Canadian Fur Trappers Corp. v. U.S., s. 89-1060

• Decision Date: 29 August 1989
• Docket Number: 89-1061,Nos. 89-1060,89-1062,s. 89-1060
• Citation: 884 F.2d 563
• Parties: CANADIAN FUR TRAPPERS CORP., and Meldisco, a division of Melville Corp., Plaintiffs-Appellants, v. The UNITED STATES, Defendant/Cross-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 563

884 F.2d 563

11 ITRD 1513

CANADIAN FUR TRAPPERS CORP. and Meldisco, a division of Melville Corp., Plaintiffs-Appellants, v. The UNITED STATES, Defendant/Cross-Appellant.

Nos. 89-1060, 89-1061, 89-1062.

United States Court of Appeals, Federal Circuit.

Aug. 29, 1989.

Donald B. Cameron, Jr., Mudge Rose Guthrie Alexander & Ferdon, Washington, D.C., argued for plaintiffs-appellants, Meldisco, a division of Melville Corp. With him on the brief was Teresa M. Polino. Brian S. Goldstein, Siegel, Mandell & Davidson, P.C., of New York City, argued for plaintiffs-appellants, Canadian Fur Trappers Corp.

Velta A. Melnbrencis, Dept. of Justice, Washington, D.C., argued for defendant/cross-appellant. With her on the brief were John R. Bolton, Asst. Atty. Gen., and David M. Cohen, Director. Also on the brief were Edward N. Maurer, General Attorney, Office of Asst. Chief Counsel for International Trade Litigation, New York City, Michael A. Levitt, Acting General Counsel, Stephen J. Powell, Chief Counsel for Import Adm'n and Matthew Jaffe, U.S. Dept. of Commerce, of counsel.

Lauren R. Howard and Michael R. Kershow, Collier, Shannon, Rill & Scott, Washington, D.C., were on the brief for amicus curiae, Footwear Industries of America, Inc.

Before FRIEDMAN, RICH and MICHEL, Circuit Judges.

MICHEL, Circuit Judge.

Canadian Fur Trappers Corp. (Canadian Fur) and Meldisco, a division of Melville Corp., appeal the decision of the United States Court of International Trade, 691 F.Supp. 364 (Ct.Int'l Trade 1988), holding that these companies' respective imported footwear entries which were subject to assessment of countervailing duties were not deemed liquidated, pursuant to 19 U.S.C. Sec. 1504 (1982 and Supp. III 1985), when the U.S. Customs Service failed to liquidate the entries within 90 days after the dismissal of a lawsuit which challenged the rates of duty. In addition, Canadian Fur and Meldisco appeal the holding of the Court of International Trade that interest could be assessed upon underpayments of countervailing duties against their respective entries. The United States (government) cross-appeals that part of the decision holding that the amendment of the interest provision of the Trade and Tariff Act of 1984 was inapplicable to interest prior to the effective date of the 1984 Act. We affirm.

Background

Because Canadian Fur's and Meldisco's goods were subject to an outstanding countervailing duty order, T.D. 74-235, the two importers deposited estimated countervailing duties upon the entry of their goods. Pursuant to 19 U.S.C. Sec. 1675 (1982 and Supp. III 1985), the Commerce Department undertook annual reviews for the importers' 1980-1982 entries. Liquidation of these entries was suspended, however, until the Commerce Department completed a final determination in each annual review. In the final results of these reviews, Commerce determined there were net subsidies greater than the estimated rate of countervailing duty paid by the importers at the time of entry. 48 Fed.Reg. 40,536 (1983); 49 Fed.Reg. 30,003 (1984). Therefore, both importers owed additional duties.

Prior to liquidation, however, these importers' entries were enjoined by court order from being liquidated because of a lawsuit challenging the rates of duty applied by the Customs Service. This lawsuit was voluntarily stipulated by all parties as dismissed on May 15, 1985. Five months after the voluntary dismissal, the government moved to dissolve the injunctions. The Court of International Trade granted After the Court of International Trade set the date of dissolution as May 15, 1985, the Customs Service began to liquidate the entries assessing additional duties based on the final results of the administrative reviews and interest on any underpayments. The importers challenged the validity of these liquidations asserting that 19 U.S.C. Sec. 1504 requires that the liquidations take place within 90 days of the lifting of a court ordered suspension of liquidation. The Court of International Trade granted partial summary judgment to the government determining that the 90 day language was directory, not mandatory, and therefore the liquidations were valid. Since the liquidations were valid, and since the estimated duties deposited were less than the assessed duties, the Court of International Trade also granted the government partial summary judgment with regard to the interest owed by the importers pursuant to 19 U.S.C. Sec. 1677g (1982). However, the court granted the importers partial summary judgment, holding that the interest owed would not be compounded daily except for liquidations occurring after the effective date of the Trade and Tariff Act of 1984.

that motion; however, upon rehearing, the court vacated its order, holding that the injunctions dissolved on May 15, 1985, when the case was voluntarily dismissed.

OPINION

"Summary judgment is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). Moreover,

[t]he court must resolve all significant doubt over material factual issues, if any, in favor of the nonmovant and draw all reasonable inferences against the party whose motion is being considered. (Citation omitted.) Where the only issue before the Court of International Trade was the meaning of the tariff terms, a question of law, (citation omitted) our court independently determines the meaning of those terms and need not defer to the trial court. (Citation omitted.)

Convertors Division of American Hospital Supply Corp. v. United States, 861 F.2d 710, 712 (Fed.Cir.1988).

I. 19 U.S.C. Sec. 1504

"The starting point in every case involving construction of a statute is the language itself." Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed.Cir.1989). Section 1504 was enacted as part of the Customs Procedure Reform and Simplification Act of 1978, Pub.L. 95-410, 1978 U.S.Code Cong. & Admin.News (92 Stat. 888) 2211, 2242. It was amended slightly in 1984. 19 U.S.C. Sec. 1504 (1982 and Supp. III 1985). The relevant statutory language securing a time frame for liquidation in 19 U.S.C. Sec. 1504 reads:

(a) Liquidation.

Except as provided in subsection (b) of this section, an entry of merchandise not liquidated within one year from:

(1) the date of entry of such merchandise;

....

shall be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry....

(b) Extension

The Secretary may extend the period in which to liquidate an entry ... if--

....

(2) liquidation is suspended as required by statute or court order; ...

....

(d) Limitation

Any entry of merchandise not liquidated at the expiration of four years from the applicable date specified in subsection (a) of this section, shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer ... unless liquidation continues to be suspended as required by statute or court order. When such a suspension of liquidation is removed, the entry shall be liquidated within 90 days therefrom.

(Emphasis added.)

Since the Customs Service failed to liquidate the entries which were more than one year old within 90 days of May 15, 1985, Canadian Fur and Meldisco argue that they owe no additional duties on their entries. They assert that once the Customs Service fails to complete the liquidation within the 90 day period, the articles must be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer. The United States argues that the first part of section (d) applies only to extensions of the period in which to liquidate an entry sought for reasons other than a suspension order. Moreover, the government contends that the language "shall be liquidated within 90 days" in 19 U.S.C. Sec. 1504(d) is only directory; therefore, additional duties with interest calculated according to 19 U.S.C. Sec. 1677g are owed by the importers.

While Congress included the operative language "deemed liquidated" in section (a) and the first part of section (d), no such consequential language appears in the final part of section (d). Even though the statute includes a 90 day time frame for the Customs Service to act, the lack of consequential language in the latter part of section (d) if the Customs Service does not meet that time frame leads us to conclude that Congress intended this part of section (d) to be only directory. See Diamond Match Co. v. United States, 181 F.Supp. 952, 958-59 (Cust.Ct.1960), aff'd, 49 CCPA 52, 56 (1962).

We need not look merely at the statutory language to support our conclusion. "[T]he plain-meaning rule is 'rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.' " Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). Such evidence can be found in the Report of the House of Representatives committee which drafted the proposed statute. Referring to the 90 day time frame in the last part of Sec. 1504(d), the House Report states, "[t]his last provision is discretionary, rather than mandatory, and recognizes that there will be instances when it may be impossible to complete liquidation within 90 days because of the sheer number of entries to be liquidated after a long-continued suspension." H.R.Rep. No. 621, 95th Cong., 1st Sess. 26 (1977). Similar language need not appear in the Senate Report in order for this statement to be persuasive to us.

Clearly, the statutory language and its legislative history support the Court of International Trade's interpretation of the statute. We therefore affirm the decision of the Court of International Trade regarding the interpretation of 19 U.S.C. Sec. 1504.

II. Imposition of Interest on Underpayments of Countervailing...