Voidance Requests Do Not Extend the 180-day Deadline for CBP Protest Challenges, says CIT

Voidance requests do not extend the 180-day deadline for challenging CBP protest denials at the Court of International Trade, said CIT in its dismissal of plaintiff Sears Holdings Management’s customs classification challenge. Sears had filed a request with CBP to void denial of its classification protest, which was denied, and a protest of CBP’s denial of its voidance request, which CBP rejected on the grounds that voidance requests are not protestable. Sears then filed suit at CIT within the 180-day period after its voidance request protest was rejected, but more than 180 days after its original protest was denied. In its decision, CIT said it has no jurisdiction over the matter because (1) voidance requests do not extend the 180-day deadline for challenges of CBP protests, so Sears’ challenge of the original protest denial was untimely filed; and (2) denials of voidance requests are non-reviewable agency actions which cannot themselves be challenged at CIT. Therefore, CIT dismissed Sears’ challenge.

According to CIT, CBP’s motion to dismiss Sears’ challenge raised the simple issue of whether voidance requests extend the 180-day statute of limitations of an action under 28 USC 1581(a), which provides for CIT challenges of CBP protest denials. According to CIT, both the statute and the Congressional record say the 180-day period for protest challenges begins on the date of the original protest denial. During the 180 days following the protest denial, parties are free to seek administrative remedies such as voidance requests “that may resolve their issues and obviate the need for judicial review, but they need to proceed quickly because if Customs has not provided the desired relief within 180 days of the original protest denial, they need to commence their actions in the Court of International Trade,” CIT said.

In the alternative, Sears said, CIT had jurisdiction under the catch-all 28 USC 1581(i) because its challenge of CBP’s rejection of its voidance request constitutes a final agency action for which there is no other adequate remedy. But CIT said it has no jurisdiction to review the voidance request protest rejection because the rejection was a non-reviewable agency action.

(Slip Op. 12-106, dated 08/10/12, Judge Gordon)