Belfont Sales Corp. v. US

• Decision Date: 11 October 1988
• Docket Number: Court No. 81-12-01724-S.
• Citation: 698 F. Supp. 916,12 CIT 916
• Parties: BELFONT SALES CORP., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

698 F. Supp. 916

12 CIT 916

BELFONT SALES CORP., Plaintiff, v. The UNITED STATES, Defendant.

Court No. 81-12-01724-S.

United States Court of International Trade.

October 11, 1988.

Stephen R. Sosnov, Norristown, for plaintiff.

John R. Bolton, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, U.S. Dept. of Justice, New York City, James A. Curley, Washington, D.C., for defendant.

OPINION & ORDER

AQUILINO, Judge:

Entry of judgment in this case in accordance with the court's slip op. 87-90, 11 CIT ___, 666 F.Supp. 1568 (1987), has spawned four related motions by the defendant, the primary one of which prays for "modification and amendment of the judgment ... and for reconsideration and/or rehearing or retrial."

I

Slip op. 87-90, familiarity with which is presumed herein, set forth the court's findings of fact and conclusions of law after trial, including a finding that a quartz analogue watch or "QAW" does contain a watch movement, when viewed in the light of Texas Instruments, Inc. v. United States, 82 Cust.Ct. 272, C.D. 4810, 475 F.Supp. 1183 (1979), aff'd, 620 F.2d 269, 67 CCPA 59 (1980); Texas Instruments Inc. v. United States, 82 Cust.Ct. 287, C.D. 4811, 475 F.Supp. 1193 (1979), aff'd, 620 F.2d 272, 67 CCPA 57 (1980); and Texas Instruments Inc. v. United States, 1 CIT 236, 518 F.Supp. 1341 (1981), aff'd, 673 F.2d 1375, 69 CCPA 136 (1982). The QAWs in the case had been classified under TSUS item 715.05 ("Watches"), with duties assessed pursuant to items 716.27 or 716.29 under the heading

Watch movements ... Not adjusted, not self-winding (or if a self-winding device cannot be incorporated therein), and not constructed or designed to operate for a period in excess of 47 hours without rewinding.

That heading, however, led the court to conclude that, in contrast to the Tariff Act of 1930,

Schedule 7 of the TSUS directly tied the watch-movement provisions not only to "constructed or designed to operate for a period in excess of 47 hours without rewinding" per item 719, but also to "not constructed or designed to operate for a period in excess of 47 hours without rewinding" per the heading to the items apposite herein ... and apparently precluded the classification under those provisions of watches that are rewound.¹

The defendant argues in the main in its present motion for rehearing that the fact that the QAWs are not susceptible to winding or rewinding does not prevent their classification under items 716.27 or 716.29 and that electrically-powered watch movements had been classifiable under paragraph 367 of the 1930 act and that subsequent legislative history shows that Congress intended those movements to continue to be classified under TSUS item 716, a counterpart of the earlier paragraph.

These points, however, were made by the defendant and carefully analyzed by the court at the time of trial, a fact admitted now by the defendant² which nonetheless contends that

after extensive further research it appears that the Court's construction of the language of the heading is contrary to the intent of Congress and inconsistent with appellate court decisions which have construed similar provisions with negative limitations of the sort found in the heading.³

But the purpose of a rehearing is not to relitigate. See, e.g., BMT Commodity Corp. v. United States, 11 CIT ___, ___, 674 F.Supp. 868, 869 (1987). Rather, a rehearing is a

method of rectifying a significant flaw in the conduct of the original proceeding. W.J. Byrnes & Co. v. United States, 68 Cust.Ct. 358, 358, C.R.D. 72-5 (1972). The exceptional circumstances for granting a motion for rehearing are well established:

(1) an error or irregularity in the trial; (2) a serious evidentiary flaw; (3) a discovery of important new evidence which was not available at the time of trial; or (4) an occurrence at trial in the nature of an accident or an unpredictable surprise or unavoidable mistake which impaired a party's ability to adequately present its case.

North Am. Foreign Trading Corp. v. United States, 9 CIT 80, 80, 607 F.Supp. 1471, 1473 (1985), aff'd, 4 Fed.Cir.(T) 43, 783 F.2d 1031 (1986); Oak Laminates d/o Oak Materials Group v. United States, 8 CIT 300, 302, 601 F.Supp. 1031, 1033 (1984), aff'd, 4 Fed.Cir.(T) 43, 783 F.2d 195 (1986); V.G. Nahrgang Co. v. United States, 6 CIT 210, 211 (1983) available on WESTLAW, 1983 WL 2203. In ruling on a petition for rehearing, a court's previous decision will not be disturbed unless it is "manifestly erroneous." United States v. Gold Mountain Coffee, Ltd., 9 CIT 77, 78 (1985); United States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 336-37, 601 F.Supp. 212, 214 (1984).

RSI (India) Pvt., Ltd. v. United States, 12 CIT ___, 688 F.Supp. 646, 647 (1988).

Even if this were not the well-settled law governing a motion for rehearing, and even if the court were convinced of the merit of defendant's present motion⁴, the court is not persuaded that it has jurisdiction.

Defendant's motion states that it is predicated upon CIT Rule 59 and 28 U.S.C. §§ 2645 and 2646. Subparagraph (b) of the rule requires that a motion for rehearing be served and filed not later than 30 days after entry of a judgment.⁵

The motion herein was filed with the Clerk of the Court on the 31st day after entry of the judgment⁶, bearing a certificate of counsel to the effect that service had been effectuated by hand delivery upon plaintiff's attorney. The defendant has since interposed a motion for leave to file a corrected certificate of service on the grounds that "plaintiff's attorney was actually served ... by sending the motion papers by ordinary mail addressed to his office" and that the "incorrect certificate was attached to the motion papers by a clerical error."

This related motion to set the record straight on the method of service is hereby granted, but the clarification of the matter also clarifies the response of the plaintiff⁷ that the motion for rehearing was received three days after it had been mailed⁸ — or too late under the rules for the court to exercise jurisdiction thereon.

One of the rules, number 5(g), provides that service of such a motion

by delivery or by mailing is completed when received, except that a ... paper mailed by registered or certified mail properly addressed to the party to be served ..., with the proper postage affixed and return receipt requested, shall be deemed served ... as of the date of mailing.

As already indicated, the papers now before the court show that the defendant effectuated service by regular, as opposed to registered or certified, mail. Such an approach is, of course, permissible — under Rule 5(b). In fact, defendant's experienced counsel has filed an affidavit to the effect that service by ordinary mail on or about the date of filing, with ex post facto receipt by the opposing side, is a common practice among the bar.⁹

While this practice may be common (and may be a violation of both the letter and the spirit of the traditional requirement(s) of service first and then filing), the real issue posited by the plaintiff is the effect of that practice here. Unlike Federal Rule of Civil Procedure ("FRCivP") 5(b), which states that "service by mail is complete upon mailing", the operative rule in this Court (quoted above) is that service by mailing is completed when received, except when registered or certified mail is used. Thus, service was not completed in this case until after the deadline had passed to invoke the court's jurisdiction.

The defendant argues in its reply papers that neither the statute nor the rules relied on in making its motion for rehearing required that the plaintiff have received the papers before filing or that service have been completed by then. In other words, since the filing was timely, the motion was "made" within the meaning of 28 U.S.C. §§ 2645(b) and 2646.¹⁰ The defendant refers to Minkap of California, Inc. v. United States, 55 CCPA 1, C.A.D. 926 (1967), wherein the court of appeals relied on the Customs Court Rule 6(a), providing for rehearing motions, in interpreting the controlling statutory provision, 28 U.S.C. § 2640 (1966), which also required that such motions be made within 30 days of the contested decision. That is, the rule required "filing" within that period, and the court of appeals thus concluded that mailing by the end of that time, with later filing, did not constitute making within the meaning of the statute.

Were this still the rule today, defendant's position in this case would be well-taken, but the Customs Court rule only referred to filing, while CIT Rule 59(b) explicitly requires service and then filing, each not later than 30 days after the entry of judgment.

The defendant is correct in arguing that court rules cannot enlarge or restrict jurisdiction beyond that which is provided by statute. Cf. CIT Rule 1; FRCivP 82. However, rather than going beyond a requirement Congress has imposed, the rules under consideration here set forth procedures which complement the underlying purpose of the statute's strict time limit, to wit, the promotion of finality of judgments. See 11 Wright & Miller, Federal Practice and Procedure § 2812 at 87. Moreover, court rules may prescribe practice in the absence of a statutory provision. See, e.g., Browder v. Director, Dep't of Corrections of Illinois, 434 U.S. 257, 267-72, 98 S.Ct. 556, 562-65, 54 L.Ed.2d 521 (1978). Indeed, 28 U.S.C. § 2633 provides, in part, as follows:

(b) The Court of International Trade shall prescribe rules governing the summons, pleadings, and other papers, for their amendment, service, and filing, for consolidations, severances, suspensions of cases, and for other procedural matters.

(c) All summons, pleadings, and other papers filed in the Court of International Trade shall be served on all parties in accordance with rules prescribed by the court....

A provision in the predecessor statute, the ...