Slip Op. 03 - 3
UNITED STATES COURT OF INTERNATIONAL TRADE
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THERMACOTE WELCO COMPANY, :
Plaintiff, :
v. : Court No. 93-08-00431
:
UNITED STATES,
:
Defendant.
:
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Opinion
[On cross-motions as to refund of duties
voluntarily deposited, summary judgment
for the defendant.]
Decided: January 7, 2003
Wigman, Cohen, Leitner & Myers, P.C. (Edward J. Farrell) for
the plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley); and Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs Service (Chi S. Choy)
of counsel, for the defendant.
AQUILINO, Judge: In this action, the plaintiff importer
seeks relief from denial by the U.S. Customs Service of a request
for refund of duties voluntarily deposited to the extent those
deposits proved to be in excess of its liability therefor, as
determined by the International Trade Administration, U.S.
Department of Commerce ("ITA").
Court No. 93-08-00431 Page 2
I
Following joinder of issue, the parties have interposed
cross-motions for summary judgment. They have done so in the be-
lief that their pleadings show that there is no genuine issue as to
any material fact within the meaning of USCIT Rule 56(c) and that
each is entitled to judgment as a matter of law. Plaintiff's
Statement of Material Facts Not in Dispute, submitted pursuant to
Rule 56(i) [since relettered (h)], avers, among other things, that:
1. The [twelve] entries in question consist of low-
fuming brazing rod (LFB) from New Zealand.
2. At the time of each of these entries there was
in place a suspension of liquidation of entries of LFB
from New Zealand pursuant to outstanding antidumping and/
or countervailing duty orders.
3. The U.S. Customs Service failed to collect the
deposit of countervailing and/or antidumping duties re-
quired by the relevant suspension order on each of the
entries in question.
4. At the request of . . . Customs . . . plaintiff
voluntarily tendered deposits of countervailing and/or
antidumping duties . . . with the understanding that the
entries were not liquidated.
5. The entries were in fact mistakenly liquidated
. . ..
6. The voluntarily tendered deposit amounts ex-
ceeded Plaintiff's antidumping/countervailing duty lia-
bility as finally determined by the U.S. Department of
Commerce.
7. . . . Customs . . . refused to refund the excess
of Plaintiff's deposits over its liabilities.
Defendant's response to this statement admits paragraph 1 and
denies paragraph 6. That response also:
Court No. 93-08-00431 Page 3
2. Admits that the entries in issue were made and
there were outstanding antidumping and/or countervailing
duty orders directed to low-fuming brazing rod from New
Zealand; denies that liquidation of the entries was
suspended . . ..
3. Admits that the Customs Service did not collect
antidumping or countervailing duties on the entries in
issue; avers that the plaintiff or its broker, D.J.
Powers, indicated on the entry summaries (CF7501) that
the entries were consumption entries not subject to anti-
dumping or countervailing duties; avers further that the
plaintiff or its broker did not deposit antidumping or
countervailing duties on the entries in issue when the
entry summaries were filed . . ..
4. Admits that at the request of . . . Customs
. . . the plaintiff voluntarily tendered antidumping or
countervailing duties for Entry Nos. 85-164232-9 and 85-
164230-3; denies there was any understanding between
. . . Customs . . . and the plaintiff's broker that the
entries had not been liquidated at the time the voluntary
tenders were made . . ..
5. Admits that the entries were liquidated on the
dates stated in [plaintiff's] Exhibit A; denies that the
entries were mistakenly liquidated.
* * *
7. Admits that . . . Customs . . . refused to allow
the refunds requested by the plaintiff; denies the
remainder of the statement.
Defendant's own Statement of Material Facts Not in
Dispute adds that:
2. Neither antidumping nor countervailing duties
were deposited when the entry summaries were filed[;]
estimated regular duties were deposited[] for the entries
in issue.
3. An entry code of "01" appears in Box 2 on each
entry summary (CF7501) for the entries in issue.
Court No. 93-08-00431 Page 4
4. A bulletin notice of liquidation for each entry
in issue appeared on or about the date of liquidation.
None of these averments is controverted by the plaintiff.
Indeed, after reviewing the papers in this action, the court
concludes that there is no issue of material fact which requires
trial. The dispositive issue(s) are matters of law that can be
resolved by this opinion. Cf. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)("the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact") (emphasis in origi-
nal).
The thrust of defendant's cross-motion for summary
judgment is that this action be dismissed for lack of subject-
matter jurisdiction. Sometime subsequent to entry and to liquida-
tion, Customs requested that plaintiff's broker, D.J. Powers
Company, Inc., tender voluntarily antidumping/countervailing duties
at the deposit rates on at least some of the entries1, whereupon
1
The Customs Import Specialist in the port of entry de-
clares:
Handwritten notes on the entry summaries for Entry
Nos. 85-164232-9 and 85-164230-3 indicate that I re-
quested voluntary tender for these two entries. There
were no such notes on the entry summaries for Entry
Nos. 85-164231-6 and 86-122741-7.
Defendant's Cross-Motion for Summary Judgment, Declaration of
Conchita L. Fielding, p. 2, para. 6.
Court No. 93-08-00431 Page 5
monies were advanced for all twelve entries now at bar. See
Plaintiff's Brief, Exhibit B.
The plaintiff claims to have learned that those entries
had been liquidated on the various dates listed on the schedule of
entries2 when they and many others were processed for refunds in
conjunction with an administrative review conducted by the ITA
pursuant to 19 U.S.C. §1675. See Plaintiff's Brief, p. 2. Its
request for refunds of excess amounts tendered was denied by
Customs on the ground that "no regulatory authority exist[ed] for
processing the[m] for a refund."3 The plaintiff thereupon lodged
a protest of this decision with Customs, which was denied. This
action ensued.
II
The Court of International Trade has exclusive jurisdic-
tion of any civil action commenced to contest the denial of a
protest, in whole or in part, under section 515 of the Tariff Act
of 1930. 28 U.S.C. §1581(a). See also 28 U.S.C. §2631(a). The
plaintiff pursues this action under 19 U.S.C. §1520(c)(1) or, in
the alternative, under section 1520(a)(2). Those provisions of
that act were as follows at the times of entry, liquidation and
tender of additional duties herein:
2
See Plaintiff's Brief, Exhibit A.
3
Defendant's Cross-Motion for Summary Judgment, Letter of
Customs Import Specialist Brenda H. Gibson.
Court No. 93-08-00431 Page 6
§ 1520. Refunds and errors
(a) Cases in which refunds authorized
The Secretary of the Treasury is authorized to
refund duties or other receipts in the following cases:
* * *
(2) Fees, charges, and exactions.-- Whenever it is
determined in the manner required by law that any fees,
charges, or exactions, other than duties and taxes, have
been erroneously or excessively collected; . . ..
* * *
(c) Reliquidation of entry
Notwithstanding a valid protest was not filed, the
appropriate customs officer may, in accordance with
regulations prescribed by the Secretary, reliquidate an
entry to correct--
(1) a clerical error, mistake of fact, or other
inadvertence not amounting to an error in the construc-
tion 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 appropriate customs officer within one
year after the date of liquidation or exaction; . . ..
While the court may have subject-matter jurisdiction over
an action such as this pursuant to 28 U.S.C. §1581(a)4, when, as
here, the government contests that jurisdiction, the plaintiff must
establish that the statutory requirements have been satisfied.5
4
See, e.g., Everflora Miami, Inc. v. United States, 19 CIT
485, 885 F.Supp. 243 (1995), aff'd, 86 F.3d 1174 (Fed.Cir. 1996).
5
Id.
Court No. 93-08-00431 Page 7
A
The plaintiff takes the position that its section 1520-
(c)(1) protest was timely. It argues that because liquidation
occurred prior to the tender of the antidumping/countervailing-duty
deposits, the liquidation is irrelevant. Instead, the date of
exaction is controlling as a "statutory alternative to the date of
liquidation". Plaintiff's Brief, p. 4. Furthermore, that moment
of exaction in this matter was not the date of the voluntary
tender(s), rather
the date on which Customs informed Plaintiff that it
would not refund the difference between the countervail-
ing and antidumping deposits made by Plaintiff and the
countervailing and antidumping liabilities finally found
by the Department of Commerce.
Id. The plaintiff attempts to rely on New Zealand Lamb Co. v.
United States, 40 F.3d 377 (Fed.Cir. 1994). In that case, es-
timated duties had been deposited with the Service for each of
eight entries, as well as monies estimated to cover countervailing
duties. Upon liquidation, the latter were found to be greater than
those estimated. Customs marked the entries as liquidated for the
higher duty amounts and posted the appropriate bulletin notices for
each. The company tendered the additional countervailing duties
but not interest that had accrued on them. After the 19 U.S.C.
§1514-90-day period of limitation had run, the Service billed New
Zealand Lamb for the interest, which was paid. Ninety days later,
the company filed a protest with Customs, which denied it. The
Court No. 93-08-00431 Page 8
Court of International Trade thereafter concluded that the
Service's failure to charge the interest by the time of the
liquidation meant that the entries liquidated without interest were
final. New Zealand Lamb Co. v. United States, 16 CIT 1039 (1992).
The court of appeals vacated that ruling, concluding that "there
was no decision regarding interest-- so as to trigger the running
of the ninety-day limitations period-- until Customs actually bill-
ed New Zealand Lamb for interest on March 23, 1990". 40 F.3d at
381.
. . . [T]hat interest on the underpayment of duties is a
charge . . .. We do not see how there can be a decision
on a charge --at least for purposes of starting the
running of a limitations period-- until the party levying
the charge announces that the charge is being levied and
states the amount of the charge, or the method of
computing the charge. In the case of interest that means
there is no decision until the party being assessed
either is informed of the amount of interest that is due
or is told what the rate of interest to be applied
against the principal amount is. Until this is done, the
party assessed is not informed of all elements of the
charge: liability and quantum, either or both of which it
may wish to protest.
Id. at 382 (citations, footnote omitted).
The defendant responds at bar that "New Zealand Lamb is
factually different from this case, and its ratio decedendi cannot
be applied here." Defendant's Brief in Reply, p. 2 (italics in
original). Stated another way, this court "lacks jurisdiction
because the protest (or request to reliquidate) was untimely, and
Thermacote's claim otherwise fails to satisfy the requirements of
§1520[](c)(1)." Defendant's Brief, p. 3.
Court No. 93-08-00431 Page 9
(1)
It is appropriate to note that the courts have concluded
that the provisions of section 1520 are "not remedial for every
conceivable form of mistake or inadvertence adverse to an importer,
but rather . . . offer[] 'limited relief in the situations defined
therein'". Godchaux-Henderson Sugar Co. v. United States, 85 Cust.
Ct. 68, 74, C.D. 4874, 496 F.Supp. 1326, 1331 (1980)(emphasis in
original), quoting Phillips Petroleum Co. v. United States, 54 CCPA
7, 11, C.A.D. 893 (1966). That is,
[s]ection 1520(c)(1) does not afford a second bite at the
apple to importers who fail to challenge Customs' de-
cision within the 90-day period set forth in § 1514.
. . . We emphasize that under no circumstances may the
provisions of § 1520(c)(1) be employed to excuse the
failure to satisfy the requirements of § 1514.
AT&T International v. United States, 18 CIT 721, 726, 861 F.Supp.
95, 100 (1994), quoting ITT Corp. v. United States, 24 F.3d 1384,
1387 n. 4 (Fed.Cir. 1994). The regulations promulgated in
conjunction with that statute provided, in pertinent part:
Correction of clerical error, mistake of fact, or
inadvertence.
(a) Authority to review and correct. Even though a
valid protest was not filed, the district director, upon
timely application, may correct pursuant to . . . 19
U.S.C. 1520(c)(1)[] a clerical error, mistake of fact, or
other inadvertence meeting the requirements of paragraph
(b) of this section, by reliquidation or other appropri-
ate action.
(b) Transactions which may be corrected. Correction
pursuant to . . . 19 U.S.C. 1520(c)(1)[] may be made in
an entry, liquidation, or other Customs transaction if
the clerical error, mistake of fact, or other inadver-
tence:
Court No. 93-08-00431 Page 10
(1) Does not amount to an error in the construction
of a law;
(2) Is adverse to the importer; and
(3) Is manifest from the record or established by
documentary evidence.
(c) Limitation on time for application. A clerical
error, mistake of fact, or other inadvertence meeting the
requirements of paragraph (b) of this section shall be
brought to the attention of the district director at the
port of entry . . . within 1 year after the date of li-
quidation or execution. . . .
19 C.F.R. §173.4 (1988).
Two different types of transactions require the court's
consideration herein, namely, the entering of plaintiff's mer-
chandise without the payment of antidumping/countervailing duties
or marking on the Customs Forms 7501 of the liability therefor; and
then later the tendering of monies therefor in excess of that
liability. While the first type is manifest from the record and
did not develop from an error in the construction of a law within
the meaning of the above-quoted statute and regulations, clearly,
it was not adverse to the importer and therefore eligible for
correction under 19 U.S.C. §1520(c)(1), supra. Indeed, the plain-
tiff presses its subsequent, generous tender(s), which satisfy all
three substantive standards for correction.
(2)
Hence, the plaintiff had to bring that predicament of its
own making to the attention of Customs within one year after the
Court No. 93-08-00431 Page 11
date of liquidation. Here, there is no dispute that the entries
were liquidated on the dates listed in plaintiff's exhibit A6, and
there also can be no dispute on the record developed as to whether
the Service was duly notified of the problem within a year of any
of those dates. Clearly, Customs was not. Moreover, according to
the parties' Rule 56 statements quoted above, "plaintiff volun-
tarily tendered" the funds now in controversy. Given their
concurrence, it is indeed difficult to discern any actionable
exaction within the meaning of 19 U.S.C. §1520, as discussed in
part B of this opinion, infra.
6
According to 19 C.F.R. §159.9(c)(1) (1988), generally the
bulletin notice of liquidation
shall be dated with the date it is posted or lodged in
the customhouse for the information of importers. The
entries for which the bulletin notice of liquidation has
been prepared shall be stamped "Liquidated," with the
date of liquidation, which shall be the same as the date
of the bulletin notice of liquidation. This stamping
shall be deemed the legal evidence of liquidation.
See Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 13 CIT
54, 706 F.Supp. 892, aff'd, 885 F.2d 858 (Fed.Cir. 1989); LG
Electronics U.S.A., Inc. v. United States, 21 CIT 1421, 1426,
991 F.Supp. 668, 674 (1997).
The importer bears the burdens of examining all notices
posted to determine whether its goods have been liquidated and
of lodging any protest thereof in a timely manner. See, e.g.,
Omni U.S.A., Inc. v. United States, 11 CIT 480, 483, 663 F.Supp.
1130, 1133 (1987), aff'd, 840 F.2d 912 (Fed.Cir.), cert. denied,
488 U.S. 817 (1988). This burden is bolstered by the presump-
tion that "public officials perform their duties in a manner
consistent with law". Commonwealth Oil Refining Co. v. United
States, 60 CCPA 162, 167, C.A.D. 1105, 480 F.2d 1352, 1356
(1973). See also INS v. Miranda, 459 U.S. 14, 18 (1982).
Court No. 93-08-00431 Page 12
Assuming nonetheless in this section of the opinion that
"the request of . . . Customs" was the equivalent of an exaction7,
plaintiff's pursuit of relief still appears to have commenced
beyond the statutory period of limitation. In fact, as indicated
above, the plaintiff purports to consider the start of that time to
have been the date of the Service's refusal to make any refund of
the excess monies rather than the date of the request for the
tender of additional duties. But it offers no precedent in support
of this thesis, nor has this court uncovered any. While both New
Zealand Lamb, supra, and the subsequent case Castelazo & Associates
v. United States, 126 F.3d 1460 (Fed.Cir. 1997), involved importer
payment of interest upon delayed duties, which the court of appeals
held to be a separate, protestable act when and if Customs
(i) informs the importer that interest is due and (ii)
sets forth either the amount of interest that is due or
the method of calculating that amount in terms of the
rate8,
7
The defendant attempts to undermine any such assumption
for a number of reasons, to wit:
. . . Customs' letter was not a charge or exaction be-
cause it did not assess a specific sum of money relating
to the entries in issue. Halperin Shipping Co. v. United
States, 14 CIT 438, 442, 742 F.Supp. 1163, 1167 (1990).
Moreover, because Thermacote's payment of the duties in
issue was voluntary . . ., it was not an exaction.
Furthermore, a refusal by Customs to refund duties has
been held not to be a charge or exaction. Carlingswitch
v. United States, 68 CCPA 49, C.A.D. 1264, 651 F. 2d 768
(1981).
Defendant's Brief, pp. 4-5 (footnote omitted).
8
New Zealand Lamb Co. v. United States, 40 F.3d 377, 382
(Fed.Cir. 1994); Castelazo & Associates v. United States, 126
F.3d 1460, 1463 (Fed.Cir. 1997).
Court No. 93-08-00431 Page 13
that degree of Service circumspection is not found in its simple,
even apologetic, denial of refunds due to lack of any regulatory
authority.9 Ergo, to be effective, any administrative protest had
to have been lodged by the plaintiff much sooner in order to
establish now this court's subject-matter jurisdiction hereof.
B
Since enactment of The Customs Courts Act of 1970,
Pub.L.No. 91-271, 84 Stat. 274 (1970), the only method of challeng-
ing an allegedly invalid or illegal liquidation is through a timely
administrative protest and subsequent court action, if necessary.
E.g., United States v. A.N. Deringer, Inc., 66 CCPA 50, C.A.D.
1220, 593 F.2d 1015 (1979); LG Electronics U.S.A., Inc. v. United
States, 21 CIT 1421, 1426, 991 F.Supp. 668, 674 (1997)("whether
legal or illegal, a liquidation not protested [under 19 U.S.C.
§1514] within 90 days becomes final as to all parties"). The same
approach to finality applies to 19 U.S.C. §1520. E.g., Omni
U.S.A., Inc. v. United States, 840 F.2d 912 (Fed.Cir.), cert.
denied, 488 U.S. 817 (1988).
Furthermore, while it is clear that an excess of duties
has been collected from the plaintiff, section 1520(a)(2), supra,
on its face applies to fees, charges and exactions "other than
duties", and the courts have declined to hold the refusal to refund
a voluntary tender of the latter to be a charge or exaction within
9
See note 3, supra.
the meaning of the Tariff Act. E.g., Tikal Distributing Corp. v.
United States, 21 CIT 715, 718, 970 F.Supp. 1056, 1060 (1997);
Carlingswitch, Inc. v. United States, 85 Cust.Ct. 63, 66, C.D.
4873, 500 F.Supp. 223, 227 (1980), aff'd, 68 CCPA 49, C.A.D. 1264,
651 F.2d 768 (1981). Cf. Brother Int'l Corp. v. United States, 27
CIT , , Slip Op. 03-1, p. 7 (2003) ("[t]he question generally
turns on whether the payment is truly voluntary").
III
In view of the foregoing, plaintiff's motion for summary
judgment cannot be granted. Defendant's cross-motion therefore
must be, with summary judgment in its favor entered accordingly.
Decided: New York, New York
January 7, 2003
Judge