Goldhofer Fahrzeugwerk GmbH & Co. v. US

• Decision Date: 18 January 1989
• Docket Number: Court No. 82-4-00551.
• Citation: 706 F. Supp. 892,13 CIT 54
• Parties: GOLDHOFER FAHRZEUGWERK GMBH & CO., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

706 F. Supp. 892

13 CIT 54

GOLDHOFER FAHRZEUGWERK GMBH & CO., Plaintiff, v. UNITED STATES, Defendant.

Court No. 82-4-00551.

United States Court of International Trade.

January 18, 1989.

Donohue and Donohue, James A. Geraghty, New York City, for plaintiff.

John R. Bolton, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Mark S. Sochaczewsky, New York City, for defendant.

OPINION

TSOUCALAS, Judge:

Goldhofer Fahrzeugwerk GMBH & Co., plaintiff, brings this action to contest the denial of its protest pursuant to 28 U.S.C. § 1581(a). The parties cross-move for summary judgment. Plaintiff claims inadequate bulletin notice of liquidation concerning its importation of a multiaxle "gooseneck" semitrailer, entry no. 101757, on February 16, 1980, at the port of Norfolk, Virginia. Plaintiff argues in the alternative that even if the bulletin notice was adequate, such notice is insufficient to meet the minimum constitutional due process requirements. The government insists that the bulletin notice was adequate and that the Court lacks jurisdiction because plaintiff failed to file its protest within the ninety-day protest period. 19 U.S.C. § 1514(c)(2). The government also contends that constructive notice is a constitutionally sufficient means to apprise importers of liquidation.

Background

A transcription error by the United States Customs Service (Customs) generated a name other than plaintiff's on the computer printout sheet which served as bulletin notice of liquidation, posted in the customhouse pursuant to 19 C.F.R. § 159.9(b),¹ on June 5, 1981. Prior to posting the notice, a clerk manually corrected the error, writing in the name and address of plaintiff, "Goldhofer Fahrzeugwerk GMBH & Co.," between columns of data in three segments, spelled "Goldhofer" in one part, "Zahreug" in another and "werk" in yet a third part of the line; the address was written at the bottom of the printout sheet. See Post-Argument Brief for the United States, Defendant at Exhibit 3. Additionally, plaintiff never received courtesy notice of liquidation² because the error had caused the courtesy notice to be sent to the party originally listed on the printout sheet. Plaintiff protested the liquidation on December 1, 1981, one hundred seventy-nine days after bulletin notice, but within ninety days of the date of "REBILL C.F. 6084," which plaintiff claims is the proper notice date. See Plaintiff's Brief in Support of Motion for Summary Judgment at Statement of Material Facts, # 12 hereinafter Plaintiff's Brief. The protest was denied as untimely filed.

The issues are: (1) whether the above described listing of plaintiff's name constituted proper notice as required by section 500(e) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1500(e);³ and (2) whether the failure to provide courtesy notice, regardless of bulletin notice, is a constitutional deprivation of due process.

Discussion

Notice of liquidation is intended to apprise importers of an action taken which may affect their interests, and to afford them an opportunity to invoke "the provisions of law by which administrative and judicial review of the Customs action may be secured." Lansdowne Distillery v. United States, 39 Cust.Ct. 190, 194, C.D. 1925 (1957) (quoting Wong Sang Man v. United States, 27 Cust.Ct. 248, 250, C.D. 1379 (1951)). Without proper notice, liquidation is incomplete and the statute of limitations for filing a protest will be tolled until the parties are adequately notified. Id. at 194.

Plaintiff argues that the manual correction did not provide the notice required by law because Customs had an established administrative practice of preparing such notices by automated data processing. According to plaintiff, the manual notation was absolutely useless and the deficiency could not be cured until the data base was corrected and a new CF 4333⁴ was generated and posted, or until it was supplemented by actual notice by mail. Plaintiff's Brief at 6.

Contrary to plaintiff's position, however, proper liquidation notice requires only that an importer's name be posted and displayed "in a conspicuous place in the customhouse at the port of entry...." 19 C.F.R. § 159.9(b). There is no requirement that notice must be in the form of a computer printout. Notice is legally sufficient if "the importer could not have reasonably been misled or confused by the bulletin notice of liquidation, as posted...." United States v. Judson Sheldon Div., Nat'l Carloading Corp., 42 CCPA 202, 203-04, C.A.D. 594 (1955). The Court cannot envision how plaintiff could have been misled by this notice. The name of plaintiff, albeit, handwritten in between columns of data, was legible and readily discernible. It is clear that plaintiff's name was intended to replace the crossed out name. Furthermore, plaintiff's name appears in its proper alphabetical sequence, next to the correct entry number as well as the correct date of entry. See Steinhardter & Nordlinger v. United States, T.D. 43764, 56 Treas.Dec. 697, 699 (1929). A prudent importer would have concluded that it was his entry which was posted. At the least, plaintiff should have inquired into the nature of the correction. See Judson Sheldon, 42 CCPA at 206.

Plaintiff asks the Court to follow United States v. Astra Bentwood Furniture Co., 28 CCPA 205, 207, C.A.D. 147 (1940), where the court found liquidation to be incomplete when the notice identified the importer as "Astringent Wood Furniture Co." rather than as "Astra Bentwood Furniture Co." The court found that, in effect, no notice was given because the notice did not correctly state the date or name of the importer. Id. at 211. However, Astra is distinguishable on its facts because the corrected entry here accurately provided the name of the importer, whereas in Astra, the name provided was different from that of the importer.⁵ Each case is to be determined by its own particular facts. Id. at 212.

Plaintiff additionally maintains that it should prevail regardless of the adequacy of the manually corrected bulletin notice, because it never received the customary courtesy notice through the mail. Plaintiff suggests that such notice has become mandatory, referring to a Customs Court case which held that:

where an administrative agency over a long period of time establishes a practice of informing persons who have business before the agency of their obligations to the agency, such persons are entitled to assume that the established practice will be followed, in the absence of notice that it has been discontinued.

Lansdowne Distillery, 39 Cust.Ct. at 195. In Lansdowne, the importer was not given access to entry papers which contained the facts upon which the collector based his action. Id. at 193. Plaintiff "could not examine the papers to determine whether or not it desired to avail itself of the right to protest...." Id. The failure to carry out this administrative practice prevented plaintiff from pursuing his claim whereas in the instant action, plaintiff was not deprived of any such right.

Plaintiff was not justified in relying solely upon the courtesy notice in light of strict language used in the regulations detailing the informality of courtesy notice and in light of applicable case law. The only notice that is statutorily mandated is bulletin notice "in a conspicuous place in the customhouse at the port of entry...." 19 C.F.R. § 159.9(b). Courtesy notice is not the notice established by Customs in 19 C.F.R. § 159.9. United States v. Reliable Chemical Co., 605 F.2d 1179, 1182, 66 CCPA 123, 126, C.A.D. 1232 (1979). As affirmatively stated in Reliable Chemical, the importer knows or should know that "the date of liquidation shall be the date the bulletin notice is posted in the customhouse," Reliable Chemical, 605 F.2d at 1183, 66 CCPA at 127, not the date it receives courtesy notice.⁶

The need to monitor the bulletin posting has been repeatedly emphasized. "It is the plain duty of a prudent importer ... to examine all notices posted in order to determine whether or not liquidation has been made on entries with which said importer is concerned." Henry A. Wess, Inc. v. United States, 57 Cust.Ct. 139, 143, C.D. 2743 (1966), aff'd, 54 CCPA 77, C.A.D. 910 (1967). The agency has no duty "to enlarge or broaden the mandatory requirement of the law," 54 CCPA at 80, merely because the importer has become accustomed to an extended courtesy. "The importer has the burden to check for posted notices of liquidation and to protest timely." Omni U.S.A., Inc. v. United States, 11 CIT ___, ___, 663 F.Supp. 1130, 1133 (1987), aff'd, 840 F.2d 912 (Fed.Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 56, 102 L.Ed.2d 34 (1988). Hence, plaintiff importer should have known of the requirement of posting bulletin notice, had a duty to monitor the customhouse bulletin and should not expect its rights to be expanded upon the nonreceipt of courtesy notice.

The position that courtesy notice is only a "courtesy" is buttressed by the legislative history of the statute which indicates that while Congress intended that courtesy notice be sent, Congress did not anticipate that it be the primary or the required manner of alerting importers to liquidations. At the House hearings prior to the 1970 amendments to the Tariff Act of 1930, the Treasury Department assured that the "practice of mailing actual notice of liquidation of all dutiable formal entries to the last known address of the importer of record" would be continued. H.R.Rep. No. 1067, 91st Cong., 2d Sess. reprinted in 1970 U.S.Code Cong. & Admin.News 3188, 3210. Congress, however, did not intend courtesy notice to supplant the practice of monitoring the customhouse bulletin for posted notices.

While courtesy notices of the liquidation of certain entries may be sent to importers or their agents ... an importer ... must check the bulletin

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