                              Slip Op. 06-179

           UNITED STATES COURT OF INTERNATIONAL TRADE


ALLSTATES TRADING & CLOTHING       :
CO., INC.,                         :
                                   :
                 Plaintiff,        :
                                   : Before: Richard K. Eaton, Judge
          v.                       :
                                   : Court No. 04-00245
UNITED STATES,                     :
                                   :
                 Defendant.        :
                                   :

                          OPINION AND ORDER

[Plaintiff’s motion for summary judgment to the extent it seeks a
declaration that its merchandise is Vietnamese in origin and an
order directing Customs to release its merchandise pursuant to
paragraphs 1–5 of its amended complaint is denied as moot;
Defendant’s cross-motion for summary judgment to the extent it
addresses the actions taken by the port director in excluding
plaintiff’s merchandise is denied as moot; Plaintiff’s motion for
summary judgment with respect to its claim for storage costs as
provided in paragraph 6 of its amended complaint and defendant’s
cross-motion for summary judgment to the extent it seeks judgment
in its favor on this issue, are denied, subject to renewal at a
later date; Plaintiff’s motion for summary judgment with respect
to its demand in paragraph 7 of its amended complaint seeking the
removal from Customs’s database of the electronic flag alerting
Customs to give special attention to future entries of
plaintiff’s merchandise and defendant’s cross-motion for summary
judgment to the extent it seeks judgment in its favor on this
issue, are denied, subject to renewal at a later date.]


                                                Dated: December 8, 2006


Law Offices of George R. Tuttle (Carl Don Cammarata and George R.
Tuttle, III), for plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney-in-Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Jack S. Rockafellow), for defendant.
Court No. 04-00245                                       Page    2

     Eaton, Judge: This matter is before the court on cross-

motions for summary judgment pursuant to USCIT Rule 56(c) of

plaintiff Allstates Trading & Clothing Co., Ltd. (“plaintiff” or

“Allstates”) and defendant the United States.   By its motion,

plaintiff challenges the denial of its protest of the Bureau of

Customs and Border Protection’s (“Customs”) exclusion of 7,170

men’s polar fleece vests based on Customs’s determination that

the documentation submitted to establish the country of origin of

the subject merchandise was not authentic.   See Pl.’s Mem. Supp.

Mot. Summ. J. (“Pl.’s Mem.”) at 13.   By its complaint, plaintiff

asks the court to direct Customs to release its merchandise, to

require the United States to pay all fees associated with storing

the vests while the merchandise was denied entry into the United

States and to remove the electronic flag from plaintiff’s future

entries of merchandise.1   See Am. Compl. at 9–10.   Customs

asserts that plaintiff’s motion has been rendered moot because

the agency has conceded that the merchandise originated in

Vietnam and the vests have been released into the United States.



     1
          Customs maintains an electronic database called the
“Automated Broker Interface,” or “ABI.” See
http://www.cbp.gov/xp/cgov/import/operations_support/automated_sy
stems/abi/features.xml (last visited Dec. 8, 2006). This
database is intended to reduce the number of entry documents that
are submitted in paper form, and allows for entry of summary
information to be “transmitted prior to the arrival of
merchandise.” Id. The ABI system also serves to notify the port
director of imports that could require special attention.
See id.
Court No. 04-00245                                      Page    3

See Reply Pl.’s Opp’n Def.’s Cross-Mot. Summ. J. (“Def.’s Reply”)

at 1–2.   For the following reasons, (1) plaintiff’s motion for

summary judgment to the extent it seeks a declaration that its

merchandise is Vietnamese in origin and an order directing

Customs to release its merchandise pursuant to paragraphs 1–5 of

its amended complaint is denied as moot; (2) defendant’s cross-

motion for summary judgment to the extent it addresses the

actions taken by the port director in excluding plaintiff’s

merchandise is denied as moot; (3) plaintiff’s motion for summary

judgment with respect to its claim for storage costs as provided

in paragraph 6 of its amended complaint and defendant’s cross-

motion for summary judgment to the extent it seeks judgment in

its favor on this issue are denied, subject to renewal at a later

date; and (4) plaintiff’s motion for summary judgment with

respect to its demand in paragraph 7 of its amended complaint

seeking the removal from Customs’s database of the electronic

flag alerting Customs to give special attention to future entries

of plaintiff’s merchandise and defendant’s cross-motion for

summary judgment to the extent it seeks judgment in its favor on

this issue are denied, subject to renewal at a later date.



                            BACKGROUND

     The following facts are undisputed.   Plaintiff is an

importer of men’s spun polyester knit fabric polar fleece vests.
Court No. 04-00245                                        Page   4

See Pl.’s Mem. at 3; Def.’s Resp. Pl.’s Statement Material Facts

(“DRPF”) at 2.    On March 11, 2004, it attempted to enter 7,170

units of the subject merchandise at the port of Oakland,

California.    See Pl.’s Mem. at 3; DRPF at 2.   The entry was dated

March 17, 2004.    See Pl.’s Mem. at 3; DRPF at 2.   At the time of

entry, plaintiff submitted documentation in accordance with, what

was then, 19 C.F.R. § 12.130(f)(2) (2004) stating that Vietnam

was the country of origin of the vests.2   See Pl.’s Mem. at 3;

DRPF at 2.    According to Customs, plaintiff’s “documentation did

not include any production records maintained on the factory

floor, such as cutting tickets and sewing tickets, which would

provide direct evidence of the production processes relating to


     2
          In accordance with 19 C.F.R. § 12.130(f) (2004):

          All importations of textiles and textile
          products subject to section 204, Agricultural
          Act of 1956, as amended, shall be accompanied
          by the appropriate declaration(s) set forth
          in paragraphs (f)(1) or (f)(2) of this
          section. Textiles or textile products
          subject to section 204 include that
          merchandise [that is in chief value of
          cotton, wool or man-made fibers]. . . . The
          declaration(s) shall be filed with the entry.
          The declaration(s) may be prepared by the
          manufacturer, producer, exporter or importer
          of the textiles and textile products. . . .
          The determination of country of origin . . .
          will be based upon information contained in
          the declaration(s). . . . Entry will be
          denied unless accompanied by a properly
          executed declaration(s).

19 C.F.R. § 12.130(f) (2004).    This provision is no longer part
of Customs’s regulations.
Court No. 04-00245                                                                Page      5

the manufacture of the merchandise in issue.”                       Decl. of Erik K.

Grotz 4/19/05 at 1.          In addition, the port director stated that

“[t]he type of documents submitted were charts and tables

apparently created after production.                    Many of these charts . . .

were illegible and did not appear to be complete.”                         Id. at 2.3

Thus, unconvinced that the documentation established Vietnam as

the country of origin of the subject merchandise, Customs,




      3
          An example of the then-required declaration is provided
for in Customs’s 2004 regulations:

                    MULTIPLE COUNTRY DECLARATION
     I, ______________________ (name), declare that the articles
described below and covered by the invoice or entry to which this
declaration relates were exported from the country* identified
below on the dates listed and were subject to assembling,
manufacturing or processing operations in, and/or incorporate
materials originating in, the foreign territory or country* or
countries*, or the U.S. or an insular possession of the U.S.,
identified below. I declare that the information set forth in
this declaration is correct and true to the best of my
information, knowledge, and belief.

A ....................................                  (country*)
B ....................................                  (country*)
C ....................................                  (country*)
D ....................................                  (country*)
etc.

Marks of   Description    Description of      Date and country of              Materials
indentif   of article     manufacturing       manufacture and/or
ication,   and quantity   and/or processing   processing
numbers                   operations
                                              Country   Date of     Descript     Count     Date
                                                        exportati   ion of       ry of     of
                                                        on          material     produ     expor
                                                                                 ction     tatio
                                                                                           n




19 C.F.R. § 12.130(f)(2) (2004).
Court No. 04-00245                                         Page   6

pursuant to, what was then, 19 C.F.R. § 12.130(g),4 sent

plaintiff a “Request for Information” dated March 17, 2004.       See

Pl.’s Mem. at 17; DRPF at 2.    Allstates responded to the request

on three different dates: March 26, 2004; April 6, 2004; and

April 13, 2004.     See Pl.’s Mem. at 17; DRPF at 3.   Customs found

plaintiff’s responses to its Request for Information to be

equally unreliable, and, thus, on April 20, 2004, denied entry of

the vests.   See Pl.’s Mem. at 19; DRPF at 6 (“Admits that San

Francisco Import Specialist Erik Grotz . . . stated that the

vests were excluded because the documentation provided [did] not

appear authentic.”) (internal quotation marks omitted).

Plaintiff timely filed a protest of Customs’s determination on

May 12, 2004.     See Summons of 6/21/04.   On May 28, 2004, Customs

denied the protest and, in accordance with 19 U.S.C. § 1514(a)(4)



     4
          The regulation provided, in pertinent part:

          If the port director is unable to determine
          the country of origin of an article from the
          information set forth in the declaration, the
          declarant shall submit additional information
          as requested. Release of the article from
          Customs custody will be denied until the
          determination is made based upon the
          information provided or the best information
          available. In this regard if incomplete or
          insufficient information is provided, the
          port director may consider the experience and
          costs of domestic industry in similar
          manufacturing or processing operations.

19 C.F.R. § 12.130(g) (2004). Like 19 C.F.R. § 12.130(f), this
provision is no longer part of Customs’s regulations.
Court No. 04-00245                                         Page   7

(2000) and 28 U.S.C. § 1581(a) (2000), plaintiff timely commenced

an action in this Court challenging that denial.      See id.

     Plaintiff insists that Customs unreasonably excluded its

vests and acted beyond its authority by requesting additional

country of origin information because the submitted documentation

was complete and sufficient to permit the port director to

determine that the vests originated in Vietnam.      The United

States, on behalf of Customs, asserts that because Customs has

now conceded that Vietnam is, in fact, the country of origin of

plaintiff’s merchandise and released the vests, plaintiff’s

motion for summary judgment is moot, and any opinion rendered by

this court addressing plaintiff’s claim that Customs acted ultra

vires in requesting more country of origin information would be

purely advisory.     See Def.’s Reply at 2.5



                              DISCUSSION

I.   Plaintiff’s Motion for Summary Judgment

     A.   Mootness

     By its motion, plaintiff contests the actions taken by

Customs in excluding its merchandise.      The crux of plaintiff’s



     5
          Customs points out that it attempted to stipulate that
the vests originated in Vietnam in exchange for plaintiff
abandoning its remaining claims, but plaintiff refused. See
Def.’s Reply at 1 & n.1. Nonetheless, the record indicates that
plaintiff’s vests have been released from Customs custody and
have entered the United States.
Court No. 04-00245                                        Page   8

claim is its assertion that it “filed with Customs all of the

documentation required for entry, including the Declaration of

Origin executed by the exporter . . .[,]” in compliance with 19

C.F.R. § 12.130(f).   Pl.’s Mem. at 20.   In plaintiff’s view, that

documentation was sufficient to establish that the vests

originated in Vietnam and, because of the completeness of its

submission, Customs did not have the authority pursuant to 19

C.F.R. § 12.130(g) to request additional country of origin

information.    See id.   It is apparently plaintiff’s position that

if the country of origin declaration is complete on its face,

Customs is foreclosed from seeking more information.    According

to plaintiff:

          [I]f the Declaration is incomplete or
          insufficient (as stated in the title to the
          provision) so that the Port Director is
          unable to make the determination from the
          information contained therein, the Port
          Director is authorized to request additional
          information. However, if all of the
          specified information is provided in the
          Declaration, in that event the Port Director
          will have sufficient information to be able
          to determine the country of origin and is not
          authorized to request additional information.
          Any other interpretation of [§ 12.130(g)]
          would render the regulation meaningless, as
          the Port Director could always request
          additional information and there would be no
          purpose for the declaration if it cannot be
          relied upon.

Id. at 22–23 (emphasis omitted).    Thus, plaintiff maintains that

because its country of origin submission complied with the

regulation, Customs did not have the authority to ask for more
Court No. 04-00245                                         Page   9

information and to continue to exclude the vests.

      Customs, by its cross-motion for summary judgment, first

asserts that its decision to ask plaintiff for additional country

of origin information and to exclude the vests until it received

such information is entitled to a presumption of correctness in

accordance with 28 U.S.C. § 2639(a)(1).6    See Mem. Supp. Def.’s

Cross-Mot. Summ. J. Opp’n Pl.’s Mot. Summ. J. (“Def.’s Mem.”) at

7.   For Customs, Allstates has failed to meet its burden to

overcome that presumption, and therefore the agency is entitled

to judgment as a matter of law.   See id.

      Customs argues alternatively that, in the event the court

concludes plaintiff has met its burden, Customs nonetheless had

the authority to seek more information regarding country of

origin despite the completeness of the importer’s declaration.

See Def.’s Mem. at 7; see also 19 C.F.R. § 12.130(g).

      Following the filing of each party’s initial papers,

plaintiff filed a response in opposition to Customs’s cross-


      6
           According to that provision:

           [I]n any civil action commenced in the Court
           of International Trade under section 515,
           516, or 516A of the Tariff Act of 1930, the
           decision of the Secretary of the Treasury,
           the administering authority, or the
           International Trade Commission is presumed to
           be correct. The burden of proving otherwise
           shall rest upon the party challenging such
           decision.

28 U.S.C. § 2639(a)(1).
Court No. 04-00245                                        Page   10

motion for summary judgment that served to alter the facts before

the court.    See generally Pl.’s Mem. Opp’n Def.’s Cross-Mot.

Summ. J. & Reply Def.’s Resp. Pl.’s Mot. Summ. J. (“Pl.’s

Opp’n”).   Upon review of plaintiff’s filing, which according to

Customs contained “important new information,” Customs conceded

that the vests came from Vietnam and released the merchandise.

Def.’s Reply at 1.   It is not clear from the record what new

information in plaintiff’s filing tipped the scales for Customs

with respect to the vests’ country of origin.    In any event,

based on this new information, Customs attempted to dispose of

this case by stipulated judgment.    These efforts failed when

plaintiff refused to abandon its subsidiary claims for relief,

i.e., its demands for storage costs and the removal of the

electronic flag from future entries of its merchandise.     See id.

at 1–2 n.1.

     The court now turns to whether Customs’s concession that the

vests originated in Vietnam and the consequent release of

plaintiff’s merchandise from Customs custody renders this action

moot.

     The mootness doctrine is rooted in Article III, section 2 of

the Constitution, which “limits the exercise of the judicial

power to ‘cases’ and ‘controversies.’”    Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 239 (1937).    “If a dispute is not a proper

case or controversy, the courts have no business deciding it, or
Court No. 04-00245                                       Page    11

expounding the law in the course of doing so.”    DaimlerChrysler

Corp. v. Cuno, 126 S.Ct. 1854, 1860–61 (2006).    Indeed, “when the

challenged conduct ceases such that there is no reasonable

expectation that the wrong will be repeated, then it becomes

impossible for the court to grant any effectual relief whatever

to [the] prevailing party.”   City of Erie v. Pap’s A.M., 529 U.S.

277, 287 (2000) (alterations in original) (internal citations and

quotation marks omitted).   Simply put, “[t]here is no case or

controversy once the matter has been resolved.”   Charles Alan

Wright & Mary Kay Kane, Law of Federal Courts § 12 at 63 (6th ed.

2002); see also Pap’s A.M., 529 U.S. at 287 (finding that a

federal court may not entertain a claim where “the issues

presented are no longer live or the parties lack a cognizable

interest in the outcome”) (internal citations and quotation marks

omitted).   An exception to the mootness doctrine applies where

the claimed wrong is “capable of repetition, yet evading review.”

Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (internal citation and

quotation marks omitted).

     There can be no doubt that the release of plaintiff’s goods

into the United States makes moot its demand for the release of

the merchandise.   As to the question of whether Customs’s conduct

is capable of repetition yet evading review, and, thus, falls

within the exception to the mootness doctrine, there are two

bases for finding that the exception does not apply.
Court No. 04-00245                                        Page    12

     First, if Customs were to unjustly exclude future entries of

plaintiff’s merchandise, that action would give rise to a

protestable event and thus would be reviewable.    The same would

be true if Customs were now to demand redelivery of the

merchandise that is the subject of this action.     See 19 U.S.C.

§ 1514(a)(4) (permitting an importer to protest a decision by

Customs concerning “the exclusion of merchandise from . . . a

demand for redelivery to customs custody under any provision of

the customs laws”).    Thus, even if Customs were to repeat its

behavior, it would not prevent plaintiff from seeking and gaining

judicial review.     See Wear Me Apparel Co. v. United States, 10

CIT 332, 334, 636 F. Supp. 481, 483 (1986) (“[28 U.S.C. §]

1581(a) is the proper jurisdictional provision for bringing [an]

action to contest the denial of a protest under 19 U.S.C.

§ 1514(a)(4).”).

     Second, there is no indication that the specific challenged

conduct can, in fact, be repeated.    This is because, even if the

court were to credit plaintiff’s arguments with respect to the

conclusiveness of its declaration, the prospect of Customs

repeating its actions was eliminated on October 5, 2005, when

§ 12.130 was revised and re-designated generally as 19 C.F.R.

§ 102.22 (2006).     See Country of Origin of Textile and Apparel

Prods., 70 Fed. Reg. 58,009, 58,011 (Dep’t Homeland Security,

Oct. 5, 2005).   In the revised regulation, § 12.130(f) was
Court No. 04-00245                                          Page   13

eliminated.    See id. at 58,011 (indicating that “[a]s a

consequence of relocating the provisions of § 12.130 to Part 102,

§ 12.130 is removed from the . . . regulations”).   As a result of

this change, Customs no longer requires an importer to submit a

country of origin declaration.   Similarly, § 12.130(g), which

previously granted Customs the authority to seek additional

country of origin information when the information contained in

the importer’s declaration was insufficient or incomplete, was

combined with § 12.130(h) in new § 102.23(b).    See id. at 58,012.

According to this revised section, “[i]f the port director is

unable to determine the country of origin of a textile or apparel

product, the importer must submit additional information as

requested by the port director.”   19 C.F.R. § 102.23(b).     Notably

absent from the new regulation is the phrase “from the

information set forth in the declaration.”7   19 C.F.R.

§ 12.130(g).

     The new regulations thus ensure that the precise conduct

about which plaintiff complains is not capable of repetition, yet

evading review.   Therefore, because plaintiff no longer suffers



     7
          The court ordered that the parties each submit a letter
brief addressing the impact, if any, of the new regulations on
the instant action. See Order of 8/16/06. While the parties
acknowledge that the 2006 regulation has no legal effect on
Customs’s conduct in 2004, each party further recognizes that the
new regulations preclude any repetition of the conduct challenged
here. See Pl.’s Letter Br. of 8/25/06 at 2; Def.’s Letter Br. of
8/25/06 at 3.
Court No. 04-00245                                        Page   14

an injury fairly traceable to Customs’s conduct, and because the

instant action does not fall within the exception to the mootness

doctrine, to the extent that plaintiff’s action seeks the release

of its merchandise and a declaration that the vests originated in

Vietnam, it is dismissed as moot.    See St. Pierre v. United

States, 319 U.S. 41, 42 (1943) (“A federal court is without power

to decide moot questions or to give advisory opinions which

cannot affect the rights of the litigants in the case before

it.”); see also Golden v. Zwickler, 394 U.S. 103, 108 (1969)

(“The federal courts established pursuant to Article III of the

Constitution do not render advisory opinions.”) (internal

quotation marks and alterations omitted).   In like manner,

defendant’s cross-motion on this issue is equally moot.



     B.   Storage Costs

     While plaintiff’s primary cause of action is moot, its other

claims still may have life.    See, e.g., Fulton Corp. v. Faulkner,

516 U.S. 325, 327 n.1 (1996) (citing Powell v. McCormack, 395

U.S. 486, 498–500 (1969)).    By its complaint, plaintiff further

asks the court to direct Customs to pay it “accrued storage fees

and costs” resulting from what it views as the unlawful exclusion

of its merchandise.   Am. Compl. at 10.   Plaintiff contends that

the court has jurisdiction over this claim because it relates

directly to the denial of its protest.
Court No. 04-00245                                          Page   15

       Defendant argues that this additional cause of action

“exceeds the scope of this Court’s jurisdiction or is more than

the Government is legally required to grant.”    Def.’s Reply at 1

n.1.    Because defendant questions the presence of subject matter

jurisdiction to hear plaintiff’s claim, the burden rests with

plaintiff to establish that the court indeed possesses

jurisdiction.    See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d

1573, 1583 (Fed. Cir. 1993).

       Pursuant to 19 U.S.C. § 1514(a), an importer is permitted to

protest the following decisions by Customs:

            (1) the appraised value of merchandise;

            (2) the classification and rate and amount of
            duties chargeable;

            (3) all charges or exactions of whatever
            character within the jurisdiction of the
            Secretary of the Treasury;

            (4) the exclusion of merchandise from entry
            or delivery or a demand for redelivery to
            customs custody under any provision of the
            customs laws, except a determination
            appealable under section 1337 of this title;

            (5) the liquidation or reliquidation of an
            entry, or reconciliation as to the issues
            contained therein, or any modification
            thereof;

            (6) the refusal to pay a claim for drawback;
            or

            (7) the refusal to reliquidate an entry under
            section 1520(c) of this title . . . .

19 U.S.C. § 1514(a).    It is well settled that where Customs has
Court No. 04-00245                                        Page   16

denied an importer’s protest of its decision regarding one of the

seven issues listed above, this Court has jurisdiction to review

the reasonableness of the denial.   See 28 U.S.C. § 1581(a); see

also Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973,

976 (Fed. Cir. 1994).   However, as the statute specifically

limits the decisions that can be protested, the Court’s

jurisdiction is likewise restricted to a review of those same

decisions.   See Mitsubishi, 44 F.3d at 977 (“Thus, without a

decision under section 1514(a), the trial court correctly

determined that it lacked jurisdiction under section 1581(a).”).

     What is not clear is how the demand for “accrued storage

fees and costs” should be characterized.   That is, whether or not

the payment of these sums are being challenged as “exactions” and

thus reviewable as a result of its protest.   19 U.S.C.

§ 1514(a)(3).   If the payments were exactions, jurisdiction is

proper under 28 U.S.C. § 1581(a).

     If on the other hand, these amounts are seen as expenditures

for which plaintiff claims it should be reimbursed, other

statutory provisions may control.   Under 28 U.S.C. § 1581(i)(4),

the Court’s residual jurisdiction provision, the Court is

empowered to hear “any civil action commenced against the United

States, its agencies, or its officers, that arises out of any law

of the United States providing for . . . [the] administration and

enforcement with respect to the matters referred to in . . .
Court No. 04-00245                                       Page     17

subsections (a)-(h) of this section.”    As a result, even if the

storage fees and costs are not of a nature that could be the

subject of a protest, they may be characterized as having been

incurred as a result of Customs’s administration and enforcement

of the Customs laws.    Thus, it would appear that § 1581(i)(4)

might be a source of jurisdiction.

     Here, however, the doctrine of sovereign immunity comes into

play.    Sovereign immunity requires the consent of the United

States before it or its agencies can be sued.    That is, for the

United States or its agencies to be sued in federal court, they

must first agree to be sued.    “Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from

suit.”   F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).   Further,

“[s]overeign immunity is jurisdictional in nature.    Indeed, the

‘terms of [the United States’] consent to be sued in any court

define the court’s jurisdiction to entertain the suit.’”      Id.

(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941));

see also 14 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3654, at 281 (3d ed.

1998) (“The natural consequence of the sovereign immunity

principle is that the absence of consent by the United States is

a fundamental defect that deprives the district court of subject

matter jurisdiction.”).    Thus, the court must determine whether

the United States has waived the protection provided by the
Court No. 04-00245                                        Page    18

doctrine of sovereign immunity.

     If the payments are not seen as “exactions,” plaintiff’s

claim is at law and seeks an order from the court directing the

United States to pay it money damages to cover the costs incurred

for storing the vests while the goods were excluded from the

country.   In order “[t]o sustain a claim that the Government is

liable for awards of monetary damages, the waiver of sovereign

immunity must extend unambiguously to such monetary claims.”

Lane v. Pena, 518 U.S. 187, 192 (1996) (citation omitted).       Such

waivers are found in the Federal Tort Claims Act (“FTCA”), where

the United States consents to be sued “under circumstances where

the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or

omission occurred.”   28 U.S.C. § 1346(b).   However, the FTCA is

clear in its instruction that the United States and its agencies

retained the right to be free from suit in federal courts

regarding “[a]ny claim arising in respect of the assessment or

collection of any tax or customs duty, or the detention of any

goods, merchandise, or other property by any officer of customs

or excise or any other law enforcement officer . . . .”    28

U.S.C. § 2680(c); see also Worman v. United States, 98 F.3d 1360

(Fed. Cir. 1996) (unpublished table decision) (“While the FTCA

waives sovereign immunity for some tortious actions committed by

the government, it is clear that there is no waiver for tortious
Court No. 04-00245                                        Page   19

acts committed by Customs officials arising out of the detention

of goods.”).    The United States Supreme Court has held that “the

fairest interpretation of the crucial portion of [28 U.S.C.

§ 2680(c)] is the one that first springs to mind: ‘any claim

arising in respect of’ [the assessment or collection of any

customs duty] means any claim ‘arising out of’ [the assessment or

collection of any customs duty] . . . .”     Kosak v. United States,

465 U.S. 848, 854 (1984) (quoting 28 U.S.C. § 2680(c) (1982)).

     Should it be that Customs’s actions resulted from its

obligation to collect the proper amount of duty owed, the harm

suffered by plaintiff arose, if at all, from “the assessment or

collection of [a] . . . customs duty.”   28 U.S.C. § 2680(c).

Therefore, because the United States has not given its consent to

be sued for money damages arising out of the assessment or

collection of a customs duty, the court would not have

jurisdiction to entertain plaintiff’s claim for the storage costs

incurred as a result of Customs’s actions.

     It is clear, therefore, that the nature of costs and fees

must be known before the court can determine if it has

jurisdiction.   As a result, both parties’ motions for summary

judgment are denied, subject to renewal at a later date.



     C.   Removal of Electronic Flag

     By its complaint, plaintiff next asks the court to
Court No. 04-00245                                        Page   20

“[d]irect[] [d]efendant to remove the electronic flag which

designates to Customs Import Specialist teams that merchandise

imported by [p]laintiff should be detained and production

document requests issued.”   Am. Compl. at 10.   Plaintiff,

however, does not assert nor establish the court’s jurisdiction

to grant the requested relief.   Likewise, both parties fail to

address adequately the facts surrounding the purported electronic

flagging procedure employed by Customs.   Thus, without a

demonstrated basis for jurisdiction, and in the absence of proper

facts, it is not possible at this time for the court to

adjudicate plaintiff’s final claim.   As a result, each party’s

motion for summary judgment is denied, subject to renewal at a

later date.



                             CONCLUSION

     Based on the foregoing, it is hereby

     ORDERED that plaintiff’s motion for summary judgment to the

extent it seeks a declaration that its merchandise is Vietnamese

in origin and an order directing Customs to release its

merchandise pursuant to paragraphs 1–5 of its amended complaint

is denied as moot;

     ORDERED that defendant’s cross-motion for summary judgment

to the extent that it addresses the actions taken by the port

director in excluding plaintiff’s merchandise is denied as moot;
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     ORDERED that plaintiff’s motion for summary judgment with

respect to its claim for storage costs as provided in paragraph 6

of its amended complaint and defendant’s cross-motion for summary

judgment to the extent it seeks judgment in its favor on this

issue are denied;

     ORDERED that plaintiff’s motion for summary judgment with

respect to its demand in paragraph 7 of its amended complaint

seeking the removal from Customs’s database of the electronic

flag alerting Customs to give special attention to future entries

of plaintiff’s merchandise and defendant’s cross-motion for

summary judgment to the extent it seeks judgment in its favor on

this issue are denied; and it is further

     ORDERED that the parties appear on January 12, 2007 at 11:00

A.M. in Courtroom 2 at the United States Court of International

Trade, One Federal Plaza, New York, NY 10278 for a scheduling

conference.   Judgment shall be entered accordingly.




                                           /s/Richard K. Eaton
                                              Richard K. Eaton

Dated:   December 8, 2006
         New York, New York
