Quigley & Manard, Inc. v. United States

• Citation: 61 CCPA 65,496 F.2d 1214
• Decision Date: 30 May 1974
• Docket Number: Customs Appeal No. 74-8,74-15.
• Parties: QUIGLEY & MANARD, INC., Appellant, v. The UNITED STATES, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

61 CCPA 65, 496 F.2d 1214 (1974)

QUIGLEY & MANARD, INC., Appellant, v. The UNITED STATES, Appellee.

Customs Appeal Nos. 74-8, 74-15.

United States Court of Customs and Patent Appeals.

May 30, 1974.

John B. Walsh, Buffalo, N. Y., atty. of record, for appellant.

Irving Jaffe, Acting Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Robert Masters, New York City, for United States.

Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.

MILLER, Judge.

This proceeding involves two appeals from the United States Customs Court. The appeals are from (1) separate orders of dismissal of the actions for lack of prosecution, and (2) an order (covering both cases) which (a) denied appellant's motion for rehearing to set aside said separate orders of dismissal¹ and (b) denied appellant's motion for rehearing to set aside an order denying appellant's motion to compel the clerk of the Customs Court to file appellant's complaint (covering both actions) and to remove the actions from the reserve file of the Customs Court. We affirm.

Each order of dismissal for lack of prosecution recites that the action, previously placed in the October 1970 reserve file, had not been removed therefrom on or before October 31, 1972, the expiration date of the applicable two-year period for removal.

This court has stated that the Customs Court is entrusted with the exercise of its sound discretion in ruling on a petition for rehearing and that such a ruling will not be disturbed unless it is "manifestly erroneous." Commonwealth Oil Refining Company, Inc. v. United States, 480 F.2d 1352, 60 CCPA 162, C.A.D. 1105 (1973). Appellant has not alleged that denial of its motions for rehearing was manifestly erroneous. Moreover, it is the generally-accepted doctrine that an appeal must be taken from the judgment of the lower court. 6A Moore's Federal Practice (2d Ed.) ¶ 59, pp. 266-267, and cases cited therein. Insofar as these appeals are from the separate orders of dismissal of the actions for lack of prosecution, they are from the judgments of the Customs Court. Not only are they in accord with the "generally-accepted doctrine," but they also represent the substance of the appeals from the order denying rehearings, so that our determination with respect to the orders of dismissal will properly and fully dispose of the controversy.

Rule 14.6(c) of the Customs Court, pursuant to which the separate orders of dismissal were entered, provided as follows:

(c) Dismissal for Lack of Prosecution: An action which is not removed from the reserve file within a period of 2 years shall be dismissed for lack of prosecution, and in the absence of the filing of a motion under paragraph (e) of this rule, the clerk shall enter an order of dismissal without further direction of the court. . . .

Rule 14.6(b)(1) provided that an action may be removed from the reserve file upon the filing of a complaint. Actions in the October 1970 reserve file, which included the two actions embraced by these appeals, had to be removed by October 31, 1972, to avoid dismissal under Rule 14.6(c), and appellant sought to do this by mailing a complaint covering both actions to the Customs Court. The complaint was mailed from Buffalo, New York, on October 30, 1972, but was not received by the Customs Court until November 2, 1972, after the time had expired under Rule 14.6(c). The clerk refused to file it, and in due course the separate orders of dismissal were entered. We note that Rule 4.1(e) of the Customs Court states: "Filing is completed upon receipt by the clerk or his appointed deputy clerk."

Appellant does not dispute the facts, but argues that the applicable rules of the Customs Court should be liberally applied and that an action should not be dismissed lightly on procedural grounds where good cause and excusable neglect are shown. It cites Rule 6(b) of...