Hitachi Home Electronics (America), Inc. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

HITACHI HOME ELECTRONICS (AMERICA), INC.,
Plaintiff-Appellant,

v.
UNITED STATES,
UNITED STATES CUSTOMS AND BORDER
PROTECTION,
AND ROSA HERNANDEZ, Port Director,
United States Customs and Border Protection,
Defendants-Appellees.
__________________________

2010-1345
__________________________

Appeal from the United States Court of International
Trade in case no. 09-CV-0191, Chief Judge Jane A. Re-
stani.
__________________________

Decided: October 31, 2011
__________________________

SIDNEY N. WEISS, of New York, New York, argued for
plaintiff-appellant. With him on the brief was STEVEN B.
ZISSER, Zisser Customs Law Group, PC, of San Diego,
California.
2 HITACHI HOME ELECTRONICS v. US

BARBARA S. WILLIAMS, Attorney in Charge, Interna-
tional Trade Field Office, Civil Division, Commercial
Litigation Branch, United States Department of Justice,
of New York, New York, argued for the defendants-
appellees. With her on the brief were JUSTIN R. MILLER;
and TONY WEST, Assistant Attorney General, and JEANNE
E. DAVIDSON, Director, of Washington, DC.
__________________________

Before BRYSON, LINN, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN.

Dissenting opinion filed by Circuit Judge REYNA.
LINN, Circuit Judge.

Hitachi Home Electronics (America), Inc. (“Hitachi”)
appeals from the Court of International Trade’s dismissal
for lack of jurisdiction of its action seeking duty-free
treatment of certain plasma flat panel televisions made or
assembled in Mexico and imported into the United States
and seeking recovery of tariffs paid thereon. Because the
Court of International Trade correctly determined that it
lacked jurisdiction, this court affirms.

I. BACKGROUND

Hitachi imported certain plasma flat panel televisions
made or assembled in Mexico between June 1, 2003, and
December 27, 2005. Hitachi Home Elecs. (America), Inc.
v. United States, 704 F. Supp. 2d 1315, 1315-16 (CIT
2010). These televisions were liquidated as dutiable
under subheading 8528.12.72 of the Harmonized Tariff
Schedule of the United States at a rate of 5.0% ad
valorem. Id. at 1316. Hitachi claims that the televisions
should be treated as duty-free under the North American
Free Trade Agreement. Id. Hitachi filed numerous
HITACHI HOME ELECTRONICS v. US 3
protests with United States Customs and Border Protec-
tion (“Customs”), followed by actions in the Court of
International Trade. Id. at 1316-17.

On March 6, 2007, Hitachi filed its protest as to tariffs
paid on televisions imported between November 19 and
December 27, 2005. Id. at 1317. In May 2009, Hitachi
filed an action in the Court of International Trade assert-
ing jurisdiction under 28 U.S.C. § 1581(a). Id. Hitachi
contended that its protest was denied or deemed denied
under 19 U.S.C. § 1515(a) because Customs had taken
more than two years to act on its protest, or under 28
U.S.C. § 1581(i) if there was no jurisdiction under
§ 1581(a). Id. Customs moved to dismiss for lack of
jurisdiction and Hitachi cross-moved to consolidate that
case with other pending cases and for summary judgment.
Id. at 1317-18. Hitachi then argued that jurisdiction was
proper under § 1581(i) and that Hitachi was entitled to
recover the amounts protested because Hitachi’s protests
were allowed by operation of law when Customs failed to
act within the two-year period required by § 1515(a). Id.

The Court of International Trade dismissed for lack of
jurisdiction, interpreting § 1515(a) to impose neither
automatic allowance nor automatic denial of a protest,
and concluding that jurisdiction was therefore not proper
under § 1581(a) or (i). Id. at 1319-22. The Court of Inter-
national Trade noted that all Hitachi needed to do in
order to establish jurisdiction was to file for accelerated
disposition under 19 U.S.C. § 1515(b) and wait for a
maximum of thirty days. Id. at 1320.

Hitachi timely appealed the dismissal and this court
has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
4 HITACHI HOME ELECTRONICS v. US

II. DISCUSSION

A. Standard of Review

This court reviews the Court of International Trade’s
decision to dismiss for lack of jurisdiction de novo. Xerox
Corp. v. United States, 423 F.3d 1356, 1359 (Fed. Cir.
2005). The Court of International Trade based its deci-
sion on its interpretation of 19 U.S.C. §§ 1514 and 1515
and 28 U.S.C. § 1581, which interpretation this court also
reviews de novo. Id. at 1359; Goodman Mfg., L.P. v.
United States, 69 F.3d 505, 508 (Fed. Cir. 1995).

B. Possible Statutory Bases for Jurisdiction

Two provisions of 28 U.S.C. § 1581 are relevant to Hi-
tachi’s claim to jurisdiction in the Court of International
Trade. Section 1581(a) provides (emphasis added): “The
Court of International Trade shall have exclusive jurisdic-
tion of any civil action commenced to contest the denial of
a protest, in whole or in part, under § 515 of the Tariff Act
of 1930.” This section is the basis of what now appears to
be Hitachi’s alternative argument for jurisdiction, which
we address briefly after addressing Hitachi’s main argu-
ment. More relevant to Hitachi’s appeal is § 1581(i), a
catchall jurisdictional clause which provides in relevant
part:

[T]he Court of International Trade shall
have exclusive jurisdiction of any civil ac-
tion commenced against the United
States, its agencies, or its officers, that
arises out of any law of the United States
providing for . . . tariffs, duties, fees, or
other taxes on the importation of mer-
HITACHI HOME ELECTRONICS v. US 5
chandise for reasons other than the rais-
ing of revenue . . . .

Hitachi’s appeal turns on the question of whether, if
Customs fails to allow or deny a protest within the two-
year period provided by 19 U.S.C. § 1515(a), the protest is
deemed allowed by operation of law and Customs’ power
to act on the protest is expired, and whether § 1581(i)
therefore provides jurisdiction for Hitachi to recover the
duties subject to the protest.

C. Allowance by “Operation of Law”

While this court has not previously decided whether
§ 1515(a) causes all claims not denied within the two-year
period to be allowed by operation of law, we do so now
with ample guidance from the Supreme Court and our
own precedent. For the reasons discussed below, we hold
that it does not, and that Hitachi therefore failed to
establish jurisdiction under § 1581(i).

1. Time Limits, Mandatory and Directory

The Supreme Court has “long recognized that many
statutory requisitions intended for the guide of officers in
the conduct of business devolved upon them . . . do not
limit their power or render its exercise in disregard of the
requisitions ineffectual.” United States v. James Daniel
Good Real Prop., 510 U.S. 43, 63 (1993) (quotation omit-
ted). Thus, “if a statute does not specify a consequence for
noncompliance with statutory timing provisions, the
federal courts will not in the ordinary course impose their
own coercive sanction.” Id. In James Daniel Good, the
Supreme Court explained that “the failure of Congress to
specify a consequence for noncompliance with the timing
requirements [of the statute at issue] implies that Con-
gress intended the responsible officials . . . to have discre-
6 HITACHI HOME ELECTRONICS v. US

tion to determine what disciplinary measures are appro-
priate when their subordinates fail to discharge their
statutory duties.” Id. at 64-65.

In Brock v. Pierce County, 476 U.S. 253, 266, 260
(1986), in holding that the Comprehensive Employment
and Training Act’s “requirement that the Secretary ‘shall’
take action within 120 days does not, standing alone,
divest the Secretary of jurisdiction to act after that time,”
the Supreme Court observed that “[w]hen, as here, there
are less drastic remedies available for failure to meet a
statutory deadline, courts should not assume that Con-
gress intended the agency to lose its power to act.” See
also Barnhart v. Peabody Coal Co., 537 U.S. 149, 158
(2003) (“Nor, since Brock, have we ever construed a provi-
sion that the Government ‘shall’ act within a specified
time, without more, as a jurisdictional limit precluding
action later.” (emphasis added)); Regions Hosp. v. Sha-
lala, 522 U.S. 448, 459 n.3 (1998) (where statute con-
tained “shall report” provision and Secretary “[m]iss[ed]
the deadline by some years,” the “failure to meet the
deadline, a not uncommon occurrence when heavy loads
are thrust on administrators, [did] not mean that official
lacked power to act beyond it”).

In United States v. Montalvo-Murillo, 495 U.S. 711
(1990), the Supreme Court interpreted a provision of the
Bail Reform Act that reads, in relevant part:

DETENTION HEARING. – The judicial
officer shall hold a hearing to determine
whether any condition or combination of
conditions . . . will reasonably assure the
appearance of such person . . .

The hearing shall be held immediately
upon the person’s first appearance before
the judicial officer unless that person, or
HITACHI HOME ELECTRONICS v. US 7
the attorney for the Government, seeks a
continuance . . . .

Id. at 714. In Montalvo-Murillo, “[t]he sole question
presented on certiorari [was] whether . . . [the detainee]
must be released as a remedy for the failure to hold a
hearing at his first appearance.” Id. at 716. Applying
Brock, the Supreme Court held that “the word ‘shall’ in
the Act’s hearing time requirement does not operate to
bar all authority to seek pretrial detention once the time
limit has passed. Although the duty is mandatory, the
sanction for breach is not loss of all later powers to act.”
Id. at 718. As the Supreme Court further explained:

There is no presumption or general rule
that for every duty imposed upon the court
or the Government and its prosecutors
there must exist some corollary punitive
sanction for departures or omissions, even
if negligent . . . [and w]e do not agree that
we should, or can, invent a remedy to sat-
isfy some perceived need to coerce the
courts and the Government into complying
with the statutory time limits.

Id. at 717, 721.

By contrast, 18 U.S.C. § 3162(a)(2) is a statute that
actually states a consequence for failure to comply with a
time limit: “If a defendant is not brought to trial within
the time limit required . . . the information or indictment
shall be dismissed on motion of the defendant.” The
Supreme Court has confirmed that “[t]he sanction for a
violation of the [Speedy Trial] Act is dismissal . . . .”
Zedner v. United States, 547 U.S. 489, 509 (2006). Thus,
the Supreme Court has amply distinguished between
statutes that impose consequences and statutes that do
not.
8 HITACHI HOME ELECTRONICS v. US

And this court has consistently followed Supreme
Court precedent in deciding whether particular statutes
impose consequences for failure to comply with statutory
time limits. In Canadian Fur Trappers Corp. v. United
States, 884 F.2d 563 (Fed. Cir. 1989), Customs failed to
liquidate certain entries within a 90-day period, estab-
lished by 19 U.S.C. § 1504(d), following the lifting of a
suspension of liquidation. Id. at 566. The parties argued
that “once [Customs] fails to complete the liquidation
within the 90 day period, the articles must be deemed
liquidated at the rate of duty, value, quantity, and
amount of duties asserted at the time of entry by the
importer.” Id. (emphasis added). This court observed
that “[w]hile Congress included the operative language
‘deemed liquidated’ in [other parts of § 1504], no such
consequential language appears in the [relevant section
and . . .] the lack of consequential language . . . if [Cus-
toms] does not meet that time frame leads us to conclude
that Congress intended this part . . . to be only directory.”
Id.; see also U.S. Tsubaki, Inc. v. United States., 512 F.3d
1332, 1334 (Fed. Cir. 2008) (same); Am. Permac, Inc. v.
United States, 191 F.3d 1380, 1382 (Fed. Cir. 1999)
(same).

In Liesegang v. Sec’y of Veterans Affairs, 312 F.3d
1368 (Fed. Cir. 2002), this court surveyed precedent
including James Daniel Good, Montalvo-Murillo, and
Brock, and stated that “[o]ur own precedent has faithfully
applied this rule of law as formulated by the Supreme
Court . . . that, ‘even in the face of a statutory timing
directive, when a statute does not specify the conse-
quences of non-compliance, courts should not assume that
Congress intended that the agency lose its power to act.’”
Id. at 1376-77 (quoting Kemira Fibres Oy v. United States,
61 F.3d 866, 871 (Fed. Cir. 1995)); see also Gilda Indus.,
Inc. v. United States, 622 F.3d 1358, 1365 (Fed. Cir 2010)
(“[A]bsence of a consequence [in the statute] indicates . . .
HITACHI HOME ELECTRONICS v. US 9
that [the relevant subsection] is a directory provision and
not ‘mandatory.’”).

This court therefore addresses the present question
respecting § 1515(a) in view of the great weight of prece-
dent that when Congress intends there to be conse-
quences for noncompliance with statutory deadlines for
government action, it says so expressly. 1

2. No Automatic Allowance Under 19 U.S.C. § 1515(a)

i. The Plain Terms of Section 1515(a)

Hitachi argues that its protest was allowed by opera-
tion of law when Customs failed to allow or deny it within
the statutory time limit of two years. According to Hi-
tachi, “the plain meaning of the statute is that any protest
not expressly denied by Customs within two years is
allowed by Customs.” Appellant Br. 11 (capitalization
removed).

19 U.S.C. § 1515(a) provides in relevant part (empha-
ses added):

Unless a request for an accelerated dispo-
sition of a protest is filed in accordance
with subsection (b) of this section the ap-

1 The dissent argues that the cited cases involving
directory time limits do not apply because of the shorter
time limits they address. But these cases do not establish
that long time limits are mandatory and short time limits
are directory. Nor is there anything in any of these cases
from which to infer such a conclusion simply because of
the coincidence of the relatively short time periods in-
volved. To the contrary, what the cases do make clear is
that courts should not assume that Congress intended
there to be a consequence when the statute does not
expressly so state.
10 HITACHI HOME ELECTRONICS v. US

propriate customs officer, within two years
from the date a protest was filed in accor-
dance with section 1514 of this title, shall
review the protest and shall allow or deny
such protest in whole or in part. Thereaf-
ter, any duties, charge, or exaction found
to have been assessed or collected in ex-
cess shall be remitted or refunded and any
drawback found due shall be paid . . . .
Notice of the denial of any protest shall be
mailed . . . [and] shall include a statement
of the reasons for the denial, as well as a
statement informing the protesting party
of his right to file a civil action contesting
the denial of a protest . . . .

According to Hitachi, the use of the phrase “shall al-
low or deny” in § 1515(a) means that in the absence of any
express denial, a protest is automatically allowed after
two years have passed.

Nothing in the language of § 1515(a) supports Hi-
tachi’s position. While the statute contains the word
“shall,” all of the cases discussed above make clear that
this is not enough to impose a specific penalty for non-
compliance. There is no statement of any consequence in
the event that Customs does not act.

Hitachi’s argument is premised on the view that the
same statutory language which establishes that Com-
merce must act within two years also establishes the
consequence of inaction because § 1515(a) “does not offer
Customs the option of permitting the protest to go unde-
cided.” Appellant Br. 12. But this argument, if true,
would mean that there is no such thing as a directory
provision because every expired statutory time limit
would be deemed to have been satisfied “by operation of
law.”
HITACHI HOME ELECTRONICS v. US 11
Hitachi attempts to avoid the precedent cited above
by arguing that “allow” does not require any action by
Customs because “allow” can simply mean to permit to
happen by doing nothing. Hitachi supports this position
by arguing that § 1515(a) specifically establishes that
denials require Customs to give formal notice whereas
allowances do not require Customs to do anything. But
the statute says “allow or deny” with no indication that
either result is caused by inaction. Moreover, § 1515(a)
actually contains two distinct and parallel statements of
what Customs is required to do in the event that it allows
or denies a protest respectively: give back excess money if
it allows the protest or explain its reasons if it denies the
protest. Both of these requirements are equally predi-
cated on Customs having affirmatively done something: to
wit, allow or deny a protest. 19 U.S.C. § 1515(a). Hi-
tachi’s “allow means do nothing” argument is therefore
unhelpful.

Moreover, § 1515(a) requires the refund of money
“found to have been assessed or collected in excess” (em-
phasis added). Thus the statute predicates allowance on
an affirmative finding of excessive payment. Hitachi’s
rule, it appears, would require this court to adopt a fur-
ther rule that § 1515(a) allows for Customs to find exces-
sive payment “by operation of law.” We decline to adopt
such a rule.

ii. Relevance of Section 1515(b)

Hitachi’s reading of § 1515(a) is further rebutted by
the following subsection, 1515(b), which provides (empha-
ses added):

A request for accelerated disposition of a
protest filed in accordance with section
1514 of this title may be mailed . . . any
time concurrent with or following the fil-
12 HITACHI HOME ELECTRONICS v. US

ing of such protest. For purposes of sec-
tion 1581 of Title 28, a protest which has
not been allowed or denied in whole or in
part within thirty days following the date
of mailing . . . of a request for accelerated
disposition shall be deemed denied on the
thirtieth day following mailing of such re-
quest.

The related regulation, 19 C.F.R. § 174.22(d), provides
(emphases added):

If the port director fails to allow or deny a
protest which is the subject of a request
for accelerated disposition within 30 days
from the date of mailing of such request,
the protest shall be deemed to have been
denied at the close of the 30th day follow-
ing such date of mailing.

Section 1515(b) disproves Hitachi’s reading of
§ 1515(a). First, it shows an example of a specific time
limit (thirty days) with a specific consequence (deemed
denial). And it does so in the very next subsection follow-
ing that into which Hitachi wishes to read a consequence
that is not there. Thus, it is not necessary to guess about
how Congress would have written an express consequence
into § 1515 because that is exactly what Congress did.
Second, § 1515(b) establishes that a protest can be denied,
at least for jurisdictional purposes, by inaction and with-
out any notice.

Also, § 1515(b) defeats Hitachi’s argument by proving
that Congress actually did provide a specific remedy, at
the option of the importer, to obtain jurisdiction a mere
thirty days after filing its protest and any other time it
wishes after that. Moreover, the specific remedy that
Congress intended to provide, which it did expressly, was
HITACHI HOME ELECTRONICS v. US 13
not a deemed allowance but a deemed denial—which
casts an especially ironic light on Hitachi’s argument that
subsections 1515(a) and (b) must be interpreted “in pari
materia.” Appellant Br. 19.

Hitachi next argues that using § 1515(b) to obtain ju-
risdiction under § 1581(a) does not provide an adequate
remedy because § 1515(b) is no longer available after the
two-year period has expired. For at least the following
reasons, Hitachi’s argument is wrong.

First, Hitachi’s view that expiry of the two-year period
eliminates the § 1515(b) option contradicts the plain
language of that provision, which expressly states that
the option is available “any time concurrent with or fol-
lowing the filing of [a] protest” (emphasis added).

Second, the supposed expiry of § 1515(b) is premised
on Hitachi’s claim that § 1515(a) automatically allows all
pending protests after two years and deprives Customs of
the power to act on them: “[O]nce the protest is two or
more years old there is nothing left to ‘accelerate.’” Appel-
lant Br. 20. Hitachi’s argument thus appears to be that
§ 1515(a) must automatically allow protests after two
years because § 1515(b) no longer applies after two years
because § 1515(a) automatically allows protests after two
years. The circularity of Hitachi’s reasoning is self-
evident.

iii. Legislative History

Hitachi also argues that the legislative history sup-
ports its reading of § 1515(a). Hitachi relies heavily upon
the fact that Congress rejected the Government’s proposal
for deemed denial to be the express consequence of a two-
year delay. Hitachi cites a number of passages from the
legislative history that support the (undisputed) view that
Customs is required to act within two years, and that §
14 HITACHI HOME ELECTRONICS v. US

1515(b) safeguards access to judicial review. But none of
this speaks directly to whether § 1515(b) is available after
two years have elapsed, or to whether there is a conse-
quence when Customs fails to meet the required deadline.

Thus, Hitachi’s legislative history argument is essen-
tially just that the removal of the proposed constructive-
denial provision in favor of an express notice requirement,
along with the absence of a formal notice of allowance
requirement, must mean that Congress intended protests
to be deemed allowed after two years. Hitachi’s reading of
the legislative history stands or falls with its reading of
the statute itself, and is contrary to the precedent dis-
cussed above. If Congress intended, in abandoning one
automatic provision, to adopt another opposite automatic
provision, it would presumably have mentioned its intent
somewhere in the legislative history, to say nothing of the
statute itself.

Hitachi has identified nothing in the legislative his-
tory to compel reading “deemed allowance” into
§ 1515(a)—whose plain terms lack any such conse-
quence—and this court therefore declines to do so. 2

2 The dissent relies heavily on the legislative his-
tory to the same end as Hitachi. First, the statute unam-
biguously lacks any “deemed allowance” provision. And
“we need not resort to legislative history when a statute is
unambiguous.” Pequignot v. Solo Cup Co., 608 F.3d 1356,
1361-62 (Fed. Cir. 2010). Moreover, the dissent cites no
passage in all the legislative history that can be fairly
read as a statement of Congressional intent to treat stale
claims as allowed by operation of law. Rather, the dissent
argues convincingly what is not in dispute: that Con-
gress’s adoption of the current statute was a rejection of
automatic denial. The dissent’s argument appears to be
predicated on an unstated and false premise that Con-
gress had only two choices—automatic denial and auto-
matic allowance—and that if Congress rejected one, it
HITACHI HOME ELECTRONICS v. US 15

iv. No Automatic Allowance and No Section 1581(i) Juris-
diction

Hitachi asks this court to ignore the weight of prece-
dent, the plain language of the statute, and the conspicu-
ous absence of any expression of Congressional intent to
create an implied automatic allowance provision. We hold
that Customs’ failure to act on a protest within the two-
year period specified in 19 U.S.C. § 1515(a) does not result
in a deemed allowance by operation of law.

Hitachi’s primary argument that jurisdiction is proper
under § 1581(i) is premised on the conclusion that
§ 1515(a) has already allowed Hitachi’s protest by opera-
tion of law. Section 1581(i) only provides jurisdiction in
cases where the other provisions of § 1581 do not provide
jurisdiction. See Miller & Co. v. United States, 824 F.2d
961, 963 (Fed. Cir. 1987) (“Section 1581(i) jurisdiction
may not be invoked when jurisdiction under another
subsection of § 1581 is or could have been available,
unless the remedy provided under that other subsection
would be manifestly inadequate.”). Because Hitachi’s
claim had not already been allowed or denied, Hitachi
could have sought accelerated disposition at any time,
waited thirty days, and established jurisdiction under §
1581(a). Therefore jurisdiction under § 1581(a) is not
“manifestly inadequate” and jurisdiction under § 1581(i)
is improper. The Court of International Trade correctly
found that it lacked jurisdiction under § 1581(i).

D. No Other Basis for Jurisdiction

Hitachi argues that if its protest was not allowed by
operation of law, then it is nevertheless entitled to juris-

necessarily adopted the other. In reality, Congress faced
no such dilemma.
16 HITACHI HOME ELECTRONICS v. US

diction under § 1581(a) or (i) because otherwise it will be
deprived of its right to judicial review due to Customs’
refusal to act. This argument ignores the remedy avail-
able to Hitachi under § 1515(b) and is therefore without
merit.

III. CONCLUSION

For the foregoing reasons, the Court of International
Trade’s dismissal for lack of jurisdiction is affirmed.

AFFIRMED
 United States Court of Appeals
for the Federal Circuit
__________________________

HITACHI HOME ELECTRONICS (AMERICA), INC.,
Plaintiff-Appellant,

v.
UNITED STATES,
UNITED STATES CUSTOMS AND BORDER
PROTECTION, AND
ROSA HERNANDEZ, PORT DIRECTOR, UNITED
STATES CUSTOMS AND BORDER PROTECTION,
Defendants-Appellees.
__________________________

2010-1345
__________________________

Appeal from the United States Court of International
Trade in Case No. 09-CV-0191, Chief Judge Jane A.
Restani.
__________________________

REYNA, Circuit Judge, dissenting.
I believe that 19 U.S.C. § 1515(a) requires Customs to
act on the merits of all protests within two years, and that
all protests not expressly denied within that two-year
period are allowed by operation of law. Because I would
find Hitachi’s protests at issue were therefore allowed but
its duties were not refunded, I would reverse the Court of
International Trade (“CIT”) and find that it had jurisdic-
HITACHI HOME ELECTRONICS v. US 2

tion under 28 U.S.C. § 1581(i) to address Hitachi’s claims
for refunds. I respectfully dissent.

I. BACKGROUND
Hitachi commenced this action seeking to recover du-
ties, plus interest, paid upon entries of plasma flat-panel
televisions made in Mexico. Hitachi timely filed claims at
Customs for refund of excessive duties paid pursuant to
19 U.S.C. § 1520(d), alleging that the televisions were
eligible for duty-free treatment under the NAFTA rules of
origin. Customs denied the claims and Hitachi filed
protests with Customs under 19 U.S.C. § 1514. Ten
separate protests related to the televisions were filed by
Hitachi between May 16, 2005 and March 6, 2007, but
after more than two years, none of the protests were
either allowed or denied by Customs.

The jurisdiction of the Court of International Trade
(“CIT”) is defined by 28 U.S.C. § 1581. Section 1581(a)
gives the CIT exclusive jurisdiction over “any civil action
commenced to contest the denial of a protest . . . .” Sec-
tion 1581(i) provides residual jurisdiction to the CIT,
including jurisdiction to hear claims relating to “admini-
stration and enforcement” of protests and refunds. The
central issues in this case are whether 19 U.S.C. § 1515(a)
requires Customs to affirmatively act on all protests
within two years, and whether all protests not expressly
denied within that two year time period are allowed by
operation of law. Depending upon how § 1515 is inter-
preted, jurisdiction may or may not exist under § 1581(a)
or § 1581(i). If § 1515 causes undecided protests to be
deemed denied after two years, jurisdiction exists under
§ 1581(a) to challenge the denial, but if § 1515 causes
undecided protests to be allowed by operation of law,
jurisdiction exists under § 1581(i) to compel a refund. If
3 HITACHI HOME ELECTRONICS v. US

§ 1515 imposes no obligation on Customs to decide pro-
tests within two years, jurisdiction does not exist on
either basis.

Section 1515 provides in relevant part as follows:

§1515. REVIEW OF PROTESTS

(a) Administrative review and modification of de-
cisions

Unless a request for an accelerated disposition of
a protest is filed in accordance with subsection (b)
of this section the appropriate customs officer,
within two years from the date a protest was
filed . . . , shall review the protest and shall
allow or deny such protest in whole or in
part. Thereafter, any duties, charge, or exaction
found to have been assessed or collected in excess
shall be remitted or refunded . . . . Upon the re-
quest of the protesting party, . . . a protest may be
subject to further review by another appropriate
customs officer, under the circumstances and in
the form and manner that may be prescribed by
the Secretary in regulations, but subject to the
two-year limitation prescribed in the first
sentence of this subsection . . . . Notice of the
denial of any protest shall be mailed in the form
and manner prescribed by the Secretary. Such no-
tice shall include a statement of the reasons for
the denial, as well as a statement informing the
protesting party of his right to file a civil action
contesting the denial of a protest under section
1514 of this title.
HITACHI HOME ELECTRONICS v. US 4

(b) Request for accelerated disposition of protest

A request for accelerated disposition of a protest
filed in accordance with section 1514 of this title
may be mailed by certified or registered mail to
the appropriate customs officer any time concur-
rent with or following the filing of such protest.
For purposes of section 1581 of title 28, a protest
which has not been allowed or denied in
whole or in part within thirty days following
the date of mailing by certified or registered
mail of a request for accelerated disposition
shall be deemed denied on the thirtieth day fol-
lowing mailing of such request.

(emphases added).

The CIT dismissed Hitachi’s complaint for lack of ju-
risdiction under either § 1581(a) or § 1581(i). Hitachi
Home Elecs., Inc. v. United States, 704 F. Supp. 2d 1315
(Ct. Int’l Trade 2010) (“CIT Op.”). In particular, the CIT
found that § 1515(a) does not specify a consequence—
either allowance or denial—for Customs’ failure to decide
a protest within two years, and that therefore the statu-
tory deadline was not mandatory. Id. at 1319. According
to the CIT, § 1515(a) does not deprive Customs of the
power to act on a protest after the two year period. Id.
The CIT also found that § 1515(b)’s accelerated disposi-
tion procedure was and is available to Hitachi to secure a
“deemed denial” of its protest and thereby jurisdiction
pursuant to § 1581(a). Id. at 1320. The CIT thus held it
would be inappropriate to invoke jurisdiction under
§ 1581(i) without first following the protest and denial
procedures provided in § 1515(b). Id. (citing Hartford
Fire Ins. Co. v. United States, 544 F.3d 1289 (Fed. Cir.
2008) (“While this court has described subsection
5 HITACHI HOME ELECTRONICS v. US

1581(i) as a broad residual jurisdictional provision, we
have in the same breath said that the unambiguous
precedents of this court make clear that its scope is
strictly limited, and that the protest procedure cannot be
easily circumvented.”) (citations and internal quotation
marks omitted)).
II. DISCUSSION
This court reviews questions regarding the CIT’s ju-
risdiction de novo. Retamal v. U.S. Customs & Border
Prot., 439 F.3d 1372, 1375 (Fed. Cir. 2006). The proper
interpretation of § 1515(a) is an issue of first impression
for this court. This pure legal issue of statutory interpre-
tation is also reviewed de novo. Cemex, S.A. v. United
States, 384 F.3d 1314, 1319 (Fed. Cir. 2004).

By its plain language § 1515(a) establishes a two-year
time limit by which Customs “shall review the protest and
shall allow or deny such protest in whole or in part.” Not
once but twice within § 1515(a) Congress indicated that
Customs’ review and decision obligations are “subject to
the two-year limitation.” It is clear that Congress im-
posed a meaningful two-year deadline upon Customs.
The real question is what happens when Customs simply
fails to do what the statute says it “shall” do within that
period. While the CIT found that there is simply no
consequence—that Customs is free to indefinitely delay
making any decision on the merits of a protest—such a
construction cannot be right because it renders § 1515(a)
meaningless and frustrates Congress’ intent for protest
administration.

In this case, the use of the word “shall” in the statute
is mandatory. Congress clearly indicated that § 1515(a)
was intended to facilitate meaningful review of all pro-
tests—by Customs, not the courts—within the two year
HITACHI HOME ELECTRONICS v. US 6

time period. Congress intended for Customs to lose the
power to act after the expiration of the two year time
period, and the plain meaning of the statutory language
shows that if Customs failed to decide any protests within
two years, those protests would be allowed by operation of
law.

A. The Two-Year Deadline of § 1515(a) is Mandatory

Use of the word “shall” in a statute can indicate a
mandatory compulsion which, if not followed, negates
action otherwise authorized by the statute. See, e.g.,
Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (statute requir-
ing that probationers “shall forthwith be taken before the
court” for a hearing was a mandatory prerequisite for
revocation of sentence suspension); French v. Edwards, 80
U.S. 506, 511 (1872) (statute authorizing judicial sales of
real property required that the sheriff “shall only sell the
smallest quantity that any purchaser will take, and pay
the judgment and all costs” was mandatory prerequisite
for valid sale). 1 This appeal presents such a statute.

1 The Supreme Court often finds that the word
“shall” removes all discretion to satisfy the statutory
obligations. See, e.g., Nat'l Ass'n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 661, 669 (2007) (stat-
ute providing that the EPA “shall approve” a transfer
application under certain circumstances was “manda-
tory”); Lopez v. Davis, 531 U.S. 230, 241 (2001) (contrast-
ing “may” and “shall” clauses within a statute, and
finding that “Congress used ‘shall’ to impose discre-
tionless obligations, including the obligation to provide
drug treatment when funds are available”); Lexecon Inc.
v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
36-37 (1998) (statute providing that transferred actions
“shall be remanded by the panel at or before the conclu-
sion of such pretrial proceedings” places an “obligation” on
7 HITACHI HOME ELECTRONICS v. US

Of course, the presence of the word “shall,” while a
strong suggestion of mandatory meaning, is not always
dispositive. Escoe, 295 U.S. at 493. The Supreme Court
has found in certain cases that an agency’s failure to do
within a prescribed time period what a statute says it
“shall” does not cause that agency to lose the power to act
after the time period expires. See, e.g., United States v.
James Daniel Good Real Prop., 510 U.S. 43, 63 (1993)
(statute required that customs agents “report immedi-
ately” all seizures and violations, which shall then be
“report[ed] promptly” to the U.S. attorney who shall
“forthwith” initiate appropriate proceedings); United
States v. Montalvo-Murillo, 495 U.S. 711, 714 (1990)
(statute required that a criminal bail hearing “shall be
held immediately upon the person’s first appearance
before the judicial officer”); Brock v. Pierce Cnty., 476 U.S.
253, 256 (1986) (statute provided that Secretary of Labor
“shall investigate” and “shall” determine the truth of any
allegation of misused funds within 120 days). The major-
ity relies on these and other such cases for the proposition
that the absence of an expressly recited consequence for
inaction makes a prescribed time period directory, not
mandatory.

None of the cases relied upon by the majority are ap-
plicable precedent for this appeal, however. First, those
cases did not construe § 1515, a statute that carries its
own distinct language and policy objectives, and which
this court presently interprets as a matter of first impres-
sion. Second, all of those cases involved statutory time
limits of a fundamentally different character than the
two-year protest review period in § 1515(a). The longest
time limit involved in any of the statutes in those cases

the panel to remand accordingly, “and no exercise in
rulemaking can read that obligation out of the statute”).
HITACHI HOME ELECTRONICS v. US 8

was 120 days. See, e.g., James Daniel Good Real Prop.,
510 U.S. at 63 (“immediately,” “promptly,” “forthwith”);
Montalvo-Murillo, 495 U.S. at 714 (“immediately”); Brock,
476 U.S. at 256 (“120 days”). The short time limits in the
respective statutes were plainly intended to “spur” the
agency to take prompt action in various contexts. See
Brock, 476 U.S. at 265; see also Gilda Indus. v. United
States, 622 F.3d 1358, 1363-65 (Fed. Cir. 2010). Strict
adherence to the statutory time periods would have
frustrated a larger policy objective by taking away the
agency’s power to act under the same statute that plainly
encourages the agency to take action. See, e.g., James
Daniel Good Real Prop., 510 U.S. at 65 (“It would make
little sense to interpret directives designed to ensure the
expeditious collection of revenues in a way that renders
the Government unable, in certain circumstances, to
obtain its revenues at all.”); Montalvo-Murillo, 495 U.S. at
720 (“[T]here is no reason to bestow upon the defendant a
windfall and to visit upon the Government and the citi-
zens a severe penalty by mandating release of possibly
dangerous defendants every time some deviation from the
strictures of § 3142(f) occurs.”); Brock, 476 U.S. at 265 (“It
would be very odd if Congress had implemented that
intent by cutting off the Secretary's authority to correct
abuses just 120 days after learning of them.”).

Section 1515(a), by contrast, involves a time period of
two whole years for Customs to complete its substantive
review of protests. This period is immensely longer than
those in the cases relied upon by the majority, and is more
like a statute of limitations than a provision to spur
Customs to quick action. 2 As explained below, at the time

2 The majority correctly points out that the cases
“do not establish that long time limits are mandatory and
short time limits are directory.” Maj. Op. at 9 n. 1. The
9 HITACHI HOME ELECTRONICS v. US

of § 1515’s enactment 90 days was believed to be suffi-
cient for nearly all protests to be fully reviewed and
decided. The two-year period was intended to facilitate
meaningful administrative review of protests by ensuring
that action, prompt or otherwise, is absolutely taken by
Customs within two years. Given this legislative purpose
for § 1515(a), the word “shall” must be read as mandatory,
and to remove Customs’ power to act after two years. To
the extent this result may be characterized as a “coercive
sanction,” James Daniel Good Real Prop., 510 U.S. at 63,
such was Congress’ intended design for Customs’ protest
review procedures.

1. Congress Intended for Customs to Lose
the Power to Act on Protests After Two
Years

The background and legislative history of § 1515 dem-
onstrates the strict and mandatory nature of the two-year
time period for protest review and disposition.

a. Pre-1970 Protest Legislation and Cus-
toms Practice

Prior to 1970, § 1515 provided that Customs had
ninety days to review protests. See 19 U.S.C. § 1515
(1965); Tariff Act of 1930, Pub. L. No. 71-361, § 515, 46
Stat. 590, 734. Any denied protests were automatically
transferred to the United States Customs Court for

shorter time periods in those cases are not so much a
“coincidence” as a result of the common policy objective
that underlie the statutes—spurring the agencies to take
quick action. Id. It is the different policy objective behind
§ 1515(a) that primarily distinguishes this appeal from
those cases, but the drastically different time periods
alone are nevertheless indicative of the divergent pur-
poses of the statutes.
HITACHI HOME ELECTRONICS v. US 10

review. Id. Protests that were undecided after 90 days
were treated as denied, Customs lost jurisdiction over
those protests, and those protests were likewise auto-
matically transferred to the Customs Court for review. H.
K. Wheeler, Inc. v. United States, 9 Cust. Ct. 30, 33-34
(1942). Data provided by Customs to Congress around
1970 showed that “all protests were processed in an
average period of 58 days from the date of receipt, and
more than 97 percent were fully processed within 90 days
of the date of their receipt.” S. REP. NO. 91-576, at 28
(1969). A small but significant portion of protests were
undecided after the statutory 90 day limit.

The automatic transfer process resulted in “thou-
sands” of cases being filed at the Customs Court resulting
in the creation of “plaintiffs” that often never intended to
initiate or prosecute such actions. S. REP. NO. 91-576, at
29. Congress identified the automatic referral practice as
one of the “major defects” in the pre-1970 protest law. Id.
at 10. The administrative burden caused by this practice
was substantial and unnecessary. See id. (“[E]limination
[of automatically referred] cases will be a great service to
the Customs Bureau and the Customs Court . . . .”). As
shown below, the CIT’s and majority’s decision operates to
encourage de facto transfers of undecided protests to the
CIT for review, a practice which was rejected and reme-
died by Congress.

b. The Customs Courts Act of 1970

As originally proposed, § 1515(a) imposed no time
limit on Customs’ review of protests and permitted but
did not obligate Customs to dispose of protests: “The
appropriate customs officer shall review a protest filed in
accordance with section 514 of this Act and may allow or
deny such protest in whole or in part.” S. 2624, 91st
11 HITACHI HOME ELECTRONICS v. US

Cong. § 208 (1969) (emphasis added). The Senate Bill
also included § 1515(c) which provided for a “constructive
denial” of all protests that were undecided after two
years. Id. (“Any protest which has not been allowed or
denied in whole or in part in accordance with paragraph
(a) of this section . . . shall be deemed denied after two
years have elapsed from the date the protest was filed . . .
.”). Thus, as under the pre-1970 law, in the original bill
there was no requirement that Customs decide protests,
and any undecided protests after a certain time period
were deemed denied. While Congress may have initially
contemplated a non-mandatory and temporally un-
bounded protest adjudication process, the bill was quickly
amended to reject such a statutory scheme.

The Senate Committee on the Judiciary amended the
language of § 1515(a) to impose a two-year time limit, and
changed “may allow or deny” to “shall allow or deny”:

[T]he appropriate customs officer, within two
years from the date a protest was filed in accor-
dance with section 514 of this Act, shall review
the protest and shall allow or deny such protest in
whole or in part.

S. REP. NO. 91-576, at 2-3 (emphases added). The Com-
mittee also deleted subsection (c)’s “constructive denial”
provisions. Id. at 3. The Senate Committee Report
explained that these revisions were intended to impose
“an obligation on the Bureau of Customs to act on the
merits of all protests within 2 years.” Id. at 30 (emphasis
added). Customs was to be given a two-year time period
in which to review and dispose of protests, and not a day
more. Id. at 11 (“An overall limit of two years will be set
in which the Bureau of Customs must dispose of a protest
on its merits”); id. at 28 (“New section 515(a) provides a
HITACHI HOME ELECTRONICS v. US 12

maximum period of 2 years from the date of filing of a
protest for administrative review.”) (emphases added); see
also H. REP. NO. 91-1067, at 28 (1970) (discussing “maxi-
mum period of 2 years” which “afford[s] a maximum
opportunity for meaningful administrative review”).

The two-year time period was believed to be more
than adequate for Customs to fully review and dispose of
all protests on the merits. Based on Customs’ representa-
tions that nearly all protests were reviewed and decided
within 90 days, the Senate Committee expressly stated
that although the new § 1515(a) substantially extends the
time period for review to two years,

[i]t is not contemplated, however, that any signifi-
cant number of protests will require the entire 2-
year period for review. The Treasury Department
has assured your Committee that it expects to
continue its processing of protests in substantially
the same time period that have been required un-
der existing law.

S. REP. NO. 91-576, at 28; H. REP. NO. 91-1067, at 28. The
plain and stated purpose of giving Customs a two-year
review period—eight times longer than was typically
needed—was to achieve “meaningful” review and disposi-
tion of protests by Customs rather than continue the
process of sending undecided or “deemed denied” cases to
the courts for judicial review. S. REP. NO. 91-576, at 27
(“This [existing 90-day] time limit is substantially in-
creased [to two years] to afford a maximum opportunity
for meaningful administrative review.”); H. REP. NO. 91-
1067, at 28 (stating same). These kinds of clear state-
ments from committee reports are “highly persuasive”
evidence of Congressional intent. Bingham & Taylor
Div., Va. Indus. v. United States, 815 F.2d 1482, 1485
13 HITACHI HOME ELECTRONICS v. US

(Fed. Cir. 1987). While there is ample evidence that
Congress intended for Customs to complete its review of
protests in no more than two years, there is nothing in
the legislative history suggesting that Congress intended
for review of protests to potentially go on forever.

* * *

Strict enforcement of the two-year deadline of
§ 1515(a) facilitates, not frustrates, Congress’ intended
design for protest procedures. Congress recognized that
the public interest would be best served by having Cus-
toms perform a meaningful review of protests and to
dispose of all protests on their merits, all within a time
period perceived to be reasonable and feasible. The 90-
day period under the pre-1970 law was insufficiently
short, and led to the courts being overburdened by masses
of automatic appeals being filed. Thus, the time limit was
substantially enlarged beyond what was perceived as
necessary, the intention being that in no event would
Customs need or be permitted to exceed that limit.

B. § 1515(a) Provides that Absent Action
Within Two Years, Protests are Allowed
by Operation of Law

Having established that it is mandatory for Customs
to meaningfully review all protests within the two-year
time frame of § 1515(a), I turn now to the issue of the
consequence for non-compliance. While the majority finds
there is no consequence in the statute, I find that the
consequence is clearly stated therein. The action man-
dated by the statute is that Customs review protests
within two years, and the plain language of § 1515(a)
specifies that one of two consequences must occur by the
two-year deadline as a result of that action: the protest is
HITACHI HOME ELECTRONICS v. US 14

either “allow[ed]” or “den[ied],” and any denial must be
made express with a mailed notice stating the reasons for
the denial. § 1515(a). The statute does not provide for
any other alternative outcomes. It is undisputed that
there has been no denial of Hitachi’s protests in this case.
Under the plain language of § 1515(a), there is a conse-
quence for Customs’ inaction—Hitachi’s protests have
been allowed and the protested duties must be refunded. 3

Congress’ use of the word “allow” further indicates
that § 1515(a) provides for protests to be deemed decided
in a protestant’s favor in the event that Customs fails to
deny the protest. Each word in a statute is to be inter-
preted according to its ordinary, contemporary, and
common meaning. Williams v. Taylor, 529 U.S. 420, 431
(2000); see also Strategic Hous. Fin. Corp. v. United
States, 608 F.3d 1317, 1323 (Fed. Cir. 2010) (“The best
evidence of congressional intent is the plain meaning of
the statutory language at the time Congress enacted the
statute.”). When Congress enacted § 1515, “allow” meant
to permit by inaction. See RANDOM HOUSE DICTIONARY OF

3 The majority suggests that this conclusion is
“predicated on an unstated and false premise that Con-
gress had only two choices—automatic denial and auto-
matic allowance—and that if Congress rejected one, it
necessarily adopted the other.” Maj. Op. at 14-15 n. 2.
This dissent neither makes nor implies any such argu-
ment. Regardless of how many choices were available to
Congress, the language of § 1515(a) is clear on its face,
stating that all protests are allowed if not expressly
denied within two years. That much cannot be more
clearly stated. The issue on appeal is whether § 1515(a)
as a whole is mandatory or merely aspirational. The
majority finds it to be aspirational, resulting in indefinite
indecision—an outcome unacceptable to Congress accord-
ing to the legislative history.
15 HITACHI HOME ELECTRONICS v. US

THE ENGLISH LANGUAGE (1967) (defining “allow” as “to
permit by neglect, oversight, or the like.” “Allow implies
complete absence of attempt, or even an intent, to hin-
der.”); THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (1969) (“Allow implies refraining from
any hindrance, whereas permit suggests authoritative
consent. Inherent in both is the authority to act.”);
WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY (1967)
(“allow” means “to neglect to restrain or prevent”). 4 The

4 Other Customs regulations also use the word “al-
low” in the context of a passive permission of activity. See
19 C.F.R. § 19.30 (provision entitled “Domestic wheat not
to be allowed in bonded space” commands that “[t]he
presence . . . shall not be permitted”); 19 C.F.R. § 212.06
(provision entitled “Allowable fees and expenses” sets
forth pre-authorized scope of fees and expenses that may
be awarded to a prevailing party before the ITC). By
contrast, the active word “approve” is used in the regula-
tions to indicate affirmative authorization on the part of
Customs. See, e.g., 19 C.F.R. § 112.13 (“The port director
shall approve an application for authorization as carriers
of bonded merchandise and the bond filed, authorizing the
applicant to act as a carrier of bonded merchandise . . . .”);
19 C.F.R. § 114.12 (“The Commissioner may suspend or
revoke the approval previously given to any issuing
association . . . .”). This shows a clear understanding, at
least within Customs, of the difference between passive
allowance and active approval.

Furthermore, this court’s precedent is replete with
opinions consistently using the word “allow” in accordance
with its ordinary meaning of permitting by inaction. See,
e.g., Norsk Hydro Can., Inc. v. United States, 472 F.3d
1347, 1362 n. 25 (Fed. Cir. 2006) (“Customs nonetheless
ignores this order and allows liquidation to occur at an
incorrect rate.”); Save Domestic Oil, Inc. v. United States,
357 F.3d 1278, 1287 (Fed. Cir. 2004) (“This would allow
petitioners to skew the results . . . .”); Superior Fireplace
Co. v. Majestic Prods. Co., 270 F.3d 1358, 1380 (Fed. Cir.
2001) (“[I]t strikes us as an illogical result to allow the
HITACHI HOME ELECTRONICS v. US 16

fact that § 1515(a) requires the refund of money “found to
have been assessed or collected in excess” does not detract
from the passive nature of the allowance itself, but only
indicates that an allowance—express or implied by law—
is tantamount to a finding of entitlement that triggers
Customs’ refund obligations. 5

The legislative history of § 1515(a) also demonstrates
that Congress intended protests to be allowed without
any action by Customs such as the action it required for
denied protests. Congress heard testimony arguing that
an allowance should be reflected by a notification because

patent holder . . . to sue an alleged infringer for activities
that occurred before the issuance of the certificate of
correction.”). At least one other court has had occasion to
expressly define “allow” and concluded that the word has
a clearly passive meaning. Erickson v. Wis. Dep't of Corr.,
No. 04-C-265-C, 2004 U.S. Dist. LEXIS 20770, at *15
(W.D. Wis. Sept. 29, 2004) (“The word [allow] implies
passivity, as when a person lets something occur without
acting to make it occur. By using the word ‘allow,’ plain-
tiff's amended complaint can fairly be read to suggest that
the individual defendants took no affirmative steps that
placed plaintiff in danger.”) (citations omitted).
5 Customs argues that “[i]t is difficult to envision
that Congress would have intended such a negative
impact on revenue (i.e., providing for the deemed allow-
ance of a protest after two-years) without clearly setting
forth such a consequence in the statute.” Customs’ Br. at
23. However, as explained herein, Congress’ use of the
word “allow” specifies the consequence for such inaction.
Further, the state of affairs of Customs at the time of
§ 1515’s enactment was such that nearly all protests were
decided within 90 days, and so there was no perceived
“negative impact on revenue” when Congress provided for
allowance to occur by operation of law after two years.
See supra. Customs’ arguments made today to the con-
trary are best directed to Congress and not this court.
17 HITACHI HOME ELECTRONICS v. US

such notification would immediately enable importers to
“then file subsequent entries at the correct value or rate.”
Hearings Before Subcommittee No. 3 of the Committee on
the Judiciary, House of Representatives, 91st Cong. 144-45
(1970) (statement of Gerald H. O’Brien, executive vice
president, American Importers Association). Indeed, this
is the only value of a notice for an allowed protest. A
notice of denial serves the same informative purpose but
more importantly forms the basis for appeal, whereas
nobody appeals an allowed protest. Congress ultimately
declined to amend the bill and provide for any allowance
notification. The Committee Reports explained that “no
useful purpose would be served by imposing on customs
the burden of mailing separate notices of allowance” since
“protest allowances are reflected in the notices of reliqui-
dation and in refund payments.” S. REP. NO. 91-576, at
30; H. REP. NO. 91-1067, at 29-30 (1970). Congress’
decision not to mandate allowance notices further reflects
its intent that refunds be issued without any further
hindrances, i.e., that protested duties be passively “al-
lowed” to be refunded.

1. The Accelerated Disposition Procedure

The CIT and the majority concluded that § 1515(b),
the “accelerated disposition” provision, shows that
§ 1515(a) includes no consequence for Customs’ inaction.
Section 1515(b) allows a protestant to file a request for
accelerated disposition, and any “protest which has not
been allowed or denied in whole or in part within thirty
days [of the request] . . . shall be deemed denied.” Al-
though section 1515(a) does not include similar “shall be
deemed allowed” language, it nevertheless specifies a
consequence for inaction as explained above. Consequen-
tial language can take many forms, and need not mimic
the style of § 1515(b).
HITACHI HOME ELECTRONICS v. US 18

In any event, the relevance of § 1515(b) to the inter-
pretation of § 1515(a) is questionable since section 1515(b)
serves a fundamentally different purpose than § 1515(a).
Congress characterized § 1515(b) as a reasonable assur-
ances provision, noting that “[i]mporters concerned about
unreasonable delay at the administrative level are fully
protected by the new provision in section 515(b) for ob-
taining accelerated disposition of a protest.” S. REP. NO.
91-576, at 28. Unlike § 1515(a), § 1515(b) does not impose
upon Customs any obligation to affirmatively act on a
protest. Hence § 1515(b) is no substitute for actual mean-
ingful administrative review, and its primary purpose is
to provide an expedited avenue for judicial review of the
denial. S. REP. NO. 91-576, at 29 (“If no final action is
taken by the Bureau of Customs within 30 days . . . the
protesting party will be free to file a summons in the
Customs Court with respect to the protested issues.”); H.
REP. NO. 91-1067, at 29 (stating same).

Furthermore, I disagree with the CIT’s and majority’s
determination that § 1515(b) exists as an escape valve for
Customs’ inaction under § 1515(a). Whereas Hitachi
seeks meaningful review and disposition by Customs
pursuant to § 1515(a), the CIT and the majority simply
direct Hitachi to § 1515(b) to secure jurisdiction to chal-
lenge a deemed denial in court. However, this kind of de
facto transfer to the courts should not be encouraged, as it
is one of the precisely identified “major defects” in the
pre-1970 law that Congress sought to remedy when it
enacted § 1515. S. REP. NO. 91-576, at 10.

Regardless of the propriety of encouraging parties
generally to seek a deemed denial, for Hitachi the accel-
erated disposition procedure is no longer available. The
statutory text makes clear that no protests may be unde-
cided after two years. The legislative history confirms
19 HITACHI HOME ELECTRONICS v. US

that the two-year period was absolute even for the most
complicated kinds of protests:

[Sometimes further review] may resolve an issue
that would otherwise require litigation, e.g.,
where [the importer] indicates that the treatment
of the protested entry is not uniform and consis-
tent with the treatment of the same merchandise
elsewhere in the Untied States, or where [the im-
porter] can show that a novel issue is raised with
respect to which the Bureau does not have a fixed
position and which is not already under higher
level review. Such further review is also expected
to consume more time than the average period re-
quired to review a protest under existing law. The
two-year provision will, of course, apply to protests
under such review.

S. REP. NO. 91-576, at 28-29 (emphasis added); H. REP.
NO. 91-1067, at 29 (stating same).

Hitachi’s protests are of the type Congress contem-
plated as complex and requiring careful analysis, and
which might require the “entire 2-year period for review.”
See S. REP. NO. 91-576, at 28. According to Customs,
however, “[g]iven the number of entries, the complexity of
the substantive issues, and the fact that another importer
[Samsung International, Inc.] filed protests presenting
similar issues, Customs was unable to take action on
Hitachi's lead protest and application for further review
within the two-year time period of § 1515(a) . . . .” Cus-
toms’ Br. at 6. Granted, Hitachi’s and Samsung’s many
protests all involved multiple entries of essentially the
same kinds of flat-panel plasma televisions from various
producers in Mexico, and required a careful and thorough
analysis of the operation of the NAFTA rules of origin, but
HITACHI HOME ELECTRONICS v. US 20

this is no excuse for Customs’ inaction in the face of a
statute that imposes a mandatory two-year deadline.
Like Hitachi’s protests in this case, Samsung’s protests
were also pending for more than two years, and Samsung
challenged Customs’ inaction in the CIT. Samsung later
voluntarily dismissed its pending CIT actions without
prejudice and filed a request for accelerated disposition,
obtained a deemed denial, and refiled at the CIT having
supposedly secured jurisdiction under 28 U.S.C. § 1581(a).
Under the proper reading of § 1515(a), however, Samsung
could not have received accelerated disposition (and a
deemed denial) when it did because the protests would
have been, by operation of law, already allowed. By
contrast, Hitachi correctly insists that review and disposi-
tion of its protests under § 1515(a) has concluded, and
properly recognizes that it can no longer avail itself of the
accelerated disposition procedure.

Since only about three percent of protests took longer
than 90 days to be decided by Customs in 1970, as origi-
nally enacted accelerated disposition under § 1515(b) was
not even available until 90 days after the protest was
filed. S. REP. NO. 91-576, at 29. In the unlikely event
that protests took longer than 90 days to be reviewed and
decided, a protestant eager for judicial review could
“accelerate” the disposition process to obtain a final denial
sooner than two years, but in no event could the protes-
tant obtain any relief after the two-year deadline expired.
The majority emphasizes that § 1515(b) allows for such
accelerated disposition requests to be initiated at “any
time concurrent with or following the filing of such pro-
test,” and argues that this language shows that the pro-
cedure is available even after two years. Given the
history of § 1515(b) and the two-year limitation of
§ 1515(a), however, this language is better understood as
indicating that protestants need no longer wait for 90
21 HITACHI HOME ELECTRONICS v. US

days after the protest was filed to request accelerated
disposition. Because more than two years’ time has
elapsed, the accelerated disposition procedure is no longer
available to Hitachi to secure jurisdiction under § 1581(a).
III. CONCLUSION
Hitachi’s protests have been allowed by operation of
law, and the CIT has jurisdiction under § 1581(i). Allow-
ing customs to indefinitely delay deciding protests forces
importers to either: (a) wait until Customs eventually
makes a decision on the merits of the protest, resulting in
unreasonably extended periods of financial and legal
uncertainty for the importer and the trade community; or
(b) file a request for accelerated disposition to merely
secure jurisdiction for judicial review, and proceed to
court on a record not fully developed before Customs.
Such a dilemma was intended to be avoided by § 1515,
and in particular by automatically allowing protests that
were still undecided upon the two-year deadline.

The plain meaning of the statute and the legislative
history do not support the CIT’s and the majority’s deci-
sions encouraging protestants to abandon hope for relief
from Customs under § 1515(a), and instead to seek a
deemed denial under § 1515(b) to get to court. As this is a
case of first impression, the majority opinion in essence
rewrites the statute by changing the word “shall” to “may”
and eliminating any reference to a two-year deadline.
This is a course I cannot follow. Congress intended for
Customs to meaningfully review and decide all protests
within two years so that the courts would not be need-
lessly burdened, so that the trading community could
benefit from Customs’ well-reasoned rulings in complex
cases. Ultimately, if Customs for whatever reason is
unable to comply with the two-year time limit under
§ 1515(a), then Congress, not this court, is the proper
HITACHI HOME ELECTRONICS v. US 22

forum for Customs to appeal. Congress provided for a
two-year maximum review period, and this court cannot
rewrite the statute because Customs’ circumstances may
have changed since 1970.