Ford Wins on NAFTA Jurisdiction

Ford Motor Company got a win out of the Court of Appeals for the Federal Circuit yesterday. Here is the opinion. I am still in Phoenix for ICPA, so I need to be quick about this.

Basically, the case involved a 1520(d) post-entry claim. Ford made the claim within the one-year period but did not submit the required NAFTA certificates until after the one year period. The Court of International Trade held that the one-year period was jurisdictional, meaning that no claim could be made in the CIT to challenge Customs denial of the claim. This was based on two prior cases finding that the failure to make a NAFTA claim at the time of entry was not protestable.

The CAFC disagreed with the CIT on narrow grounds. Following a recent Supreme Court case, the Federal Circuit stated that the CIT had labeled the failure to submit certificates within the one-year period as "jurisdictional" incorrectly. Rather, the lack of certificates is an element of the claim to be considered by the Court but it does not deprive the Court of International Trade subject matter jurisdiction to review the denial of the protest challenging the denied 1520(d) claim.

This is a good result and makes sense. But, the CAFC was clear that it did not address the merits. That will go back to the CIT. Now the issue will be whether Customs properly denied the claim in the absence of timely certificates. That is a close question. The regulations provide the port with discretion to waive the need for some documents including certificates of origin. Given that, it appears that question will be whether Customs properly exercised its discretion when it denied the claim.

For that, we will have to wait and see what the Court says. Personally, I think it is important for Court to hear cases on their merits and to avoid placing technical obstacles in the way of litigants. But, the CO is not a court document. What is involved here is a technical obstacle to duty-free access to the U.S. That is going to get a high degree of deference from the Court. So, we will wait and see.

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