                                Slip Op. 04-86

               United States Court of International Trade



ALUMINERIE BECANCOUR, INC.,
c/o REYNOLDS METALS COMPANY,

                          Plaintiff,
                                             Before: Pogue, Judge
           v.
                                             Court No. 00-00445
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        Aluminerie    Becancour,      Inc.

(“Aluminerie”     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
Court No. 00-00445                                                Page 2

pursuant to 19 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

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

denied.3


1
 Because Plaintiff filed its summons in 2000, Summons of
Aluminerie 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 27, 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 Aluminerie Becancour, Inc. v. United States, slip. op. 04-40
(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. 00-00445                                               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, Aluminerie made a voluntary disclosure

to Customs under 19 U.S.C. § 1592(c)(4), admitting that it had

failed to pay 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   Aluminerie   tender   $88,542.87,     which

Aluminerie 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 4 (Oct. 6,

1994) (“October 6 Letter”).5


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. The document appended to
Plaintiff’s motion for leave to amend its memorandum of
opposition is referred to as “Pl.’s Attach.” 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 Aluminerie
Becancour, Inc. Reynolds Metals Company also owns Canadian
Reynolds Metals Company, which is the Plaintiff in a companion
case before this Court. Canadian Reynolds Metals Co. v. United
States, Court No. 00-00444, slip op. ______ (CIT July 14, 2004)
(pending).
Court No. 00-00445                                                    Page 4

     Along with its payment, Aluminerie submitted a letter in which

it 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.     Aluminerie 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,

Aluminerie’s entries failed to qualify for the reduced MPF rate

provided by the USCFTA.       Id. at 5.       Aluminerie, 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.      Aluminerie 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 Aluminerie’s tender of MPF, but rejected all

conditions imposed by Aluminerie in connection to this payment.


6
 Barnes, Richardson & Colburn was Plaintiff’s legal
representative at the time. See February 1 Letter, Pl.’s Ex. D
at 4.
Court No. 00-00445                                                   Page 5

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

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

John Barry Donohue, Reynolds Metals Co., Pl.’s Ex. B at 1 (Nov. 8,

1994) (“November 8 Letter”).       Subsequently, Customs and Aluminerie

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 Aluminerie’s MPF payment was appropriate.

Agreement between Reynolds Metals Company and U.S. Customs Service,

Pl.’s Mot. for Leave to Amend Pl.’s Opp’n, Pl.’s Attach. at 1 (Dec.

20, 1994) (“Escrow Agreement”).8         In the event that the test case

decision was favorable to Aluminerie, 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,   Aluminerie    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

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
 Reynolds Metals Company concluded the agreement with Customs on
behalf of Plaintiff. See Escrow Agreement, Pl.’s Attach. at 1.
Court No. 00-00445                                               Page 6

(Feb. 6, 1995) (“February 6 Letter”); Protest No. 0712-95-100130,

Pl.’s Ex. D at 3 (Feb. 6, 1995) (“Protest Form”).9      In its protest,

Plaintiff 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.


9
 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. 0712-95-100130); the first letter is
dated February 1, 1995, and the second letter is dated February
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 [Aluminerie] protested the assessment and payment of
Merchandise Processing Fee (‘MPF’).”).
Court No. 00-00445                                          Page 7

Id.; see also Collection Receipt from U.S. Bureau of Customs &

Border Prot., to Aluminerie Becancour, Pl.’s Ex. A at 6 (Nov. 7,

1994) (“Receipt”).   Plaintiff clarified in its protest that it did

not expect Customs to act in response to its objections until final

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 Aluminerie’s entries qualified for preferential trade

status under the USCFTA as a result of the favorable decision in

Alcan Aluminum Corp., Customs refunded to Aluminerie the deposited

MPF amount in full “[o]n or about” February 7, 2000.10    Compl. of

Aluminerie at 3.

     Customs, however, failed to tender interest pursuant to the

escrow agreement when it made the refund to Aluminerie.      Def.’s

Mot. at 2; Pl.’s Opp’n at 4.   Aluminerie then sent, on February 10,

2000, a request for accelerated disposition of its protest.      See

10
 No supporting exhibit was provided, but Defendant does not deny
this statement. See Def.’s Mem. at 2.
Court No. 00-00445                                                              Page 8

Pl.’s Opp’n at 4-5; 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 Aluminerie considered a denial of

the original protest by operation of law, it filed a summons with

the Court on September 7, 2000.                    Summons of Aluminerie at 2.

Plaintiff subsequently, on September 30, 2002, filed its complaint

seeking relief.           Compl. of Aluminerie 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).
Court No. 00-00445                                                          Page 9



                                       III. Discussion

      Defendant moves to dismiss, alleging that because Aluminerie

failed to timely protest any Customs decision, subject matter

jurisdiction is lacking. See Def.’s Mot at 3-4. Furthermore, even

in   the   event    that    the   Aluminerie       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 Aluminerie 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
Court No. 00-00445                                            Page 10

than ninety days after the protested decision.11     Both parties to

this action agree that 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 4, 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

11
     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
                (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. 00-00445                                          Page 11

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

protest.    As previously stated, Aluminerie 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.12

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


12
 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
Attach. at 1-2. Thus, even presuming that Customs made the
decision to deprive Aluminerie 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. 00-00445                                            Page 12

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

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 6.   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
Court No. 00-00445                                           Page 13

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, 1995.13

           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 after the date 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 Aluminerie at 2.      All that remains in

13
 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
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. 00-00445                                                   Page 14

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. §

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).14        Aluminerie mailed by certified mail a

request for accelerated disposition of its protest to Customs on

14
 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).
Court No. 00-00445                                         Page 15

February 10, 2000. See Certified Mail Receipt, Pl.’s Supp. Ex. B.15

Aluminerie’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, 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




15
 The Domestic Return Receipt provided by Aluminerie 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).
                                           ERRATUM



       Please make the following change to Aluminerie Becancour, Inc. v. United States, Slip
Op. 04-86, July 14, 2004, Court No. 00-00445:

       On page 8, the last sentence,

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
