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Appealed from: United States Court of International Trade Judge Jane A. Restani

Thomson Consumer Electronics (“Thomson”) appeals a judgment of the United States Court of International Trade dismissing its complaint for lack of jurisdiction. Thomson Consumer Elecs. v. United States, 62 F. Supp. 2d 1182 (Ct. Int’l Trade 1999). Thomson filed a complaint in the Court of International Trade for recovery of the Harbor Maintenance Taxes (“HMT”) it paid on electronic products imported in 1992 and subsequent years, invoking the court’s jurisdiction under 28 U.S.C. � 1581(i) (1994). In that complaint, Thomson alleged that the HMT as applied to imports violates the United States Constitution’s Port Preference and Uniformity Clauses. Thomson also contended that the HMT statute applicable to both exports and imports is not severable, and thus the HMT is not valid because the Supreme Court in United States v. United States Shoe Corp., 523 U.S. 360 (1998), held that the HMT, as applied to exports, violates the Export Clause of the United States Constitution. *fn1

Rather than decide the constitutionality of the HMT as applied to imports, the Court of International Trade dismissed the case for lack of jurisdiction. Thomson, 62 F. Supp. 2d at 1185. The court held that 28 U.S.C. � 1581(a) (1994), not the residual jurisdictional provision of 28 U.S.C. � 1581(i), is the proper basis of jurisdiction for Thomson’s constitutional challenge to the application of the HMT on imports. Id. at 1183. The court noted that Thomson’s imports were subject to liquidation, and that the HMT payments were duties on those imports. Id. at 1183. Moreover, the court noted that challenges to duties must be made by filing a protest of the liquidation with United States Customs Service (“Customs”) or else the liquidation is final. Id. (citing to 19 U.S.C. � 1514(c) (1994)). The court then noted that if a valid protest of a liquidation decision is filed and denied, it has jurisdiction under 28 U.S.C. � 1581(a) challenging the protest denial. Id. at 1184. Thus, the court held that jurisdiction to hear Thomson’s claim that the HMT as applied to imports violates the Constitution lay under 28 U.S.C. � 1581(a), after a valid protest of a liquidation decision is filed with Customs and denied by it. Id. In view of the fact that Thomson had not filed a protest on the liquidation of its imports, the court determined that it lacked jurisdiction under 28 U.S.C. � 1581(a). Id. at 1184. Moreover, the court held that because 28 U.S.C. � 1581(a) jurisdiction was available and provided adequate relief, it could not exercise jurisdiction under the residual jurisdictional provision, 28 U.S.C. � 1581(i). Id. at 1185. Thomson timely appealed to this court, which has jurisdiction under 28 U.S.C. � 1295(a)(5) (1994).

 
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