                                        Slip Op. 10-46

                UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
                                    :
HITACHI HOME ELECTRONICS            :
(AMERICA), INC.,                    :
                                    :
                  Plaintiff,        :
                                    :
            v.                      :               Before: Jane A. Restani, Chief Judge
                                    :
UNITED STATES,                      :               Court No. 09-00191
UNITED STATES CUSTOMS AND           :
BORDER PROTECTION, and              :
ROSA HERNANDEZ, PORT DIRECTOR, :
UNITED STATES CUSTOMS AND           :
BORDER PROTECTION, (OTAY MESA) :
SAN DIEGO, CALIFORNIA,              :
                                    :
                  Defendants.       :
____________________________________:


                                          OPINION

[Defendants’ motion to dismiss without prejudice action challenging rate of duty granted;
plaintiff’s cross-motions for consolidation and summary judgment denied.]


                                                                          Dated: April 30, 2010

              Sidney N. Weiss for the plaintiff.

               Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Justin R. Miller); Paula S. Smith, Office of the Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection, of counsel, for the
defendants.

              Restani, Chief Judge: This customs duty rate matter is before the court on the

motion of defendants, the United States, United States Customs and Border Protection, and Rosa

Hernandez, the Port Director for (Otay Mesa) San Diego, California (collectively, “Customs”),
Court No. 09-00191                                                                            Page 2


to dismiss for lack of subject-matter jurisdiction pursuant to USCIT Rule 12(b)(1), and on

plaintiff Hitachi Home Electronics (America), Inc.’s (“Hitachi”) cross-motions for consolidation

of this case with Court Numbers 07-00422, 08-00128, 08-00226, and 09-00056, pursuant to

USCIT Rule 42(a), and summary judgment, pursuant to USCIT Rule 56. For the reasons below,

the court grants Customs’ motion to dismiss without prejudice and denies Hitachi’s cross-

motions.

                                         BACKGROUND

               Hitachi imported plasma flat panel televisions made and/or assembled in Mexico

into the United States at the port of (Otay Mesa) San Diego, California between June 1, 2003,

and December 27, 2005. (First Am. Compl. 1.) The televisions were liquidated as dutiable

under subheading 8528.12.72 of the Harmonized Tariff Schedule of the United States

(“HTSUS”), at a rate of 5.0% ad valorem. (Id. at 7.) Hitachi claims that the televisions qualify

for duty-free treatment under the North American Free Trade Agreement (“NAFTA”) in

accordance with General Note 12 of the HTSUS. (See id. at 8.) Hitachi does not present an

alternative challenge to the tariff classification of its televisions under subheading 8528.12.72,

HTSUS. (Id.)

               Hitachi filed several timely protests, beginning with Protest Number 2506-05-

100031 in May 2005, and filed supporting documentation and claims pursuant to 19 U.S.C.

§ 1520(d) for duty-free treatment under NAFTA. (Id. at 2, Ex. 1.) Hitachi requested an

application for further review (“AFR”) for Protest Number 2506-05-100031. (See Mem. in

Supp. of Def.’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction (“Def.’s Br.”) 3.) That

protest became the lead protest, and Hitachi’s other protests were suspended pending issuance of
Court No. 09-00191                                                                          Page 3


the response to the AFR. (Id.) Customs did not take any action on the AFR or allow or deny any

of the protests. (See First Am. Compl. 3.)

               Hitachi and Customs point to slightly different reasons for Customs’ inaction.

According to Hitachi, Customs had put Hitachi’s protest on hold pending a final decision,

following a notice and comment period, on whether to issue a revocation of two prior

classification rulings. (See Zisser Decl. 3–5.) The revocation, which limited the types of plasma

flat panel televisions eligible for NAFTA duty-free treatment, was issued in October 2006.

Revocation of Ruling Letters & Treatment Relating to the Tariff Classification of Certain Plasma

Modules, 40 Cust. B. & Dec. 35 (Oct. 12, 2006). In January 2007, Hitachi contacted Customs,

discovered that another Customs attorney was assigned to its case, and volunteered to submit

additional information. (Zisser Decl. 5–6.) Customs requested additional information in

February 2007, and Hitachi submitted it in March 2007. (Id. at 6.)

               According to Customs, shortly after Hitachi’s AFR, Samsung International, Inc.

(“Samsung”), filed protests and an AFR for its imports of “identical or substantially identical”

merchandise. (Def.’s Br. 3.) Customs “did not intend to rule on either the Samsung or Hitachi

AFR until it had considered all the relevant information submitted by both protestants.” (Id. at

4.) Samsung submitted additional information in August 2007. (Id. at 3.) In November 2007,

while Customs was assessing the AFRs, Hitachi filed a summons in Court Number 07-00422.1


       1
         Court Number 07-00422 relates to four protests. (First Am. Compl. Ex. 1.) Three of
the protests were filed in May 2005—Protest Number 2506-05-100031, involving entries from
June to September 2003; Protest Number 2506-05-100036, involving entries from October to
December 2003; and Protest Number 2506-05-100037, involving entries from January to March
2004. (Id.) The fourth, Protest Number 2506-05-100069, involving entries from April to June
                                                                                  (continued...)
Court No. 09-00191                                                                           Page 4


(Def.’s Br. 4.) Customs asserts that it had drafted a response to Hitachi’s AFR by then, but could

not issue any decision on any of Hitachi’s or Samsung’s protests under 19 C.F.R.

§§ 174.25(b)(2)(ii) and 177.7(b) because a related case was pending before this Court.2 (Def.’s

Br. 4; Def.’s Reply Br. 22–23.) Hitachi subsequently filed summonses in Court Numbers 08-

00128,3 08-00226,4 and 09-00056.5 The summonses in Court Numbers 07-00422, 08-00128, 08-

00226, and 09-00056 invoke this Court’s 28 U.S.C. § 1581(a) jurisdiction, alleging that Hitachi’s




       1
       (...continued)
2004, was filed in October 2005. (Id.)
       2
         Section 174.25(b)(2)(ii) requires that an AFR “contain . . . [a]llegations that the
protesting party . . . [h]as not received a final adverse decision from the Customs courts on the
same claim with respect to the same category of merchandise and does not have an action
involving such a claim pending before the Customs courts.” 19 C.F.R. §174.25(b)(2)(ii).
Section 177.7(b) states that “[n]o ruling letter will be issued with respect to any issue which is
pending before the United States Court of International Trade.” Id. § 177.7(b). Interpreting
these regulations broadly, Customs has developed an administrative practice of declining to rule
on any protest involving an issue in a pending case before this Court, even if the protesting party
is not one of the parties to the court case. (See Def.’s Mem. in Reply to Pl.’s Opp’n to Def.’s
Mot. to Dismiss & in Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Reply Br.”) 22–23.) The court
need not evaluate the validity of this practice at this time, but it may be appropriate for Customs
to reevaluate its practice at some point to prevent unnecessary delay in the disposition of protests
by importers who do not have cases pending before the court.
       3
         Court Number 08-00128 relates to Protest Number 2506-05-100073, filed in November
2005, involving entries from July to September 2004. (First Am. Compl. Ex. 2.)
       4
         Court Number 08-00226 relates to Protest Number 2506-06-100009, filed in January
2006, involving entries from October to December 2004, and Protest Number 2506-06-100029,
filed in May 2006, involving entries from January to March 2005. (First Am. Compl. Ex. 3.)
       5
         Court Number 09-00056 relates to Protest Number 2506-06-100069, filed in August
2006, involving entries from April to June 2005, and Protest Number 2506-06-100089, filed in
November 2006, involving entries from July to September 2005. (First Am. Compl. Ex. 4.)
Court No. 09-00191                                                                           Page 5


protests were denied by operation of law two years after the protests were filed.6 (See First Am.

Compl. Exs. 1–4.)

               This action, Court Number 09-00191, arises from Hitachi’s importation of plasma

flat panel televisions made or assembled in Mexico between November 19, 2005, and December

27, 2005. (See id. at 1, Ex. 5.) Hitachi filed a timely protest, Protest Number 2506-07-100010,

on March 6, 2007. (Id. at 4–5.) Customs never denied the protest. (Id. at 4.) In May 2009,

Hitachi filed a summons and complaint in this action, citing the basis for the court’s jurisdiction

as 28 U.S.C. § 1581(a), because its protest was denied or deemed denied after two years under

19 U.S.C. § 1515(a), or 28 U.S.C. § 1581(i), if jurisdiction did not exist under 28 U.S.C.

§ 1581(a). (Compl. 4; see First Am. Compl. 7.) The complaint, and the subsequent First

Amended Complaint filed in July 2009, also referenced Court Numbers 07-00422, 08-00128, 08-

00226, and 09-00056. (Compl. 2; First Am. Compl. 2.)

               In late July 2009, Customs filed a motion to dismiss this case for lack of subject-

matter jurisdiction. In September 2009, Hitachi filed a cross-motion for consolidation of this


       6
          Samsung also filed summonses seeking review of the denial of NAFTA duty-free
treatment for its plasma flat panel televisions. Samsung filed the first in April 2008 initiating
Court Number 08-00136, which relates to Protest Number 2506-05-100070, filed in October
2005. In May 2008, Samsung filed a summons in Court Number 08-00165, which relates to six
protests filed between November 2005 and May 2007. Samsung voluntarily dismissed the
actions without prejudice in November 2009. On November 16, 2009, Samsung requested
accelerated disposition of its protests, and on December 17, 2009, the protests were deemed
denied pursuant to 19 U.S.C. § 1515(b). In January 2010, Samsung refiled, seeking review of
the denial of its seven protests under this Court’s 28 U.S.C. § 1581(a) jurisdiction. Samsung has
filed a summons but has not yet filed a complaint in the action, which is Court Number 10-
00015. See USCIT R. 3(a)(1) (providing that a § 1581(a) action may be commenced by the
filing of a summons without a concurrent complaint). Pursuant to USCIT Rule 83, Samsung’s
case was placed on the reserve calendar for eighteen months and may be removed, inter alia,
when a complaint is filed. See USCIT R. 83(a)–(b).
Court No. 09-00191                                                                               Page 6


case with Court Numbers 07-00422, 08-00128, 08-00226, and 09-00056 and to designate the

First Amended Complaint in this case as the consolidated complaint. (Pl.’s Opp’n to Defs.’ Mot.

to Dismiss & Pl.s’ Cross Mots. for Summ. J. & Consol. 1.) Hitachi also filed a cross-motion for

summary judgment. (Id.) Hitachi’s argument in support of its cross-motion is slightly different

from the claim asserted in the First Amended Complaint, as Hitachi now argues with respect to

all of the actions that jurisdiction is proper under 28 U.S.C. § 1581(i) and that Hitachi is entitled

to summary judgment to recover the amounts protested because Hitachi’s protests were allowed

by operation of law after Customs failed to allow or deny the protests within the two-year period

required by 19 U.S.C. § 1515(a). (Pl.’s Br. in Opp’n to Defs.’ Mot. to Dismiss & in Supp. of

Pl.’s Cross-Mots. for Summ. J. & for Consol. (“Pl.’s Br.”) 12–43.) Hitachi alternatively argues

that jurisdiction is proper under 28 U.S.C. § 1581(a) because Hitachi’s protests were denied by

operation of law after the two-year period. (Id. at 43–46.)

                                           DISCUSSION

               Hitachi has the burden of establishing jurisdiction under 28 U.S.C. § 1581(a) or

(i). See Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). Under

§ 1581(a), the court has “exclusive jurisdiction of any civil action commenced to contest the

denial of a protest, in whole or in part, under [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a). Section

1581(i) provides:

       In addition to the jurisdiction conferred upon the Court of International Trade by
       subsections (a)-(h) of this section . . . , the Court of International Trade shall have
       exclusive jurisdiction of 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--
       (1) revenue from imports . . . or
       (4) administration and enforcement with respect to the matters referred to in
Court No. 09-00191                                                                               Page 7


        paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.

Id. § 1581(i). Whether the court has jurisdiction over this case under § 1581(a), § 1581(i), or

neither depends on the effect of Customs’ failure to take action on the protest within two years.

The statute imposing the two-year requirement, 19 U.S.C. § 1515(a), provides:

        Unless a request for an accelerated disposition of a protest is filed in accordance
        with subsection (b) of this section the appropriate customs officer, within two
        years from the date a protest was filed in accordance with [19 U.S.C. § 1514],
        shall review the protest and shall allow or deny such protest in whole or in part.
        Thereafter, any duties, charge, or exaction found to have been assessed or
        collected in excess shall be remitted or refunded . . . . Upon the request of the
        protesting party, . . . a protest may be subject to further review by another
        appropriate customs officer, . . . subject to the two-year limitation prescribed in
        the first sentence of this subsection. . . . Notice of the denial of any protest shall
        be mailed in the form and manner prescribed by the Secretary. . . .

19 U.S.C. § 1515(a). The implementing regulations use similar language. See 19 C.F.R.

§ 174.21(a) (“[T]he port director shall review and act on a protest . . . within 2 years from the

date the protest was filed.”); id. § 174.29 (“The port director shall allow or deny in whole or in

part a protest . . . within 2 years from the date the protest was filed.”).

I.      Jurisdiction under § 1581(i) and Deemed Allowance Claim

                Hitachi contends that the court has jurisdiction under 28 U.S.C. § 1581(i) because

19 U.S.C. § 1515(a) requires Customs to act on a protest within two years, and Customs’ failure

to comply with that requirement results in an allowance of Hitachi’s protest by operation of law.

(Pl.’s Br. 1–2.) Hitachi seeks a windfall, asking the court to refund its duties on summary

judgment because of the deemed allowance. (See id. at 3.) The court will not do so, as the law

does not support Hitachi’s “deemed allowance” contention. Even a statutory deadline using the

word “shall” is “directory and not mandatory when no restraint is affirmatively imposed on the
Court No. 09-00191                                                                            Page 8


doing of the act after the time specified and no adverse consequences are imposed for the delay.”

Canadian Fur Trappers Corp. v. United States, 691 F. Supp. 364, 367 (CIT 1988) (internal

quotation marks and citation omitted).

               Here, neither the statute nor the regulations specifies any consequences for the

failure to allow or deny a protest within the two-year period. As has long been held, the time

period is not mandatory, and § 1515(a) does not deprive Customs of power to act on the protest

after the two-year period. See Canadian Fur Trappers, 691 F. Supp. at 367. Rather, § 1515(a)

“is regulatory in character and prescribes the period of time . . . in which the obligations and

responsibilities of [Customs] officials are to be performed.” Knickerbocker Liquors Corp. v.

United States, 432 F. Supp. 1347, 1349 (Cust. Ct. 1977). The nature of the statutory deadline is

quite different from the mandatory statutory requirements for the notice of denial under

§ 1515(a). See Sea-Land Serv., Inc. v. United States, 735 F. Supp. 1059, 1063 & n.7 (CIT

1990).

               Further, the legislative history of § 1515 does not indicate that Congress intended

Custom’s failure to decide a protest within two years to be a deemed allowance. Prior to 1970,

§ 1515 provided for ninety days for review of protests. See Tariff Act of 1930, Pub. L. No. 71-

361, § 515, 46 Stat. 590, 734. If Customs did not take any action on the protest within ninety

days, Customs “los[t] all jurisdiction thereof,” and the matter was automatically referred to the

Customs Court (the predecessor to this Court). H.K. Wheeler, Inc. v. United States, 9 Cust. Ct.

30, 33–34 (1942). The Customs Courts Act of 1970, Pub. L. No. 91-271, § 208, 84 Stat. 274,

285–86, amended this provision to eliminate such automatic referrals and increase the time for

administrative review, see H.R. Rep. No. 91-1067, at 10, 28–29 (1970), as reprinted in 1970
Court No. 09-00191                                                                            Page 9


U.S.C.C.A.N. 3188, 3196. As introduced, the bill would have amended § 1515(a) to state that

“[t]he appropriate customs officer shall review a protest filed in accordance with section 514 of

this Act and may allow or deny such protest in whole or in part” and provided for constructive

denial of protests. S. 2624, 91st Cong. § 208, 115 Cong. Rec. 19,453 (1969). The Senate

Committee on the Judiciary deleted the constructive denial provision and replaced the wording

of the first sentence of § 1515(a) with the current version. See S. Rep. No. 91-576, at 2–3

(1969); 115 Cong. Rec. 37,810, 37,815 (1969) (as introduced, July 14, 1969). Although the

Committee characterized the revised § 1515(a) as imposing “an obligation on the Bureau of

Customs to act on the merits of all protests within 2 years,” “[a]n overall limit of two years,” and

“a maximum period of 2 years,” it stated that “[i]mporters concerned about unreasonable delay at

the administrative level are fully protected by the new provision in section [1515(b)] for

obtaining accelerated disposition of a protest.” S. Rep. No. 91-576, at 11, 28. The Committee’s

statement that § 1515, as amended, “requires the Department of the Treasury to allow a protest

or expressly deny it in whole or part within two years from the date that the protest was filed,”

id. at 4, does not compel the conclusion that Hitachi’s protest was allowed because it was not

expressly denied within two years. As discussed supra, § 1515(a) is directory and not mandatory

because, inter alia, it does not provide a consequence for Customs’ failure to either allow or deny

a protest. See Canadian Fur Trappers, 691 F. Supp. at 367; Knickerbocker Liquors, 432 F. Supp.

at 1349.

               Hitachi also argues that “allow” means “to permit something to happen by doing

nothing.” (Pl.’s Br. 28.) There is no support for such a definition in customs law. While

statutes, regulations, and cases recognize that Customs’ inaction may be a deemed denial in
Court No. 09-00191                                                                            Page 10


some unusual circumstances, see, e.g., 19 U.S.C. § 1515(b); China Diesel Imps., Inc. v. United

States, 17 CIT 498, 499 (1993); 19 C.F.R. § 174.21(b); id. § 174.22(d), no authority has ever

recognized that Customs’ inaction may result in a deemed allowance. Additionally, recognition

of inaction as a deemed allowance would be wholly inconsistent with § 1581(i) jurisdiction.

                Although § 1581(i) is “a broad residual jurisdictional provision, . . . its scope is

strictly limited, and . . . the protest procedure cannot be easily circumvented.” Hartford Fire Ins.

Co. v. United States, 544 F.3d 1289, 1293 (Fed. Cir. 2008) (internal quotation marks and citation

omitted). Section 1581(i) “is not to be used generally to bypass administrative review by valid

protest and denial.” Cherry Lane Fashion Group, Inc. v. United States, 712 F. Supp. 190, 193

(CIT 1989). It “may not be invoked when jurisdiction under another subsection of § 1581 is or

could have been available, unless the remedy provided under that other subsection would be

manifestly inadequate.” Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987).

                Jurisdiction under § 1581(a) would have been available if Hitachi had waited for

a denial of its protest. It also could have been available if Hitachi had requested an accelerated

disposition of its protest pursuant to 19 U.S.C. § 1515(b). Section 1515(b) allows an importer to

request accelerated disposition at any time after the filing of the protest and provides that “[f]or

purposes of [28 U.S.C. § 1581], a protest which has not been allowed or denied in whole or in

part within thirty days following the date of mailing . . . 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).7


       7
           The corresponding regulation states that “[i]f the port director fails to allow or deny a
                                                                                         (continued...)
Court No. 09-00191                                                                           Page 11


               Hitachi cannot show that § 1581(a) relief would be manifestly inadequate. As

numerous cases have held, delays in the protest and denial procedure do not render the remedy

provided under § 1581(a) manifestly inadequate where the importer has not used the procedure

for accelerated disposition and deemed denial. See, e.g., Am. Air Parcel Forwarding Co. v.

United States, 718 F.2d 1546, 1551 (Fed. Cir. 1983) (holding that eighteen-month delay did not

make judicial review under § 1581(a) deficient where “importers not only failed to utilize the

procedure for obtaining accelerated consideration of its protest but also resorted to additional

review procedure”); Inner Secrets/Secretly Yours, Inc. v. United States, 869 F. Supp. 959, 966

(CIT 1994) (stating that “delays inherent in the protest procedures do not render these

procedures manifestly inadequate” because an importer can seek accelerated review); China

Diesel, 17 CIT at 498–99 (holding that accelerated review and deemed denial are available for

exclusion protests and that “[h]aving waited five months from the filing of its protest . . . to bring

suit in this court, plaintiff now cannot make out a case that the accelerated protest procedures

were manifestly inadequate”). Thus, the court lacks jurisdiction under 28 U.S.C. § 1581(i).

II.    Jurisdiction under § 1581(a)

               The court does not have jurisdiction under 28 U.S.C. § 1581(a) to rule on the duty

rate dispute, either, as Customs has not yet denied the protest, and the structure and legislative

history of 19 U.S.C. § 1515 confirm that Customs’ inaction was not a deemed denial. Whereas

§ 1515(a) does not provide for deemed denial, § 1515(b) explicitly provides for deemed denial


       7
        (...continued)
protest which is the subject of a request for accelerated disposition within 30 days from the date
of mailing of such request, the protest shall be deemed to have been denied at the close of the
30th day . . . .” 19 C.F.R. § 174.22(d).
Court No. 09-00191                                                                          Page 12


after an importer has request accelerated disposition of its protest.8 See 19 U.S.C. § 1515. If

Congress had intended that a protest be deemed denied after two years of inaction by Customs, it

would have expressly so provided. See Knickerbocker Liquors, 432 F. Supp. at 1349. Instead,

“[t]he intent of Congress is clearly evidenced by the contrasting statutory provisions relating to a

protest subject to accelerated disposition.” Id.

                 As discussed supra, the Senate Committee on the Judiciary “eliminated the

constructive denial procedure” originally included in the bill that became the Customs Courts

Act of 1970.9 S. Rep. No. 91-576, at 30. The Committee rejected the procedure because it did

not provide for notice after the expiration of the two-year period, which would impose on the

importer the burden of following the timing of the protest and determining when to file a case in

the Customs Court. Id. at 29. Nevertheless, a conclusion that § 1515 provides for a deemed

denial after two years is untenable where Congress deleted explicit language to that effect.


       8
         The corresponding regulation also explicitly provides for deemed denial of protests of
certain merchandise but does not provide for any similar consequence for failure to allow or
deny a protest within two years. Compare 19 C.F.R. § 174.21(a) (“Except [for protests relating
to exclusion of merchandise] as provided in paragraph (b) of this section, the port director shall
review and act on a protest . . . within 2 years from the date the protest was filed.”), with id.
§ 174.21(b) (“Any protest [involving exclusion of merchandise] which is not allowed or denied
in whole or in part before the 30th day after the day on which the protest was filed shall be
treated as having been denied on such 30th day for purposes of 28 U.S.C. 1581.”).
       9
           The bill provided for an additional subsection (c) to § 1515, stating:

       CONSTRUCTIVE DENIAL OF PROTEST.—Any protest which has not been allowed or
       denied in whole or in part in accordance with paragraph (a) of this section and
       which is not deemed denied in accordance with paragraph (b) of this section, shall
       be deemed to be denied after two years have elapsed from the date the protest was
       filed in accordance with [19 U.S.C. § 1514].

S. 2624, 91st Cong. § 208, 115 Cong. Rec. 19,453 (1969).
Court No. 09-00191                                                                          Page 13


                 In Knickerbocker Liquors, the Customs Court held that the end of the two-year

period described in § 1515(a) does not automatically begin the 180-day limitation period for

filing a court action under 28 U.S.C. § 2631(a)(1) where Customs has not sent a notice of denial

of the protest. 432 F. Supp. at 1349–51. The court “declined to treat [§ 1515(a)] as providing a

constructive denial of the protest.” United States v. Ataka Am., Inc., 826 F. Supp. 495, 503 (CIT

1993). “[N]ormally a notice of denial is required to trigger jurisdiction, even after the expiration

of the two-year period.”10 China Diesel, 17 CIT at 499.

                 Hitachi relies heavily on China Diesel. In that case, Customs had failed to act on

the plaintiff’s protest of the formal exclusion of its merchandise from entry into the United States

within 30 days as required by 19 C.F.R. § 174.21(b) (1992), which did not have a deemed denial

provision at the time. Id. at 498. The court concluded that “[i]n the absence of any stated reason

for the extraordinary delay occasioned by Customs in this case, the court may assume that

Customs has no reason for not acting on the protest within the time required by its own

regulations” and accordingly “presume[d] that the protest has been denied for all intents and

purposes and that jurisdiction attaches under 28 U.S.C. § 1581(a).” Id. at 499.11

                 China Diesel is not relevant here. Apart from the statutory changes that were

enacted post-China Diesel, Hitachi’s goods have not been completely and indefinitely excluded

from entry into the United States. Instead, Hitachi’s only claim is that the duties it paid upon


       10
          Only one case, in dicta, has noted that “Customs’ failure to reply to a protest within the
two-year time limit might constitute a denial of that protest.” Tikal Distrib. Corp. v. United
States, 970 F. Supp. 1056, 1064 (CIT 1997).
       11
            The delay was more than a year beyond notice of the failure to meet the regulatory
deadline.
Court No. 09-00191                                                                          Page 14


entry of its goods should be refunded. Customs has offered a reason for the delay, the need to

examine all of the issues surrounding Hitachi’s and Samsung’s similar protests and now this

lawsuit. In such a circumstance, there is no reason to presume that Hitachi’s protest is denied.

Rather, because Hitachi has not complied with the normal jurisdictional procedures, such as

requesting accelerated disposition of the protest, the court lacks jurisdiction under 28 U.S.C.

§ 1581(a). See Cherry Lane, 712 F. Supp. at 193 (holding that the passage of 110 days without

action on a protest of exclusion violated the thirty-day limit in the regulation but was not a

deemed denial under 28 U.S.C. § 1581(a) because the importer did not comply with the

applicable procedures).

                                         CONCLUSION

               Because the court lacks subject-matter jurisdiction over this action, it is dismissed

without prejudice. Hitachi may request accelerated disposition of its protest under 19 U.S.C.

§ 1515(b).12 If Hitachi’s protest is then denied or deemed denied, Hitachi may refile pursuant to

28 U.S.C. § 1581(a).13 Hitachi’s cross-motion for summary judgment is denied, and its cross-


       12
          Hitachi argues in its reply brief that an accelerated disposition of its protest under
§ 1515(b) is not possible because the two-year period has lapsed, and alternatively, that a request
for accelerated disposition would be futile. (Pl.’s Reply Br. 14–15). These arguments lack
merit. Section 1515(b) permits a request for accelerated disposition of a protest any time after
filing, and nothing prohibits an importer from filing a request after two years. See 19 U.S.C.
§ 1515(b). Although Customs might refuse to act on Hitachi’s request while the Samsung case is
pending before this Court, and it appears that Customs would deny Hitachi’s protests on the
merits, the request would not be futile because Customs’ failure to act on the protest would work
a deemed denial that the court would have jurisdiction to review under 28 U.S.C. § 1581(a). See
id.
       13
        In its reply brief, Hitachi requests a remand of Court Numbers 07-00422, 08-00128,
08-00226, 09-00056, and 09-00191 if the court determines that it lacks jurisdiction. (Pl.’s Reply
                                                                                    (continued...)
Court No. 09-00191                                                                      Page 15


motion for consolidation is denied as moot.




                                                        /s/ Jane A. Restani
                                                            Jane A. Restani
                                                            Chief Judge

Dated this 30th day of April, 2010.
New York, New York.




       13
         (...continued)
Br. 16–17.) A remand is not appropriate because the expiration of the two-year period did not
deprive Customs of power to act on the protests. See Alberta Gas Chems., Inc. v. United States,
515 F. Supp. 780, 785–86 (CIT 1981).
                                              ERRATA

Please make the following change to Hitachi Home Electronics (America), Inc. v. United States,
No. 09-00191, Slip Op. 10-46:

Page 1, counsel list: strike the following:

       •       “Sidney N. Weiss for the plaintiff.”

and replace with:

       •       “Sidney N. Weiss; The Zisser Law Group (Steven B. Zisser), of counsel, for the
               plaintiff.”


May 4, 2010.
