Heartland By-Products, Inc. v. United States

United States Court of Appeals for the Federal Circuit
2008-1245

HEARTLAND BY-PRODUCTS, INC.,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

Stanley McDermott, III, DLA Piper US LLP, of New York, New York, argued for
plaintiff-appellee. Of counsel on the brief were Daniel J. Gluck and Robert M. Klingon,
Simon Gluck & Kane LLP, of New York, New York.

Aimee Lee, Trial Attorney, International Trade Field Office, Civil Division, United
States Department of Justice, of New York, New York, argued for defendant-appellant.
With her on the brief were Jeanne E. Davidson, Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington, DC. Of counsel on the
brief was Yelena Slepak, Attorney, Office of Assistant Chief Counsel, United States
Customs & Border Protection, of New York, New York. Of counsel was Karen P. Binder,
Attorney, Office of Assistant Chief Counsel, International Trade Litigation, United States
Customs and Border Protection, of New York, New York.

Appealed from: United States Court of International Trade

Judge Judith M. Barzilay
 United States Court of Appeals for the Federal Circuit

2008-1245

HEARTLAND BY-PRODUCTS, INC.,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

Appeal from the United States Court of International Trade in case no. 03-00307,
Judge Judith M. Barzilay.
___________________________

DECIDED: June 10, 2009
___________________________

Before GAJARSA, CLEVENGER, and DYK, Circuit Judges.

DYK, Circuit Judge.

This case primarily presents the question whether our customs duty classification

decision in Heartland By-Products, Inc. v. United States, 264 F.3d 1126 (Fed. Cir. 2001)

(“Heartland II”) must be treated by the Court of International Trade as retroactive as to

entries made before our Heartland II decision. We hold that the Court of International

Trade erred in holding that our Heartland II decision was not retroactive, and we

reverse.

However, Heartland By-Products, Inc. (“Heartland”), also asserts that U.S.

Customs and Border Protection (“Customs”) acted unlawfully in liquidating or

reliquidating entries during the period between our decision in Heartland II and the
issuance of the Heartland II mandate. The United States (“the government”), as a

matter of policy, has agreed not to attempt to collect duties at the high Tariff Rate Quota

(“TRQ”) rate approved in Heartland II with respect to entries liquidated or reliquidated at

the low non-TRQ rate before the issuance of our Heartland II mandate. We conclude

that Heartland’s request for coercive relief as to these entries is moot.

BACKGROUND

This is the third time that this dispute between Heartland and Customs has come

before our court. The dispute began in 1995 when Heartland requested, and Customs

issued, a ruling letter classifying the sugar syrup Heartland planned to import as exempt

from high TRQ duties on sugar. 1 Heartland then established a sugar refining business

and began importing sugar syrup. In 1999 Customs, under 19 U.S.C. § 1625(c),

revoked its ruling letter and re-classified Heartland’s sugar syrup imports as subject to

TRQ duties. 2 This re-classification was adverse to Heartland, increasing the duty on

Heartland’s sugar syrup imports by approximately two orders of magnitude. The

revocation ruling was to become effective on November 8, 1999, sixty days after it was

issued, as provided in 19 U.S.C. § 1625(c).

Before the revocation ruling became effective, however, Heartland filed suit in the

Court of International Trade, requesting pre-importation review of the revocation ruling

1
The ruling letter, N.Y. 810328, classified the sugar syrup under
subheading 1702.90.40 of the Harmonized Tariff Schedule of the United States
(“HTSUS”). The applicable duty under this subheading was 0.35 cents per liter.
2
This revocation, HQ 961273, re-classified the sugar syrup under HTSUS
subheadings 1702.90.10/20, and consequently raised the tariff on Heartland’s imports
to 35.74 cents per kilogram. See Revocation of Ruling Letter & Treatment Relating to
Tariff Classification of Certain Sugar Syrups, 33 Cust. Bull. No. 35/36, at 41 (Sept. 8,
1999).

2008-1245 2
under 28 U.S.C. § 1581(h) and seeking to enjoin Customs from enforcing the revocation

ruling under 28 U.S.C. § 1581(i). The Court of International Trade held under § 1581(h)

that Customs’s revocation ruling was unlawful, declared that Heartland’s sugar syrup

imports should be classified as exempt from TRQ duties, but did not grant injunctive

relief (which is not authorized by § 1581(h), see 28 U.S.C. § 2643(c)(4)). Heartland By-

Prods., Inc. v. United States, 74 F. Supp. 2d 1324, 1329, 1345 (Ct. Int’l Trade 1999)

(“Heartland I”). After the Court of International Trade’s decision in Heartland I,

Heartland continued importing sugar syrup.

Our court subsequently reversed and remanded Heartland I, upholding

Customs’s revocation ruling re-classifying Heartland’s sugar syrup imports as subject to

TRQ duties. Heartland II, 264 F.3d at 1137. The Heartland II decision issued on

August 30, 2001, and the mandate issued on December 11, 2001. Heartland stopped

importing sugar syrup as of August 30, 2001.

An “entry” refers to the “documentation required . . . to be filed with the

appropriate Customs officer to secure the release of imported merchandise from

Customs custody, or the act of filing that documentation.” 19 C.F.R. § 141.0a(a).

Liquidation is “the final computation or ascertainment of the duties (not including vessel

repair duties) or drawback accruing on an entry.” 19 C.F.R. § 159.1. Customs

generally liquidates entries within one year of the date of entry. If Customs does not

liquidate an entry within one year, it is deemed liquidated at the rate asserted by the

importer. 19 U.S.C. § 1504(a)(1). Customs may extend this one-year liquidation period

for a period of up to three additional years if “the information needed for the proper . . .

classification of the imported . . . merchandise . . . or for ensuring compliance with

2008-1245 3
applicable law, is not available to the Customs Service.” 19 U.S.C. § 1504(b)(1).

Customs also may reliquidate a previously liquidated entry within ninety days of its

liquidation. 19 U.S.C. § 1501. In most cases, liquidation or reliquidation becomes final

unless the importer files a protest within 180 days after the liquidation or reliquidation.

19 U.S.C. § 1514(a), (c).

After the Court of International Trade’s October 19, 1999, decision in Heartland I,

Customs refrained from liquidating Heartland’s entries at the TRQ duty rate until our

decision in Heartland II. Most of Customs’s liquidations or reliquidations of Heartland’s

entries at the TRQ duty rate occurred after the issuance of the mandate. However,

Customs liquidated or reliquidated some of Heartland’s sugar syrup entries at the TRQ

duty rate before the Heartland II mandate issued. Heartland filed protests challenging

the TRQ liquidations and reliquidations. Customs asserts that Heartland owes more

than $65 million in TRQ duties.

After our court’s decision in Heartland II, Heartland filed a motion for entry of

judgment in the Court of International Trade, seeking a determination that Customs’s

liquidation or reliquidation of any entries made prior to the issuance of the Heartland II

mandate should not be at the TRQ rate. The Court of International Trade declined to

exercise jurisdiction under § 1581(h) and dismissed Heartland’s complaint, noting that

Heartland might be able challenge Customs’s treatment of entries made between

2008-1245 4
Heartland I and Heartland II under the provisions of § 1581(a). 3 Heartland By-Prods.,

Inc. v. United States, 223 F. Supp. 2d 1317, 1335–36 (Ct. Int’l Trade 2002)

(“Heartland III”). Heartland did not appeal this dismissal.

Heartland and Customs attempted to reach an agreement for the payment of

some of the assessed TRQ duties so as to create jurisdiction under § 1581(a), but that

attempt failed. Heartland then filed a new complaint in the Court of International Trade

under § 1581(h). Heartland challenged Customs’s treatment of entries made between

the issuance of the Court of International Trade’s decision in Heartland I and the

issuance of our mandate in Heartland II, seeking “a declaratory judgment that Customs

cannot liquidate and/or reliquidate Heartland’s entries at TRQ duty rates” and “a

preliminary and permanent injunction prohibiting Customs from liquidating and/or

reliquidating Heartland’s entries at TRQ duty rates.” Compl. ¶¶ 51–52, 57–58. The

Court of International Trade dismissed Heartland’s complaint for lack of jurisdiction.

Heartland By-Prods., Inc. v. United States, 341 F. Supp. 2d 1284, 1290 (Ct. Int’l Trade

2004) (“Heartland IV”).

Our court subsequently reversed and remanded Heartland IV, concluding that

the Court of International Trade had “ancillary jurisdiction to determine the scope and

3
While § 1581(h) gives the Court of International Trade “exclusive
jurisdiction of any civil action commenced to review, prior to the importation of the goods
involved, a ruling issued by the Secretary of the Treasury,” § 1581(a) gives the Court of
International Trade “exclusive jurisdiction of any civil action commenced to contest the
denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” To
obtain § 1581(a) jurisdiction, an importer must pay the duties as to which a protest has
been denied. 28 U.S.C. § 2637(a) (“A civil action contesting the denial of a protest . . .
may be commenced in the Court of International Trade only if all liquidated duties,
charges, or exactions have been paid at the time the action is commenced . . . .”).

2008-1245 5
effect of its prior decision in [Heartland I].” Heartland By-Prods., Inc. v. United States,

424 F.3d 1244, 1245 (Fed. Cir. 2004) (“Heartland V”).

On remand, Heartland moved for summary judgment and an order enjoining

Customs from collecting duties at the TRQ rate on Heartland’s entries. The Court of

International Trade granted Heartland’s summary judgment motion and determined that

Customs was required to liquidate at the non-TRQ duty rate any entries Heartland made

before our court’s mandate issued in Heartland II. Heartland By-Prods., Inc. v. United

States, 521 F. Supp. 2d 1386 (Ct. Int’l Trade 2007) (“Heartland VI”). The court

reasoned that “an importer must be able to rely on a favorable judgment issued

pursuant to § 1581(h)” and that retroactive liquidation or reliquidation of Heartland’s pre-

mandate entries at the TRQ duty rate would “undermine the purpose of pre-importation

review” provided by § 1581(h). Heartland VI, 521 F. Supp. 2d at 1392, 1394. The Court

of International Trade held that although it is prohibited from issuing injunctive relief in a

§ 1581(h) action by 28 U.S.C. § 2643(c)(4), 4 it has inherent authority to “issue

injunctions to protect against attempts to attack or evade” its judgments. Heartland VI,

4
28 U.S.C. § 2643 states:

(c) (1) Except as provided in paragraphs (2), (3), (4), and (5) of this
subsection, the Court of International Trade may, in addition to the
orders specified in subsections (a) and (b) of this section, order any
other form of relief that is appropriate in a civil action, including, but
not limited to, declaratory judgments, orders of remand, injunctions,
and writs of mandamus and prohibition.
....
(4) In any civil action described in section 1581(h) of this title, the Court
of International Trade may only order the appropriate declaratory
relief.
....

2008-1245 6
521 F. Supp. 2d at 1395 (quoting Heartland V, 424 F.3d at 1251). The court, however,

did not actually issue an injunctive order. 5

The government timely appealed the Court of International Trade’s Heartland VI

decision. We have jurisdiction under 28 U.S.C. § 1295(a)(5). We requested, and the

parties provided, supplemental briefing on the applicability of 19 U.S.C. § 1516(f); on

the question whether any liquidations or reliquidations were made during the period

between the issuance of our Heartland II decision and the issuance of our mandate; and

on the effect of any such liquidations or reliquidations.

We review the grant of summary judgment by the Court of International Trade

without deference. Airflow Tech., Inc. v. United States, 524 F.3d 1287, 1290 (Fed. Cir.

2008); Structural Indus., Inc. v. United States, 356 F.3d 1366, 1368 (Fed. Cir. 2004).

DISCUSSION

I

We first address the issue of whether our decision in Heartland II was retroactive

with respect to entries made by Heartland before the date the mandate issued in

Heartland II (December 11, 2001).

The general rule is that judicial decisions are retroactive. In Harper v. Virginia

Department of Taxation, 509 U.S. 86, 97 (1993), the Supreme Court held,

5
Pursuant to Rule 65(d) of the Rules of the Court of International Trade, the
court was required to issue a separate injunction order. See Ct. Int’l Trade R. 65(d)
(“Every order granting an injunction and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe in reasonable detail,
and not by reference to the complaint or other document, the act or acts sought to be
restrained.”); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 2955 (3d ed. 1995) (“These prerequisites are designed to protect those
who are enjoined by informing them of what they are called upon to do or refrain from
doing in order to comply with the injunction.”). No separate injunction order issued.

2008-1245 7
 When this Court applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and as to all
events, regardless of whether such events predate or postdate our
announcement of the rule.

See also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752–53 (1995); United States

v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982) (“The principle that statutes operate only

prospectively, while judicial decisions operate retrospectively, is familiar to every law

student.”). To the extent that the Court of International Trade held that our decision in

Heartland II was not retroactive, the court was mistaken. Under general principles of

law, judicial decisions are given retroactive effect.

Heartland does not now dispute this general rule. Instead, Heartland argues that

the pre-importation review provided by 28 U.S.C. § 1581(h) creates an exception to the

rule. It does not. The language of § 1581(h) does not indicate any congressional intent

to create an exception to the retroactivity of judicial decisions. 6 Neither does the

legislative history of § 1581(h) suggest that that provision creates such an exception.

The legislative history instead states that § 1581(h) is “a very narrow and limited

exception to th[e] rule” that the Court of International Trade “does not possess

jurisdiction to review a ruling . . . unless it relates to a subject matter presently within the

6
28 U.S.C. § 1581(h) states:
The Court of International Trade shall have exclusive jurisdiction of any
civil action commenced to review, prior to the importation of the goods
involved, a ruling issued by the Secretary of the Treasury, or a refusal to
issue or change such a ruling, relating to classification, valuation, rate of
duty, marking, restricted merchandise, entry requirements, drawbacks,
vessel repairs, or similar matters, but only if the party commencing the civil
action demonstrates to the court that he would be irreparably harmed
unless given an opportunity to obtain judicial review prior to such
importation.

2008-1245 8
jurisdiction of the United States Customs Court.” H.R. Rep. No. 96-1235, at 46–47

(1980), as reprinted in 1980 U.S.C.C.A.N. 3729, 3758. 7

Heartland also asserts that § 1581(h) would be without effect if an importer could

not rely on a decision of the Court of International Trade under § 1581(h) while that

decision is appealed. That is not the case. The effect of § 1581(h) is to allow an

importer to challenge a Customs ruling all the way through appeal before importing the

goods at issue, i.e., before a business decision is made, without engaging in the usual

entry and protest procedure. See H.R. Rep. No. 96-1235, 46 (1980), as reprinted in

1980 U.S.C.C.A.N. 3729, 3758 (describing § 1581(h) as designed to avoid injury

resulting from being “unable to obtain judicial review of a ruling by the Secretary of the

Treasury unless and until the contemplated transaction is completed, the duties are paid

and a suit is commenced”). Expedition may be requested by the importer in the Court

of International Trade and on appeal; the Court of International Trade set such an

expedited briefing schedule for Heartland I. Importing goods while an appeal of a

§ 1581(h) decision is pending is neither prohibited nor protected by § 1581(h).

7
We note that Customs’s own regulations recognize that decisions are
retroactive. Under Customs’s regulations related to “changes in classification made by
decision of either the United States Court of International Trade or the United States
Court of Appeals for the Federal Circuit,” the “principles of any court decision favorable
to the Government shall be applied to all merchandise identical with that passed on by
the court which is covered by unliquidated entries . . . .” 19 C.F.R. § 152.16(a).

2008-1245 9
 Heartland also analogizes § 1581(h) to 19 U.S.C. § 1516(f), 8 arguing that the

prospective application of judicial decisions provided in § 1516(f) should also be read

into § 1581(h). Section 1516 allows domestic interested parties to petition Customs to

correct “the appraised value, the classification, or the rate of duty” on imported

merchandise. Id. at § 1516(a). Section 1516(f) provides that when a court reviews

Customs’s decision on such a petition, the court’s decision applies only prospectively to

entries made after the date Customs publishes notice of the court’s decision. The

existence of § 1516(f) shows that Congress knew how to provide for prospectivity, and

the absence of prospectivity language in § 1581(h) suggests that Congress did not

intend to provide for it in § 1581(h). 9

For these reasons, we hold that our court’s decision in Heartland II was

retroactive with respect to entries made before the date the mandate issued in

Heartland II (December 11, 2001). The fact that a decision is retroactive does not mean

8
19 U.S.C. § 1516(f) states:

If the cause of action is sustained in whole or in part by a decision of the
United States Court of International Trade or of the United States Court of
Appeals for the Federal Circuit, merchandise of the character covered by
the published decision of the Secretary, which is entered for consumption
or withdrawn from warehouse for consumption after the date of publication
in the Federal Register by the Secretary or the administering authority of a
notice of the court decision, shall be subject to appraisement,
classification, and assessment of duty in accordance with the final judicial
decision in the action, and the liquidation of entries covering the
merchandise so entered or withdrawn shall be suspended until final
disposition is made of the action, whereupon the entries shall be
liquidated, or if necessary, reliquidated in accordance with the final
decision. Such notice of the court decision shall be published within ten
days from the date of the issuance of the court decision.
9
This dispute began as a § 1516(f) case, but Customs decided to proceed
under 19 U.S.C. § 1625 rather than § 1516(f) when revoking Heartland’s ruling letter.

2008-1245 10
that final judicial or administrative decisions are to be reopened. 10 There is no

contention here that the retroactive nature of our Heartland II decision would require or

permit Customs to reopen liquidations made before our Heartland II decision that have

become final.

II

Heartland argues that even if our Heartland II decision were retroactive, Customs

could not lawfully liquidate or reliquidate entries at the TRQ rate during the period

between the date our decision issued in Heartland II (August 30, 2001) and the date our

mandate issued (December 11, 2001). Heartland urges that it is entitled to an order

barring Customs from collecting TRQ duties pursuant to such liquidations or

reliquidations. The Court of International Trade did not address whether, if our

Heartland II decision were retroactive, Customs could liquidate or reliquidate entries at

the TRQ rate during the period between the issuance of our Heartland II decision and

the issuance of the mandate.

Before the issuance of the Heartland II decision on August 30, 2001, Customs

apparently liquidated Heartland’s entries at the low non-TRQ rate. At oral argument the

government represented that during the period between the issuance of the Heartland II

decision and the issuance of the mandate, there had been reliquidations but not

liquidations of entries at the TRQ rate. The government later admitted in its

10
See 19 U.S.C. § 1514(a); United States v. Nat’l Semiconductor Corp., 496
F.3d 1354, 1360 (Fed. Cir. 2007) (“[W]hen the time for protesting a liquidation or
voluntarily reliquidating has passed, liquidation is said to be final and conclusive as
against all claims by both the government and the importer.”); United States v. Cherry
Hill Textiles, Inc., 112 F.3d 1550, 1560 (Fed. Cir. 1997) (“In cases in which a liquidation
has become final, the government cannot seek to recover additional duties simply by
making a new liquidation of the original entry.”).

2008-1245 11
supplemental filing that Customs in fact both liquidated and reliquidated entries at the

TRQ rate during this period, presumably because Customs believed that the applicable

time period for liquidation or reliquidation would run absent prompt action. 11

In its supplemental filing, the government provided liquidation and reliquidation

figures for the period between the date our decision issued in Heartland II (August 30,

2001) and the date the mandate for that decision issued (December 11, 2001).

Heartland appears not to dispute the accuracy of the government’s figures. 12 According

to the government, during the period between the issuance of the Heartland II decision

and the issuance of the Heartland II mandate, Customs liquidated 60 entries at the TRQ

rate and reliquidated 1,380 prior liquidations at the TRQ rate.

Heartland contends that those liquidations were unlawful and that it is entitled to

an injunction barring collection of TRQ duties as to those entries. In fact, the

government’s failure to abide by the Heartland I declaratory judgment pending appeal

11
At oral argument, the government stated that “[t]o our knowledge there are
no liquidations [at the TRQ rate] prior to the mandate . . . there are reliquidations [prior
to the mandate],” Oral Argument at 47:10–20, and that “if any liquidations occurred
before the mandate, they would have occurred at the lower rate,” Oral Argument at
50:45–50, available at http://oralarguments.cafc.uscourts.gov/mp3/2008-1245.mp3. In
its subsequent supplemental filing, the government stated that “after August 30 and
before December 11, 2001 . . . Customs also liquidated 60 entries at the TRQ duty
rate.”
12
Heartland stated in its response to the government’s supplemental filing
that “Heartland has not been able to verify the correctness of [the government’s] figures,
but it has no reason to believe they are incorrect.”

2008-1245 12
appears not to have been unlawful. 13 Rather, the appropriate remedy for the failure to

comply with a declaratory judgment pending appeal seems to be provided in 28 U.S.C.

§ 2202 (a provision applicable to the Court of International Trade), which authorizes

“[f]urther necessary or proper relief based on a declaratory judgment or decree” in the

form of an injunction if an interim declaratory judgment had been ignored. See Samuels

v. Mackell, 401 U.S. 66, 72 (1971); Powell v. McCormack, 395 U.S. 486, 499 (1969) (“A

declaratory judgment can . . . be used as a predicate to further relief, including an

injunction.”); Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 245 (1952) (“A

declaratory judgment may be the basis of further relief necessary or proper against the

adverse party.”).

But we need not decide the issue raised by Heartland because we conclude that

the issue is moot. Customs has represented that because its levy of TRQ duties before

the Heartland II mandate issued was contrary to its policy of following the declaratory

judgments of the Court of International Trade during appeals of those judgments,

Customs will not seek to collect the TRQ duties it assessed in its liquidations and

13
See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155 (1963) (“The
present action, which in form was for declaratory relief and which in its agreed
substance did not contemplate injunctive relief . . . affected an Act of Congress in a
totally noncoercive fashion. . . . Pending review in the Court of Appeals and in this
Court, the Government has been free to continue to apply the statute.”); Steffel v.
Thompson, 415 U.S. 452, 471 (1974) (“[E]ven though a declaratory judgment has ‘the
force and effect of a final judgment,’ 28 U.S.C. § 2201, it is a much milder form of relief
than an injunction. Though it may be persuasive, it is not ultimately coercive;
noncompliance with it may be inappropriate, but is not contempt.” (quoting Perez v.
Ledesma, 401 U.S. 82, 125-26 (1971) (Brennan, J., concurring in part and dissenting in
part))); Steffel, 415 U.S. at 482 (“A declaratory judgment is simply a statement of rights,
not a binding order supplemented by continuing sanctions.” (Rehnquist, J., concurring));
see also Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir.
1993) (reversing a district court’s contempt finding because it was based on a
declaratory judgment rather than a court order).

2008-1245 13
reliquidations before the Heartland II mandate issued on December 11, 2001 (if there

was no timely reliquidation action after the issuance of the mandate). 14

To be sure, “a defendant’s voluntary cessation of a challenged practice does not

deprive a federal court of its power to determine the legality of the practice” unless

“subsequent events made it absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks omitted). Here we are

satisfied that this latter condition is met, because it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.” Here there will be no

future liquidation of any of Heartland’s entries since Heartland has ceased importation,

and we see no reason to doubt the government’s representation that it will not seek to

recover unpaid duties with respect to past entries liquidated or reliquidated at the TRQ

rate between our decision in Heartland II and the issuance of the mandate. There is

also no dispute as to the identity of the entries or the amount of the duties. Under these

circumstances, we conclude that this issue is moot.

Our decision does not, of course, affect the government’s right to collect TRQ

duties levied as part of liquidations and reliquidations made after the Heartland II

mandate issued, including liquidations of entries whose liquidation periods were

extended before December 11, 2001. We have specifically held that such liquidations

14
See Supplemental Brief of Customs 5 (the “general policy” of Customs is
to follow declaratory judgments); Oral Arg. at 7:11-7:21 (pre-mandate liquidations and
reliquidations “in Heartland’s favor” were proper); id. at 50:45-52:00 (pre-mandate
liquidations and reliquidations at the TRQ rate were concededly contrary to the Court of
International Trade’s declaratory judgment in Heartland I).

2008-1245 14
and reliquidations were permissible because our decision in Heartland II was

retroactive.

REVERSED

COSTS

No costs.

2008-1245 15