Us Jvc Corp. v. U.S., Slip Op. 98-97.

• Decision Date: 07 July 1998
• Docket Number: Court No. 96-01-00192.,Slip Op. 98-97.
• Citation: 15 F.Supp.2d 906
• Parties: US JVC CORP., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

Page 906

15 F.Supp.2d 906

US JVC CORP., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 98-97.

Court No. 96-01-00192.

United States Court of International Trade.

July 7, 1998.

Galvin & Mlawski, (Jack D. Mlawski), New York City, for Plaintiff.

Frank W. Hunger, Assistant Attorney General, Washington, DC; Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (John J. Mahon), New York City; Office of Assistant Chief Counsel, United States Customs Service (Beth C. Brotman), of counsel, for Defendant.

OPINION

GOLDBERG, Judge.

In this case, the Court decides whether the ninety-day period for filing a protest in 19 U.S.C. § 1514(c)(3) (1994) is subject to equitable tolling. Both parties agree that plaintiff, U.S. JVC Corp. ("JVC"), failed to protest the liquidation of certain color television receivers from Taiwan within ninety-days after Defendant, the United States Customs Service ("Customs"), issued bulletin notices of liquidation. The parties disagree, however, on how this fact should affect the outcome of this case. Customs argues that the failure to file a timely protest deprives the Court of subject-matter jurisdiction. On the other hand, JVC contends that the Court can, and indeed should, equitably toll the ninety-day period when Customs notifies an importer that liquidation of its merchandise is suspended, and proceeds to liquidate it anyway. Although sympathetic to JVC's position, the Court holds that the ninety-day period for filing protests set forth in 19 U.S.C. § 1514(c)(3) is not subject to equitable tolling. Thus, the Court is forced to dismiss this action for lack of subject-matter jurisdiction.

BACKGROUND

This case revolves around the premature liquidation of seventeen entries of color television receivers imported by JVC between April 4, 1990 and November 11, 1990. The receivers were manufactured in Taiwan by Kuang Yuan Co., Ltd. ("Kuang Yuan") and were subject to an antidumping duty order. Color Television Receivers, Other Than Video Monitors, From Taiwan; Antidumping Duty Order, 49 Fed.Reg. 18337 (Apr. 30, 1984) ("Taiwanese Receivers"). As a result, when JVC entered the receivers into the United States, it was required by law to deposit estimated antidumping duties with Customs.¹ See 19 U.S.C. § 1673e (assessment of duty); 19 U.S.C. § 1675 (administrative review of determinations). Shortly thereafter, Customs notified JVC in writing that liquidation of the entries was suspended.

In early 1992, Commerce initiated its seventh administrative review of the antidumping duty order, which ultimately set the actual antidumping rate for color television receivers imported from Taiwan between April 1, 1990 and March 31, 1991, including the receivers imported by JVC at issue here. See Color Television Receivers, Except for Video Monitors, From Taiwan; Preliminary Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 555 (Jan. 7, 1992); Color Television Receivers, Except for Video Monitors, From Taiwan; Final Results of Antidumping Administrative Review, 57 Fed.Reg. 20241 (May 12, 1992) ("Final Results Seventh Review"). On January 9, 1992, pending completion of the seventh review, Commerce directed Customs to continue to suspend the liquidation of the receivers manufactured by Kuang Yuan until it was specifically instructed otherwise. See E-Mail No. 2009116 (Jan. 9, 1992) (Director, Import Specialist Division to Regional Directors, Commercial Operations District, Area and Port Directors).

Contrary to these directions, on February 28, 1992, Customs erroneously liquidated the seventeen entries of receivers at the estimated antidumping duty deposit rate(s) and posted bulletin notices of the liquidations. Meanwhile, because JVC knew that Commerce had ordered Customs to suspend the liquidation of receivers manufactured by Kuang Yuan, and because the receivers that it imported were manufactured by Kuang Yuan, JVC never checked to see if bulletin notices of liquidation were posted for its entries. Thus, JVC was unaware of Customs' mistake.

On May 12, 1992, Commerce published the final results of the seventh administrative review. It determined that, for the period of review, no antidumping duties should be assessed on the receivers manufactured by Kuang Yuan. Final Results Seventh Review, 57 Fed.Reg. at 20245. Subsequently, on September 27, 1995, Commerce instructed Customs to liquidate the color television receivers at issue here with a dumping margin of 0.00 percent.²

At some point thereafter, JVC asked Customs to refund the estimated antidumping duty deposits for the seventeen entries. Customs denied this request, presumably because the seventeen entries had already been liquidated almost four years earlier. On December 26, 1995, JVC filed a protest challenging the premature liquidations, which Customs denied one day later because it was untimely. JVC then filed suit in this Court, arguing first that the Court should equitably toll the time limitation for filing a protest; and second that Customs should refund the estimated antidumping duties that JVC deposited with Customs. Customs responded by filing the instant motion to dismiss for lack of subject-matter jurisdiction.

DISCUSSION

Title 28 U.S.C. § 1581(a) confers exclusive jurisdiction in the Court of International Trade over suits against the United States "to contest the denial of a protest, in whole or in part." This jurisdictional grant is not unqualified, however, and must be read to incorporate the requirements of 19 U.S.C. § 1514. Juice Farms, Inc. v. United States, 68 F.3d 1344, 1345 (Fed.Cir.1995). Section 1514(a) provides that "decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to ... the liquidation or reliquidation of an entry ... shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section...." Section 1514(c)(3), in turn, states that "[a] protest of a decision, order, or finding described in subsection (a) of this section shall be filed with the Customs Service within ninety days after ... notice of liquidation or reliquidation...." Read together, the ramification of these sections is clear: a protest must have been timely filed under 19 U.S.C. § 1514(c)(3) for this Court to obtain jurisdiction over a suit that contests its denial.

JVC concedes, as it must, that it failed to comply with these statutory requirements. After all, no change liquidations are protestable decisions under 19 U.S.C. § 1514(a).³ LG Elecs. U.S.A. v. United States, ___ CIT ___, ___, 991 F.Supp. 668, 673 (1997). Here, Customs posted bulletin notices of the seventeen liquidations on February 28, 1992.⁴ And, JVC failed to file a protest challenging them until December 26, 1995, nearly four years later. Plainly then, JVC did not comply with the statutory filing requirements for protests.

Notwithstanding this, JVC contends that dismissal for lack of subject-matter jurisdiction is unwarranted because under equitable tolling principles, the Court may excuse its error. JVC's logic proceeds as follows. Drawing on the Federal Circuit's decision in Juice Farms, JVC first argues that the Court of Appeals for the Federal Circuit has recognized that the time period imposed by 19 U.S.C. § 1514(c)(3) contains an implied exception for equitable tolling. See Pl.'s Resp. at 4. JVC then posits that equitable tolling is justified in this case because JVC would have checked for bulletin notices of liquidation, and thus discovered that its entries had been liquidated in time to file a timely protest, if JVC had not received written notices from Customs stating that its entries would not be liquidated until the results of the seventh administrative review were finalized.⁵ Id. at 5.

Customs' central response to this argument is factual. That is, Customs does not dispute that courts can toll the ninety-day period for filing protests. See Def.'s Resp. to Pl.'s Opp'n to Def.'s Mot. to Dismiss for Lack of Jurisdiction at 7-8 ("Def.'s Reply"). Instead, it argues the circumstances described by JVC do not justify doing so. Specifically, Customs contends that equitable tolling is only available when a prospective defendant has induced or tricked a plaintiff into allowing a filing deadline to pass.⁶ Def.'s Reply at 8-9 (emphasis added). Because the facts positively demonstrate that Customs never engaged in any trickery, Customs argues that equitable tolling is unwarranted in this instance.

The Court has no occasion to rule on whether the facts of this case would justify tolling the ninety-day period because it finds that this period is not subject to equitable tolling. Accordingly, for the following reasons, the Court grants Customs' motion to dismiss.

I.

The doctrine of equitable tolling permits a plaintiff to avoid the bar of a statute of limitations if, "despite all due diligence, [the plaintiff] is unable to obtain essential information concerning the existence of [his or her] claim." Weddel v. Secretary of Health and Human Servs., 100 F.3d 929, 931 (Fed.Cir.1996) (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990)).

Before the Supreme Court's decision in Irwin, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), any argument that the time period in 19 U.S.C. § 1514(c)(3) could be equitably tolled was clearly doomed. Courts viewed a timely filed protest as a jurisdictional prerequisite that could not be excused on equitable grounds.⁷ See, e.g., United States v. Reliable Chem. Co., 66 C.C.P.A. 123, 605 F.2d 1179 (1979); United States v. A.N. Deringer, Inc., 66 C.C.P.A. 50, 593 F.2d 1015 (1979); United States v. Boe, 64 C.C.P.A. 11, 543 F.2d 151 (1976); Old Republic Ins. Co. v. United States, 10 CIT 1, 625 F.Supp. 983 (1986). These decisions were based on well-settled principles of sovereign...