the agency challenging the policy even without participating in a review of their entries. The issue is whether under these conditions they must file such a brief to preserve jurisdiction. 6 . In the HMT litigation, the claimants in U.S. Shoe asserted § 1581 (i) jurisdiction before the Federal Circuit clarified in Swisher that they could have invoked an administrative procedure that would have led to a protestable decision. Even if the plaintiffs in U.S. Shoe were not aware of the potential administrative remedy, the availability of jurisdiction under § 1581 (i) has always hinged on whether the plaintiffs could have used a method that would result in § 1581(a) jurisdiction, not whether they actually used it. See Omni U.S.A., Inc. v. United States, 840 F.2d 912, 915 (Fed.Cir.1988) (<HOLDING>). 7 . Neither International Custom Products,
holding for  2241 purposes that  2255 is inadequate or ineffective only if the remedy itself is infirm not because of the movants failure to use it or to prevail under it holding that a party does not waive arbitration simply by failing to invoke it in the complaint or answer holding that it is not holding that a legal remedy is not made inadequate simply because appellant failed to invoke it within the time frame it prescribes holding that appellant failed to preserve error because it did not present appellate complaint to trial court