                                   Slip Op. 20-119

          UNITED STATES COURT OF INTERNATIONAL TRADE


 SPIRIT AEROSYSTEMS, INC.,

       Plaintiff,
                                              Before: Claire R. Kelly, Judge
 v.
                                              Court No. 20-00094
 UNITED STATES ET AL.,

              Defendants.


                             OPINION AND ORDER

[Granting plaintiff’s motion for leave to file an amended summons, granting
defendants’ motion to partially dismiss plaintiff’s complaint, and granting
defendants’ motion for an extension of time to respond to plaintiff’s complaint.]

                                                              Dated: August 17, 2020

William Randolph Rucker, Faegre Drinker Biddle & Reath LLP, of Chicago, IL, for
plaintiff Spirit AeroSystems, Inc.

Ethan P. Davis, Acting Assistant Attorney General, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, of Washington, DC, for defendants. With
him on the brief were Jeanne E. Davidson, Director, Justin R. Miller, Attorney-in-
Charge, and Alexander Vanderweide, Trial Attorney. Of counsel was Mathias
Rabinovitch, Office of the Assistant Chief Counsel, International Trade Litigation,
U.S. Customs and Border Protection, of Washington, DC.

      Kelly, Judge: Before the court is Plaintiff Spirit AeroSystems, Inc.’s (“Spirit”)

motion for leave to file an amended summons, Defendants’ partial motion to dismiss,

and Defendants’ motion for an extension of time to respond to Plaintiff’s complaint

See [Pl.’s] Mot. Leave File Am. Summons, Apr. 27, 2020, ECF No. 7 (“Pl.’s Mot.”);

Defs.’ Partial Mot. Dismiss & Resp. Opp’n [Pl.’s Mot.], May. 18, 2020, ECF No. 8
Court No. 20-00094                                                               Page 2

(“Defs.’ Partial Mot. Dismiss”); Defs.’ Memo. Supp. [Defs.’ Partial Mot. Dismiss], May

18, 2020, ECF No. 8 (“Defs.’ Br.”); Defs.’ Mot. Resp. Pl.’s Compl., July 17, 2020, ECF

No. 14 (“Defs.’ Mot.”). Spirit challenges the rejection of its drawback claim by U.S.

Customs and Border Protection (“CBP”), following the timely administrative protest

and denial of the protest. See Compl., Apr. 27, 2020, ECF No. 6. Plaintiff now

requests leave to file an amended summons to assert jurisdiction under 28 U.S.C.

§ 1581(i) in addition to 28 U.S.C. § 1581(a). See Pl.’s Mot.; see also Pl.’s Memo. Opp’n

[Defs.’ Partial Mot. Dismiss] & Supp. [Pl.’s Mot.] at 8–9, 15, June 22, 2020, ECF No.

11 (“Pl.’s Resp. Br.”). Defendants seek to partially dismiss Plaintiff’s complaint with

respect to the assertion of jurisdiction under 28 U.S.C. § 1581(i) and oppose Spirit’s

motion for leave to file an amended summons. See Defs.’ Br. at 1, 4–10. In light of

the contested jurisdictional basis for this action, Defendants request additional time

to respond to the complaint, see Defs.’ Mot. at 1–2, which Spirit opposes. See [Pl.’s]

Resp. [Defs.’ Mot.], Aug. 6, 2020, ECF No. 16 (“Pl.’s Resp. Defs.’ Mot.”). For the

reasons that follow, the court grants Spirit’s motion for leave to file an amended

summons, grants Defendants’ motion to partially dismiss Spirit’s complaint with

respect to its assertion of jurisdiction under 28 U.S.C. § 1581(i) (2012), 1 and grants

Defendants’ motion for an extension of time to respond to the complaint.




1   Further citations to Title 28 of the United States Code are to the 2012 edition.
Court No. 20-00094                                                               Page 3

                                   BACKGROUND

      On December 29, 2018, Spirit filed an unused merchandise drawback claim in

CBP’s Automatic Commercial Environment (“ACE”) system based on the export of

unused parts of civil aircraft, classifiable under the Harmonized Tariff Schedule of

the United States (“HTSUS”) subheading 8803.30.0030, “Parts of goods of heading

8801 or 8802: Other parts of airplanes or helicopters: For use in civil aircraft: Other.”

See Summons, Apr. 21, 2020, ECF No. 1; Compl. at ¶¶ 9–15. On January 29, 2020,

the ACE drawback module rejected Spirit’s claim. Compl. at ¶ 16. Spirit filed an

administrative protest on February 13, 2020, which CBP denied on March 14, 2020.

See generally Summons; see also Compl. at ¶ 49.

      On April 21, 2020, Spirit initiated this action 2 by filing a summons, which

asserts jurisdiction under 28 U.S.C. § 1581(a). See generally Summons. However, in

its complaint filed on April 27, 2020, Spirit argues that this court has jurisdiction

under both 28 U.S.C § 1581(a) and (i).     See Compl. at ¶¶ 46, 51. That same day,

Spirit moved for leave to file an amended summons to assert jurisdiction under

subsection 1581(i) and attached a copy of the amended summons to the complaint.

See generally Pl.’s Mot.




2Spirit challenges CBP’s denial of its protest as well as CBP’s administration and
enforcement of the drawback statute. See Compl. at ¶¶ 47, 52–53.
Court No. 20-00094                                                            Page 4

                            STANDARD OF REVIEW

      The party seeking the Court’s jurisdiction has the burden of establishing that

jurisdiction exists. See Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347,

1355 (Fed. Cir. 2006); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994).

                                   DISCUSSION

I.    Motion for Leave to File an Amended Summons

      Spirit seeks to amend its summons, which it previously filed on USCIT Form

1 and only designates jurisdiction under 28 U.S.C. § 1581 (a), and to file, as its

amended summons, USCIT Form 4, which references the concurrently filed

complaint that asserts jurisdiction under both 28 U.S.C. § 1581 (a) and (i). See

generally Pl.’s Mot.3 Invoking U.S. Court of International Trade (“USCIT”) Rule 3(e),

Spirit argues that the court should grant leave to file an amended summons and


3 Defendants are mistaken in asserting that the original and amended summons are
identical. See Defs.’ Br. at 2, 9. The United States Court of International Trade has
several model summons forms for litigants to complete fillable, blank fields. Relevant
here, Form 1 is used in actions commenced pursuant to 28 U.S.C. § 1581(a) and U.S.
Court of International Trade (“USCIT”) Rule 3(a)(1), and states, inter alia, that “a
civil action has been commenced pursuant to 28 U.S.C. § 1581(a) to contest denial of
the protest[.]” See USCIT Rules, Appendix of Forms, Form 1; see also id. at Specific
Instructions – Form 1 (“This form summons is only to be used in those actions
described in 28 U.S.C. § 1581(a).”) Form 4, by contrast, is a general summons and
refers to the complaint. Id., Appendix of Forms, Form 4; see also id. at Specific
Instructions – Form 4 (“This form of summons is to be used in all actions other than
those actions in which the form of summons to be used is Form 1, 2, 03 3.”). Here,
Spirit filled out the U.S. Court of International Trade Form 1 summons as its original
summons; its proposed amended summons includes a Form 4 summons that
references the complaint. See Am. Summons at 3, Apr. 27, 2020, ECF No. 7-1.
Court No. 20-00094                                                              Page 5

asserts that Defendants would suffer no material prejudice from allowing

amendment. See Pl.’s Resp. Br. at 8–9. Defendants counter that because Spirit failed

to file its initial summons and complaint concurrently, it cannot now amend its

summons to include a claim based on 28 U.S.C. § 1581(i), even though it is

concurrently filing a complaint with the amended summons. See Defs.’ Br. at 5–10.

For the reasons that follow, the court grants Spirit’s motion for leave to file an

amended summons.

      USCIT Rule 3(e) provides that the court may allow a party to amend a

summons “at any time on such terms as it deems just, unless it clearly appears that

material prejudice would result to the substantial rights of the party against

whom the amendment is allowed.” USCIT R. 3(e). An action under subsection (i)

is commenced “by filing concurrently with the clerk of the court a summons and

complaint[.]” 28 U.S.C. § 2632(a); see also USCIT R. 3(a)(3).

      Here, Defendants do not allege material prejudice. See generally Defs.’ Br.;

Defs.’ Reply [Pl.’s Resp. Br.], July 13, 2020, ECF No. 12 (“Defs.’ Reply Br.”). 4



4 Defendants caution that allowing amendment, such that the amended summons is
deemed filed on the same date as the complaint, would circumvent the concurrent
filing requirement under 28 U.S.C. § 2632(a). See Defs.’ Reply. Br. at 5. Yet, by filing
an amended summons on the same day that it filed the complaint, Spirit is filing a
concurrent summons and complaint. To the extent that circumvention could be an
issue, it is not one under the facts of this case. Here, the statute of limitations for
Spirit to file an action asserting jurisdiction under 28 U.S.C. § 1581(i) has not yet
run, as its drawback claim was rejected on January 29, 2020. See Compl. at ¶ 16; see

                                                                   (footnote continued)
Court No. 20-00094                                                              Page 6

Therefore, the court grants Plaintiff’s request to file an amended summons, because

doing so would not materially prejudice Defendants’ rights. However, even though

the amended summons is deemed filed on the same date as the complaint, the court

lacks jurisdiction under 28 U.S.C. § 1581(i) for the reasons explained below.

II.   Motions to Partially Dismiss Spirit’s Complaint and for an Extension
      of Time to Respond to the Complaint

      Defendants move to partially dismiss Spirit’s complaint pursuant to USCIT R.

12(b)(1) with respect to its assertion of jurisdiction under 28 U.S.C. § 1581(i). See

Defs.’ Br. at 4–10. Defendants contend that Spirit cannot invoke jurisdiction under

subsection (i) because jurisdiction is available under subsection (a) and the remedy

under that subsection is not manifestly inadequate. See id. at 4–5. In the alternative,

Defendants allege that Spirit has failed to state a claim for which relief could be

granted with respect to asserted jurisdiction under subsection (i) and requests

dismissal pursuant to USCIT R. 12(b)(6).       Id. at 1, 3, 8. Because jurisdiction is

contested, Defendants request additional time to respond to Spirit’s complaint until

after the court issues its decision on the partial motion to dismiss. See Defs.’ Mot. at




also 28 U.S.C. § 2636(i) (providing a two-year of statute of limitations period from the
date the action first accrued for civil actions commenced under section 1581(i)). Spirit
could have filed commenced an entirely new action by filing a second summons along
with a complaint concurrently so to assert jurisdiction under subsection (i) and
subsequently moved to consolidate the two cases. However, requiring it to do so
would undermine judicial economy.
Court No. 20-00094                                                               Page 7

1–2. 5 Specifically. if the court grants the motion to dismiss and denies Spirit’s motion

for leave to amend the summons, Defendants request 30 days from the date of the

court’s decision on the motion to dismiss to respond to the complaint. See id. at 2.

Spirit counters that the court has jurisdiction under subsection (i), because

jurisdiction under subsection (a) would be manifestly inadequate. See Pl.’s Resp. Br.

at 4–8.     According to Spirit, filing its complaint concurrently with the amended

summons satisfies the statutory requirement to commence a case under 28 U.S.C.

§ 2632(a) for jurisdiction to lay under subsection (i). Id. at 10–14. Spirit disagrees

that it failed to state a claim for which relief can be granted. Id. at 14–15. Finally,

Spirit opposes Defendants’ request for additional time to respond to the complaint

until after the court renders its decision on the motion to dismiss because, in Spirit’s

view, Defendants could file an answer to the complaint, irrespective of whether the

court determines it has jurisdiction under subsection (i). See Pl.’s Resp. Defs.’ Mot.

at 2–3. 6    For the following reasons, because the court lacks jurisdiction under


5 Defendants explain that, should the court exercise jurisdiction under 28 U.S.C.
§ 1581(i), they would be required to file the administrative record concurrently with
the filing of their response to the complaint. See Defs.’ Mot. at 2. Therefore, to
conserve resources, Defendants request additional time to respond to the complaint
after the court resolves the pending motion to dismiss. See id.
6 Spirit, however, does not oppose an extension of time for Defendants to respond the
complaint that is “limited to a specific number of days” and requests any additional
time be limited to an additional 30 days from the existing deadline to respond, rather
than 30 days from the issuance of the court’s decision on the motion to dismiss. See
Pl.’s Resp. Defs.’ Mot. at 4. Noting that Defendants must file the administrative
record concurrently with their response to the complaint, Spirit does not oppose an
extension of time for Defendants to file the administrative record until 30 days after
the court renders its decision on the motion to dismiss. See id. at 3–4.
Court No. 20-00094                                                               Page 8

subsection (i), the court grants Defendants’ motion to partially dismiss Spirit’s

complaint and grants the motion for an extension of time to respond to the complaint.

      Under section 313 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1313

(2016), 7 CBP will refund up to 99% of duties and fees paid on goods imported into the

United States if, inter alia, an importer, like Spirit, exports substitute unused

merchandise that is commercially interchangeable with the imported goods.              19

U.S.C. § 1313(j)(2), (l). An exporter of substitute unused merchandise may claim that

refund, or “drawback,” by satisfying the requirements prescribed by statute and

regulation. See generally id.; 19 C.F.R. § 191.82. If a drawback claim is rejected, an

exporter may file a protest, which, if denied, see 19 U.S.C. §§ 1514(a)(6), 1515, may

be contested before this Court. 28 U.S.C. § 1581(a).

      Section 1581 of Title 28 of the U.S. Code enumerates the Court’s jurisdictional

bases. 28 U.S.C. § 1581. Relevant here, subsection (a) grants the Court “exclusive

jurisdiction of any civil action commenced to contest the denial of a protest, in whole

or in part, under section 515 of the Tariff Act of 1930,” id. at § 1581(a), which pertains

to review of protests denied by CBP. See 19 U.S.C. § 1515. Subsection (i) is a

“residual” grant of jurisdiction for review of, inter alia, the “administration and

enforcement” of claims that can be challenged under 28 U.S.C. § 1581(a), see 28




7 All further citations to the Tariff Act of 1930, as amended, are the relevant
provisions of Title 19 of the U.S. Code, 2012 edition, except for citations to 19 U.S.C.
§ 1313, which are to the 2016 version, as amended pursuant to Section 906 of the
TFTEA, Pub. L. No. 114-125, 130 Stat. 122 (2015).
Court No. 20-00094                                                              Page 9

U.S.C. § 1581(i)(4), 8 and claims when the remedy under another subsection of 1581

would be manifestly inadequate. See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d

1364, 1371 (Fed. Cir. 2002) (citations omitted).

      Spirit’s request for a declaratory judgment and for a writ of mandamus

requiring CBP to update its ACE drawback module to allow for unused substitute

merchandise drawback claims classifiable under HTSUS 8803.30.0030 lies in a

challenge to CBP’s denial of a protest. See Compl. at ¶¶ 47–50, Request for Relief ,

80–86. Spirit concedes that it considers jurisdiction to exist under subsection (a). See

Pl.’s Mot. at 1–2. Because jurisdiction is available under subsection (a), jurisdiction

under subsection (i) is foreclosed. See Sunpreme, Inc. v. United States, 892 F.3d 1186,

1191–92 (Fed. Cir. 2018); Int’l Customs Prods., Inc. v. United States, 467 F.3d 1324,

1327 (Fed. Cir. 2006). 9

      Although Spirit contends that the remedy under 28 U.S.C.§ 1581(a) would be

manifestly inadequate, the Court is empowered under 28 U.S.C. § 2643 to order “any

other form of relief that is appropriate[,]” such as compelling agency action, in an




8 Spirit also invokes jurisdiction under subsection (i)(2), which provides the Court
with exclusive jurisdiction over actions challenging “tariffs, duties, fees, or other
taxes on the importation of merchandise for reasons other than the raising of
revenue[.]” See Pl.’s Resp. Br. at 4. Spirit does not elaborate further on this
jurisdictional theory. See generally id.
9 This is not a case in which the court lacks jurisdiction; rather, for the reasons
recounted above, jurisdiction under 28 U.S.C. § 1581(a) is the appropriate basis to
review CBP’s rejection of Spirit’s drawback claim. Cf. Mittal Steel Galati S.A. v.
United States, 31 CIT 730, 736, 491 F. Supp. 2d 1273, 1279–80 (2007).
Court No. 20-00094                                                              Page 10

action under subsection (a)—the exact relief Spirit seeks here. 10 Compare 28 U.S.C.

§ 2643(c) with Compl. at Request for Relief. Spirit argues CBP rejected Spirit’s

unused merchandise drawback claim due to an erroneous interpretation of the

drawback statute embedded in the ACE drawback module programming. See Pl.’s

Resp. Br. at 7; see also Compl. at ¶¶ 17–45, 63–69. Spirit’s complaint alleges that the

Trade Facilitation and Enforcement Act of 2015 (“TFTEA”) amended the drawback

statute, providing drawback can be claimed on unused substitute merchandise if

classifiable under the same 8-digit HTSUS subheading as the imported goods. See

Compl. at ¶¶ 5–8, 23–45 (citing Pub. L. No. 114-125, 130 Stat. 122 (2015); 19 U.S.C.

§ 1313(j)(5)). However, Spirit contends that if the 8-digit subheading begins with the

term “other,” drawback can be claimed under the same 10-digit subheading as the

imported goods, except if the article description at the 10-digit subheading begins




10 Spirit alleges that because CBP “automatically” rejected its request, CBP did not
make a decision that Spirit could protest. See Pl.’s Resp. Br. at 7. As support, Spirit
cites Carnival Cruise Lines, Inc. v. United States, 18 CIT 1020, 866 F. Supp. 1437
(1994). See Pl.’s Resp. Br. at 6–7. However, that case is readily distinguishable and,
as a decision of this Court, not binding. In Carnival Cruise Lines, the plaintiffs
protested harbor maintenance fees and commenced an action before this Court before
the protest was approved or denied, alleging that neither the statute nor regulations
required a protest before seeking a refund of fees. See id., 18 CIT at 1021, 866 F.
Supp. at 1438–39. The court held that the protest remedy was not available for the
plaintiffs to seek a refund of fees and, as a result, 19 U.S.C. § 1581(a) could not be the
basis of jurisdiction; instead, only jurisdiction under subsection (i) was available. See
id., 18 CIT at 1024–25, 866 F. Supp. at 1441–42. Here, as Spirit acknowledges, the
protest remedy was available by statute, and Spirit filed a protest, which was denied.
See Pl.’s Resp. Br. at 6. Whether or not that rejection occurred “automatically,” CBP
issued a determination, and, by statute, CBP had discretion to approve or deny that
protest. 19 U.S.C. § 1515(a).
Court No. 20-00094                                                              Page 11

with the term “other.” Id. at ¶¶ 6–8, 25–26 (citing 19 U.S.C. § 1313(j)). Spirit

contends that CBP erroneously rejected Spirit's drawback claim for merchandise

classifiable under the 10-digit subheading 8803.30.0030 “Parts of goods of heading

8801 or 8802: Other parts of airplanes or helicopters: For use in civil aircraft: Other”

because the 10-digit subheading begins with “For use in civil aircraft" and not the

term “other.”    Id. at ¶¶ 32–44, 54–79.          As both parties acknowledge, the

administration of the TFTEA and CBP’s interpretation of the HTSUS subheading

8803.30.0030, which resulted in the rejection of Spirit’s drawback claim, are at issue.

See Pl.’s Resp. Br. at 5–7; see also Defs.’ Reply Br. at 3. Should the court, in reviewing

CBP’s rejection of the drawback claim, agree that CBP’s interpretation is incorrect,

the court may direct CBP to modify the programming code to process Spirit’s

drawback claim. See 28 U.S.C. § 2643(c). Spirit, thus, has a remedy under subsection

(a).

       Because the court lacks jurisdiction under subsection (i), it does not reach

Defendants’ argument that the complaint with respect to the assertion of jurisdiction

under subsection (i) should be dismissed for failure to state a claim for which relief

can be granted. See Defs.’ Br. at 8. In addition, given that the proposed amendment

to the summons generated the motion to dismiss, it is reasonable to provide

additional time for Defendants to respond to the complaint, as Spirit acknowledges,

see Pl.’s Resp. Defs.’ Mot. at 3, and, therefore, the court grants Defendants’ motion

for an extension of time.
Court No. 20-00094                                                              Page 12

                                    CONCLUSION

      For the foregoing reasons, it is

      ORDERED that Plaintiff’s motion for leave to file an amended summons is

granted; and it is further

      ORDERED that Plaintiff’s amended summons, see Pl.’s Mot. at Attach., is

deemed filed as of April 27, 2020; and it is further

      ORDERED that Defendants’ partial motion to dismiss is granted with respect

to Plaintiff’s assertion of jurisdiction under 28 U.S.C. § 1581(i); and it is further

      ORDERED that Defendants’ motion for an extension of time to respond to

Plaintiff’s complaint is granted; and it is further

      ORDERED that Defendants shall respond to Plaintiff’s complaint on or before

Wednesday, September 16, 2020.

                                                       /s/ Claire R. Kelly
                                                       Claire R. Kelly, Judge


Dated:       August 17, 2020
             New York, New York
