Samuel Aaron, Inc. v. U.S., 2006-1591.

• Decision Date: 16 November 2007
• Docket Number: No. 2006-1591.,2006-1591.
• Parties: SAMUEL AARON, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

508 F.3d 667

SAMUEL AARON, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 2006-1591.

United States Court of Appeals, Federal Circuit.

November 16, 2007.

Joel K. Simon, Serko Simon Gluck & Kane LLP, of New York, NY, argued for plaintiff-appellant. With him on the brief was Christopher M. Kane.

Gardner B. Miller, Jr., Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, NY, argued for defendant-appellee. With him on the brief was Barbara S. Williams, Attorney in Charge. Also on the brief were Peter D. Keisler, Acting Attorney General, and Jeanne E. Davidson, Director, of Washington, DC. Of counsel on the brief was Edward N. Maurer, Office of Assistant Chief Counsel, United States Customs and Border Protection, of New York, NY,

Before LOURIE, GAJARSA, and PROST, Circuit Judges.

LOURIE, Circuit Judge.

Samuel Aaron, Inc. ("Aaron") appeals from the decision of the United States Court of International Trade granting the government's motion to dismiss for lack of jurisdiction. Samuel Aaron, Inc. v. United States, 452 F.Supp.2d 1302 (Ct. Int'l Trade 2006). Because the trial court lacked jurisdiction, we affirm.

BACKGROUND

Aaron is an importer of Thai jewelry. Until 1998, certain imports from Thailand and other developing countries had been eligible for a free rate of duty under the Generalized System of Preferences ("GSP") program. On June 30, 1998, however, the GSP expired. Between August 10, 1998, and October 22, 1998, Aaron filed sixty-six entries at the Port of New York ("Aaron's entries"). Upon entry, Aaron paid estimated duties to the United States Bureau of Customs and Border Protection ("Customs"). On October 21, 1998, Congress reinstated the GSP and granted retroactive refunds for certain items that had been imported during the time in which the GSP had lapsed. However, Aaron's imports were not eligible for the retroactive GSP refunds provided for by the statute.

Customs liquidated Aaron's entries on two separate dates, November 13, 1998 and December 11, 1998. Customs liquidated the entries duty-free and refunded, with interest, the estimated duties that Aaron had paid. On January 29, 1999, Customs sent a memorandum to the Port Director instructing reliquidation of all funds that had been erroneously issued for certain Thai imports. Customs subsequently determined that Aaron's entries would need to be reliquidated. Based upon the dates of liquidation, the ninety-day periods during which Customs could legally reliquidate Aaron's entries ended on February 11, 1999, and March 11, 1999, respectively.¹

On February 8, 1999, Customs placed a document in "a notebook or binder" in Room 112 at the customhouse used by Customs at the Port of New York for making its bulletin notices of liquidation or reliquidation available to the public ("the off-line bulletin notice"). The off-line bulletin notice was entitled "BULLETIN NOTICE of LIQUIDATION" and contained six columns of information: ENTRY TYPE, ENTRY NUMBER, ENTRY DATE, IMPORTER, IMPORTER NUMBER, and REMARKS. The REMARKS column for all of the entries on the off-line bulletin notice stated, "RELIQUIDATION-INCREASE." That document is referred to as the "off-line" bulletin notice by the parties because it was not generated by Customs' Automated Commercial System ("ACS"). The vast majority of bulletin notices at the Port of New York consist of computer printouts generated by ACS on a weekly basis. Those ACS-generated notices, like the off-line bulletin notice, are kept in Room 112, but in binders separate from any off-line notices.

During the week of April 12, 1999, Customs ran a computer script that created an ACS entry for Aaron's entries listed on the off-line bulletin notice. On April 30, 1999, ACS generated a bill for the increased duties due on Aaron's entries. On the same date that the bill was generated, Customs placed an ACS-generated bulletin notice in a binder in Room 112 ("the ACS bulletin notice"). The ACS bulletin notice was entitled "BULLETIN NOTICE OF ENTRIES LIQUIDATED." It contained six columns of information: TYPE, FILER, ENTRY NUMBER, ACTION (increase/decrease), DATE OF ENTRY (with importer's name), and DOCUMENT FILING LOCATION. The ACS bulletin notice contained all but one of Aaron's entries that appeared in the off-line bulletin notice. A reliquidation date of April 30, 1999 appeared on the ACS bulletin notice. Customs failed to red-line or otherwise note on the ACS bulletin notice that reliquidation had been made on another date, as it ordinarily would if reliquidation had occurred on a date other than the date shown on the notice of reliquidation.

Aaron filed a protest on July 29, 1999, to dispute the increased duties. On August 23, 2002, Customs denied that protest as untimely. Aaron then filed a complaint in the Court of International Trade.

The Court of International Trade granted the government's motion to dismiss for lack of jurisdiction. The court explained that the "linchpin issue" was whether there had been a valid reliquidation of Aaron's entries on February 8, 1999. The court first determined that a final computation of duties, as required by 19 C.F.R. § 159.1 (1999), had occurred on February 8. Next, the court found that the off-line bulletin notice was legally sufficient. Although the court found that the posting of the bulletin notice of reliquidation had been "administratively sloppy," it also found that such sloppiness did not invalidate the notice. Samuel Aaron, 452 F.Supp.2d at 1309. Based on the fact that a reliquidation had occurred and valid notice had been posted, the court concluded that reliquidation of Aaron's entries occurred on February 8, 1999. Aaron's protest, filed on July 29, 1999, more than ninety days after the date of reliquidation, was therefore untimely, and the court lacked jurisdiction to hear the case.

Aaron timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

DISCUSSION

This court reviews a dismissal by the Court of International Trade for lack of jurisdiction de novo. Int'l Light Metals v. United States, 194 F.3d 1355, 1361 (Fed. Cir.1999).

On appeal, Aaron argues that the Court of International Trade had jurisdiction to hear his protest because it was filed within ninety days of April 30, 1999, which Aaron argues was the date on which reliquidation actually occurred. According to Aaron, Customs failed to compute or ascertain the duties due upon reliquidation on February 8, 1999, as required by 19 C.F.R. § 159.1, and therefore no reliquidation occurred on February 8. Aaron further argues that the posting of the off-line bulletin notice was legally insufficient under 19 C.F.R. § 159.2 because it was not posted in a conspicuous place. Furthermore, Aaron argues that the off-line bulletin notice was not legally valid because an electronic bulletin notice on Customs Form 4333—as required by 19 C.F.R. § 159.9(a) and 19 U.S.C. § 1500—was not provided until April 30.

The government responds that the Court of International Trade correctly held that it lacked jurisdiction because Aaron failed to file a protest within ninety days of the February 8th reliquidation. The government contends that Customs completed the final computation of duties owed by Aaron on or before February 8, 1999, thereby legally completing the reliquidation. The government also contends that the off-line bulletin notice was posted in a conspicuous place at the customhouse. The government further argues that liquidation bulletin notices need not be posted electronically, nor must they contain the phrase "Customs Form 4333."

We agree with the government that the Court of International Trade correctly held that it lacked jurisdiction to hear Aaron's appeal. As that court noted, the date of reliquidation is the "linchpin issue" of this case. Customs has ninety days from the date of liquidation or the notice of liquidation in which to effect a reliquidation of merchandise already liquidated. 19 U.S.C. § 1501. When the imports in this case were liquidated, an importer had ninety days from the notice of reliquidation in which to file a protest, after which time the reliquidation was final and conclusive. 19 U.S.C. §§ 1514(a), 1514(c)(3)(A). If reliquidation occurred on February 8, 1999, as the government argues, Customs reliquidated the entries within the statutory window granted for voluntary reliquidations, and Aaron's protest was untimely. If, as Aaron urges this court to find, the reliquidation did not occur until April 30, 1999, then Aaron's protest was timely filed, and the Court of International Trade had jurisdiction to hear his complaint.

Thus, we must determine whether Customs effected a legally valid reliquidation on February 8, 1999, and whether the off-line bulletin notice was legally sufficient.

A. Reliquidation on February 8, 1999

Liquidation is the "final computation or ascertainment of the duties . . . accruing on an entry." 19 C.F.R. § 159.1.² Aaron claims that Customs failed to "compute or ascertain" the duties owed by February 8, 1999. In support of that contention, Aaron points to an entry that was included in the off-line bulletin notice but was not included in the subsequent ACS bulletin notice. The omission of that entry, Aaron argues, demonstrates that the final computation of duties owed did not occur on February 8. Aaron also claims that a small discrepancy between the duty amount refunded for one of Aaron's entries at the original liquidation and the amount billed for that entry on reliquidation demonstrates that the final duty amount was not computed by Customs until April 30.

Aaron's arguments, however, are unpersuasive. The off-line bulletin notice contained an entry dated after the October 21, 1998 reinstatement of the GSP.³ That entry, therefore, was properly liquidated duty-free and never should have been reliquidated. The subsequent ACS bulletin notice...