                            Slip Op. 06-145

           UNITED STATES COURT OF INTERNATIONAL TRADE


FORD MOTOR CO.,

              Plaintiff,         Before:   Richard W. Goldberg,
                                           Senior Judge
              v.
                                 Court No. 99-00394
UNITED STATES,

              Defendant.


                           OPINION AND ORDER

[Plaintiff’s motion for reconsideration is denied.]

                                              Dated: September 29, 2006

Stein Shostak Shostak Pollack & O'Hara, LLP (Stanley Richard
Shostak and Heather Christi Litman) for Plaintiff Ford Motor Co.

Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Saul Davis), for Defendant United States.

GOLDBERG, Senior Judge: On July 21, 2006, Plaintiff Ford Motor

Co. (“Ford”) filed a motion, under USCIT Rule 59(e), for

reconsideration of the Court’s June 21, 2006 decision Ford Motor

Co. v. United States, 30 CIT ___, 435 F. Supp. 2d 1324 (2006)

(“Ford Motor Co. I”) and the accompanying judgment order that

dismissed Ford’s case for lack of subject matter jurisdiction.1


1
   Ford also invoked USCIT Rule 60 as a ground for the Court to
reconsider its June 21, 2006 judgment. However, a motion for
reconsideration brought within thirty days of the entry of
judgment by the U.S. Court of International Trade will be
treated as a motion to alter or amend under USCIT Rule 59(e),
Court No. 99-00394                                       Page 2

In that decision, the Court had found that the precondition for

the Court’s 28 U.S.C. § 1581(a) jurisdiction — i.e., a valid

protest under 19 U.S.C. § 1514 — was absent and the Court

therefore lacked subject matter jurisdiction.   In its motion for

reconsideration, Ford cited to several putative legal and

factual errors in Ford Motor Co. I, and sought reinstatement of

its cause of action.   Defendant U.S. Bureau of Customs and

Border Protection (“Customs”) filed a response to Ford’s motion

for reconsideration on September 5, 2006.   Ford filed a reply

brief on September 25, 2006, and the motion is ripe for

consideration.

     The major grounds justifying a grant of a motion to

reconsider a judgment are an intervening change in the

controlling law, the availability of new evidence, the need to

correct a clear factual or legal error, or the need to prevent

manifest injustice.    See Virgin Atl. Airways, Ltd. v. Nat’l

Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).   However,

even a clear legal error will not require a court to grant a

motion for reconsideration where that error does not affect the



and not as a motion for relief under USCIT Rule 60(b). See 12
James Wm. Moore et al., Moore’s Federal Practice § 59.30[7] (3d
ed. 2005) (discussing Federal Rules of Civil Procedure 59(e) and
60(b), which are identical to USCIT Rules 59(e) and 60(b) in all
relevant aspects except that the Federal Rules allow only ten
days for the filing of a Rule 59(e) motion instead of thirty
days).
Court No. 99-00394                                        Page 3

result reached in the first instance.      See USCIT R. 61.2   After

reviewing Ford’s motion and the Ford Motor Co. I opinion, the

Court is convinced that a clear legal error appears in Ford

Motor Co. I.     However, because that error in no way disturbs the

Court’s conclusion that it lacks jurisdiction over this action,

the Court must deny Ford’s motion.

        For the sake of clarity, it will nonetheless be helpful to

respond to the parties’ legitimate concerns relating to that

legal error, which appears in footnote 10 and its accompanying

text.    That footnote reads as follows:

        Nothing in 19 U.S.C. § 1514 prevents an importer from
        protesting a 19 C.F.R. § 177 Headquarters Ruling, see
        supra note 2, provided the strictures of Article III
        standing under the U.S. Constitution are met. Though
        the case law is sparse in this regard, examples of
        such cases do exist. See, e.g., Conair Corp. v. United
        States, 29 CIT ___, 2005 WL 1941649 (CIT 2005). In
        that case, the importer first requested and received a
        letter ruling from the Port of New York regarding the
        classification of merchandise. See N.Y. F83276 (Mar.
        15, 2000), available at 2000 U.S. Customs N.Y. LEXIS

2
   USCIT Rule 61 is the U.S. Court of International Trade’s
(“CIT”) “harmless error” rule, and provides as follows:

        No error in either the admission or the exclusion of
        evidence and no error or defect in any ruling or order
        or in anything done or omitted by the court or by any
        of the parties is ground for granting a new trial or
        for   setting  aside   a  verdict   or  for   vacating,
        modifying, or otherwise disturbing a judgment or
        order, unless refusal to take such action appears to
        the court inconsistent with substantial justice.    The
        court at every stage of the proceeding must disregard
        any error or defect in the proceeding which does not
        affect the substantial rights of the parties.

USCIT R.61 (emphasis added).
Court No. 99-00394                                     Page 4

     1803. Then, the importer requested and received
     reconsideration   from  Customs   Headquarters,  which
     affirmed NY F83276. See HQ 964361 (Aug. 6, 2001).
     Thereafter, the importer protested, and Customs denied
     the protest. Finally, the importer commenced a case in
     the CIT, which asserted its 28 U.S.C. § 1581(a)
     jurisdiction. See Conair, 29 CIT at ___, 2005 WL
     1941649 at **3-4.

Ford Motor Co. I., 30 CIT at ___ n.10, 435 F. Supp. 2d at 1331.

Footnote 10 supported the Court’s statement that the ninety-day

protest period under 19 U.S.C. § 1514(c)(3)(B) (2000) started

running from Customs’ decision, in a prior internal advice

ruling, to consider prototype engine costs part of the “price

paid or payable” for production engines.   Because the Court

operated under the assumption that an internal advice ruling

could be protested under 19 U.S.C. § 1514(a), the expiration of

the protest period was, in conjunction with the Court’s finding

that Ford’s protest was unrelated to the L.A. Entry,3 the reason

for the Court’s lack of jurisdiction.

     However, the parties have brought to the Court’s attention

that challenges to internal advice rulings arising under 19

C.F.R. § 177 are not protestable under 19 U.S.C. § 1514(a), and

therefore can never be the basis of 28 U.S.C. § 1581(a)

jurisdiction.   The Court’s discussion in footnote 10 incorrectly


3
   The “L.A. Entry” refers to the entry on which Ford attempted
to include all the unpaid duties owed on its 3.4 L Prototype
Engine program. The entry identification was Entry CE 231-
5174793-0. See Ford Motor Co. I, 30 CIT at ___, 435 F. Supp. 2d
at 1326.
Court No. 99-00394                                       Page 5

suggested otherwise.4   Instead, an internal advice ruling is not

subject to judicial review until it is subsumed into the

liquidation of imported merchandise, which may then properly be

protested.   See United States v. Utex Int’l, Inc., 857 F.2d

1408, 1409-10 (Fed. Cir. 1988) (“‘All findings involved in a

district director’s decision merge in the liquidation.    It is

the liquidation which is final and subject to protest, not the

preliminary findings or decisions of customs officers.’”)

(quoting R. Sturm, Customs Law & Administration § 8.3 at 32 (3d

ed. 1982)); see also United States v. B. Holman, Inc., 29 CCPA

3, 14, C.A.D. 164 (1941) (“[A]ll decisions of the collector

involved in the ascertaining and fixing of the rate and amount

of duties chargeable against imported merchandise entered for

consumption are merged in and become a part of a legal

liquidation, and it is a legal liquidation only . . . against

which a protest will lie.”); Dal-Tile Corp. v. United States, 24

CIT 939, 945 n.12, 116 F. Supp. 2d 1309, 1315 (2000);

Commonwealth Oil Ref. Co. v. United States, 67 Cust. Ct. 155,

163, C.D. 4267, 332 F. Supp. 203, 209 (1971).   Only at the

moment of liquidation does an internal advice ruling become a

protestable “decision of the Customs Service” as contemplated by



4
   Moreover, the Conair case cited in footnote 10 did not involve
a direct protest of a ruling; instead, the protested decision
contained in the letter ruling was subsumed in the liquidation
of the merchandise at issue.
Court No. 99-00394                                     Page 6

19 U.S.C. § 1514(a).   Prior to liquidation, such a decision is

not ripe for adjudication.5

     The only reason it was necessary for the Court to examine

the timeliness of the protest in Ford Motor Co. I was that the

Court considered the possibility that Ford’s protest could be

directed to the earlier internal advice ruling as a “decision of

the Customs Service” under 19 U.S.C. § 1514(a).   It is now clear

that any such protest was not legally cognizable.   As Ford was

not able to protest the internal advice ruling, the only way it

could have brought a valid protest action under 19 U.S.C. § 1514

would have been to challenge the actual assessment of duties on

the prototype engines as subsumed in the liquidation of the L.A.

Entry.   However, for the reasons already discussed at length in

Ford Motor Co. I, see 30 CIT at ___, 435 F. Supp. 2d at 1332-34,

the liquidation of the L.A. Entry lacked any substantial nexus

to the $226,458 in duties tendered by Ford.   Thus, Ford’s action

brought under 28 U.S.C. § 1581(a) must still fail for the same

reason as stated in Ford Motor Co. I: Ford’s protest was invalid

because the liquidation of the L.A. Entry was not materially

affected by the substance of the protested decision.


5
   28 U.S.C. § 1581(h) allows an importer to challenge certain
Customs rulings prior to liquidation, upon a showing of
irreparable harm. See 28 U.S.C. § 1581(h) (2000). However,
subsection (h) is addressed only to rulings relating to
prospective transactions. An internal advice ruling deals with
a current transaction involving already-imported goods. See 19
C.F.R. § 177.11(b) (2005).
Court No. 99-00394                                         Page 7

        The Court’s Ford Motor Co. I opinion was in clear error,

but only to the limited extent that the Court suggested that

internal advice rulings may be protested under 19 U.S.C. §

1514(a).    As described above, such error was harmless.    A motion

under USCIT Rule 59(e) seeks vacature or alteration of a court’s

judgment.    Because the Court’s judgment was correct, Ford’s

motion for reconsideration must be denied.    The remaining

arguments made by Ford either lack merit or have been waived.

        In light of the foregoing, it is hereby

        ORDERED that Ford’s motion for reconsideration under USCIT

Rule 59(e) is denied.

        IT IS SO ORDERED.

                                      /s/ Richard W. Goldberg_____
                                      Richard W. Goldberg
                                      Senior Judge
Date:       September 29, 2006
            New York, NY
