Canadian Reynolds Metals Co. v. United Stateser

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