
    (C.A.D. 1268)
    Farrell Lines, Inc. as Successor to American Export Lines, Inc. v. The United States,
    No. 80-38
    (657 F. 2d 1214)
    
      United States Court of Customs and Patent Appeals,
    August 20, 1981,
    C.D. 4864.
    
      Nicholas H. Cobbs, attorney for appellant.
    
      Thomas 8. Martin, Acting Asst. Atty. General, David M. Cohen, Director, Joseph I. Liebman, Attorney-in-Charge, Barbara Ml Epstein, of counsel, attorneys for appellee.
    [Oral argument on May 4, 1981 by Nicholas H. Cobbs for appellant and Barbara M. Epstein, for appellee.]
    Before Market, Chief Judge, Rich, Baldwin, Miller, and Nies, Associate Judges.
    
   Miller, Judge.

This appeal is from the judgment of the United States Customs Court (hereinafter referred to as the Court of International Trade) in American Export Lines, Inc. v. United States, 85 Cust. Ct. 20, C.D. 4864 (1980), dismissing for lack of jurisdiction an action by American Export Lines, Inc. (“AEL”), to recover duties assessed on repairs made overseas to its ship, the C. V. LIGHTNING. We reverse and remand.

As described by the Court of International Trade, the repairs were necessitated by an unexpected grounding of the ship as it was departing New York for Europe. Although the ship was freed in a short time, its master anchored it for inspection. After inspection by both the crew and an American Bureau of Shipping engineer, it was found to be seaworthy, and it continued on its voyage. After docking at Bremerhaven, West Germany, there was another inspection for damage, as a result of which an American Bureau of Shipping surveyor in Bremerhaven found the ship unseaworthy and required that repairs be made before he would authorize a return voyage. After repairs were made in Amsterdam in the amount of $346,850.13, the ship returned to New York. Pursuant to section 466(a) of the Tariff Act of 1930, 19 U.S.C. 1466, duties in. the amount of $153,842.14 were assessed.

AEL contends that the casualty suffered by the C. V. LIGHTNING in running aground falls within the remission or refund provision of section 466. The Government denies that the grounding of the ship constituted a casualty within the regular course of her voyage and contends that AEL does not qualify for the remission or refund of duties authorized by section 466. Primarily at issue here are the Government’s argument that AEL failed to file a protest within ninety days after the posting of notice of liquidation and the holding of the Court of International Trade that the filing by AEL of its summons with the court was not timely.

As found by the Court of International Trade, the following is a chronological list of filings and responses between the parties:

June 27, 1974 — Vessel repair entry filed by AEL.
July 1, 1974 — Application for relief from duties on ship’s foreign repairs (no log abstract as required by 19 CFR 4.14(f) but Coast Guard report and master’s statement included) .
August 20, 1975 — Final itemized repair cost invoices filed by AEL.
October 24, 1975 — Entry liquidated (Bulletin Notice showing liquidation this date in record); bill for $153,842.14 duties sent to AEL.
November 5, 1975 — AEL letter to Commissioner of Customs, Washington, D.C., requesting cancellation of the duties.
November 6, 1975 — Copy of November 5 letter sent to Customs officials in New York. Cover letter refers to said letter as “petition .for cancellation” and requests that it be forwarded to Customs Service Headquarters in Washington, D.C.
January 7, 1976 — AEL letter to Commissioner of Customs asking for response to the November 5 letter requesting “cancellation” of duties.
February 5, 1976 — Reply from Carrier Rulings Branch of Customs Service Headquarters stating there is no record of receipt of the November 5 letter and requesting that AEL direct its petition “to this office through the involved Customs office.”
February 9, 1976 — AEL letter to Carrier Rulings Branch stating that its “petition” of November 5, 1975, was, n fact, directed “to your office through the U.S. Customs Service here in New York.” Bill lor duties attacked, and “If, however, tkere is something additional you require from us please do not kesitate to so advise.”
January 14, 1977 — Letter from Headquarters, Customs Service, Washington, D.C., to Regional Commissioner of Customs, New York, denying “petition” of AEL “seeking remission of duties”.
April 7, 1977 — AEL “supplemental petition for relief” and containing supplemental information sent to Headquarters, Customs Service, tkrougk tke Area Director of Customs, New York.
July 28, 1977 — Letter from Headquarters, Customs Service, Washington, D.C., to Area Director of Customs, New York, stating “Relief is denied” and giving a more complete analysis tkan tke January 14, 1977, letter.
September 27, 1977- — Formal protest filed by AEL, referring to decision of July 28, 1977.
October 7, 1977 — Formal protest denied because “Original Customs decision reviewed and found to be correct”.
January 30, 1978 — AEL files summons with Customs Court.

In addition to tke above, affidavits filed by AEL in opposition to tke government’s motion to dismiss establish, without contravention, that numerous informal meetings between AEL’s representatives and Customs officials took place from June of 1974 to January 24, 1977, during the course of which Customs officials (including tke Regional Counsel for tke Eastern Division) advised that AEL had ninety days in which to appeal tke denial of AEL’s petition for remission of duties by filing a formal protest; further, that at no time were they advised that AEL’s formal protest was not timely or that tke time for filing a formal protest had expired or that a formal protest should have been filed within ninety days following liquidation on October 24, 1975.

We note that, in reaching a decision on this case, the Court of International Trade said: “It cannot be disputed that confusion existed for both parties as to the proper method to obtain administrative review of the decision to impose assessment of foreign repair duties.” In such, a situation, particularly where the party seeking relief has relied upon Customs officials for guidance, dismissals should be granted sparingly. Dann v. Studebaker-Packard Corp., 288 F. 2d 201, 215-16 (6th Cir. 1961); Kingwood Oil Co. v. Bell, 204 F. 2d 8, 12-13 (7th Cir. 1953). All uncontroverted factual allegations in the complaint, along with the supporting affidavits of record, should be accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Smith v. Gross, 604 F. 2d 639, 641 n. 1 (9th Cir. 1979); O’Connor v. Yezukevicz, 589 F. 2d 16, 18 (1st Cir. 1978); Stern v. United States Gypsum, Inc., 547 F. 2d 1329, 1332 (7th Cir.), cert. denied, 434 U.S. 975 (1977); Garrett v. Bamjord, 538 F. 2d 63, 65 (3d Cir.), cert. denied, 429 U.S. 977 (1976).

Without citation to any authority, the Court of International Trade held that the decision of the Customs Service denying AEL’s petition for remission of duties was not subject to protest under 19 U.S.C. 1514(c)(2)(B). However, the record shows' that there was a notice of liquidation here, so that subparagraph (2) (A) clearly applies and, thus, subparagraph (2)(B) does not apply. Moreover, in 19 U.S.C. 1466, supra note 1, the Congress established an administrative procedure, implemented in detail by Customs Regulation 19 CFR 4.14, whereby the owner or operator of a vessel may apply for relief (remission or refund) from duties in accordance with the authority of the Secretary of the Treasury and may petition the Commissioner of Customs for review of the district director’s decision on the application. This court has held that Congress intended thereby to confer upon the Secretary the exclusive and final authority to act on such a petition and that the Court of International Trade is without jurisdiction over his action. Waterman Steamship Corp. v. United States, 30 CCPA 119, C.A.D. 223 (1942). See Sturm, Customs Law and Administration § 56.3 (1980). As the Court of International Trade pointed out, it appears that this procedure was designed to avoid unnecessary liquidations. However, there appears to be no reason why, in a case where an application has been followed by a liquidation, a petition for review of denial of the application (implied by the liquidation as recognized by the Government in its brief) cannot be considered under 19 CFR 4.14(k) of the regulation. Indeed, that is precisely the procedure followed in this case, and both the filing of the petition and supplemental petition and their consideration appear to have been in the utmost good faith of both AEL and the Customs Service. Now, however, the Government urges, in effect, that, because no protest to the liquidation of October 24, 1975, was filed within ninety days, the petition and supplemental petition for review of the district director’s decision and their consideration by the Customs Service amounted to a charade.

Rather than thus to elevate form over substance, we hold that the ninety-day period of limitations for filing a protest to the liquidation of October 24, 1975, was tolled from the date of the petition for cancellation of November 5, 1975, until the notice, dated July 28, 1977, of denial of AEL’s supplemental petition. Cf. Schering Corp. v. United States, 67 CCPA 83, 86 C.A.D. 1250, 626 F. 2d 162, 166 n.8 (1980) (unavailability of entry papers does not void an otherwise valid liquidation, but tolls the liquidation until entry papers become available for examination). We agree with AEL that tolling should run until final agency action on its supplemental petition, which elicited a more complete analysis than that provided by the Customs Service in its January 14, 1977, denial of the petition.

Since, under tolling, only seventy-three days of the ninety-day period of limitations for filing a protest had expired when AEL filed its formal protest on September 27, 1977, the protest was timely. Denial of the formal protest was under date of October 7, 1977, and filing of the summons with the Court of International Trade on January 30, 1978, was well within the 180-day period for doing so, as provided by 28 U.S.C. 2631(a) (1976).

We note that the Court of International Trade agreed with one of AEL’s arguments, namely: that the November 5, 1975, letter amounted to a timely filed “protest.” In doing so, it recognized, properly, that it is "basic to customs law that protests are not to be strictly construed.” However, that was only a Pyrrhic victory for AEL, because the Court of International Trade then held that the letter of January 14, 1977, from Headquarters, Customs Service, Washington, D.C., constituted a denial of the “protest” and began the running of the 180-day period for filing a summons with the court; that the letter of July 28, 1977, merely reaffirmed the letter of January 14, 1977, and “did not cause the 180-day statutory period to commence again”; and, finally, that the summons filed January 30, 1978, was, therefore, untimely. Our principal difficulty with this approach is that both parties consistently and in good faith treated the letters from AEL as a valid petition for remission (“cancellation”) in all of their dealings, and the formal protest of September 27, 1977, was treated as a timely protest by both parties.

(667 F. 2d 1017)

In view of the foregoing, the judgment of the Court of International Trade must be reversed and the case remanded for further proceedings consistent with this opinion.

ORDER

Appellee’s Petition for Rehearing and Appellant’s Response thereto having been considered, the petition is granted to the extent that the court’s opinion of August 20, 1981, is modified as follows (pages refer to slip opinion):

At the end of footnote 7 on page 5, add the following:

This court, in a unanimous opinion in United States v. C.J. Tower & Sons of Búfalo, Inc., 61 CCPA 90, 94, C.A.D. 1129, 499 F. 2d 1277, 1281 (1974), stated:
Section 614 [19 U.S.C. 1514] is not a jurisdiction-granting statute. Jurisdiction of the Customs Court * * * was derived from * * * 28 U.S.C. 1582, effective by virtue of the Customs Courts Act of June 2, 1970, P.L. 91-271, 84 Stat. 274 * * *.

Insert the following footnote “7.5” with the signal to follow “ (1980) ” inline 30, page 5:

We are persuaded that Waterman is no longer controlling in view of the Administrative Procedure Act (5 U.S.C. 701 et seq.) which authorizes judicial review to determine whether agency action, _ findings, and conclusions are arbitrary, capricious, or otherwise not in accordance with the law (5 U.S.C. 706). See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Littell v. Morton, 445 F. 2d 1207 (CA 4 1971); Wong Wing Hang v. Immigration and Naturalization Service, 360 F. 2d 715 (CA 2 1966); Suwannee Steamship Co. v. United States, 70 Cust. Ct. 327, C.R.D. 73-3, 354 F. Supp. 1361 (1973). Also, we are satisfied that authority granted the Secretary of the Treasury under 19 U.S.C. 1466 to remit or refund duties is not “discretion by law” for purposes of 5 U.S.C. 701(a)(2).

Insert the following footnote “10.5” with the signal at end of line 22, page 6:

It should he pointed out that on January 24, 1977, only five days after notice of the letter from Customs dated January 14, 1977, denying AEL’s petition, AEL was advised by Customs to submit supplemental documentation and that it would be considered.

At the end of footnote 12 on page 7, add the following:

Tolling in this case, on the other hand, is in harmony with the Congressional purpose to allow remission of duties on equipment and repairs of American vessels under 19 U.S.C. 1466(d) and rests on Congressional recognition that exhaustion of administrative remedies is a “basic principle of administrative law and one that has been followed m customs cases.” H.R. Rep. No. 91-267, 91st Cong., 2d Sess. 2, reprinted in [1970] U.S. CODE CONG. & AD. NEWS 3202-03. The “mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.” Leake v. Cincinnati, 605 F. 2d 255, 259 (CA 6 1979), citing American Pipe & Construction Co. v. Utah, 414 U.S. 538, 559 (1974); Guy B. Barham Co. v. United States, 35 CCPA 138, C.A.D. 385 (1948).

Insert the following footnote “13” with the signal at end of line 17, page 7:

Contrary to the dissenting opinion, the court has not overlooked or misapprehended points of law or fact. The “concept” of tolling, although not labelled as such, was clearly argued below by appellant (See Transcript of Record at 80a, 189a, 191a-192a, 205a, 239a). Moreover, any failure to do so would not be an issue on this appeal, having only been raised by the dissenting opinion and not by the Government. Contrary to the Government’s petition for rehearing, tolling was clearly argued by APT; in its brief on appeal to this court, with no objection by the Government.—
The petition for rehearing is, in all other respects, denied.
Dated: February 4, 1982.
George E. Hutchinson,
Clerk,
For the Court.

Markey, Chief Judge,

with whom Rich, Judge, joins, dissenting.

Our original opinion of August 20, 1981, is reported at 69 CCPA 1, C.A.D. 1268, 657 F. 2d 1214 (1981). We there reversed the judgment of the Court of International Trade dismissing an action by American Export Lines, Inc. (AEL) for lack of jurisdiction, 85 Cust. Ct. 20, C.D. 4864, 496 F. Supp. 1320 (1980), and remanded for further proceedings. Familiarity with the facts and the previous opinions is presumed.

The case is now before us on the Government’s petition for rehearing and AEL’s opposition thereto. I respectfully but strenuously dissent from the court’s refusal to grant a full rehearing. Upon review, I agree with the Government that there are “points of law or fact which * * * the court has overlooked or misapprehended,” CCPA Rule 6.1. For that reason, and because the case raises important questions involving sovereign immunity, the finality of liquidation, and the rules of appellate review, I would grant a full rehearing, including rebriefing and the rescheduling of oral arguments.

All the federal courts of appeals and the Supreme Court provide for petitions for rehearing, the rationale being that “a court which is final must also be careful; it must admit of the possibility that error may occur and that original decisions may not always be the best possible decisions.” D. Louisell and it. Degnan, Rehearing in American Appellate Courts, 44 Cal. L. Rev. 627, 632 (1956). As stated in Stanton v. Stanton, 429 U.S. 501, 504 (1977) (Justice Stevens dissenting in part), “Petitions for rehear'ng perform the wholesome function of providing the losing litigant with a legitimate forum for adverse comment on an adverse decision.”

In my view, this case is that rarity in which the losing litigant has raised sufficient questions to warrant granting the petition and providing for rebriefing and reargument. Though we grant rehearings sparingly, the grant has produced good results. E.g., Rion v. Ault, 482 F. 2d 948, 179 USPQ 152 (CCPA 1973); In re Prater, 56 CCPA 1381, 415 F. 2d 1393, 162 USPQ 541 (1969); In re Nelson, 47 CCPA 1031, 280 F. 2d 172, 126 USPQ 242 (1960); In re Potts, 33 CCPA 1220, 156 F. 2d 555, 70 USPQ 401 (1946).

SOVEREIGN IMMUNITY

As the Supreme Court instructed in Lynch v. United States, 292 U.S. 571, 582 (1934): “The sovereign’s immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced * * * For immunity from suit is an attibute of sovereignty which may not be bartered away.”

In the dispositive portion of our opinion, it was held that the 90-day period for filing a protest to liquidation was tolled pending administrative review of AEL’s petition and supplemental petition for cancellation of duties. 657 F. 2d at 1218. Tolling a “statute of limitations” was viewed as necessitated by the actions of Customs Service officials. That application of tolling, however, overlooked the jurisdictional aspect of the 90-day period which in my view operates with its own jurisdiction-barring force, not merely as a statute of limitations.

The United States has consented to be sued in the Court of International Trade only if certain conditions are met. If those conditions are not met, the court lacks jurisdiction to entertain a suit against the sovereign. United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. Roe, 64 CCPA 11, 15-16, C.A.D. 1177, 543 F. 2d 151, 154-55 (1976). One of those conditions is the 90-day period for filing a protest to liquidation prescribed in 19 U.S.C. 1514 (1976). As stated in 28 U.S.C. 1582(c) (1976): “The Customs Court shall not have jurisdiction of an action unless * * * a protest has been filed, as prescribed by [19 USC 1514 (1976)] * *

In Akeroyd v. United States, 19 CCPA 249, 258, T.D. 45341, cert. denied 285 U.S. 550 (1931), this court held that the failure of an importer to file a timely protest is a jurisdictional defect. More recently, in United States v. Boe, 64 CCPA at 16, 543 F. 2d at 155, this court said: “Those jurisdictional-conferring terms [in 19 U.S.C. 1514 (1976)] are mandatory, the statute having provided no room or opportunity for the exercise of discretion.”

There is a fundamental difference between a jurisdictional period and a statute of limitations. Finn v. United States, 123 U.S. 227, 232-33 (1887); Hamner v. United States, 13 Ct. Cl. 7, 14 (1877). As stated in Finn'.

The general rule that limitation does not operate by its own force as a bar, but is a defence, and that the party making such a defence must plead the statute if he wishes the benefit of its provisions, has no application to suits in the Court of Claims against the United States. An individual may waive such a defence, either expressly or by failing to plead the statute; but the Government has not expressly or by implication conferred authority upon any of its officers to waive the limitation imposed by statute upon suits against the United States in the Court of Claims. Since the Government is not liable to be sued, as of right, by any claimant, and since it has assented to a judgment being rendered against it only in certain classes of cases, brought within a prescribed period after the cause of action accrued, a judgment in the Court of Claims for the amount of a claim which the record or evidence shows to be barred by the statute, would be erroneous.

I cannot see, therefore, how rules of tolling a statute of limitations can properly be applied to toll a jurisdictional time bar.

ESTOPPEL — AGREEMENT BY PARTIES — WAIVER

The word “tolling” was never mentioned below. Neither the word nor the concept appears anywhere in the presentation made by either side to the trial court or in that court’s opinion. The sole argument made below concerning the conduct of the Customs Service was that it estopped the Government. The trial court denied that argument, quoting our holding in Air-Sea Brokers, Inc. v. United States, 66 CCPA 64, 68, C.A.D. 1222, 596 F. 2d 1008, 1011 (1979):

[W]e hold that equitable estoppel, even if available in cases involving the Government in its proprietary capacity, is not available against the Government in cases involving the collection or refund of duties on imports. [Footnote omitted]

496 F. Supp. at 1326.

Though our opinion says the Government is not estopped, 657 F. 2d at 1219 n. 12, and cites Air-Sea, it achieves the same result under a tolling rubric. I cannot reconcile the established law that actions of the Customs Service cannot estop the Government from relying on jurisdictional statutes with a holding that those same actions can “toll” those jurisdictional statutes and thus prevent the Government from relying on them.

Numerous statements in the opinion are couched in estoppel parlance. For example, there is reference to informal meetings wherein Customs employees told AEL it would have 90 days to file a formal protest after denial of its petition for remission of duties, if the petition were denied; there is the implication of some duty on Customs in the notations that AEL was not “advised” that a formal protest should have been filed within 90 days after liquidation, that the time had expired, and that a protest was untimely; there are the statements that this is a case “where the party seeking relief has relied upon Customs officials for guidance,” that “the filing of the petition and supplemental petition and their consideration appear to have been in the utmost good faith of both AEL and the Customs Service,” and that “both parties consistently and in good faith treated the letters from AEL as a valid petition for remission (‘cancellation’) in all of their dealings, and the formal protest of September 27, 1977, was treated as a timely protest by both parties [Footnote omitted].”

Implicit in the emphasis upon the parties’ actions on the petition, as the basis for reversing a dismissal for lack of jurisdiction over a challenge to liquidation, is the view that the parties here conferred jurisdiction on the court. The notion that conduct of the parties, however sloppy or misguided, can confer jurisdiction in a suit against the Government is, however, simply not the law, for it is well-settled that the parties cannot do so. As stated in United States v. Boe, 64 CCPA at 20, 543 F. 2d at 158:

However sincere and well-intentioned may be the judge, an attempt, by any couit, to exercise a non-existent jurisdiction is an exceptional circumstance of import most grave. Such an attempt tends to chip away at that particular foundation stone in our constitutional scheme described as the separation of powers. As above indicated, courts are, in a sense, chartered institutions, operating under authority granted by the representatives of the people. Lawfully conferred jurisdiction is essential. Jurisdiction cannot be presumed, Smith v. McCullough, 270 U.S. 456 (1926); Hanford v. Davies, 163 U.S. 273 (1896), or enlarged or conferred by agreement of the parties, Mitchell v. Maurer, 293 U.S. 237 (1934); S. Stern & Co. v. United States, 51 CCPA 15, C.A.D. 830, 331 F.2d 310 (1963), cert. denied, 377 U.S. 909 (1964), or by the court itself, United States v. Torch Manufacturing Co., Inc., 62 CCPA 41, C.A.D. 1143, 509 F.2d 1187 (1975). A court’s attempted exercise of power clearly beyond its charter violates its very raison d'etre. Restraint is required.

In. Akeroyd v. United States, 19 CCPA at 258, this court said: “Congress has never conferred upon the lower court jurisdiction of a case where the protest is filed too late, and has not, either expressly or by implication, conferred authority upon any of the officers of the Government to waive the limitation imposed by the statute.” That statement, in my view, is so diametrically opposed to what was done by the full court in this case as to impel a rehearing, including a rebriefing and reargument.

FINALITY OF LIQUIDATION

AEL argued below that the proper time for filing a protest is 90 days after the final decision on its application for remission of duties, rather than 90 days after liquidation. The trial court rejected that argument, finding that the time for filing a protest is 90 days after liquidation, 496 F. Supp. at 1324, and we agreed, 657 F. 2d at 1217. Nonetheless, we indicated that “there appears to be no reason why, in a case where an application [for remission] has been followed by a liquidation, a petition for review of denial of the application * * * cannot be considered under 19 CFK, 4.14 (k) * * 657 F. 2d at 1218. I would agree that such a petition can be considered, and the Secretary might recede in response thereto My difficulty resides in finding relevance of such consideration to the requirement that a timely protest to the liquidation be filed before the court shall have jurisdiction over a challenge to the liquidation.

Implicated here is the significance of liquidation, long honored in customs procedure as the final reckoning of an importer’s liability on an entry. It is defined as “the final computation or ascertainment of the duties or drawback accruing on an entry.” 19 CFK 159.1. The decision on liquidation is final and conclusive upon all parties unless a protest is filed within 90 days after notice thereof. 19 U.S.C. 1514 (1976). The statute contemplates that both the legality and correctness of a liquidation be determined via the protest procedure, and any challenge to the propriety of a liquidation (not specifically excepted) must be through the statute. United States v. Deringer, Inc. 66 CCPA 50, 55, C.A.D. 1220, 593 F. 2d 1015, 1020 (1979).

The cardinal rule of administrative review is stated in 1 Feller, U.S. Customs and International Trade Guide § 4.03[1] (1981): “Once the administrative decision represented by a liquidation is made, the importer must file such a protest in order to secure further administrative review, as well as to preserve his right to judicial review [Emphasis added; footnote omitted].” That rule follows from 28 U.S.C. 1582(c) (1976), providing that the Customs Court shall not have jurisdiction of an action unless a protest has'been filed and denied in accordance with 19 U.S.C. §§ 1514, 1515 (1976).

The statutory sequence is thus: liquidation, protest -within 90 days, administrative review, court review. The application of tolling in this case reorders that sequence, making it read: liquidation, administrative review for more than 90 days, protest, administrative review, court review. The absence of statutory authority for that reordered sequence compels my conclusion that the case should be rebriefed and reargued and that our original decision was erroneous.

The policy ramifications present here further argue for rebriefing and reargument. One such policy consideration is the risk that either the 90-day statutory period governing jurisdiction will become meaningless, or the Customs Service will be precluded from considering petitions for cancellation after liquidation. If all an importer need do is to write letters of petition to Customs after liquidation, the 90-day period would begin only after Customs firmly denied the last such petition. The only way to preserve the statutes governing jurisdiction under such circumstances would be to forbid all contact between Customs and importers after liquidation, or, what would be the same thing, for Customs to return unopened all petitions filed after liquidation.

RULES OF REVIEW

A “governing principle” of appellate review is that “a party is not entitled to claim that the court below erred in deciding a case when the basis for the assertion of error was not called to that court’s attention so as to give that court an opportunity to avoid the alleged mistake [Footnote omitted].” R. Stem, Appellate Practice in the United States §2.1, at 37 (1981). As above indicated, AEL never raised a tolling argument below. It argued, and the trial court found, that its letter to Customs dated November 5, 1975, constituted a valid, timely filed protest against the liquidation of October 24, 1975. 496 F. Supp. at 1325-26. On appeal, AEL agreed with that finding, but argued that the running of the 180-day statutory period for filing a summons under 28 U.S.C. 2631(a) (1976) should be tolled.

This court embarked on a new tolling theory, aimed not at the 180-day period for filing a summons but at the 90-day period for filing a protest to liquidation. We viewed the November 5, 1975 letter as the beginning of tolling, and the formal protest of September 27, 1977, as a valid, timely-filed protest in this case. 657 F.2d 1218-19. A rebriefing and reargument could clarify the treatment to be given the unchallenged finding that the November 5, 1975 letter constituted a protest and the effect of that finding on the 180-day period for filing a summons.

CONCLUSION

In our original opinion, we: (1) overlooked that the statutory 90-day period for filing a protest after liquidation is a jurisdictional provision, not merely a statute of limitations; (2) erected a structural conflict in the law, under which Government cannot be estopped from relying on a jurisdictional statute, and cannot confer jurisdiction or waive requirements therefor, but the actions of Government officials can “toll” a jurisdictional time requirement; (3) diminished or destroyed the significance of liquidation by recognizing a period of administrative review for more than 90 days after liquidation and before protest, contrary to established customs procedure; and (4) departed from established rules of appellate review.

I would grant a full rehearing. 
      
       The statute provides for a duty of 50 per centum to he assessed on the cost of repairs and equipment and parts therefor in a foreign port for a ship, documented under the laws of the United States, engaged or intended to engage in foreign or coasting trade; further, that if the owner or master furnishes good and sufficient evidence that the ship, while in the regular course of her voyage, was compelled by stress of weather or other casualty to put into such foreign port for repairs in order to be safe and seaworthy to reach her port of destination, the Secretary of the Treasury may remit or refund the duties. Compensation paid to members of the regular crew in connection with installation of equipment and making of repairs is not included in the cost thereof.
     
      
       AEL states that it never received a response to its application. The Government was unable to produce a copy, and an affidavit from Ross Griffin, Chief of the Carrier Control Branch, Inspection and Control Division, New York Seaport Area, United States Customs Service, merely states his “belief" that such response was given.
     
      
       There is no showing that the Customs Service ever indicated a deficiency of documentation in the July 1, 1974, application, and AEL asserts that the ship’s log abstract would have contained no information of value to the Customs Service, “since any entry pertaining to the grounding would merely note the time and place of the occurrence and duplicate the information contained in the Master’s statement.” Under such circumstances and contrary to the view of the Court of International Trade that failure to file a log abstract within ninety days of entry voided AEL’s application for relief, we are persuaded that the requirement for a log abstract was waived. In any event, the case turns on what happened after liquidation.
     
      
       The Court of International Trade states that the denial related to “another letter to Customs, repeating the information contained in the November 1975 letters, together with a request for the cancellation of the vessel repair duties.” However, the January 14, 1977, letter refers to the Regional Commissioner’s "letter of March 12,1976, submitting a petition filed by American Export Lines, Inc., under section 4.14(k) of the Customs Regulations.” It appears that the "petition” referred to was a letter (“petition for cancellation”) from AEL to the Commissioner of Customs, Washington, D.C., dated March 4,1976, which repeated the substance of AEL’s November 5,1975, letter.
     
      
       There is support for such a statement on the face of the denial of AEL’s formal protest, with the box checked for “Original Customs decision reviewed and found to be correct” and the box labelled “Untimely filed” left blank.
     
      
       Although not so labelled by the Court of International Trade, the Government's motion plus affidavits of both parties could well be considered a motion for summary judgment. In such a case, the underlying facts contained in the affidavits must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654 (1962).
     
      
       19 U.S.C. 1514(c)(2) provides, in pertinent part:
      (2) A protest of a decision, order, or finding described in subsection (a) of this section shall be filed witn such Customs officer within ninety days after but not before—
      (A) notice of liquidation or reliquidation, or
      (B) in circumstances where subparagraph (A) is inapplicable, the date of the decision as to which protest is made.
     
      
       Subparagraph (k) provides, in pertinent part:
      The owner or operator of the vessel involved * * * may file with the district director a petition addressed to the Commissioner of Customs for a review of the district director’s decision on an application claiming relief under section 3115, Revised Statutes, as amended 110 U.S.C. 1466(d)] * ° *. Such petition shall be filed within 30 days from the date of the notice of the district director’s decision * * *. When such a petition has been filed, the district director shall immediately transmit both copies thereof and the entire file to Headquarters, U.S. Customs Service, together with any comments he may desire to submit. When the Headquarters, U.S. Customs Service decision has been received the entry shall be liquidated in accordance therewith.
     
      
       “The running of the statue of limitations may be suspended by causes not mentioned in the statue it-seK” Braun v. Sauerwine, 77 U.S. (10 Wall.) 218, 223 (1869); Collins v. Woodworth, 109 F. 2d 628, 629 (6th Cir. 1940).
     
      
       See the following table:
      
        Lapsed time of 90-d period
      
      
        Action for filing protest {days)
      
      Liquidation, 10/24/75_______
      Petition for cancellation, 11/5/75.------ 12
      Denial of supp’, petition, 7/28/77_
      Formal protest file, 9/27/77........ 01
      Total lapsed time of 90-d period. 73
     
      
       19 U.S.C. 1514(b)(1) (1976) provides: “only one protest may be filed for each entry of merchandise.” There is no similar provision with respect to petitions for review of the denial of an application for remission or refund of duties.
     
      
       AEL has argued, inter alia, for relief under the theory of equitable estoppel. However, “[Ejquitable estoppel, even if available in cases involving the Government in its proprietary capacity, is not available against the Government in cases involving the collection or refund of duties on imports.” Air-Sea Brokers, Inc. v. United States, 66 CCPA 64, 68, C.A.D. 1222, 596 F. 2d 1008, 1011 (1979).
     
      
       I agree with the indication in the order filed this date that Waterman Steamship Corp. v. United States, 30 CCPA 119, C.A.D. 223 (1942) does not state the law, in view of the Administrative Procedure Act (APA). Under the APA, judicial review, limited in scope, extends to decisions made by the Secretary or his delegate under 19 USC1466 (1976), as was noted in Suwannee Steamship Co. v. United States, 70 Cust. Ct. 327, C.R.D. 73-3, 354 F. Supp. 1361 (1973).
     
      
       In the order filed this date, n. 10.5, the court continues to rely on the conduct of the parties as controlling.
     
      
       The rule is consistent with the pertinent regulations governing an application for remission. See 19 CFR 4.14(e), which reads in pertinent part: “Inasmuch as an unprotested liquidation insofar as it relates to the classification of items under [19 U.S.C. 1466(a) (1976)] is final at the expiration of 90 days, a subsequent application in regard to such classification cannot be considered in the absence of a timely protest.”
     
      
       As I now view the case, whether the November o, 1975 letter constituted a valid, timely-ftled protest cannot control the ultimate jurisdiction question here. If it was a protest, then the lower court would appear to have correctly held that AEL failed to file a summons within the statutorily-prescribed 180-day period after denial of its protest. 28 XJ.S.C. 2631(a) (1976). If it was not a protest, then AEL failed to file a protest within the statutorily-prescribed 90-day period after liquidation. Either way, the Court of International Trade and this court would appear to lack jurisdiction over this case under the statutes, and the tolling of a jurisdictional statute would appear to constitute a self-creation of jurisdiction.
     