Aectra Refining and Marketing, Inc. v. U.S.
| Decision Date | 08 May 2009 |
| Docket Number | No. 2008-1356.,2008-1356. |
| Citation | 565 F.3d 1364 |
| Parties | AECTRA REFINING AND MARKETING, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.
Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges.
Aectra Refining and Marketing, Inc. ("Aectra") unsuccessfully sought a refund from United States Customs and Border Protection ("Customs") of import taxes and fees paid on products that were subsequently used to produce exported goods. Such refund claims are known as claims for "drawback." Aectra then filed suit in the Court of International Trade, which rejected Aectra's drawback claim as untimely. The trade court held that the three-year limitations period imposed by 19 U.S.C. § 1313(r)(1) had not been suspended by 2004 legislation and that Aectra had not completed its claim within the three-year limitations period because it had not timely provided Customs with a calculation of the taxes and fees it sought. Aectra Ref. & Mktg. Inc. v. United States, 533 F.Supp.2d 1318, 1326 (Ct. Int'l Trade 2007). We affirm.
Between January 1987 and June 1997, Aectra imported into the United States certain petroleum products upon which customs duties, Merchandise Processing Fee ("MPF"), and Harbor Maintenance Tax ("HMT") were paid.1 Aectra exported drawback-eligible finished petroleum products between May 1987 and December 1997. In general, under the current statute, Customs is required to provide a refund (drawback) of 99% of "any duty, tax, or fee imposed under Federal law upon entry or importation" of imported merchandise if that merchandise (or a "commercially interchangeable" substitute) is subsequently "exported, or ... destroyed under customs supervision; and ... is not used within the United States before such exportation or destruction." 19 U.S.C. § 1313(j), (p) (2006). Aectra's exported petroleum products always qualified for drawback (even under earlier versions of the statute), and under the current statute, MPF and HMT (each of which is a "duty, tax, or fee imposed ... upon entry or importation") are also eligible to be refunded. However, the drawback eligibility of MPF and HMT (as opposed to customs duties) under the earlier statute was disputed at the time of Aectra's exports. The question is whether Aectra made a timely claim for refund of MPF and HMT.
By statute, claims for drawback generally must be filed and completed within a three-year limitations period accruing from the date of export:
A drawback entry and all documents necessary to complete a drawback claim, including those issued by the Customs Service, shall be filed or applied for, as applicable, within 3 years after the date of exportation or destruction of the articles on which drawback is claimed.... Claims not completed within the 3-year period shall be considered abandoned. No extension will be granted unless it is established that the Customs Service was responsible for the untimely filing.
19 U.S.C. § 1313(r)(1) (2006) (emphasis added); 19 C.F.R. § 191.51(e)(1) (2008). The statute requires timely filing of both the "drawback entry," which is defined by regulation as "the document containing a description of, and other required information concerning, the exported or destroyed article on which drawback is claimed," 19 C.F.R. § 191.2(k), and all documents necessary to complete the "drawback claim," which is "the drawback entry and related documents required by regulation which together constitute the request for drawback payment," id. § 191.2(j). Customs has promulgated regulations addressing what is necessary to "complete" a claim; under the regulations, a claimant must supply various documents and certificates specified in 19 C.F.R. § 191.51(a) and "correctly calculate the amount of drawback due" under id. § 191.51(b)(1). Claims for drawback may be altered or amended prior to liquidation of the drawback entry ("liquidation" being the final calculation by Customs of drawback due on an entry, see id. § 159.1), provided that the amendment is made within the three-year limitations period. Id. § 191.52(c).
Between August 1997 and June 1998, Aectra timely filed ten entries claiming drawback of the customs duties paid on the petroleum products.2 For the "total drawback claimed" on each of the ten drawback entry forms, Aectra listed only the specific amount of customs duty paid on that entry. None of the ten forms included a request for drawback of the MPF or HMT paid on that entry or any calculations indicating the amount of MPF or HMT sought. Aectra states that it did not include calculations for MPF or HMT because Customs regulations at the time provided that neither MPF nor HMT was eligible for drawback under the statute.3
Although the regulations did not allow MPF and HMT claims, Aectra admits that it was aware that Customs's position regarding the recoverability of MPF and HMT was being actively challenged in 1997 and 1998. See, e.g., Textport Oil Co. v. United States, 1 F.Supp.2d 1393 (Ct. Int'l Trade 1998), rev'd, 185 F.3d 1291 (Fed.Cir.1999). Aectra offers no explanation for why it did not include protective claims for MPF and HMT in its ten drawback claims other than its belief that such claims would not be successful at the administrative level. Subsequent to the original filing of those claims (but at a time when Aectra's claims could have been timely amended or re-filed), in July 1999 a panel of this court in Texport Oil Co. v. United States, 185 F.3d 1291, 1296 (Fed. Cir.1999), held that MPF was recoverable but HMT was not. However, efforts continued in other cases to secure en banc reconsideration of Texport's holding as to HMT, see, e.g., George E. Warren Corp. v. United States, 341 F.3d 1348, 1351-52 (Fed.Cir.2003), and efforts to change the Texport decision as to HMT legislatively proceeded as well. In 2004, Congress amended 19 U.S.C. § 1313(j) to permit drawback of HMT. Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. No. 108-429, § 1557(b), 118 Stat. 2434, 2579 ("2004 Trade Act").4 Aectra contends that the amendment applies to the claims in question.
Although Aectra never sought to formally amend its claims within the three-year period, Aectra itself recognized that a claim could be filed even before the 2004 Trade Act (allowing recovery of HMT) was enacted on December 3, 2004. On February 2, 2004, Aectra filed a protest contesting Customs's failure to refund the MPF and HMT paid on the ten entries.5 On or about February 6, 2004, Customs denied the protest without elaboration. Aectra understood the grounds for denial to be its failure to include a timely request for HMT and MPF in its original filings.
On July 23, 2004 (still before the statute was amended), Aectra filed a summons in the Court of International Trade under 28 U.S.C. § 1581(a), contesting the denial of its protest. Aectra ultimately offered three main theories for why Customs had incorrectly rejected the request for drawback of MPF and HMT. First, Aectra argued in essence that the 2004 Trade Act suspended the three-year limitations period as to HMT. Second, Aectra argued that even if the three-year limitations period applied, its original drawback claims, despite their lack of an explicit request for MPF and HMT, were sufficient to include a claim for MPF and HMT. Third, Aectra argued that it was not required to file a claim for MPF and HMT because such a claim would have been futile. On cross motions for summary judgment, the trade court rejected Aectra's arguments and granted the government's motion, affirming Customs's denial of the claim. Aectra, 533 F.Supp.2d at 1327.
Aectra timely appealed, and we have jurisdiction under 28 U.S.C. § 1295(a)(5). "We review the Court of International Trade's grant of summary judgment de novo, including by deciding de novo the proper interpretation of governing statutes and regulations." Shinyei Corp. of Am. v. United States, 524 F.3d 1274, 1282 (Fed.Cir.2008).
On appeal, Aectra contends that the 2004 Trade Act suspended the three-year limit on HMT drawback claims imposed by 19 U.S.C. § 1313(r)(1). As previously noted, prior to the 2004 amendment, § 1313(j) stated that "any duty, tax, or fee imposed under Federal law [upon imported merchandise] because of its importation ... shall be refunded as drawback" if the merchandise is exported or destroyed unused. 19 U.S.C. § 1313(j) (2000) (emphasis added). In Texport, this court held that MPF was a "duty, tax, or fee" imposed "because of ... importation" and therefore was eligible for drawback; in contrast, we held that HMT was not similarly subject to drawback because it was a general charge "assessed against all shipments, regardless of whether they are imports." 185 F.3d at 1296. The 2004 Trade Act made clear that HMT was recoverable by eliminating the requirement that a charge be imposed "because of" importation, instead more broadly allowing drawback of any duty, tax, or fee imposed "upon entry" of merchandise. 2004 Trade Act, § 1557(a), 118 Stat. at 2579 (emphasis added). The legislative history indicates that the amendment was designed to clarify prior law that 19 U.S.C. § 1313(j) had been intended to permit recovery of HMT, see S.Rep. No. 108-28, at 173 (2003), and that the contrary Texport decision had been in error.6
The basis for Aectra's argument as to the timeliness of its claims is the effective date provision of the 2004 Trade Act, which provides:
(b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date...
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