ex. 1 to

Def.’s Supp. Br. Letter at 1 (May 4, 2004); Amend. to Agreement,

Court No. 01-00095 Page 7

Ex. 1 to Pl.’s Supp. Br. Letter (May 3, 2004)), in February, 2000,

Customs refunded to Alcan the tendered MPF for those entries.8 See

Def.’s Mot. at 2; Compl. of Alcan at paras. 16, 23. However,

Plaintiff claims that Customs failed to remit to Alcan the

“interest as may be required by law,” as outlined in the Agreement.

See Agreement, Ex. C to February 6 Letter, Protest Package, Ex. 1

to Def.’s Supp. Br. Letter at 1-2 (May 4, 2004).; Def.’s Mot. at 2;

Compl. of Alcan at paras. 17, 23.

In response to Customs’ action, on September 11, 2000, Alcan

filed a request for accelerated disposition of its February 8, 1995

protest. See Compl. of Alcan at para. 18; Letter from F.D. “Rick”

Van Arnam, Jr., Barnes, Richardson & Colburn, to Port Dir.,

Customs, Re: Protest Number 3801-95-100775, Date Filed: February 8,

1995 (Sept. 11, 2000) and Certified Mail Receipt for Article Sent

from Alcan Aluminum Corp. to Port Dir., Customs (Sept. 11, 2000),

Ex. B to June 18 Letter. The protest was denied by Customs on

September 27, 2000. See Compl. of Alcan at para. 19; Protest Form

(as marked and stamped by Customs), Protest Package, Ex. 1 Def.’s

Supp. Br. Letter (May 4, 2004). On March 23, 2001, Alcan filed its

8

There is a discrepancy regarding the actual date in

February, 2000, that Customs refunded the MPF. Alcan asserts

that Customs refunded the MPF on February 7, 2000. See Compl. of

Alcan at paras. 16, 23. However, a handwritten notation made by

a Customs officer on the Protest Form indicates the money was

refunded on February 14, 2000. See Protest Form, Protest

Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004). This

noted discrepancy has no effect on the Court’s decision regarding

the Court’s jurisdiction.

Court No. 01-00095 Page 8

Summons, and thereby commenced this action to recover the interest

accrued on the refunded MPF. See Summons of Alcan at 2. As noted

above, Defendant Customs now moves to dismiss for lack of subject

matter jurisdiction.

STANDARD OF REVIEW

Alcan seeks to invoke the Court’s jurisdiction under 28 U.S.C.

§ 1581(a). Compl. of Alcan at para. 1. Accordingly, Alcan has the

burden of establishing the basis for the Court’s jurisdiction. See

Juice Farms, Inc. v. United States, 68 F.3d 1344, 1345 (Fed. Cir.

1995) (citation omitted). 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)).

DISCUSSION

Customs contends that the Court lacks subject matter

jurisdiction under § 1581(a) because Alcan’s protest was untimely

filed. See Def.’s Mot. at 3-4.9 In response, Alcan asserts that

9

Alcan argues that Customs cannot challenge the Court’s

jurisdiction in this action because the Court exercised

jurisdiction in the test case. See Pl.’s Stat. in Opp’n to Mot.

Court No. 01-00095 Page 9

the Court has jurisdiction over this case under 28 U.S.C. §

1581(a), which grants the Court exclusive jurisdiction over “any

civil action commenced to contest the denial of a protest [by

Customs]. . . .” See Compl. of Alcan at para. 1; 28 U.S.C. §

1581(a). However, in order to invoke the Court’s jurisdiction

under § 1581(a), a civil action must be based on the denial of a

valid protest filed in accordance with 19 U.S.C. § 1514. See Koike

Aronson, Inc. v. United States, 165 F.3d 906, 908-909 (Fed. Cir.

1999). Title 19 U.S.C. § 1514 contains, among other things, the

statutory requirements for filing a valid protest. See 19 U.S.C. §

1514.

For a protest to be valid within the meaning of Section 1514,

an importer must protest a “decision” of Customs, and the protest

must be filed within ninety days after the protested decision. See

19 U.S.C. § 1514(c)(3).10 Without such a timely filed protest, the

to Dismiss at 1-2 (“Pl.’s Opp’n”). Alcan argues that the instant

action was commenced to enforce the Stipulated Judgment in the

test case, and thus jurisdiction is proper because of the Court’s

continuing jurisdiction and power to enforce the same. See id.

at 3-4. However, the Stipulated Judgment, and the test case

itself, involved entries made during 1993. See Test Case Summons

of Alcan (Court No. 94–09-00539); Schedule A to Stip. J., Ex A.

to Pl.’s Opp’n. This action covers pre-1993 entries. See

Protest Form, Protest Package, Ex. 1 to Def.’s Supp. Br. Letter;

Summons of Alcan at 1. Therefore, because this case and the test

case cover different entries, this action is not an instrument to

enforce the Stipulated Judgment entered in the test case, and

thus the Court’s jurisdiction to enforce that judgment has no

bearing procedurally on the case at bar.

10

Under section 1514(c)(3), to be valid, a protest must be

filed “within ninety days after but not before . . . (A) a notice

Court No. 01-00095 Page 10

Court lacks jurisdiction. See Castelazo & Assocs. v. United

States, 126 F.3d 1460, 1461 (Fed. Cir. 1997). Accordingly, the

Court will now analyze whether the subject protest conforms to the

requirements outlined in Section 1514.

In its protest, Alcan essentially objected to three separate

determinations. See February 6 Letter at 1-3. It objected to

Customs’ assessment and its own payment of the MPF, any

“unanticipated frustration” of the Agreement, and Customs’

acceptance of Alcan’s tendered MPF. Id. The Court will discuss

all three objections in turn.

First, Alcan protested Customs’ assessment and its own payment

of the MPF.11 See id. at 1. Customs assessed the MPF pursuant to

19 C.F.R. 162.74(h) and demanded the amount of $378,496.53 as

payment of the MPF. See Compl. of Alcan at para. 5; October 18

Letter, Ex. A to February 6 Letter, Protest Package, Ex. 1 to

Def.’s Supp. Br. Letter (May 4, 2004). This demand would appear to

of liquidation or reliquidation, or . . . (B) the date of the

decision as to which protest is made.” 19 U.S.C. § 1514(c)(3).

In this action, the parties agree that the subject protest does

not contest specific liquidations. See Def.’s Mot. at 3;

February 6 Letter at 1. Therefore, subsection (B) of section

1514(c)(3) is applicable here.

11

Insofar as Alcan protests its own payment of tender, that

protest is invalid. Under 19 U.S.C. § 1514(a), only “decisions of

the Customs Service” may be the subject of an administrative

protest. 19 U.S.C. § 1514(a). While Customs’ demand of payment

and acceptance thereof may be termed “decisions” of the Customs

Service, Alcan’s payment of tender cannot. Alcan tendered payment

on November 11, 1994.

Court No. 01-00095 Page 11

constitute a Customs decision; Customs calculated the owed amount

of MPF and actively demanded its payment. See Compl. of Alcan at

para. 6. Customs made its demand for payment by means of a letter

dated October 18, 1994. See Compl. of Alcan at para. 5; October 18

Letter, Ex. A to February 6 Letter, Protest Package, Ex. 1 to

Def.’s Supp. Br. Letter (May 4, 2004). Alcan filed its protest on

February 8, 1995, one hundred and thirteen days after Customs’

October 18, 1994 demand. See Protest form (as stamped by Customs),

Protest Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004);

Compl. of Alcan at para. 12; see also Def.’s Mot. at 3. Therefore,

because Alcan’s protest of Customs’ assessment was not filed within

ninety days following Customs’ demand, the protest of Customs’

assessment of the MPF was untimely.

Second, with respect to the “unanticipated frustration”

objection, Alcan protested the “possibility of contingencies not

anticipated in the Agreement.” February 6 Letter, Protest Package,

Ex. 1 to Def.’s Supp. Br. Letter at 3 (May 4, 2004). The protest,

however, was filed on February 8, 1995. See Protest Form (as

stamped by Customs), Protest Package, Ex. 1 to Def.’s Supp. Br.

Letter (May 4, 2004); Compl. of Alcan at para. 12. Assuming that

Customs’ eventual failure to pay interest as outlined in the

Agreement constitutes a “decision,” the February 6, 1995 protest is

simply untimely. According to 19 U.S.C. § 1514(c)(3), “[a] protest

. . . shall be filed with the Customs Service within ninety days

Court No. 01-00095 Page 12

after but not before . . . the date of the decision as to which

protest is made.” (emphasis added). 19 U.S.C. § 1514(c)(3).

Customs refunded Alcan’s tender without interest in February, 2000.

See Compl. of Alcan at paras. 16, 17. Therefore, even if Customs’

nonpayment of interest were categorized an “unanticipated

frustration” of the Agreement, Alcan filed its protest before

Customs’ nonpayment of interest. Accordingly, the protest as to

this determination was untimely. See 19 U.S.C. § 1514(c)(3); see

also A.N. Deringer, Inc. v. United States, 12 CIT 969, 972, 698 F.

Supp. 923, 925 (1988)(protest was rendered invalid because it was

prematurely filed one day before Customs’ decision and also

violated the one-protest-per-entry rule).

Third, Alcan protested “Customs’ decision to accept . . .

[its] tender[]. . .[of the MPF].” February 6 Letter, Protest

Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004) at 1-2.

This acceptance occurred on November 15, 1994.12 But the mere

12

Alcan identifies November 17, 1994 as the date upon which

Customs accepted its tender. See February 6 Letter, Protest

Package, Ex. 1 to Def.’s Supp. Br. Letter at 1 (May 4, 2004).

This date is based on a letter it received from Customs, dated

November 17, 1994, which enclosed the receipt for the tender.

See Letter from William D. Dietzel, District Dir., to Rufus E.

Jarman, Barnes, Richardson & Colburn, Ex. B to February 6 Letter,

Protest Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004)

(“November 17 Letter”). However, the receipt is dated November

15, 1994, which indicates that Customs’ acceptance of Alcan’s

tender occurred on November 15th rather than on November 17th.

See Receipt, Attach. to November 17 Letter, Ex. B to February 6

Letter, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004).

Court No. 01-00095 Page 13

passive acceptance of funds does not constitute a Customs decision

under United States Shoe Corp. v. United States, 114, F.3d 1564

(Fed. Cir. 1997). That case found that Customs’ collection of

Harbor Maintenance Tax was not protestable, as Customs merely

passively accepted the taxes paid pursuant to statute. Id. at

1569. Customs was not involved in calculation of the tax; in fact,

the burden of calculation and payment was entirely on the taxed

party. Id. Customs’ function of collection involved no

independent thought process on its part. Id.

The facts here are somewhat different than those in United

States Shoe Corp. Here, Customs appears to have actively demanded

payment of the MPF. See October 18 Letter, Ex A. to February 6

Letter, Protest Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4,

2004).13 However, as discussed above, the protest of Customs’

demand for payment was untimely filed. All that remains, then, is

a protest of Customs’ passive acceptance of that demanded payment.14

13

The Court notes, however, that the amount demanded appears

to have been based on calculations provided by Plaintiff to

Customs. See October 18 Letter, Ex A. to February 6 Letter,

Protest Package, Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004).

14

Another argument could be made: Customs’ acceptance of the

tender is not passive, and not subject to United States Shoe

Corp., because acceptance of the tender was made pursuant not to

the October 18 demand, but as part of an active decision to enter

into the Agreement. While Customs did not sign the Agreement

until December 12, 1994, Plaintiff appears to have submitted a

signed copy of the Agreement along with its tender; Customs

accepted the money on November 15, 1994. See Receipt, Ex. to

November 17 Letter, Ex. B to February 6 Letter, Protest Package,

Ex. 1 to Def.’s Supp. Br. Letter (May 4, 2004). By accepting the

Court No. 01-00095 Page 14

Because such passive acceptance is not a “decision” under the rule

stated in United States Shoe Corp., the protest of Customs’

acceptance of the tender fails. The Court need not, therefore,

decide the question of whether the protest was timely; as the

protest objected to no actual Customs “decision,” the protest is

invalid under 19 U.S.C. § 1514.

CONCLUSION

Because the protest before the Court was invalid, as it

untimely objected to Customs’ demand for payment and failure to pay

interest, and failed to protested a decision of Customs inasmuch as

money, it could be argued that Customs accepted the Agreement as

well. Indeed, in some of its submissions, Plaintiff appears to

be edging towards an argument that its February 6, 1995 protest,

by protesting Customs’ acceptance of payment, was in fact

protesting Customs’ entry into the Escrow Agreement. See, e.g.,

Pl.’s Response to Order of Court Dated August 10, 2004 at 2 (Aug.

23, 2004). Plaintiff never clearly states this proposition,

however, and even to the extent that Plaintiff’s protest could be

read to properly object to Customs’ entry into the Escrow

Agreement, it is unclear to the Court that there would be any

substantive merit to protesting Customs’ entry into a contract

that Plaintiff itself entered into freely. Properly, it is not

from Customs’ entry into the Agreement that Plaintiff’s complaint

stems; it is from Customs’ alleged breaking of the Agreement.

Had Plaintiff waited until that occurrence to protest, the Court

would have no trouble taking jurisdiction of the case. As it

stands, however, Customs’ acceptance of tender is so entwined

with either the October 18 demand that it cannot count as an

independent decision, or, accepting Plaintiff’s rather shadowy

argument that its protest of acceptance of tender is really a

protest of Customs’ entry into the Escrow Agreement, would lead

the Court to an absurdity – certifying as timely and proper a

protest that appears to present no legal claim that could result

in an award of Plaintiff’s claimed relief.

Court No. 01-00095 Page 15

it protested acceptance of payment, the Court grants Defendant’s

motion to dismiss, and enters judgment for Defendant.

/s/Donald C. Pogue

Donald C. Pogue,

Judge

Dated: December 8, 2004

New York, New York