Request to Void a Protest Does Not Toll Summons Date

A statute of limitations is a tough thing. Miss filing within the provided period and you most likely lose your ability to have the case reviewed at all. This is particularly true in customs cases where an importer is trying to sue the United States. As a general principal, the U.S. government is immune from suit unless it has waived that immunity. A party that tries to take advantage of a waiver of sovereign immunity needs to satisfy the legal requirements of the waiver.

At its heart, that is what Sears Holdings Management Corp. v. United States is about. Sears filed a protest concerning the tariff classification of some footwear. Customs and Border Protection then denied the protest. At that point, the limitations period began to run giving Sears 180 days (until May 15, 2010) to file a summons in the Court of International Trade, unless something stopped the clock. Lawyers call that "tolling the period." Sears exercised its rights under 19 USC 1515(d) by requesting that Customs void the denial of the protest. Customs did not deny that request until August of 2010, at which point Sears filed a protest of that decision. Customs rejected the second protest stating that the decision not to void a denied protest is not itself protestable. Sears then filed a summons in the Court of International trade in February of 2011, within the 180-day limitations period from the date Customs rejected the second protest but after the 180-day period applicable to the first protest. The government moved to dismiss saying that the summons was time barred.

Unfortunately for Sears, Congress did not provide for tolling in section 1515(d). Rather, the law provides in section 1515(c) that "All denials of protests are effective from the date of original denial for purposes of [the statute of limitations]." According to the Court of International Trade, this language is applicable to requests for voidance, even though the language appears in the section relating to requests to set aside a protest.

And, the fact that Customs' rejection of the second protest is not itself subject to judicial review does not create a cause of action under the Court's residual jurisdiction. The Court reasoned that the decision not to void the protest was simply an unreviewable action, leaving Sears without a remdedy.


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