                  UNITED STATES COURT OF INTERNATIONAL TRADE


                                          Slip Op. 12-82


___________________________________
ROGELIO SALAZAR CAVAZOS,            :
                                    :
                  Plaintiff,        :
                                    :
      v.                            :                 Before: Richard K. Eaton, Judge
                                    :                 Consolidated Court No. 09-00125
UNITED STATES,                      :
                                    :
                  Defendant.        :
                                    :
___________________________________ :



                                MEMORANDUM AND ORDER


       [Defendant’s motion to sever and dismiss granted.]
                                                                              Dated: June 14, 2012


       Debra S. Weiss, Debra S. Weiss, Attorney at Law, for plaintiff.
        Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, United States
Department of Justice (Saul Davis) for defendant.


       Eaton, Judge: This matter is before the court on the motion of defendant the United

States, on behalf of United States Customs and Border Protection (“Customs”), to sever and

dismiss for lack of subject matter jurisdiction plaintiff Rogelio Salazar Cavazos’ (“plaintiff”)

claims challenging the denial of his North American Free Trade Agreement (“NAFTA”) post-
Court No. 09-0125                                                                                      Page 2



importation duty refund claims1 (“NAFTA Claims”). For the reasons stated below, the court

grants defendant’s motion to sever and dismiss these claims.



                                                               BACKGROUND

              In his complaint, plaintiff challenges Customs’ assessment of tariffs on thirteen entries of

nuts from Mexico entered at the Port of Hidalgo/Pharr, Texas, between June 26, 2007 and

December 28, 2007. In addition, he challenges Customs’ denial of his NAFTA Claims covering

the same entries. Compl. ¶ 1.

              Plaintiff’s entries consisted of two varieties of candied peanuts. Compl. ¶ 9.2 Upon

liquidation, 3 Customs classified the merchandise under subheading 2008.11.60 of the


                                                            
1
  Under NAFTA, an importer may seek the refund of duties at any time within one year of
importation, including after liquidation. In relevant part, 19 U.S.C. § 1520(d) (2006) provides:
              Goods qualifying under free trade agreement rules of origin
              Notwithstanding the fact that a valid protest was not filed, the Customs Service may, in
              accordance with regulations prescribed by the Secretary, reliquidate an entry to refund
              any excess duties (including any merchandise processing fees) paid on a good qualifying
              under the rules of origin set out in [19 U.S.C. § 3332], . . . for which no claim for
              preferential tariff treatment was made at the time of importation if the importer, within 1
              year after the date of importation, files, in accordance with those regulations, a claim that
              includes--
              (1) a written declaration that the good qualified under the applicable rules at the time of
              importation;
              (2) copies of all applicable NAFTA Certificates of Origin (as defined in section
              1508(b)(1) of this title), or other certificates or certifications of origin, as the case may
              be; and
              (3) such other documentation and information relating to the importation of the goods as
              the Customs Service may require.
19 U.S.C. § 1520(d) (2006). Section 3332 was also enacted as part of NAFTA.
2
  The first eleven entries were liquidated on February 15, 2008. The two remaining entries were
liquidated on June 27, 2008.
Court No. 09-0125                                                                                                                                                               Page 3



Harmonized Tariff Schedules of the United States (“HTSUS”), as “[f]ruit, nuts and other edible

parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other

sweetening matter or spirit”

              As a result of this classification, the goods were assessed a duty rate of 131.8% ad

valorem. Plaintiff filed two protests to Customs’ classification of his entries, asserting that the

merchandise was more appropriately classified as “candied nuts” under HTSUS subheading

1704.90.10. The protests were denied on September 19 and October 17, 2008, respectively.4

Had plaintiff’s protests been allowed, and the goods reclassified under subheading 1704.90.10,

the entries would have been liquidated at a rate of 40% ad valorem.

              Following liquidation of the entries, but prior to denial of his protests, plaintiff filed

NAFTA Claims seeking duty-free treatment for the merchandise.5 Compl. ¶ 61. These NAFTA

Claims were timely filed pursuant to 19 U.S.C. § 1520(d) (2006), which provides that Customs

may “reliquidate an entry to refund any excess duties . . . paid on a good qualifying” for

preferential treatment under 19 U.S.C. § 3332(a) if the importer files a claim at any time within

one year from the date of entry. Thus, the statute anticipates that NAFTA claims may be made

after liquidation.

              By his NAFTA Claims, plaintiff asserted that the merchandise qualified for duty-free

entry into the United States as “originating goods” under 19 U.S.C. § 3332(a)(1)(A). Compl. ¶

                                                                                                                                                                                               
                                                                                                                                                                                               
3
 “Liquidation means the final computation or ascertainment of duties on entries for consumption
or drawback entries.” 19 C.F.R. § 159.1 (2011).
4
 For those goods entered on June 26, 2007, plaintiff filed his protest on March 28, 2008. For the
merchandise entered on December 28, 2007, plaintiff filed his protests on August 21, 2008.
5
 On June 24, 2008, plaintiff filed NAFTA Claims for the entries entered on June 26, 2007. On
September 24, 2008, plaintiff filed NAFTA Claims for the entries entered on December 28,
2007.
Court No. 09-0125                                                                                Page 4



59. Pursuant to section 3332(a)(1)(A), “originating goods” are those that are “wholly obtained or

produced entirely in the territory of one or more of the NAFTA countries.” 19 U.S.C. §

3332(a)(1)(A). Plaintiff maintains that his merchandise qualified as for duty-free treatment as

originating goods because the peanuts used were obtained in the United States and the remaining

ingredients were obtained in Mexico.6 Compl. ¶¶ 56-58.

              Following the denial of his classification protests, plaintiff’s NAFTA Claims were denied

on November 20, 2008 and March 11, 2009, respectively. Plaintiff did not protest the denial of

his NAFTA Claims. Compl. ¶ 6. Plaintiff’s Complaint challenging the denial of the

classification protests and the corresponding NAFTA Claims was filed on September 1, 2010.

See generally Compl.7

              By its motion to sever and dismiss, defendant contends that, pursuant to 19 U.S.C. §

1514(a) and 28 U.S.C. § 1581(a) (2006), plaintiff was required to protest the denial of his

NAFTA Claims as a precondition to the court’s jurisdiction. Accordingly, defendant contends

that the court lacks jurisdiction over the NAFTA Claims because plaintiff failed to protest their

denial. Def. Mem. Supp. Mot. Dismiss (“Def.’s Mem.”) 3.




                                                            
6
 It is unclear why plaintiff did not seek NAFTA privileges upon entry of the merchandise. It
may have been because he did not have the required documentation concerning the origin of the
goods at that time. The Federal Circuit has found that pursuant to 19 C.F.R. §§ 181.11(a) and
181.32, “[i]n order to make a valid NAFTA claim, an importer must submit a written declaration
and the appropriate Certificates of Origin.” Corrpro Co. v. United States, 433 F.3d 1360, 1365
(Fed. Cir. 2006).
7
  At any time prior to Customs’ decision on the protests and within 180 days after the date of
liquidation, plaintiff could have amended his protests to include his NAFTA Claims. See 19
U.S.C. § 1514(c). Plaintiff chose not to do so in this case.
Court No. 09-0125                                                                              Page 5



                                        STANDARD OF REVIEW

       Whether jurisdiction exists is a question of law for the court. Shah Bros., Inc. v. United

States, 35 CIT ___, ___, 770 F. Supp. 2d 1367, 1370 (2011) (citing Sky Techs. LLC v. SAP AG,

576 F. 3d 1374, 1378 (Fed. Cir. 2009)). The party seeking to invoke this Court’s subject matter

jurisdiction bears the burden of establishing it. AutoAlliance Int’l, Inc. v. United States, 29 CIT

1082, 1088, 398 F. Supp. 2d 1326, 1332 (2005). To meet its burden, the plaintiff must plead

facts from which the court may conclude that it has subject matter jurisdiction with respect to

each of its claims. Schick v. United States, 31 CIT 2017, 2020, 533 F. Supp. 2d 1276, 1281

(2007) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).



                                           DISCUSSION

       Plaintiff acknowledges that he did not separately protest Customs’ denial of his NAFTA

Claims, but argues that the court nevertheless has jurisdiction over those claims for three reasons.

First, he maintains that his arguments in favor of the NAFTA Claims constitute “new grounds”

in support of his claims challenging Customs’ classification of the entries pursuant to 28 U.S.C.

§ 2638. Second, because 19 U.S.C. § 1514(c) permits only one protest to be filed for each entry,

plaintiff insists that he was precluded, and therefore excused, from filing a second protest

challenging the denial of the NAFTA Claims, which concern the same entries that were the

subject of his classification protests. Finally, plaintiff claims he was excused from protesting the

denial of his NAFTA Claims because the Port Director failed to mark a box in the letter denying

the NAFTA Claims next to a sentence reading “the denial is protestable within 180 days of the

date of this letter.” Pls.’ Resp. to Def.’s Mot. Dismiss (“Pl.’s Resp.”) 10.
Court No. 09-0125                                                                               Page 6



       A.      Plaintiff’s NAFTA Claims Are Not New Grounds Under Section 2638

       Under 28 U.S.C. § 1581(a), a prerequisite to this Court’s jurisdiction over actions

challenging Customs’ decisions is the denial of a timely-filed protest. See Epoch Design LLC v.

United States, 36 CIT __, __, 810 F. Supp. 2d 1366, 1370 (2012) (“The proper, timely filing of a

protest is thus a jurisdictional requirement; and, further, the denial, in whole or in part, of a

protest is a precondition to the commencement of an action under 28 U.S.C. § 1581(a).”)

(citations omitted). Pursuant to 28 U.S.C. § 2638, however, the court “may consider any new

ground in support of [a] civil action if such new ground – (1) applies to the same merchandise

that was the subject of the protest; and (2) is related to the same administrative decision listed in

[19 U.S.C. § 1514] that was contested in the protest.” In other words, when a plaintiff has

protested a decision by Customs for at least one reason, it may challenge that same decision in

this Court for any other reason, even if such other reason was not raised in the protest, so long as

the same merchandise is involved.

       Plaintiff maintains that the court has jurisdiction over the denial of his NAFTA Claims

because “[p]laintiff’s assertions for duty-free treatment pursuant to a trade agreement relate to

the same administrative decision that was contested in the protests, i.e., the liquidation of the

covered entries determining the tariff classification and assessing the rate of duty and amount of

duty chargeable.” Pl.’s Resp. 5. Thus, plaintiff argues that, pursuant to section 2638, his

NAFTA Claims constituted “new grounds” in support of his protests of Customs’ classification

decisions. Based on this position, plaintiff insists that he was not required to separately protest

the denial of his NAFTA Claims.

       A claim constitutes new grounds for the purposes of section 2638 when it “fall[s] within

the same category of decision raised by protests under 19 U.S.C. § 1514(a).” See Atari Caribe,
Court No. 09-0125                                                                           Page 7



Inc. v. United States, 16 CIT 588, 594, 799 F. Supp. 99, 106 (1992). As a result, in order for the

NAFTA Claims to be considered as new grounds for the previously-filed classification protests

they must relate to the same category of decision as the protests themselves. Thus, if Customs’

decisions to deny preferential treatment under NAFTA for plaintiff’s goods are distinct from its

classification of those goods, the NAFTA Claims cannot be said to constitute new grounds for

challenging Customs’ classification decisions. In that case, plaintiff would be required to protest

the denial of the NAFTA Claims as a prerequisite to this Court’s jurisdiction over the issue of

whether the merchandise qualified for the NAFTA tariff preference.8

                                                            
              8
         While Customs did not make a decision as to the eligibility of the merchandise for
NAFTA treatment prior to the filing of plaintiff’s protests, Customs’ classification of plaintiff’s
goods did affect their eligibility for NAFTA treatment. Customs denied plaintiff’s NAFTA
Claims by finding that, pursuant to 19 U.S.C. § 3332(o)(2), plaintiff’s goods did not qualify as
“originating goods” eligible for duty-free treatment under NAFTA because they were classified
under subheading 2008.11. Section 3332(o) exempts certain products from treatment as
“originating goods” under section 3332(a)(1)(A), despite their originating within a NAFTA
Country. Pursuant to section 3332(o), if a good (1) is exported from Mexico; (2) is classified
under subheading 2008.11; (3) is produced using peanuts; and (4) those peanuts are not wholly
obtained in Mexico, the good will not be treated as an “originating good” for purposes of section
3332(a)(1)(A). 19 U.S.C. § 3332(o)(2). That is, pursuant to section 3332(o), goods classified
under subheading 2008.11 and exported from Mexico consisting, at least in part, of peanuts do
not qualify for NAFTA privileges unless those peanuts were wholly obtained in Mexico.
        Because the peanuts used in producing plaintiff’s merchandise were obtained in the
United States, plaintiff’s entries would not qualify as “originating goods” if they were correctly
classified under subheading 2008.11 as “[f]ruit, nuts and other edible parts of plants.” In other
words, given Customs’ classification of the entries under subheading 2008.11 and the fact that
plaintiff’s products contained peanuts that were not wholly obtained in Mexico, plaintiff’s entries
did not qualify as “originating goods” under section 3332(a).
        On the other hand, if the entries were properly classified under HTSUS subheading
1704.90.10 as “candied nuts,” as plaintiff asserted in his protests, section 3332(o) would not be
applicable. Were that the case, the goods would qualify for duty-free treatment as “originating
goods” because all of the ingredients were obtained in either Mexico or the United States.
Hence, if the goods were reclassified in response to plaintiff’s protests, the denial of the NAFTA
Claims would have been erroneous. None of this, however, changes the result here, because
plaintiff was required to protest the denial of his NAFTA Claims themselves in order to confer
jurisdiction on the court to grant him any appropriate relief.
Court No. 09-0125                                                                                      Page 8



              In considering this case, the court is guided by the holdings in three Federal Circuit

opinions. First, in U.S. Shoe Corp. v. United States, the Court found that a “decision” is required

by Customs before a proper protest can be filed, and jurisdiction in this Court under section

1581(a) can be based on a denial of that protest. U.S. Shoe, 114 F.3d 1564, 1570 (Fed. Cir.

1997).

              Next, in Xerox Corp. v. United States, the Federal Circuit found that this Court lacked

jurisdiction over a plaintiff’s claim for a preferential tariff rate under NAFTA where the

plaintiff’s claim for NAFTA preference was raised for the first time in the protest itself. The

Federal Circuit held that the denial of a protest cannot confer jurisdiction on this Court unless the

complaint challenges a decision Customs has made prior to the protest being filed. The Court

explained that “Customs at no time expressly considered the merits of NAFTA eligibility, nor

could it without a valid claim by Xerox for such eligibility. We thus hold that it did not make a

protestable decision to deny Xerox NAFTA treatment in this case.” Xerox, 423 F.3d at 1363.

              In reaching its holding, the Court determined that the classification of goods and the

assessment of “general” rates of duty, rather than “special” rates of duty under NAFTA, does not

constitute a decision by Customs to deny NAFTA privileges when no NAFTA Claim was before

Customs at the time it assessed the general rates.9 In so holding, the Federal Circuit adopted this

Court’s finding that “[i]t is too much of a reach to construe Customs’ decision to assess
                                                            
9
  The HTSUS column providing for the “Rates of Duty” is divided into sub-columns 1 and 2.
Column 1 governs the rate of duty to be assessed against imports originating from countries with
whom the United States has normal trade relations. This column is further divided into sub-
columns labeled “General” and “Special.” Pursuant to General Note 2(c), if a good qualifies for
NAFTA preference then it is assessed the (usually lower) rate in the “special” sub-column. An
exporter can claim preferential NAFTA treatment for its entries either at the time of entry, 19
C.F.R. § 181.21, or within a year of entry, 19 U.S.C. § 1520(d). In Xerox, the plaintiff never
made a claim for a NAFTA preference before Customs, either at or post entry. As a result, it was
assessed the rate of duty from the “General” sub-column.
Court No. 09-0125                                                                                    Page 9



[General] duties as a negative decision regarding preferential NAFTA treatment.” Xerox Corp.

v. United States, 28 C.I.T. 1667, 1670 (2004) (not reported in the Federal Supplement).

              Finally, in Corrpro, the Federal Circuit again held that this Court lacked jurisdiction over

a claim for NAFTA Treatment when the plaintiff did not file a claim for NAFTA preference with

Customs until after its protest was filed. As with the plaintiff in Xerox, the plaintiff in Corrpro

filed a protest challenging Customs’ liquidation of its entries at a “general” rate. The plaintiff

had not filed a valid NAFTA Claim at the time it protested the general rate assessment. Indeed,

the plaintiff did not file its NAFTA Claim with Customs until the case challenging the denial of

the assessment protest was pending in this court, well beyond the expiration of the time for filing

a NAFTA Claim.10 This Court found that it had jurisdiction over the plaintiff’s claim,11 but the

Federal Circuit reversed. In holding that jurisdiction was lacking under section 1581(a), the

Federal Circuit found that

              the trial court’s reasoning assumed that Corrpro had made a valid NAFTA claim
              at the time of entry, even though Corrpro had not yet raised that issue. But we
              cannot attribute to Customs a decision on a NAFTA claim that did not yet exist.
              Because Customs could not have considered and did not consider the merits of
              NAFTA eligibility in the initial classification decision, it did not make a
              protestable decision [with respect to NAFTA eligibility] at that time. . . . Customs
              could not have engaged in any sort of decision-making as to NAFTA eligibility in
              liquidating the goods because Corrpro had not yet raised the NAFTA issue.

Corrpro, 433 F.3d at 1366 (emphasis added).
                                                            
10
     As noted, a NAFTA Claim must be filed within one year after entry. 19 U.S.C. § 1520(d).
11
   The merchandise in Corrpro was originally classified under a HTSUS subheading that was not
eligible for a NAFTA preference. Because of this classification, the plaintiff did not file a
NAFTA claim within a year of entry, but rather claimed the goods to be eligible for NAFTA
preferences in its protest of Customs’ classification. Subsequent to plaintiff’s commencement of
its action in this Court, Customs revoked its classification of plaintiff’s merchandise and re-
classified the merchandise. Because, as reclassified, the plaintiff’s merchandise was eligible for
NAFTA treatment, plaintiff filed its NAFTA claims with Customs at that time.
Court No. 09-0125                                                                                    Page 10



              As noted, plaintiff insists that “[s]ince the claims set forth in Plaintiff’s protests and those

asserted in his pleadings [concerning the NAFTA Claims] involve the classification, rate and

amount of duties chargeable” they concern the same administrative decision under section

1514(a)(2). Pl.’s Resp. 7. This argument fails, however, because it is inconsistent with Xerox

and Corrpro, which both held that Customs’ classification decisions at liquidation were separate

from its post-liquidation decisions concerning NAFTA eligibility. In those cases, the Court

found that a protest of the rate of duty assessed based on classification cannot support

jurisdiction in this Court over the denial of a claim for NAFTA privileges when no NAFTA

Claim was filed and no decision relating thereto was made by Customs prior to the protest. In

other words, these cases stand for the proposition that Customs cannot render a protestable

decision on NAFTA eligibility until a valid NAFTA Claim is submitted to Customs. Indeed, in

Xerox, the Court expressly rejected the idea that the mere assessment of “general” rates at

liquidation amounted to a protestable decision to deny preferential treatment under NAFTA, if

no NAFTA Claim was filed with Customs prior to the non-preferential rate being assessed.

These holdings demonstrate that Customs’ NAFTA eligibility decisions are distinct from those

regarding classification and assessment. Compare 19 U.S.C. § 1514(a)(2), with § 1514(a)(7).

              Based on the foregoing, the only protests filed by plaintiff here did not challenge

Customs’ decision to deny plaintiff’s NAFTA Claims because at the time Customs received

plaintiff’s protests he had not yet filed a valid NAFTA Claim.12 Thus, plaintiff’s failure to

submit his NAFTA Claims until after he filed the classification protests demonstrates that the

                                                            
12
  For the entries liquidated on February 15, 2008, plaintiff filed his protest on March 28, 2008.
Plaintiff’s NAFTA Claims covering those entries were not filed until June 24, 2008. Similarly,
for those entries liquidated on June 27, 2008, plaintiff filed his protest on August 21, 2008, and
his NAFTA Claims covering those entries on September 24, 2008.
Court No. 09-0125                                                                                     Page 11



protests did not relate to the category of decision found in his NAFTA Claims. See Corrpro, 433

F.3d at 1365 (“Corrpro did not submit the appropriate Certificates of Origin until 2002. Thus,

neither Customs’ initial classification decision, made in 1999, nor its liquidation of goods, made

in 2000, could have been a decision on the merits of a valid NAFTA claim, as no valid NAFTA

claim existed at that time.”). Because plaintiff failed to protest Customs’ decisions on his

NAFTA Claims, the court is without jurisdiction to hear a case based on the denial of those

claims. 13



B. Plaintiff Was Not Exempted from Filing a Protest to the NAFTA Claim Denials by the “One
Entry, One Protest” Rule

              Next, plaintiff argues that, even if he were required to separately protest the denial of his

NAFTA Claims, this second protest would have been barred by the “one entry, one protest” rule

under 19 U.S.C. § 1514(c). See 19 U.S.C. § 1514(c) (“Only one protest may be filed for each

entry of merchandise . . . .”). Section 1514(c)(1) 14 generally prohibits multiple protests being

                                                            
13
  Only the court’s jurisdiction over plaintiff’s NAFTA Claims is challenged in defendant’s
motion to sever and dismiss. There is no dispute that plaintiff timely protested Customs’
decision to classify his entries under subheading 2008.11 of the HTSUS. Accordingly, plaintiff’s
claims challenging Customs’ classification decision are properly before the court, and survive
defendant’s motion to dismiss. Although plaintiff is precluded from seeking duty-free treatment
for his entries under NAFTA, he still may be entitled to have those entries reclassified and
assessed a lower tariff rate.
14
     Section 1514(c) provides:
              Only one protest may be filed for each entry of merchandise, except that where
              the entry covers merchandise of different categories, a separate protest may be
              filed for each category. In addition, separate protests filed by different authorized
              persons with respect to any one category of merchandise, or with respect to a
              determination of origin under section 3332 of this title, that is the subject of a
              protest are deemed to be part of a single protest.
19 U.S.C. § 1514(c).
Court No. 09-0125                                                                                  Page 12



filed for the same entry of merchandise.15 Accordingly, “[w]here a plaintiff has invalidly filed a

second protest, the court lacks jurisdiction to entertain plaintiff’s claims” contained in the second

protest. Mitel, Inc. v. United States, 16 CIT. 4, 9, 782 F. Supp. 1567, 1571 (1992). Plaintiff

maintains that the bar on second protests covering the same entries means that any protest

covering the entries in question should confer jurisdiction on this Court over any claim covering

those entries, no matter when asserted. Pl.’s Resp. 9-10.

              The court is not convinced by plaintiff’s contention. Indeed, the statutory scheme

anticipates and authorizes a second protest under the facts of this case. That is, section 1514(c)

explicitly permits a second protest to the denial of a NAFTA Claim. Pursuant to the statute,

“with respect to a determination of origin under [19 U.S.C. § 3332 relating to the origin of

merchandise from a NAFTA Country]” concerning merchandise that is the subject of a prior

protest, i.e., a protest concerning classification, a second protest is permitted, and the two

protests will be “deemed to be part of a single protest.” 19 U.S.C. § 1514(c). The reason for this

exception to the “one entry, one protest rule” is clear. Without it, an importer might be required

to choose between timely protesting the liquidation of its merchandise under a particular

classification,16 or relying solely upon a claim for re-liquidation under NAFTA. This is because


                                                            
15
   If an entry contains several different categories of merchandise, one protest is permitted for
each category of merchandise. See 19 U.S.C. § 1514(c); see also N. Am. Foreign Trading Corp.
v. United States, 25 CIT 809, 813 (2001) (not reported in Federal Supplement) (“[W]hile two
protests may not be filed for the same category of merchandise, ‘it is clear that [the statute]
permits importers to file separate protests where the entry covers merchandise of different
categories.’”) (citations omitted).
16
  In other cases, the choice would be between protesting NAFTA re-liquidation or other
administrative decisions listed in 19 U.S.C. § 1514(a), such as the appraisal value of merchandise
or the refusal of drawback privileges.
Court No. 09-0125                                                                              Page 13



the time to protest classification could easily expire prior to the time to file a claim for re-

liquidation under NAFTA pursuant to section 1520(d).

        A protest of Customs’ classification must be filed within 180 days of liquidation, whereas

a protest of Customs’ denial of a claim for re-liquidation pursuant to a NAFTA Claim under

section 1520(d) must be filed within 180 days from the date of Customs’ decision to deny the

claim. See 19 U.S.C. § 1514(c)(3). A NAFTA Claim for re-liquidation can be filed anytime

within one year from entry, and decided anytime thereafter. Id. § 1520(d) (permitting a claim for

re-liquidation anytime up to one year after entry). Thus, the time limit for filing a protest to a

NAFTA Claim decision could extend more than 180 days beyond liquidation, and “[t]he

reliquidation of an entry shall not open such entry so that a protest may be filed against the

decision of the Customs Service upon any question not involved in such reliquidation.” Id. §

1514(d). Accordingly, without the provision permitting a second protest from the denial of

NAFTA Claims, an importer would be precluded from seeking judicial review of either

Customs’ classification determinations or its NAFTA determinations whenever its NAFTA

Claims are filed beyond 180 days from liquidation.

        Therefore, under 19 U.S.C. § 1514(c), plaintiff was permitted to protest the denial of the

NAFTA Claims, even though this second protest would have pertained to the same merchandise

covered by the previously-filed classification protests. Because plaintiff’s protests did not

preclude him from filing a separate protest of his NAFTA Claims within 180 days from the

denial thereof, his arguments with respect to the “one protest rule” are unconvincing, and his

failure to file a second protest deprives the court of jurisdiction over these claims.
Court No. 09-0125                                                                             Page 14



C. The Port Director’s Failure to Mark the Denial Form Does Not Excuse Plaintiff From His
Obligation to Protest the NAFTA Decision

      Finally, contrary to plaintiff’s contention, the Port Director’s failure to check the box

labeled “the denial is protestable within 180 days of the date of this letter” on the the NAFTA

Claims denial letter does not confer jurisdiction on the court. Plaintiff asserts that he justifiably

relied upon Customs’ omission in not protesting the denial of his NAFTA Claims. It is a well-

settled principle of sovereign immunity, however, that the United States can only be sued it if

waives immunity from a particular claim. U.S. JVC Corp. v. United States, 22 CIT 687, 691-92,

15 F. Supp. 2d 906 (1998) (citations omitted). More importantly, any such waiver must be

express, not implied. Id. Accordingly, statutory prerequisites for filing suit against the United

States cannot be excused on grounds of waiver or estoppel. Yancheng Baolong Biochemical

Prods. Co., v. United States, 406 F.3d 1377, 1382 (Fed. Cir. 2005) (“The Supreme Court has

found that . . . ‘[a] waiver of the Federal government’s sovereign immunity must be

unequivocally expressed in statutory text’ and ‘will not be implied.’” (quoting Lane v. Pena, 518

U.S. 187, 192 (1996))). Likewise, the subject matter jurisdiction of the court may not be

expanded by waiver or estoppel. United States v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject

matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or

waived.”). Thus, this ministerial omission cannot expand the scope of the United States’ waiver

of sovereign immunity or the Court’s subject matter jurisdiction, and plaintiff’s failure to file

valid protests of the denial of his NAFTA Claims is not excused.
Court No. 09-0125                                                                           Page 15



                                   CONCLUSION and ORDER

      Here, plaintiff had a clear legislatively determined path to having his NAFTA Claims

heard in this Court. Because he failed to take advantage of the statutory scheme and file a

separate protest of the denial of his NAFTA Claims, the court finds that it lacks jurisdiction to

hear those claims. Accordingly, it is hereby

      ORDERED that defendant’s motion to sever and dismiss is granted; it is further

      ORDERED that the claims set forth in paragraphs 53-65 of plaintiff’s Complaint are

severed and dismissed.

                                                                           /s/ Richard K. Eaton
                                                                               Richard K. Eaton

Dated: June 14, 2012
       New York, New York
                                            Errata

Rogelio Salazar Cavazos v. United States, Court No. 09-00125, Slip Op. 12-82 (June 14, 2012)

Page 3, Line 9:                            Replace “40%” with “4.5%”.
