SLIP OP. 04-160
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
DAIMLERCHRYSLER CORPORATION, :
:
Plaintiff, :
:
v. : Court No. 02-00717
:
UNITED STATES, :
:
Defendant. :
____________________________________:
[Motion to amend summons to include entries covered by new protests denied.]
Dated: December 22, 2004
Barnes, Richardson & Colburn (Lawrence M. Friedman and Harvey Karlovac), for
plaintiff.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E.
Davidson, Deputy Director, Barbara S. Williams, Attorney-in-Charge, International Trade Field
Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (Saul
Davis), Michael W. Heydrich, Office of Assistant Chief Counsel, International Trade Litigation,
United States Bureau of Customs and Border Protection, of counsel, for defendant.
OPINION
RESTANI, Chief Judge:
This matter is before the court on plaintiff DaimlerChrysler Corporation’s motion to
amend summons. Defendant United States opposes the motion on jurisdictional grounds.
BACKGROUND
For more than a decade plaintiff has attempted to have its entries of automobiles, parts
of which were United States manufactured but painted in Mexico, reliquidated so that such parts
would receive duty free treatment under Harmonized Tariff System of the United States
Court No. 99-03-00178 Page 2
(“HTSUS”) item 9802.00.80. Plaintiff lost its first action following a trial because, essentially,
this court and the Court of Appeals for the Federal Circuit adhered to General Motors Corp. v.
United States, 976 F.2d 716 (Fed. Cir. 1992). See Chrysler Corp. v. United States, 86 F.3d 1173,
1996 U.S. App. LEXIS 6368 (Fed. Cir. 1996) (unpublished table decision). After the Supreme
Court in United States v. Haggar Apparel Co., 526 U.S. 380 (1999), altered the legal landscape to
give more import to regulations in classification matters, plaintiff filed a new action. Because
Haggar did not appear to overrule all aspects of General Motors, plaintiff lost again after trial, but
persevered and convinced the Court of Appeals, based on Haggar, to totally repudiate General
Motors. See DaimlerChrysler Corp. v. United States, 361 F.3d 1378, 1384-85 (Fed. Cir. 2004).
Such skillful lawyering and perseverance should be rewarded fully but, alas, the court cannot
create jurisdiction to accomplish this end.
Seventeen cases were suspended under the DaimlerChrysler, 361 F.3d 1378, test case and
this matter is one of those cases. The body of the summons in this matter purported to cover 81
protests and 2,105 entries. Plaintiff alleges, and the court has no reason to doubt it, that this
action was intended to cover 83 protest and 2,103 entries. According to plaintiff, a page of a
spread sheet, which was to be attached to the summons, was not attached. Thus, apparently, 403
entries from 7 protests and 97 entries from a listed protest were not included in the summons.
Defendant does not dispute this count.
DISCUSSION
The problem here is that while the issue in dispute obviously was clear to the relevant
United States agencies throughout this litigation, this action covers only the entries which are
before the court. There is no doubt that all duties have been paid as required by 28 U.S.C. §
Court No. 99-03-00178 Page 3
2637(a) (2002), that this action has been appropriately suspended under CIT Rule 84 and has
remained inactive, that the protests plaintiff wished it had sued on were denied under 19 U.S.C. §
1515, and that the summons here was timely under 28 U.S.C. § 2636(a) as to whatever it
covered. Thus, jurisdiction would lie under 28 U.S.C. § 1581(a) if the 500 entries at issue were
included in the summons.
28 U.S.C. § 1581(a) provides jurisdiction for suits challenging denials of protests. 19
U.S.C. § 1514 states that Customs’ decisions, including classification decisions reflected in
liquidation of import entries, are final and conclusive unless the decision is protested under 19
U.S.C. § 1515 or a civil action contesting the denial of a protest is filed. Thus, the question is
what must the summons list in a case challenging a protest denial to fulfill the statute.1
It has been clear since the Supreme Court ruled in United States v. Stone & Downer Co.,
274 U.S. 225 (1927), that a decision in one Customs classification case is not res judicata as to
another case involving different entries of the same type of merchandise. These actions are entry
specific. Id. at 236-37. This principle was reiterated by the Court of Appeals for the Federal
Circuit, mostly notably in Schott Optical Glass, Inc. v. United States, 750 F.2d 62, 64 (1984)
(recognizing exception to stare decisis for clearly erroneous decisions). Thus, if parties retain
their rights to relitigate as to different entries of like merchandise, information as to what specific
merchandise is before the court needs to be conveyed with particularity in the summons.
Accordingly, it is evident to the court that something in or attached to the summons must lead to
the specific merchandise.
1
Under the court’s rules, an action under 28 U.S.C. § 1581(a) is commenced by the
filing of a “summons”. See CIT R. 3(a).
Court No. 99-03-00178 Page 4
As long as the protests were included in some way, jurisdiction will attach to every entry
listed in the protest itself. That is the rule of Pollack Imp.-Exp. Corp. v. United States, 52 F.3d
303, 308 (Fed. Cir. 1985). Further, if the entries were listed and it was possible for the United
States to relate the entry to the protest, as is likely under this factual scenario, then jurisdiction
would also attach. But if there is no entry number on or attached to the summons and no protest
number on or attached to the summons at the time it is filed, the general understanding that
DaimlerChrysler intended to pursue this issue as to all possibly affected entries will not suffice.
More is required to commence an action which will bind the parties at its conclusion.
CONCLUSION
Jurisdiction lies over all of the entries in any protest listed on or attached to the summons.
Entries not themselves listed and which are also not included in a listed protest are beyond the
court’s jurisdiction. From its review of the documents filed in this action, the court concludes
that 97 entries covered by Protest 2304-93-100037 may be added. The summons may be
amended to the extent permitted herein within 20 days hereof.
SO ORDERED.
/s/ Jane A. Restani
Jane A. Restani
Chief Judge
Dated : New York, New York.
This 22nd day of December, 2004.
ERRATA
Please make the following changes to DaimlerChrysler Corp. v. United States, No. 02-00717, Slip
Op. 04-160, December 22, 2004:
• Page 1, BACKGROUND, line 3: Replace “Harmonized Tariff System” with “the Harmonized
Tariff Schedule”
• Page 2, paragraph 2, line 1: Replace “DaimlerChrysler, 361 F.3d 1378, test case” with
“DaimlerChrysler test case”
• Page 2, paragraph 2, line 4: Replace “protest” with “protests”
December 27, 2004