Slip Op. 06-15
UNITED STATES COURT OF INTERNATIONAL TRADE
HYNIX SEMICONDUCTOR AMERICA,
INC.,
Before: Richard W. Goldberg,
Plaintiff, Senior Judge
v. Consol. Court No. 03-00856
UNITED STATES,
Defendant.
OPINION
[Hynix’s motion for summary judgment granted. Customs’ cross-
motion for summary judgment is denied.]
Dated: January 26, 2006
Willkie Farr & Gallagher (Miriam A. Bishop) for Plaintiff Hynix
Semiconductor America, Inc.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office;
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley), for Defendant United States.
GOLDBERG, Senior Judge: In this action reviewing a denial of a
protest under 19 U.S.C. § 1514, Plaintiff Hynix Semiconductor
America, Inc. (“Hynix”) moves the court, under USCIT R. 56, to
enter summary judgment in its favor, and to order the Defendant
U.S. Customs and Border Protection (“Customs”) to reliquidate
certain entries to correct an error made in liquidating those
entries based on incorrect instructions issued by the U.S.
Consol. Court No. 03-00856 Page 2
Department of Commerce (“Commerce”). Customs also moves for
summary judgment, contending that it properly denied Hynix’s
reliquidation request, and that therefore this Court should
dismiss the case. See Defendant’s Brief in Opposition to
Plaintiff’s Motion for Summary Judgment and in Support of Its
Cross-Motion for Summary Judgment (“Customs Br.”).
The Court concludes that a Commerce employee made a
“clerical error” and “mistake of fact” when transferring data
from a computer printout into liquidation instructions, after
which Customs followed the erroneous instructions and liquidated
the goods at an incorrect rate, resulting in an adverse duty
rate applied to Hynix’s entries. Because such an error was
correctable under 19 U.S.C. § 1520(c) as a mistake of fact or
clerical error not amounting to an error in the construction of
a law, and because the failure to file a protest within ninety
days of the liquidation of the entries is without legal
consequence in this context, the Court grants Hynix’s motion for
summary judgment and denies Customs’ cross-motion for the same.
I. BACKGROUND
This consolidated action1 concerns 486 entries (“the
Entries”) of Dynamic Random Access Memory Semiconductors
1
The original Case No. 03-00856 involved 468 DRAMS entries. On
December 2, 2004, and pursuant to USCIT R. 42(a), the parties
Consol. Court No. 03-00856 Page 3
(“DRAMS”) manufactured in the Republic of Korea (“Korea”) and
exported to the United States. The Entries arrived in the Port
of San Francisco during a period from May 1, 1998 to April 30,
1999, and were subject to Commerce’s sixth administrative review
of an antidumping duty order then in place.2
Commerce, in its sixth administrative review, calculated
two types of antidumping rates: (1) a single weighted-average
dumping margin for each producer/exporter, which was calculated
using all U.S. sales by that producer/exporter, and (2) an
importer-specific assessment rate, which was calculated using
only U.S. sales by that same producer/exporter to certain
specific importers. See Final Results, 65 Fed. Reg. at 68978.
Commerce determined that the weighted-average dumping margin for
producer/exporter Hyundai Electronics Industries Co., Ltd.
(“Hyundai Electronics”) was 2.30 percent. Id. Commerce also
calculated an importer-specific rate of 1.57 percent for Hyundai
Electronics America, Inc. (“Hyundai Electronics America”).3 See
consented to the consolidation of a subsequent case, filed in
August 2004, which involved additional 18 DRAMS entries.
2
See Dynamic Random Access Memory Semiconductors of One Megabit
or Above from the Republic of Korea, 65 Fed. Reg. 68976 (Dep’t
Commerce Nov. 15, 2000) (final results of administrative review)
(“Final Results”).
3
In October 1999, Hyundai Electronics acquired LG Semicon Co.,
Ltd., another Korean DRAMS manufacturer. The resultant entity
Consol. Court No. 03-00856 Page 4
Tr. of Paige Rivas Dep. (“Rivas Dep.”) 32-33. The actual
importer-specific rate was not published in the Federal
Register, but the Final Results apprised readers of its
existence:
The Department shall determine, and the Customs Service
shall assess, antidumping duties on all appropriate
entries. The Department will issue appraisement
instructions directly to the Customs Service. Where the
importer-specific assessment rate is above de minimis, we
will instruct Customs to assess antidumping duties on that
importer’s entries of subject merchandise.
These final results of review shall be the basis for the
assessment of antidumping duties on entries of merchandise
covered by this review. For duty-assessment purposes, we
calculated importer-specific assessment rates by
aggregating the dumping margins calculated for all U.S.
sales to each importer and dividing this amount by the
total estimated entered value reported for those sales.
Final Results, 65 Fed. Reg. at 68978.
Both the weighted-average dumping margin for Hyundai
Electronics and the importer-specific assessment rate for
Hyundai Electronics America were derived from the data compiled
during the administrative review, as entered into a specially
designed computer program using Statistical Application
Software. See Hynix’s Statement of Material Facts Not in
Dispute ¶ 9 (“Hynix’s Statement of Facts”); see also Defendant’s
was renamed Hynix Semiconductor, Inc. Hyundai Electronics
America, which was a wholly owned subsidiary of the former
Hyundai Electronics, was similarly designated Hynix
Semiconductor America, Inc.
Consol. Court No. 03-00856 Page 5
Response to Plaintiff’s Statement of Material Facts (“Customs’
Statement of Facts”) ¶ 9 (admitting the same). In Commerce, the
computer program is known as the “SAS Program.” See Rivas Dep.
15:9-16. The SAS Program produces a computer printout (“SAS
Printout”) that lists the duty rates for all relevant exporters
and producers, as well as the importer-specific rates where
appropriate. See Hynix’s Statement of Facts ¶ 10. For the
sixth administrative review, both the weighted-average dumping
margin for Hyundai Electronics and the importer-specific
assessment rate for Hyundai Electronics America appeared on the
SAS Printout, as well as on the computer display for the SAS
Program, but on different pages. See Rivas Dep. 31:14-33:23;
see also Hynix’s Statement of Facts ¶ 12; Customs’ Statement of
Facts ¶ 12 (admitting the same).
Notwithstanding the routine unfolding of events up to that
point, Commerce’s liquidation instructions, prepared by Ms.
Paige Rivas (“Rivas”), instructed Customs as follows: “For all
shipments of DRAMS from Korea Produced by Hyundai, and imported
by Hyundai Electronics America, Inc., and entered or withdrawn
from warehouse for consumption during the period 05/01/1998
through 04/30/1999, assess an antidumping liability of 2.30
percent of the entered value.” Commerce Dep’t Message 1260205
(Sept. 17, 2001) (Ex. 2 of Rivas Dep.) (emphasis added).
Consol. Court No. 03-00856 Page 6
Customs liquidated the Entries at 2.30 percent in a manner
consistent with Commerce’s instructions, which had erroneously
indicated the weighted-average dumping margin instead of the
importer-specific rate that (1) was noted in the Final Results,
(2) resulted from the SAS Program, and (3) appeared on the SAS
Printout.
The erroneous instructions resulted from Rivas’ incorrect
transfer of data from the SAS Printout to the liquidation
instructions she prepared for Customs. See Rivas Dep. 32:7-
34:12. Rivas consulted the SAS printout, but failed to notice
the importer-specific rate for Hyundai Electronics America. Id.
34:3-9. Indeed, Rivas does not recall if she examined that page
at all. Id. 34:10-12. Neither does Rivas recall if she
consulted the Final Results published in the Federal Register,
which would have referenced the importer-specific rate. Id.
35:9-11.
Some time after Customs liquidated the Entries, Hynix’s
counsel contacted Rivas to point out that the liquidation
instructions mistakenly directed Customs to assess a 2.30
percent dumping margin for goods imported by a company with an
importer-specific rate of 1.57 percent. Id. 17:14-20:17. After
that conversation, Rivas reexamined the SAS Printout and
determined that the results of the SAS Program contemplated two
Consol. Court No. 03-00856 Page 7
distinct rates. Id. Rivas was unaware of the distinction
between weighted-average dumping margins and importer-specific
rates, so she undertook some general research in the dumping
manual and other source materials. Id.
After realizing her error, Rivas corrected and replaced the
previous liquidation instructions on March 15, 2002. Hynix’s
Statement of Facts ¶ 26; Customs’ Statement of Facts ¶ 26
(admitting the same). The relevant portions of the second set
of liquidation instructions provided as follows:
RE: Correction and Replacement of MSG. 1260205 Re
Liquidation Instructions For DRAMS from Korea Produced by
Hyundai Electronics Industries (A-580-812-02)
...
1. This is a correction of Message 1260205 on 09/17/2001.
The assessment rate in Paragraph 1 of the above-
referenced message is incorrect. The correct message,
with the correct assessment rate, is in Paragraph 2.
2. For all shipments of DRAMS from Korea Produced by
Hyundai, and imported by Hyundai Electronics America,
Inc., and entered or withdrawn from warehouse for
consumption during the period 05/01/1998 through
04/30/1999, assess an antidumping liability of 1.57
percent of the entered value.
Commerce Dep’t Message 2074203 (Mar. 22, 2002) (Ex. 3 of Rivas
Dep.).
After Commerce issued the corrected liquidation
instructions, Hynix filed protests under 19 U.S.C. § 1514,
importuning Customs (1) to correct the error made in assessing
antidumping duties on Hynix, and (2) to apply the correct
Consol. Court No. 03-00856 Page 8
importer-specific assessment rate as required by the Final
Results. See Hynix’s Statement of Facts ¶ 27; Customs’
Statement of Facts ¶ 28. Customs granted Plaintiff’s protests
and reliquidated at 1.57 percent any of Hynix’s entries whose
liquidation date fell within ninety days of the date of protest.4
See Hynix’s Statement of Facts ¶ 28; Customs’ Statement of Facts
¶ 28. However, since the Entries were liquidated more than 90
days before the protest, Hynix could not file a protest with
respect to the Entries, and filed reliquidation requests under
19 U.S.C. § 1520(c)5 for the two sets of the Entries on April 22,
2002 and June 27, 2002, respectively. See Hynix’s Statement of
Facts ¶ 29.
On June 18, 2002 and September 25, 2002, Customs denied
those applications on the grounds that no clerical error,
mistake of fact or inadvertence occurred on the part of Customs,
and therefore relief under 19 U.S.C. § 1520(c) was unavailable.
4
Prior to a 2004 amendment extending the statute of limitations
to 180 days, 19 U.S.C. § 1514 allowed an importer ninety days to
protest one of seven types of “decision[s] of the Customs
Service . . . .” See 19 U.S.C. § 1514 (1999). Under 19 U.S.C.
§ 1520(c), however, an importer benefits from a longer one-year
statute of limitations to file a reliquidation request to
correct the following three types of errors: clerical errors,
mistakes of fact, and other inadvertences. See id. § 1520(c).
5
In 2004, Congress repealed 19 U.S.C. § 1520(c). See Pub. L.
108-429, title II, § 2105, 118 Stat. 3598 (2004). Since,
however, the Entries arrived prior to the repeal, the Court
notes that the former 19 U.S.C. § 1520(c) governs this case.
Consol. Court No. 03-00856 Page 9
See Customs Br. at 6-7. Hynix filed protests under 19 U.S.C.
§ 1514 contesting the denial of its reliquidation requests on
September 3, 2002, and November 27, 2002, respectively. Hynix’s
Statement of Facts ¶ 30; Customs’ Statement of Facts ¶ 30. In
response, Customs reiterated its contention that reliquidation
was inappropriate because Hynix “has not shown with documentary
evidence, nor is it manifest from the record that a clerical
error, mistake of fact, or other inadvertence occurred in the
entry, liquidation, or other customs transaction . . . .” HQ
229808 at 6 (Apr. 30, 2003), available at 2003 U.S. CUSTOM HQ
LEXIS 215. Customs also stated that its role in assessing the
2.30 percent antidumping duty was merely ministerial, and
claimed it was merely following instructions, and therefore
could not be said to have committed an error. Id. at 4-5.
Ultimately, Customs denied both protests. See Hynix’s Statement
of Facts ¶ 30; Customs’ Statement of Facts ¶ 30 (admitting the
same). Hynix commenced proceedings in this Court on November
24, 2003.
II. JURISDICTION
“Without jurisdiction the court cannot proceed at all in
any cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. 506, 514
(1868)). The jurisdiction of the U.S. Court of International
Consol. Court No. 03-00856 Page 10
Trade is laid out in 28 U.S.C. §§ 1581-83. 28 U.S.C. § 1581(a)
grants the Court exclusive jurisdiction to hear “any civil
action commenced to contest the denial of a protest, in whole or
in part, under [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a) (1999).
19 U.S.C. § 1515 outlines the procedures Customs must follow in
ruling on a protest filed pursuant to 19 U.S.C. § 1514. Hynix,
as noted supra, filed such a protest to challenge Customs’
earlier denial of its 19 U.S.C. § 1520(c) reliquidation request.
That protest was properly initiated under 19 U.S.C. § 1514,
which specifically enumerates “the refusal to reliquidate an
entry under section 1520(c)” as a protestable “decision of the
Customs Service.” 19 U.S.C. § 1514 (1999).
Since Hynix now contests Customs’ denial of its protest of
Customs’ earlier denial of its reliquidation request, the Court
has 19 U.S.C. § 1581(a) jurisdiction over this case.6
6
This case is distinguishable from the recent line of cases
that have found residual jurisdiction, under 28 U.S.C.
§ 1581(i), to hear actions relating to liquidation instructions
that were at odds with Commerce determinations. See Shinyei
Corp. of Am. v. United States, 355 F.3d 1297 (Fed. Cir. 2004);
Mitsubishi Elecs. Am. v. United States, 44 F.3d 973, 977 (Fed.
Cir. 1994). Implicit in the exercise of residual jurisdiction
is the absence of an alternative remedy under 28 U.S.C.
§ 1581(a)-(h). See Consol. Bearings Co. v. United States, 348
F.3d 997, 1002 (Fed. Cir. 2003). In this case, the plaintiff
availed itself of the administrative procedures that were
available to it by requesting reliquidation under 19 U.S.C.
§ 1520(c). The Mitsubishi and Shinyei plaintiffs, however, had
no recourse to reliquidation because there was no “clerical
Consol. Court No. 03-00856 Page 11
III. STANDARD OF REVIEW
“[S]ummary judgment is proper ‘if the pleadings [and the
discovery materials] show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).7 “In
ruling on cross-motions for summary judgment, the court must
determine if there exist any genuine issues of material fact
and, if there are none, decide whether either party has
demonstrated its entitlement to judgment as a matter of law.”
Am. Motorists Ins. Co. v. United States, 5 CIT 33, 36 (1983).
Customs’ denial of Hynix’s protests is subject to the
Court’s de novo review under 28 U.S.C. § 2640(a)(1). See, e.g.,
error, mistake of fact, or other inadvertence” at issue in those
cases. Neither did those plaintiffs have access to other modes
of redress, such as 19 U.S.C. § 1514 or the reviewable
determinations listed in 19 U.S.C. § 1516a(a)(2)(B), which would
have triggered subject matter jurisdiction under 28 U.S.C.
§ 1581(c). Because those plaintiffs had no administrative
remedies that could lead to judicial review in this Court, they
could invoke residual jurisdiction. Conversely, in a case
involving a transparent clerical error that an importer can
correct under 19 U.S.C. § 1520(c), residual jurisdiction is
unavailable.
7
“When the Court’s rules are materially the same as the
[Federal Rules of Civil Procedure (“FRCP”)], the Court has found
it appropriate to consider decisions and commentary on the FRCP
in interpreting its own rules.” Former Employees of Tyco Elec.
v. United States Dep’t of Labor, 27 CIT ___, ___, 259 F. Supp.
2d 1246, 1251 (2003).
Consol. Court No. 03-00856 Page 12
Chevron Chem. Co. v. United States, 23 CIT 500, 500, 59 F. Supp.
2d 1361, 1362-63 (1999).
IV. DISCUSSION
This case concerns the application of Section 520(c) of the
Tariff Act of 1930, codified at 19 U.S.C. § 1520(c). The
relevant portion of that statute reads as follows:
(c) Reliquidation of entry or reconciliation
Notwithstanding a valid protest was not filed, the
Customs Service may . . . reliquidate an entry or
reconciliation to correct—
(1) a clerical error, mistake of fact, or other
inadvertence, whether or not resulting from or
contained in electronic transmission, not amounting to
an error in the construction of a law, adverse to the
importer and manifest from the record or established
by documentary evidence, in any entry, liquidation, or
other customs transaction, when the error, mistake, or
inadvertence is brought to the attention of the
Customs Service within one year after the date of
liquidation or exaction . . . .
19 U.S.C. § 1520(c)(1) (1999) (emphasis added).
Hynix claims it filed a proper reliquidation request
because both Customs and Commerce made correctable “mistake[s]
of fact” that did not amount to “mistake[s] in the construction
of a law . . . .” Id. Customs’ rebuttal is fourfold. First,
Customs claims it committed no error at all. Second, Customs
argues that Commerce errors are per se excluded from the ambit
of 19 U.S.C. § 1520(c). Third, Customs argues Commerce’s
Consol. Court No. 03-00856 Page 13
error, if any, was a “mistake in the construction of a law” and
irremediable under 19 U.S.C. § 1520(c). Customs’ fourth
argument—to which the Court turns as a preliminary matter—is
that Hynix is prevented from invoking 19 U.S.C. § 1520(c)
because it failed to execute “due diligence,” Customs Br. at 20,
by not utilizing the available protest proceedings under 19
U.S.C. § 1514.
A. The Effect of Hynix’s Failure to Bring a Timely Protest
Action Under 19 U.S.C. § 1514
The Entries were liquidated over a period spanning from
December 21, 2001 to February 15, 2002. Under 19 U.S.C. § 1514
as then in effect, an importer had ninety days8 from the date of
liquidation to file a protest challenging a “decision of the
Customs Service . . . .”9 Therefore, with respect to the
8
A protest was timely if it was filed with Customs “within
ninety days but not before . . . notice of liquidation or
reliquidation . . . .” 19 U.S.C. § 1514(c)(3) (1999).
9
Prior to the 2004 amendment, 19 U.S.C. § 1514 provided in
pertinent part as follows:
(a) Finality of decisions; return of papers
[Subject to the listed exceptions, including 19 U.S.C.
§ 1520(c),] decisions of the Customs Service, including
the legality of all orders and findings entering into the
same, as to-
(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties
chargeable;
Consol. Court No. 03-00856 Page 14
earliest of the Entries, Hynix had ninety days—or until March
21, 2002—to file a timely 19 U.S.C. § 1514 protest.
When Commerce issued new liquidation instructions on March
15, 2002, Hynix immediately filed protests. Customs granted the
protests with respect to those entries that occurred in the
period extending from ninety days before the filing until the
filing date itself. Customs denied the protest, as time barred,
with respect to the earlier entries. Then Hynix, on April 22,
2002 (covering the original 468 entries) and June 27, 2002
(covering the additional 18 entries), filed the 19 U.S.C.
§ 1520(c) reliquidation requests with which this case is
concerned. The Entries were liquidated over a period spanning
from December 21, 2001 to February 15, 2002. Because Hynix
filed its reliquidation requests within one year from the “date
(3) all charges or exactions of whatever character
within the jurisdiction of the Secretary of the
Treasury;
. . .
(5) the liquidation or reliquidation of an entry,
. . .
(7) the refusal to reliquidate an entry under
section 1520(c) of this title;
shall be final and conclusive upon all persons . . . unless
a protest is filed in accordance with this section, or
unless a civil action contesting the denial of a protest,
in whole or in part, is commenced in the United States
Court of International Trade . . . .
19 U.S.C. § 1514(a) (1999).
Consol. Court No. 03-00856 Page 15
of liquidation or exaction,” 19 U.S.C. § 1520(c) (1999), its
requests, unlike its protests, were timely.
Customs argues that Hynix “failed here to exercise due
diligence by filing timely protests against liquidation of the
entries in issue, and relied upon § 1520(c)(1) as a substitute
for a protest under § 1514.” Customs Br. at 20. The general
rule is that no provisions of 19 U.S.C. § 1520(c) can be
employed to excuse the failure to satisfy the requirements of 19
U.S.C. § 1514. See Fujitsu Compound Semiconductor, Inc. v.
United States, 363 F.3d 1230, 1234-35 (Fed. Cir. 2004); ITT
Corp. v. United States, 24 F.3d 1384, 1387 n.4 (Fed. Cir. 1994).
Absent the limited exceptions enumerated in 19 U.S.C. § 1514
(including reliquidations based on clerical errors, mistakes of
fact, and other inadvertences under 19 U.S.C. § 1520(c)), unless
a valid protest is filed within ninety days from the date of
liquidation, the liquidation of certain imported merchandise
becomes final and conclusive on all persons. Fujitsu, 363 F.3d
at 1234-35; Degussa Can. Ltd. v. United States, 19 CIT 864, 867,
889 F. Supp. 1543, 1547 (1995); see also 19 U.S.C. § 1514(c)(3)
(1999).
If a litigant fails to protest, within ninety days, a
Customs decision as to one of the categories of decisions
enumerated in 19 U.S.C. § 1514, that litigant will, in most
Consol. Court No. 03-00856 Page 16
cases, be unable to raise the claim in a reliquidation request.
However, the bipartite statutory scheme that Congress created
explicitly contemplates 19 U.S.C. § 1520(c) as an exception to
the “general rule” discussed in Fujitsu and ITT Corp. See 19
U.S.C. § 1514(a) (1999) (declaring all Customs decisions to be
final “[e]xcept as provided in” inter alia “section 1520 of this
title”).
There is no independent requirement that a plaintiff engage
in “due diligence,” Customs Br. at 20, by checking for mistakes
and errors that result in liquidation of merchandise. Congress
provided a longer statute of limitations for one set of
challengeable administrative acts, and the mere existence of a
shorter statute of limitations as to another set of conceptually
related challengeable acts does not create any obligation to
exercise a special “due diligence” and care. If 19 U.S.C.
§ 1520(c) provides a mode of redress to correct the errors
alleged by Hynix, then Hynix need only satisfy the requirements
of that statute, and validly invoke the protest and judicial
review procedures of 19 U.S.C. § 1514 to challenge Customs’
refusal to reliquidate under 19 U.S.C. § 1520(c) to obtain its
relief.
Consol. Court No. 03-00856 Page 17
B. Application of 19 U.S.C. § 1520(c) to the Entries
Under 19 U.S.C. § 1520(c), an importer may not obtain
reliquidation of an entry based on any “error in the
construction of the law,” and must instead obtain redress under
19 U.S.C. § 1514. Courts have interpreted the phrase “error in
the construction of a law” as interchangeable with its more
familiar analogue, “mistake of law.” See Brother Int’l Corp. v.
United States, 29 CIT ___, ___ n.10, 368 F. Supp. 2d 1345, 1351
(2005) (citing Ford Motor Co. v. United States, 157 F.3d 849,
859 (Fed. Cir. 1998)).
Sometimes, an error that qualifies as a “clerical error,
mistake of fact, or other inadvertence” may not justify
reliquidation because it is also an error of law: “the statute
contemplates that some errors that are prima facie correctable
will also be ‘errors in the construction of a law.’”10 Ford
Motor Co., 157 F.3d at 857 (quoting 19 U.S.C. § 1520(c)).
10
But see Hambro Auto. Corp. v. United States, 66 C.C.P.A. 113,
118, C.A.D. 1231, 603 F.2d 850, 853 (1979) (“A mistake of fact
is any mistake except a mistake of law.”) (quoting C.J. Tower &
Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, 336
F. Supp. 1395, 1399 (1972), aff’d, 61 C.C.P.A. 90, C.A.D. 1129,
499 F.2d 1277 (1974)). Obviously, Ford Motor Co. and Hambro are
in conflict. If a mistake of fact is defined as any mistake
other than a mistake of law, it would be impossible that, as
Ford Motor Co. suggests, some mistakes of fact are also mistakes
of law. But see Brother Int’l, 29 CIT at ___, 368 F. Supp. 2d
at 1351 (relying on Ford Motor Co. to find that importer made a
Consol. Court No. 03-00856 Page 18
A mistake of law occurs “where the facts are known but
their legal consequences are not, or are believed to be
different than they really are.” Century Imp’s, Inc. v. United
States, 205 F.3d 1308, 1313 (Fed. Cir. 2000). A mistake of fact
occurs “where either (1) the facts exist, but are unknown, or
(2) the facts do not exist as they are believed to [exist].”
Hambro, 66 C.C.P.A. at 119, 603 F.2d at 855; see also G&R
Produce Co. v. United States, 381 F.3d 1328, 1333 (Fed. Cir.
2004).
In attempting to refine the distinction between types of
mistakes under 19 U.S.C. § 1520(c), this court has distinguished
between “decisional mistakes,” which must be challenged under 19
mistake of fact that was also an error in the construction of
the law and outside the scope of 19 U.S.C. § 1520(c)).
Yet another difficulty arises from Hambro’s categorization
of all mistakes as either mistakes of law or mistakes of fact.
If a “clerical error” qualifies as neither a mistake of law nor
a mistake of fact, it may not, under the Hambro framework, be
considered a mistake at all. It stretches the imagination to
conjure a clerical error that is not a mistake, but such a
scenario is possible according to Hambro. This problem results
from the Hambro court’s use of the phrase “any mistake,” which
directs litigants’ attention away from the three defined
statutory categories laid out in 19 U.S.C. § 1520(c). Instead,
the Court reads Ford Motor Co. as overshadowing Hambro’s binary
taxonomy of “mistakes.” After Ford Motor Co., a court is
charged with two inquiries: first, it decides whether the
alleged error falls into one of the three prima facie categories
of correctable errors; and second, it decides whether a prima
facie correctable error is nevertheless uncorrectable because it
is also a mistake of law.
Consol. Court No. 03-00856 Page 19
U.S.C. § 1514, and “ignorant mistakes,” which are remediable
under 19 U.S.C. § 1520(c). See G&R Produce Co. v. United
States, 27 CIT ___, ___, 281 F. Supp. 2d 1323, 1331 (2003);
Prosegur, Inc. v. United States, 25 CIT 364, 370, 140 F. Supp.
2d 1370, 1378 (2001); Universal Coops., Inc. v. United States,
13 CIT 516, 518, 715 F. Supp. 1113, 1114 (1989). Decisional
mistakes are mistakes of law and occur when “a party [makes] the
wrong choice between two known, alternative sets of facts.”
Universal Coops., 13 CIT at 518, 715 F. Supp. at 1114. On the
other hand, an ignorant mistake occurs where “a party is unaware
of the existence of the correct alternative set of facts.” Id.
“In order for the goods to be reliquidated under 1520(c)(1), the
alleged mistake of fact must be an ignorant mistake.” Prosegur,
25 CIT at 370, 140 F. Supp. 2d at 1378.
The statute also contains a materiality requirement. See
19 U.S.C. § 1520(c) (1999) (requiring that an error must be
“adverse to the importer” in order to justify reliquidation
under 19 U.S.C. § 1520(c)). In the classification context, for
example, courts have addressed the materiality requirement
extensively. See, e.g., Degussa Can. Ltd. v. United States, 87
F.3d 1301, 1304 (Fed. Cir. 1996) (“[A] mistake of fact . . . is
a factual error that, if the correct fact had been known, would
have resulted in a different classification.”) (emphasis added);
Consol. Court No. 03-00856 Page 20
Xerox Corp. v. United States, Slip Op. 04-113, at 10, 2004 Ct.
Int’l Trade LEXIS 112, at *14 (CIT Sept. 8, 2004). The
unambiguous language of the statute requires that courts apply
the materiality requirement to all 19 U.S.C. § 1520(c) cases,
even those in contexts where, as in this case, the case law is
less developed.
Hynix alleges two different mistakes of fact that, it
argues, are correctable under 19 U.S.C. § 1520(c). First, Hynix
claims Customs made a mistake of fact by liquidating the Entries
at the incorrect rate. See Hynix’s Memorandum of Points and
Authorities in Support of Plaintiff’s Motion for Summary
Judgment at 20. Second, it contends Commerce made a mistake
when Rivas incorrectly transferred data from the SAS Program and
the SAS Printout to the template liquidation instructions. See
Plaintiff’s Brief in Reply to Defendant’s Opposition to
Plaintiff’s Motion for Summary Judgment and in Opposition to
Defendant’s Cross-Motion for Summary Judgment (“Hynix Reply”) at
13-14. Customs, on the other hand, argues in response that (1)
Customs itself made no cognizable “mistake of fact” or
correctable error; and (2) Rivas’ failure to take into account
the importer-specific assessment rate applicable to Hyundai
Electronics America amounts to “an error in the construction of
Consol. Court No. 03-00856 Page 21
a law,” which would foreclose reliquidation relief under 19
U.S.C. § 1520(c). See Customs Br. at 9-16.
1. Customs’ Liquidation of the Entries at an Incorrect
Rate Was Not a Correctable Mistake of Fact Because It
Fails the Materiality Test
Hynix’s contention that Customs committed a mistake of fact
because it followed erroneous instructions from Commerce fails
to take into account the materiality requirement, and therefore
betrays a misunderstanding of the “ignorant mistake” case law.
As discussed supra, an ignorant mistake occurs when “a party is
unaware of the existence of the correct alternative set of
facts.” Universal Coops., 13 CIT at 518, 715 F. Supp. at 1114.
Equally critical, however, is the requirement that the ignorant
party would have acted differently had it known the truth about
the mistaken facts. See Degussa, 87 F.3d at 1304.
Thus, in Xerox Corp., the court found a mistake of fact
where an employee of an importer, who was responsible for
entering merchandise, mischaracterized certain entries as
“photocopying apparatus” (subheading 9009.12.00 of the
Harmonized Tariff Schedule of the United States (“HTSUS”))
instead of “laser printers” (subheading 8471.60.6100 of the
HTSUS), which were entitled to a lower tariff rate. Xerox
Corp., Slip. Op. 04-113, at 4, 2004 Ct. Int’l Trade LEXIS 112,
at *4-*5. In reality, the merchandise “could be connected to a
Consol. Court No. 03-00856 Page 22
computer, receive data, and print it out and . . . could not
make a photocopy,” and was therefore properly categorized as
“laser printers.” Id. at 5, 2004 Ct. Int’l Trade LEXIS 112, at
*8. The employee, however, was unfamiliar with the merchandise
and relied on erroneous invoice descriptions. Id. The court
found that since the employee “had the mistaken belief that the
merchandise was other than what it was, it is clear that [his]
reliance on inaccurate merchandise descriptions on the invoices
constitutes a mistake of fact.” Id. at 11, 2004 Ct. Int’l Trade
LEXIS 112, at *16.
Similarly, in G&R Produce, the U.S. Court of Appeals for
the Federal Circuit (“Federal Circuit”) found a mistake of fact
when a Customs official, “as a result of not knowing the correct
botanical designation for Persian limes . . . incorrectly
believed that ‘Citrus aurantifolia’ encompassed all limes and
therefore, misclassified [plaintiff’s] goods under [the HTSUS].”
G&R Produce, 381 F.3d at 1333. The correct designation of
Persian limes was “Citrus latifolia” and corresponded to a lower
rate under the HTSUS. The relevant “fact” in G&R Produce was
that the category of “Citrus latifolia” existed. The Customs
agent was ignorant of that fact, and indeed believed another
fact—that “Citrus aurantifolia” applied to all limes—to be true.
Cf. C.J. Tower & Sons, 61 C.C.P.A. at 96, 499 F.2d at 1282
Consol. Court No. 03-00856 Page 23
(broker’s ignorance of duty-free designation “emergency war
material” was a mistake of fact). The Federal Circuit found
that a mistake of fact, not amounting to a mistake in the
construction of a law, existed. See G&R Produce, 381 F.3d at
1333.
Both G&R Produce and Xerox Corp. involved mistaken
perceptions of facts that were constitutive of the
classification process performed by Customs. In both cases, the
mistakes related to vital components of classification: in G&R
Produce, a mistake as to what categories existed, and in Xerox
Corp., a mistake as to the relevant properties of merchandise on
which basis the classification depended. In this case, however,
Hynix alleges the mistake is Customs’ failure to take into
account potentially relevant information that, while important,
is unlikely to have affected Customs’ action.
Hynix overstates Customs’ discretion when acting pursuant
to Commerce’s instructions. When Customs follows liquidation
instructions issued by Commerce subsequent to an administrative
review, it is executing a purely ministerial duty over which it
possesses no discretion. See Mitsubishi, 44 F.3d at 977
(“Customs merely follows Commerce’s instructions in assessing
and collecting duties. . . . Customs cannot modify . . .
[Commerce’s] determinations, their underlying facts, or their
Consol. Court No. 03-00856 Page 24
enforcement.”) (quotation marks omitted); cf. 19 C.F.R.
§ 351.212 (2005) (“The Secretary [of Commerce] then will
instruct the Customs Service to assess antidumping duties by
applying the assessment rate to the entered value of the
merchandise.”); 19 U.S.C. § 1675(a)(3)(B) (1999) (“If [Commerce]
orders any liquidation of entries pursuant to [an
administrative] review . . . such liquidation shall be made
promptly and, to the greatest extent practicable, within 90 days
after the instructions to Customs are issued.”).
A more apt analogy to this case is Degussa, where the
Federal Circuit refused to assume that Customs would have
treated an entry differently had it been aware of the actual
facts relating to that entry. There, the importer introduced
two entries of automotive emission catalysts into the United
States through the ports of Detroit and Buffalo. See Degussa,
87 F.3d at 1302. Both times, Customs officials classified the
merchandise as “other parts and accessories of motor vehicles”
under subheading 8708.99 of the HTSUS, which corresponded to a
duty of 3.1 percent. Id. The importer objected, and filed a
protest of the Buffalo entry, which Customs eventually
sustained, holding that the catalysts were properly designated
as “catalytic preparations” under subheading 3815.12.00, which
were duty free. Id.
Consol. Court No. 03-00856 Page 25
Then, more than ninety days but less than a year after the
liquidation in Detroit, the importer filed a 19 U.S.C. § 1520(c)
reliquidation request as to the Detroit entries, contending that
Customs made a mistake of fact by not staying the liquidation of
the goods pending Customs’ review of the protest of the Buffalo
entry. Id. Specifically, the importer argued “that if the
district director had been aware of the pending review by the
Commissioner, he would have deferred liquidation and, following
the Commissioner’s decision, would have classified the
merchandise in accordance with that decision.” Id. Customs
refused to find a mistake of fact, and denied the 19 U.S.C.
§ 1520(c) request on the grounds that the mistake, if any, was a
legal mistake. Id.
The Federal Circuit agreed with the result that Customs had
reached, pointing out that “there was no factual misapprehension
about the nature of the imported merchandise.” Id. at 1304.
The “fact” of which Customs officials in Detroit were ignorant
was that the importer had commenced a 19 U.S.C. § 1514 protest
proceeding over the Buffalo entry. That fact related to the
legal question of the proper classification of the merchandise.
The Degussa court, however, stopped short of declaring the error
to be a legal mistake. Instead, the Federal Circuit focused on
the materiality requirement, observing that “[i]t is impossible
Consol. Court No. 03-00856 Page 26
to state what the district director in Detroit would have done”
had he known about the pending Buffalo protest. Id.
As Degussa demonstrates, not all prima facie “ignorant
mistakes” will be remediable under 19 U.S.C. § 1520(c). Indeed,
it would be absurd if 19 U.S.C. § 1520(c) were available to
correct an entry every time Customs, at liquidation, was
“unaware of the existence of the correct alternative set of
facts.” Universal Coops., 13 CIT at 518, 715 F. Supp. at 1114.
Instead, only if it may be said with certainty that Customs
would have liquidated at a different rate if it had known the
correct facts will 19 U.S.C. § 1520(c) provide relief to
aggrieved importers. When, as in Degussa and this case, the
mistake of fact relates to events exogenous to the agency
activity, and there is no clear statutory or regulatory
instruction for the agency to correct that error, then 19 U.S.C.
§ 1520(c) is inapplicable.
2. Commerce’s Issuance of Erroneous Liquidation
Instructions Due to Rivas’ Mistake Is Correctable
under 19 U.S.C. § 1520(c) as a Clerical Error or
Mistake of Fact Not Amounting to an Error in the
Construction of a Law
Hynix’s second argument is that Commerce’s issuance of
erroneous liquidation instructions due to Rivas’ mistake is a
mistake of fact that is correctable under 19 U.S.C. § 1520(c).
Consol. Court No. 03-00856 Page 27
a. There Is No Per Se Bar to Invoking 19 U.S.C.
§ 1520(c) to Correct a Commerce Error
As a threshold matter, it is necessary to examine Customs’
claim that “[a]n error on the part of Commerce cannot be
corrected under 19 U.S.C. § 1520(c)(1).” Customs Br. at 17. 19
U.S.C. § 1520(c) allows Customs to reliquidate entries “to
correct . . . a clerical error, mistake of fact, or other
inadvertence . . . in any entry, liquidation, or other customs
transaction . . . .” 19 U.S.C. § 1520(c) (1999) (emphasis
added). The Court believes Customs’ argument burdens the
statute with an unduly restrictive interpretation of what
happens “in any . . . liquidation.” Id.
The plain language of the statute does not require that
Customs have committed the “clerical error, mistake of fact, or
other inadvertence . . . not amounting to an error in the
construction of a law.” Id. To the contrary, the statute’s
pertinent requirement is that there be “a clerical error,
mistake of fact, or other inadvertence . . . in any entry,
liquidation, or other customs transaction.” 19 U.S.C. § 1520(c)
(1999) (emphasis added). On the uncontested facts of this case,
there was an error in the liquidations. Although that error
initially occurred in the preparation and issuance of Commerce’s
liquidation instructions, the error also occurred in the
Consol. Court No. 03-00856 Page 28
liquidations. The latter, as did the liquidation instructions,
incorrectly assessed the 2.30 percent antidumping duty rate on
the Entries.
Moreover, Congress intended 19 U.S.C. § 1520(c) to be
interpreted liberally to provide an effective mode of redress
for importers whose goods were liquidated at the wrong rate.11
See G&R Produce, 381 F.3d at 1332-33; ITT Corp., 24 F.3d at
1388-89 (“Congress clearly envisioned a liberal mechanism for
the correction of the specific inadvertences set forth in
§ 1520(c)(1).”). It is also noteworthy that no court has ever
held what Customs now urges the Court to find: i.e., that
Commerce’s errors are per se outside the ambit of 19 U.S.C.
§ 1520(c).
To the contrary, the Federal Circuit reached the opposite
conclusion in a case that involved Commerce’s erroneous
exclusion of an importer’s name from a suspension of liquidation
11
The Court notes the Federal Circuit’s Fujitsu decision
stressed that 19 U.S.C. § 1520(c) was a “limited exception” and
proceeded to deny relief under that section. Fujitsu, 363 F.3d
at 1235. The limiting factor in Fujitsu was the requirement
that one of the three prima facie correctable errors be present.
See id. Because the issue of the inclusion vel non of Commerce
errors involves the interpretation of “liquidation, or other
customs transaction,” 19 U.S.C. § 1520(c)(1), and not the
interpretation of “clerical error, mistake of fact, or other
inadvertence,” id., there is no reason to allow Fujitsu’s
cautionary analysis prevent the Court from invoking the
liberality instruction from ITT Corp. and G&R Produce.
Consol. Court No. 03-00856 Page 29
list regarding entries then subject to a countervailing duty
order. See Omni USA, Inc. v. United States, 840 F.2d 912 (Fed.
Cir. 1988). The case arose in the aftermath of the President’s
transfer of the administration of countervailing duties from the
Treasury Department to Commerce. Immediately after the
transfer, Commerce published a notice of its intent to review
all countervailing duty orders then in effect. Id. at 912. In
the notice, Commerce stayed the liquidation of all entries
subject to its review. Id. Commerce mistakenly failed to
include the plaintiff’s goods on the suspension of liquidation
list, and the goods were liquidated. Id. The Federal Circuit
noted that “Section 1520(c)(1) appear[ed] to fit the . . . case
like a glove.” Id. at 913. It was “a statutory instrumentality
that is, according to its terms, exactly and precisely suited to
deal with [such] an instance . . . .”12 Id.
12
The Omni court’s description of the liquidation error in that
case is ambiguous. For instance, that court reasoned that “[i]f
Omni had alerted [C]ustoms to the error it had committed within
a year, its right remained to protest any refusal to reliquidate
under section 1514, and to carry the case to the court.” Omni,
840 F.2d at 913 (emphasis added). At the same time, the Omni
court referred to Commerce’s “inadvertence and mistake,” id. at
913, for having “inadvertently failed to inform,” id. at 914,
Customs of the suspension of liquidation list. Because the Omni
decision rested on untimeliness of the reliquidation request, it
is understandable that the Omni court did not provide a
comprehensive explanation of how 19 U.S.C.§ 1520(c) applied to
those facts. Given the substantial similarity between the
cases, and that the Omni court assumed that 19 U.S.C. § 1520(c)
Consol. Court No. 03-00856 Page 30
Customs attempts to distinguish Omni on the grounds that
“the error and the inadvertence in Omni occurred in the
liquidation of the entries.” Customs Br. at 18. However, a
close reading of Omni reveals the substantial similarity between
that case and the issue before the Court. In both cases,
Commerce issued incomplete or erroneous instructions to Customs,
which performed its administrative role in accordance with law,
only to achieve an incorrect result. Both errors became adverse
to the relevant importer upon liquidation, and in no way can the
Omni error be said to have occurred “in the liquidation of the
entries” to a greater degree than Rivas’ error.
The Court recognizes that the Omni court ultimately
dismissed the case as time barred, and that the quoted language
above was dictum. However, the ease with which that court
assumed that 19 U.S.C. § 1520(c) applied to an instance where
Commerce’s inadvertence led to an erroneous liquidation, in
conjunction with the plain language of the statute, as well as
the Federal Circuit’s repeated advisements to interpret the
statute liberally, persuades the Court to reject Customs’ claim
applied, it is incumbent on Customs to distinguish Omni from
these facts. Customs does not even raise the issue of Omni’s
ambiguous treatment of the origination of the correctable
mistake; instead, it argues only that the mistake in Omni
somehow involved liquidation more than Rivas’ mistake. See
Customs Br. at 17-18.
Consol. Court No. 03-00856 Page 31
that 19 U.S.C. § 1520(c) excludes all errors committed by
Commerce.
Moreover, Customs’ arguments reveal a puzzling conception
of its own authority to correct Commerce’s admitted errors.
Customs faults Hynix for not filing a protest under 19 U.S.C.
§ 1514. See Customs Br. at 18-20. More significantly, Customs
actually did grant Hynix’s protests as to entries for which the
ninety-day time bar did not apply. See Customs’ Statement of
Facts ¶¶ 27-28. It is unclear why Customs should consider
itself permitted to correct Commerce errors pursuant to 19
U.S.C. § 1514, but not 19 U.S.C. § 1520(c), especially when it
would appear that 19 U.S.C. § 1520(c) is a more commodious fit
for such a correction. After all, 19 U.S.C. § 1520(c) expressly
affords Customs the authority to reliquidate based on errors.
Conversely, the text of 19 U.S.C. § 1514 applies on its face to
“decisions of the Customs Service,” 19 U.S.C. § 1514(a), a
category that would appear a more tenuous fit in light of
Customs’ purely ministerial role in antidumping proceedings.
See, e.g., Mitsubishi, 44 F.3d at 977 (noting that “Customs does
not make any antidumping ‘decisions’”) (quoting 19 U.S.C.
§ 1514(a)); Mukand Int’l, Ltd. v. United States, 29 CIT ___,
___, Slip Op. 2005-164, at 9 (Dec. 22, 2005); Royal Bus. Mach’s,
Consol. Court No. 03-00856 Page 32
Inc. v. United States, 1 CIT 80, 87 n.18, 507 F. Supp. 1007,
1014 (1980), aff’d, 69 C.C.P.A. 61, 669 F.2d 692 (1982).
In addition, the strict division of administrative duties
between Customs and Commerce in the determination and assessment
of antidumping duties assuages the Court’s concern that 19
U.S.C. § 1520(c) could transform into an open-ended grant of
authority for Customs to review Commerce determinations.
Because Customs is never permitted to review Commerce’s
determinations and conclusions in the course of an antidumping
proceeding, see Mitsubishi, 44 F.3d at 977, Customs may correct
a Commerce error only in a discrete set of circumstances,
subject to the limitations contained in the statute itself.
Where Commerce has acknowledged a correctable error, and
instructed Customs to correct it, such circumstances are
present.13
13
The Court need not decide the more difficult issue of
articulating the precise contours of 19 U.S.C. § 1520(c) with
respect to errors by Commerce that are not recognized by the
agency. It suffices to say that Mitsubishi’s pronouncement that
“Customs has a merely ministerial role in liquidating
antidumping duties[,]” 44 F.3d at 977, stands as a formidable
bar to challenges to Commerce decisions (as opposed to mistakes)
masked as 19 U.S.C. § 1520(c) reliquidation requests. In
addition, the exclusion of mistakes of law from the purview of
19 U.S.C. 1520(c) will be fatal to any reliquidation request
purporting to challenge Commerce’s legal conclusions. Moreover,
in a case like this where Commerce has admitted its error and
endeavored to correct it, it is easy to gloss over the otherwise
stringent requirement that the error be “manifest from the
Consol. Court No. 03-00856 Page 33
In light of the foregoing considerations, the Court finds
there is no per se bar for Customs to reliquidate entries, under
19 U.S.C. § 1520(c), in light of errors committed and
acknowledged by Commerce.
b. Rivas’ Error Is a Mistake of Fact Not Amounting
to an Error in the Construction of a Law
Hynix contends that when Rivas inserted the erroneous rate
into the template liquidation instruction document without
knowing the correct rate, she made a mistake of fact. Moreover,
Hynix characterizes the mistake as not involving a decisional
mistake since “[i]n this case, Ms. Rivas had no authority or
discretion to choose one rate over the other . . . .” Hynix
Reply at 12. Customs, in response, argues that Rivas believed
she was entering the correct rate but she did not know the legal
consequences of her actions, and therefore committed a mistake
of law. See Customs Br. at 13-14.
A mistake of law is a decisional mistake, which involves a
“choice between two known, alternative sets of facts.”
Universal Coops., 13 CIT at 518, 715 F. Supp. at 1114. Courts
find decisional mistakes where the mistaken party errs in
exercising his or her discretionary authority. See, e.g.,
Brother Int'l Corp., 29 CIT at ___, 368 F. Supp. 2d at 1351-52
record or established by documentary evidence.” 19 U.S.C.
§ 1520(c) (1999).
Consol. Court No. 03-00856 Page 34
(customs broker misapplied GRI principles in determining proper
tariff classification of merchandise); Universal Coops., 13 CIT
at 518, 715 F. Supp. at 1114-15 (Customs committed a decisional
mistake when it allegedly miscalculated the width of imported
twine wire, resulting in a higher duty); PPG Indus., Inc. v.
United States, 7 CIT 118, 126 (1984) (customs broker failed to
file bond under HTSUS, subheading 864.30, which would have
entitled importer to duty-free status, because “its cognizant
personnel did not know that Item 864.30, TSUS, existed”)
(emphasis added).
Customs has failed to adduce any evidence that Rivas’
responsibilities consisted of anything more, in this instance,
than the strictly ministerial task of transferring data from the
SAS Printout to the liquidation instructions. Her own
description of her responsibilities as an import compliance
specialist is clear and concise: “I would look at the program, I
would draft instructions using a boilerplate, insert the
appropriate number and send it to the computer specialist to
send to Customs.” Rivas Dep. at 13:17-20; see also id. 37:15-18
(Rivas testifying that she would typically consult the SAS
Program when preparing liquidation instructions). The evidence
establishes that an import compliance specialist imports data
from the SAS Program and the SAS Printout into the template, and
Consol. Court No. 03-00856 Page 35
then transfers the template instructions to a computer
specialist, see id. 27:9-10, who then transmits the document to
Customs electronically. See id. 27:11-15.
It is evident from the foregoing description of Rivas’
duties in preparing liquidation instructions that her role was
fundamentally ministerial and not analytical or interpretive.
The legally relevant decisions had already been made and were
ready to be transcribed by Rivas into the template instructions.
If the SAS Program technology allowed for printing liquidation
instructions directly, there would have been no error at all.
Conversely, decisional mistakes of law cannot be hypothetically
sidestepped by imagining computer technology and personnel
redundancy.
The error is more properly characterized as a mistake of
fact. A fact existed (the importer-specific assessment rate for
Hyundai Electronics America was 1.57 percent) but was unknown,
and a fact was believed (the final margin of 2.3 percent should
be used for all importers) despite its incorrectness. The
scenario is analogous to Xerox: in that case, as here, an
employee vested with non-discretionary authority executed
instructions and was found to have committed a mistake of fact.
The crucial commonality is the complete absence of any
discretionary, decisional authority on the part of the employee.
Consol. Court No. 03-00856 Page 36
Also like Xerox, the materiality requirement can hardly be
disputed here, since it is obvious that Rivas would have drafted
correct instructions had she been made aware of her mistake.
Customs’ arguments to the contrary must be rejected because
they fail to take into account the nature of Rivas’ occupation.
It is irrelevant that the facts as to which Rivas made a mistake
were of legal import. Those facts related to Rivas only as data
to be entered into a template form. Since Rivas was not
engaged, in this instance, in the “construction of a law,” 19
U.S.C. § 1520(c) (1999), and because she had no decisional
authority, she did not commit a mistake of law.
c. Rivas’ Error Is a Clerical Error Not Amounting to
a Mistake in the Construction of a Law
Though the Court finds that Rivas’ mistake amounts to a
mistake of fact, the Court finds it appropriate to explain why
Customs should have labeled Rivas’ mistake a “clerical error”
and granted the reliquidation request.14 Such a response would
have obviated consideration of the significantly more complex
“mistake of fact” jurisprudence.15
14
The three categories of prima facie correctable errors—i.e.,
clerical error, mistake of fact, and inadvertence—are not
mutually exclusive. See Ford Motor Co., 157 F.3d at 857.
15
Hynix limited its arguments before the Court to the mistake
of fact issue, despite having claimed the mistake was a clerical
error in the administrative proceedings below. See HQ 229808,
Consol. Court No. 03-00856 Page 37
“A clerical error is a mistake by a clerk or other
subordinate, upon whom devolves no duty to exercise judgment, in
writing or the copying figures or in exercising his intention.”
PPG Indus., 7 CIT at 124. Clerical errors are characterized by
the absence of exercising judgment and intention, as when a
mistake is made in copying or typing figures, or where figures
have been transposed. See id. at 124 n.7 (citing inter alia
Rapaport v. United States, 4 CIT 215 (1982), Louis Aisenstein &
Bros., Inc. v. United States, 34 Cust. Ct. 268, Abs. 58715
(1955)).
In support of that proposition, the PPG Indus. court cited
to the Yamada case from Court of Customs and Patent Appeals
(“CCPA”), the predecessor of the Federal Circuit. See PPG
Indus., 7 CIT at 124 (citing Yamada v. United States, 26
C.C.P.A. 89 (1938)). In Yamada, a supervisor at a brokerage
firm gave a subordinate broker a certificate and instructed him
to file it with one hundred entries for the importer. Yamada,
26 C.C.P.A. at 92. The broker then erroneously and carelessly
substituted a different form for thirty-five of the hundred
entries. Id. Customs argued that 19 U.S.C. § 1520 did not
2003 U.S. CUSTOM HQ LEXIS 215 at *4. As such, the Court
considered it appropriate to address the parties’ arguments
relating to the mistake of fact jurisprudence, in spite of the
fact that Rivas’ error is more accurately described as a
“clerical error” or “inadvertence.”
Consol. Court No. 03-00856 Page 38
apply because the broker had been “careless and indifferent” and
could therefore not be said to have committed a clerical error.
Id. at 93-94.
The CCPA disagreed, noting instead that “[i]t is instead
our view that clerical error is usually the result of
carelessness.” Id. at 94. The Yamada court quoted from a 1908
case that is still relevant today:
Clerical error implies negligence or carelessness; but the
question is: Whose is the negligence? If it is that of a
“clerk, writer, or copyist,” it is clerical error. The
expression assumes that the mistake or negligence or
carelessness is that of one engaged in the subordinate
service of transcription, copying or comparison; a labor
not requiring original thought.
Id. (quoting Morimura Bros. v. United States, 160 F. 280, 281
(C.C.S.D.N.Y. 1908) (citation omitted)) (emphasis added).
Lest the continuing authority of these older cases be put
in question, it bears mention that the Federal Circuit has
recently cited both Yamada and Morimura Bros. with approval.
See Ford Motor Co., 157 F.3d at 860. In Ford Motor Co., the
Federal Circuit summarized the Yamada holding in terms that
evoked language from the PPG Indus. case: “Thus, Yamada teaches
that a subordinate acting contrary to binding instructions
commits a clerical error. When a subordinate is given binding
instructions on particular aspects of a task, no duty devolves
upon him to exercise discretion or judgment in carrying out
Consol. Court No. 03-00856 Page 39
those aspects.” Id. Therefore, in cases where an employee or
other agent has failed to follow “complete, binding, non-
discretionary instructions,” id. at 861, a clerical error has
occurred.
In this case, Rivas received the results from the SAS
Program and was charged with entering the data contained therein
into boilerplate liquidation instructions for Customs. Her
orders were “complete, binding, [and] non-discretionary.” Id.
Moreover, her mistake occurred while performing a “subordinate
service of transcription, copying or comparison.” Morimura
Bros., 160 F. at 281. Her work, while important, was “a labor
not requiring original thought.” Id.
In light of these considerations, the Court finds that
Rivas’ error constituted a “clerical error” and thus justified
reliquidation under 19 U.S.C. § 1520(c) upon Hynix’s request.
V. CONCLUSION
The Court observes briefly that it is unfortunate that
Hynix had to bring this lawsuit in the first place. In this
case, Hynix, Commerce, and Customs all admit that an obvious,
unintended, and unanticipated human error occurred.
Nevertheless, Customs chose to drag the Court and the plaintiff
into the bramble bush of 19 U.S.C. § 1520(c) to fight
reliquidation, set against the obvious equitable result. To its
Consol. Court No. 03-00856 Page 40
credit, Commerce did everything in its power to correct its
obvious mistake, only to be stonewalled by Customs’
intransigence. In the Court’s view, the error should have been
corrected at the outset.
For the reasons set forth in Part IV of the opinion, the
Court grants Hynix’s motion for summary judgment and denies
Customs’ cross-motion for summary judgment. A separate order
will be issued in accordance with this conclusion.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: January 26, 2006
New York, NY