Lg Electronics U.S.A., Inc., v. U.S.

• Decision Date: 31 December 1997
• Docket Number: Slip Op. 97-179.,Court No. 96-05-01419.
• Citation: 991 F.Supp. 668
• Parties: LG ELECTRONICS U.S.A., INC., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

991 F.Supp. 668

LG ELECTRONICS U.S.A., INC., Plaintiff, v. The UNITED STATES, Defendant.

Slip Op. 97-179.

Court No. 96-05-01419.

United States Court of International Trade.

December 31, 1997.

COPYRIGHT MATERIAL OMITTED

Wasserman, Schneider & Babb, New York City (Patrick C. Reed and Yong Hak Kim), for Plaintiff.

Frank W. Hunger, Assistant Attorney General, Joseph I. Liebman, Attorney in Charge, International Trade Field Office, John J. Mahon, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, and Beth Brotman, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs Service, of counsel, Washington, DC, for Defendant.

OPINION

RESTANI, Judge.

This matter is before the court on cross-motions for summary judgment, pursuant to USCIT R. 56. Plaintiff LG Electronics, U.S.A., Inc., formerly known as Goldstar U.S.A., Inc., and Goldstar Electronics International, Inc., ("LG") asks the court to order liquidation, at a rate determined by the United States Department of Commerce ("Commerce"), of 57 entries for which antidumping duties were allegedly deposited with the United States Customs Service ("Customs").¹ LG also asks the court to order Customs to refund, with interest, excess duties paid, measured by the difference between the duty as liquidated and the duty deposited. The government asks the court to rule instead that the entries have already been liquidated, thus that no refund or interest is due, and that the plaintiff is barred from bringing suit because the court lacks jurisdiction. The court finds that each party is correct as to certain entries and therefore grants summary judgment in part to plaintiff and in part to defendant.

Background

From 1984 to 1988, LG imported color televisions receivers from Korea, Compl., at 3, which were subject to an antidumping order. Color Television Receivers from the Republic of Korea, 49 Fed. Reg. 18,336, 18,337 (Dep't Commerce 1984) (antidumping order). LG deposited antidumping duties with Customs upon entry of 54 shipments of televisions.² Compl., at Schedule A (table of entry dates). Commerce suspended liquidation of these entries while determining proper antidumping duty rates. Plaintiff petitioned this court for review of Commerce's determinations. Goldstar Co., Ltd. v. United States, Ct. No. 86-12-01558 (entries May 1, 1984 to Mar. 31, 1985), consolidated with other cases Mar. 24, 1988, as Independent Radionic Workers of Am. v. United States, Consol. Ct. No. 86-12-01551; Goldstar Co., Ltd. v. United States, Ct. No. 88-08-00593 (entries Apr. 1, 1985 to Mar. 31, 1986), consolidated with other cases Aug. 14, 1991, as Zenith Elecs. Corp. v. United States, Consol. Ct. No. 88-07-00488; Goldstar Co., Ltd. v. United States, Ct. No. 90-07-00370 (entries Apr. 1, 1986 to Mar. 31, 1987), consolidated with other cases Aug. 14, 1991, as Goldstar Co., Ltd. v. United States, Consol. Ct. No. 90-07-00370, recaptioned May 19, 1994, as Zenith Elecs. Corp. v. United States, Consol. Ct. No. 90-07-00339; Goldstar Co., Ltd. v. United States, Ct. No. 91-04-00326 (entries Apr. 1, 1987 to Mar. 31, 1988), consolidated with other cases Aug. 14, 1991, as Samsung Elecs. Co. v. United States, Consol. Ct. No. 91-04-00327. Pending these reviews, and during settlement negotiations between plaintiff and Commerce, this court issued preliminary injunctions against liquidation of the disputed entries. Zenith Elecs. Corp. v. United States, Ct. No. 86-12-01558 (CIT Dec. 22, 1986) (preliminary injunction order); Zenith Elecs. Corp. v. United States, Ct. No. 88-07-00488 (CIT July 18, 1988) (preliminary injunction order); Zenith Elecs. Corp. v. United States, Ct. No. 90-07-00339 (CIT Aug. 9, 1990) (preliminary injunction order); Zenith Elecs. Corp. v. United States, Ct. No. 91-04-00304 (CIT May 1, 1991) (preliminary injunction order).

During the period of suspension, from 1984 to 1990, Customs prematurely posted notice of liquidation at the duty rate imposed at entry for all 54 entries remaining at issue. Pl.'s Doc. App. of Entry Papers, as corrected by, Def.'s Br., at 25, and error acknowledged by, Pl.'s Rep. Br., at 15. Customs' computer, the Automated Commercial System (hereinafter "ACS"), generated notice of three types of liquidations: notices of deemed liquidation of New York Entry No. 84-916368-7, Pl.'s Doc. App. of Entry Papers, at 2, and Los Angeles Entry No. 86-445948-6, Pl.'s Reply Br., at 15; notices of "automatic liquidation"³ of 27 entries; and notices of "no change liquidation"⁴ of 25 relevant entries. Id. at 1-7. The parties agree that computer-generated notices of liquidation were posted and that none of the liquidations were protested within 90 days of the notice given, as specified by 19 U.S.C. §§ 1514(a) and (c)(2) (1994).

In May 1994, LG and Commerce reached a settlement, setting proper antidumping duty rates lower than the rates imposed at entry, and the preliminary injunctions against liquidation were lifted, permitting liquidation at the new rates set by Commerce. Pl.'s Stmt. of Uncontested Material Facts, at 4; Indep. Radionic Workers, Consol. Ct. No. 86-12-01551 (CIT Jul. 8, 1994); Zenith Elecs., Consol. Ct. No. 88-07-00488 (CIT May 19, 1994); Zenith Elecs., Consol. Ct. No. 90-07-00339 (CIT Jul. 8, 1994); Samsung Elecs., Consol. Ct. No. 91-04-00327 (CIT May 19, 1994). On September 6, 1994, Commerce issued CIE Notice N-104/83 Supp. # 46, directing the Customs Service to liquidate the entries at the lower rate and to issue refunds with interest of the difference between the liquidation rate and the deposit rate, per 19 U.S.C. § 1677g (1994). Pl.'s Stmt. of Uncontested Material Facts, at 4-5. When Customs did not comply with Commerce's instructions, on May 23, 1996, LG filed this action, contending that the alleged liquidations previously ordered by Customs had not occurred or were invalid. Compl., at 1.

Standard of Review

Summary judgment may be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." USCIT R. 56(d). The court must be sure "all reasonable inferences [are] drawn in favor of the party opposing summary judgment." Pfaff Am. Sales Corp. v. United States, 16 CIT 1073, 1075 (1992). If a factual dispute for which a reasonable trier of fact could rule against the movant remains, the court must not grant the motion for summary judgment. Id.

Jurisdiction

Liquidation is "the final computation or ascertainment of the duties ... accruing on an entry." 19 C.F.R. § 159.1 (1997). In this case, liquidation includes Customs' final calculation of antidumping duties owed on the importation of the televisions from Korea. Liquidation of antidumping duties can occur two ways: by operation of law, after the expiration of a statutorily defined period, 19 U.S.C. § 1504(a) (1994) (deemed liquidation), or by order of Customs, 19 U.S.C. § 1500 (1994). Plaintiff contends that the 54 entries at issue have yet to be liquidated because decisions to liquidate were not made and proper notices of liquidation were not given. LG alleges jurisdiction under 28 U.S.C. § 1581(i) (1994).⁵

The government counters that liquidation of these entries has occurred and that the court lacks jurisdiction, because plaintiff did not protest within 90 days of liquidation, as specified in 19 U.S.C. § 1514.⁶ A decision to liquidate, including the legality of the liquidation itself, becomes final unless a protest of the decision is filed within 90 days of the entry of liquidation. 19 U.S.C. § 1514; see Juice Farms, Inc. v. United States, 68 F.3d 1344, 1346 (Fed.Cir.1995) (parties bound by even erroneous, illegal liquidation not protested within 90 days); United States v. A.N. Deringer, Inc., 66 C.C.P.A. 50, 593 F.2d 1015, 1020 (1979) (any protest of liquidation, including a challenge to its legality, must occur within 90 days).

The government's jurisdictional argument begs the issues controlling summary judgment. To determine whether plaintiff's suit may be heard, the court must consider whether a liquidation has in fact occurred such as to trigger the 90 day period. Thus the court now turns to that question, as part of a two-step inquiry, asking, as to the 52 "no change liquidations" and "automatic liquidations" and then the two deemed liquidations, first whether the liquidations occurred and, second, if so, whether they were cognizable.

Discussion

Customs' ACS is programmed to automatically liquidate entries, which are neither suspended nor extended, in their fiftieth week. The "automatic liquidation" procedure "orders" liquidation and issues notice of liquidation at the duty rate deposited upon entry.⁷ "No change" liquidations result from Customs' employees entering liquidation codes in the ACS, thereby ordering liquidation and causing the system to generate notices of liquidation. Notices of "automatic liquidation" or "no change liquidation" were posted for 52 of the 54 entries, all within the period of suspension. Compl., at Schedule B, Def.'s Resp. to Pl.'s Stmt. of Uncontested Material Facts, at 2-3 (table of entry and liquidation dates, as amended). As types of liquidation by order, effective "automatic liquidation" and "no change liquidation" require both decision and notice.

"No Change" Liquidations

The erroneous "no change liquidations" were protestable decisions as defined by statute. 19 U.S.C. § 1514(a) (1988). Customs decisions are "substantive determinations involving the application of pertinent law and precedent to a set of facts, such as tariff classification and applicable rate of duty." United States Shoe Corp. v. United States, 114 F.3d 1564, 1569-70 (Fed.Cir.1997) (collecting harbor maintenance tax a purely "ministerial task" not requiring a decision by Customs), cert. granted, ___ U.S. ___, 118 S.Ct. 361, 139 L.Ed.2d 281, 1997 WL 561769 (Oct. 31, 1997). A passive activity is not a decision. Id.; see also Dart Export Corp. v. United States, 43 C.C.P.A. 64, 69-70,...