MITSUI & CO.(USA), INC. v. US, Slip Op. 95-24. Court No. 93-06-00325.
| Decision Date | 16 February 1995 |
| Docket Number | Slip Op. 95-24. Court No. 93-06-00325. |
| Parties | MITSUI & CO. (U.S.A.), INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Arent Fox Kintner Plotkin & Kahn, Washington, DC (Patrick F. O'Leary), for plaintiff.
Frank W. Hunger, Asst. Atty. Gen. of the U.S., Joseph I. Liebman, Attorney-in-Charge, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, (Barbara Silver Williams), Chi S. Choy, Gen. Atty., Office of Asst. Chief Counsel, Intern. Trade Litigation, U.S. Customs Service, Washington, DC, of Counsel, for defendant.
Plaintiff moves for summary judgment and an order directing Customs to reliquidate the entries at issue and to refund all antidumping duties paid plus interest. Defendant cross-moves for summary judgment claiming there are no material issues of fact to be tried and this case should be dismissed. This Court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (1988).
The two entries at issue, XX-XXXXXX-X and XX-XXXXXX-X, were entered through the port of New Orleans on July 7, 1978, and December 14, 1978, respectively. Both entries consisted of shipments subject to a dumping determination issued in 1973 that required the immediate suspension of liquidation of all import shipments of merchandise subject to that determination. See Synthetic Methionine From Japan, 38 Fed.Reg. 18,382 (Dep't Treasury 1973). The entries were subject to an administrative review finalized on April 12, 1982. See Synthetic Methionine From Japan, 47 Fed.Reg. 15,622 (Dep't Comm. 1982) (). On May 7, 1982, Customs issued its appraisement and liquidation instructions covering the two entries. Customs liquidated both entries on October 2, 1992.
Prior to enactment of the Customs Procedural Reform and Simplification Act of 1978, Pub.L. No. 95-410, 92 Stat. 888 (1978) (Customs Act or Act), there was no statutory provision directing Customs to liquidate entries within a certain time period. Customs was free to suspend liquidation of entries indefinitely. The Customs Act changed this. The Act inserted a new section into title 19 to provide rules governing the liquidation of entries including one-year and four-year time limits within which Customs is required to act under certain circumstances. See Customs Act § 209(a), 92 Stat. at 902-03 (). The statutory rules applicable here1 prescribe that in the event Customs fails to liquidate an entry within one year from the date of entry or the date of final withdrawal, the merchandise will be liquidated at the rate set upon entry. 19 U.S.C. § 1504(a) (1988). In addition, if the liquidation of an entry is properly suspended, the merchandise still must be liquidated within four years of entry or it will be liquidated at the rate set upon entry. Id. at § 1504(d).
The Customs Act provided that these statutory rules applied to entries made on or after 180 days after the enactment of the Act, in this case October 3, 1978. Customs Act § 209(b), 92 Stat. at 903 (codified at 19 U.S.C. § 1504 (historical note)). Because the two entries were entered on July 7, 1978, and December 14, 1978, respectively, the liquidation by operation of law provision of § 1504 applies only if this Court finds, as requested by plaintiff, that § 1504 applies retroactively to these two entries.
Plaintiff's sole argument is that 19 U.S.C. § 1504(d) (1988) should be applied retroactively with the result that plaintiff's two entries should be deemed liquidated as entered and without the assessment of antidumping duties. Plaintiff argues the two entries should be deemed liquidated by operation of law because the entries were made on July 7, 1978, and December 14, 1978, but not liquidated until October 2, 1992 — which is more than four years after entry. (Pl.'s Br. at 2).
In support of its argument, plaintiff first contends the retroactive application of statutes is a well-established doctrine of law2 and maintains several decisions of this Court uphold the retroactive application of statutes.3 Second, plaintiff argues the legislative history of 19 U.S.C. § 1504 supports plaintiff's contention that § 1504 should be applied retroactively to plaintiff's two entries. (Id. at 8-16). After considering congressional reports on § 1504 and testimony in congressional hearings, plaintiff asserts "it is clear that the deemed liquidation provision of 19 U.S.C. § 1504 was designed to benefit importers." (Id. at 10). For example, plaintiff cites language in the House Ways and Means Committee Report that "expressly points this out":
Of considerable benefit to both importers and the Customs Service alike, is the title II provision placing a 1-year limit on the time in which Customs has to liquidate an entry. Eliminated by this provision would be the unanticipated request by Customs, many years after the entry, for additional duties which often results in substantial losses to importers because they are unable to anticipate such duties when pricing their products.
(Id. at 8 ()). In addition, plaintiff discusses the testimony of the Commissioner of Customs who described the deemed liquidation provision as "`expected to be beneficial to both Customs and importers,'"4 and as "`providing importers with additional protection.'"5
Third, plaintiff argues the failure to apply § 1504 retroactively would perpetuate one of the problems the statute was designed to address; namely, the uncertainties facing importers confronted with "open-ended contingent liabilities, which could arise at any time." (Id. at 14). As summarized by plaintiff, "In enacting the deemed liquidation provision, Congress' intent was clearly to remove Customs' procrastination in liquidating entries as an element which the importer had to take into account in its business planning." (Id.). Plaintiff argues it would be inconsistent with the remedial nature of § 1504 not to apply the deemed liquidation provision retroactively to the two entries at issue. (Id. at 16).
Plaintiffs final argument is that the statutory language of § 1504 does not preclude retroactive application. (Id. at 17-19). That is, although plaintiff concedes the statute applies to entries made on or after 180 days following enactment of the statute, (Pl.'s Reply Br. at 3), plaintiff notes there is no prohibition against retroactive application in the text of the statute, (id. at 4). This silence, plaintiff argues, cannot be construed as a prohibition against retroactive application. Plaintiff cites several cases to argue generally that the agency "may use `X,' even though Congress told the agency to use `Y,' because the statute does not explicitly forbid use of `X'." (Pl.'s Br. at 18 (citing Smith-Corona Group v. United States, 1 Fed.Cir. (T) 130, 136-37, 713 F.2d 1568, 1575 (1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984) (internal quotations omitted))).6
Defendant responds that plaintiffs "contentions are essentially irrelevant ... and must fail because they neither address nor satisfy virtually every fundamental requisite for the application of retroactivity, and they ignore relevant case law." (Def.'s Br. at 6-7). Defendant points out that the United States Supreme Court has recently summarized the standards for retroactive application of a statute in Landgraf, where the Court wrote:
When, however, the statute contains no such express command as to the statute's proper reach, the court must determine whether the new statute would ... impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.
Landgraf, ___ U.S. at ___, 114 S.Ct. at 1505. Defendant argues plaintiff has failed to satisfy these factors. (Def.'s Br. at 7, 9-10). Furthermore, defendant claims the language in the historical note to § 1504 limiting the application of the statute to those entries made on or after 180 days from enactment precludes the plaintiff from even reaching the analysis laid out in Landgraf. (Id. at 7).
The defendant contends this Court has considered and rejected the retroactive application of 19 U.S.C. § 1504 in F.W. Myers & Co., Inc. v. United States, 9 CIT 64, 607 F.Supp. 1470 (1985) and Peugeot Motors of America, Inc. v. United States, 8 CIT 167, 595 F.Supp. 1154 (1984). Accordingly, defendant argues, "because the statute specifically prescribes the statute's proper reach, resort to judicial default rules is unwarranted." (Id. at 9). This point, defendant contends, when coupled with relevant case law and legislative history of § 1504,7 underscores that plaintiff's motion is "meritless and should be denied." (Id.).
Notwithstanding this fundamental objection, defendant notes plaintiff has failed to meet the Supreme Court's standard for retroactive application of a statute. (Id. at 9-10). "In determining whether a statute operates retroactively," defendant explains, "the court must ask whether the new provision impairs rights a party possessed when they acted or attaches new legal consequences to events completed before its enactment." (Id. at 9 (citing Landgraf, ___ U.S. at ___, ___, 114 S.Ct. at 1499, 1504)). Defendant contends plaintiff has failed to meet this standard because retroactive application "would entirely abrogate the right of the Government to liquidate this merchandise accurately" thereby impairing Customs' rights. Id. at 10 ().
A motion for summary judgment is appropriate where the ...
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