Goldhofer Fahrzeugwerk GmbH & Co. v. U.S., 89-1298

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Citation885 F.2d 858
Docket NumberNo. 89-1298,89-1298
PartiesGOLDHOFER FAHRZEUGWERK GmbH & CO., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
Decision Date19 September 1989

James A. Geraghty, Donohue & Donohue, New York City, argued for plaintiff-appellant.

Mark S. Sochaczewsky, Commercial Litigation Branch, Dept. of Justice, New York City, argued for defendant-appellee. With him on the brief were Stuart E. Schiffer Acting Asst. Atty. Gen., David M. Cohen, Director and Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office.

Before ARCHER and MICHEL, Circuit Judges, and COWEN, Senior Circuit Judge.

MICHEL, Circuit Judge.

In this customs duty case, the United States Court of International Trade granted summary judgment in favor of the United States, holding that, as a matter of law, Goldhofer Fahrzeugwerk GmbH & Co.'s (Goldhofer) protest of liquidation was not timely filed with the United States Customs Service (Customs) within the 90-day protest period set forth by 19 U.S.C. Sec. 1514(c)(2) (1982). Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 706 F.Supp. 892 (Ct.Int'l Trade 1989). In reaching that disposition, the Court of International Trade concluded that posting "bulletin notice" of liquidation alone both complies with the applicable customs laws and regulations and satisfies the minimum constitutional standards for due process. We affirm.

Issues

Two principal issues are presented on appeal: First, whether the Court of International Trade erred by holding that posting bulletin notice of liquidation alone fully complies with the requirements of the applicable Customs statute and regulations; and, second, whether the Court of International Trade erred by concluding that Customs' failure to send "courtesy notice" by mail to Goldhofer did not abridge constitutional requirements for due process.

Background

Goldhofer, a corporation organized under the laws of the Federal Republic of Germany, has its principal place of business in Memmingen, West Germany. Goldhofer was the importer of record of a certain multiaxle "gooseneck" semitrailer covered by Entry No. 101757 of February 16, 1980, at the port of Norfolk, Virginia.

A transcription error by Customs employees caused the name and address of Walsen Design and Manufacturing, an unrelated third party and stranger to the transaction, to be entered into Customs' data base in connection with the involved entry. Consequently, when the June 5, 1981, bulletin notice of liquidation was prepared for the port of Norfolk, Virginia, the importer of record for Entry No. 101757 was listed as Walsen Design and Manufacturing. Customs printed out the courtesy notice of liquidation and the bill for the duty increase. The bill and notice were mailed to the party indicated thereon, Walsen Design and Manufacturing. Goldhofer never received a courtesy notice or original bill.

In the Norfolk Customs Entry Control Section, the transcription error was discovered and a clerk manually annotated the bulletin notice to substitute the name of Goldhofer and its address in Memmingen, West Germany. On or about June 5, 1981, the bulletin notice of liquidation as annotated was posted at the Entry Control Section of the Norfolk Customhouse. No Customs official or employee took steps to correct the data base after the above described discrepancy was discovered and no Customs official or employee made any effort to furnish Goldhofer with courtesy notice.

Subsequently, Customs generated a "REBILL" dated September 4, 1981 (the 91st day after the June 5, 1981, liquidation) addressed to Goldhofer in Memmingen, West Germany. On December 1, 1981, Goldhofer filed a protest at the port of Norfolk, Virginia, covering the involved entry. That protest was received by Customs 179 days after the June 5, 1981, bulletin notice was posted, but on the 88th day after September 4, 1981, the date of the REBILL. Customs denied Goldhofer's protest as untimely because it was not filed within the 90-day protest period set forth by statute. 19 U.S.C. Sec. 1514(c)(2) (1982).

Goldhofer, pursuant to 28 U.S.C. Sec. 1581(a) (1982), brought action in the Court of International Trade contesting the denial of its protest. Before that court, Goldhofer argued that Customs' failure to provide courtesy notice of liquidation both violated Customs' own regulations and failed to meet the minimum constitutional requirements for due process. On that basis, Goldhofer contended that the June 5, 1981, liquidation was incomplete and that Goldhofer's December 1, 1981, protest was timely because it was filed within 90 days after Goldhofer received Customs' September 4, 1981, REBILL. The United States responded and both parties filed cross motions for summary judgment.

On January 18, 1989, the Court of International Trade granted summary judgment to the United States, concluding that Goldhofer's protest of the June 5, 1981, liquidation was untimely. Goldhofer's motion for summary judgment was denied. For the reasons set forth below, we hold that the Court of International Trade committed no legal error in reaching this disposition.

Analysis
A. Customs' statute and regulations were satisfied.

Goldhofer argues that Customs failed both to comply with its own regulations and to follow its long established administrative practice by not "endeavor[ing]" to provide courtesy notice. These failures, Goldhofer contends, rendered liquidation incomplete and tolled the time within which the importer was required to file a protest. We are not persuaded.

Section 1500 of Title 19 of the United States Code (1982) provides the following:

Sec. 1500. Appraisement, classification, and liquidation procedure

The appropriate customs officer shall, under rules and regulations prescribed by the Secretary--

* * *

* * *

(e) give notice of such liquidation to the importer, his consignee, or agent in such form and manner as the Secretary shall prescribe in such regulations.

Pursuant to this statute, the Secretary promulgated the following regulation:

Sec. 159.9 Notice of liquidation and date of liquidation for formal entries.

(a) Bulletin notice of liquidation. Notice of liquidation of formal entries shall be made on a bulletin notice of liquidation, Customs Form 4333 or 4335 * * *.

(b) Posting of bulletin notice. The bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customhouse at the port of entry * * *, or shall be lodged at some other suitable place in the customhouse in such a manner that it can readily be located and consulted by all interested persons, who shall be directed to that place by a notice maintained in a conspicuous place in the customhouse stating where notices of liquidation of entries are to be found.

* * *

* * *

(d) Courtesy notice of liquidation. Customs will endeavor to provide importers or their agents with Customs Form 4333-A, "Courtesy Notice", for entries specified in Sec. 159.9(a)(1), scheduled to be liquidated or deemed liquidated by operation of law. This notice shall serve as an informal, courtesy notice and not as a direct, formal, and decisive notice of liquidation.

The plain language of the implementing regulations is clear that the only notice of liquidation required is bulletin notice "posted for the information of importers in a conspicuous place in the customhouse at the port of entry." 19 C.F.R. Sec. 159.9(b) (1988). Courtesy notice is just that, a "courtesy," and Customs' providing, or failure to provide, such a notice cannot create any legally cognizable right in the importer. See United States v. Reliable Chemical Co., 605 F.2d 1179, 1184 (CCPA 1979) ("Early notice of liquidation, forwarded as a 'courtesy' by the Government, is not and cannot be converted into the statutory notice at the election of an importer.").

B. The Due Process requirements of the Constitution were satisfied.

In addition, Goldhofer argues that Customs' failure to provide courtesy notice abridged the minimum due process requirements of the Constitution. Goldhofer contends that, under those minimum requirements as articulated by the United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), and Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), Customs is required to provide Goldhofer mail notice of liquidation. We disagree.

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314, 70 S.Ct. at 657. "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable." Mennonite Board of Missions, 462 U.S. at 800, 103 S.Ct. at 2712 (emphasis supplied) (quoted in Tulsa Professional Collection Services, Inc., 108 S.Ct. at 1344). Clearly, Customs' liquidation of, and assessment of duties on, Goldhofer's goods are elements of a proceeding that may adversely affect Goldhofer's property interest in its goods. Because, as importer of record, Goldhofer's name and address are registered with Customs, Customs is constitutionally required to provide Goldhofer with notice "as certain to ensure actual notice" that liquidation has occurred, as would mail notice. Id. at 800,...

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