Channel Master, Div. of Avnet, Inc. v. US, Court No. 80-5-00802.

• Court: U.S. Court of International Trade
• Writing for the Court: Fitch, King & Caffentzis (Richard C. King, New York City, on the motion), for plaintiff
• Citation: 11 CIT 876,674 F. Supp. 872
• Parties: CHANNEL MASTER, DIV. OF AVNET, INC., Plaintiff, v. The UNITED STATES, Defendant.
• Docket Number: Court No. 80-5-00802.
• Decision Date: 25 November 1987

674 F. Supp. 872
11 CIT 876

CHANNEL MASTER, DIV. OF AVNET, INC., Plaintiff,
v.
The UNITED STATES, Defendant.

Court No. 80-5-00802.

United States Court of International Trade.

November 25, 1987.

Fitch, King & Caffentzis (Richard C. King, New York City, on the motion), for plaintiff.

Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Intern. Trade Field Office (Saul Davis, New York City, on the motion), for defendant.

ON PLAINTIFF'S MOTION FOR REHEARING

RE, Chief Judge.

Pursuant to Rule 59(a) of the rules of this court, plaintiff has moved for a rehearing of the judgment in Channel Master, Div. of Avnet, Inc. v. United States, 10 CIT ___, 648 F.Supp. 10 (1986).

In Channel Master, plaintiff challenged the classification by the Customs Service of certain merchandise imported from Japan, and described on the customs invoice as "scanners." The merchandise was classified as "other solid-state (tubeless) radio receivers," under items 685.23 or 685.24 of the Tariff Schedules of the United States (TSUS), depending upon the date of importation. Consequently, the merchandise was assessed with duty at a rate of 10.4 per centum ad valorem.

After an examination of the merchandise, due deliberation of the pleadings, supporting papers, judicial precedents, and applicable authorities, the court held that the imported scanners were substantially complete radio receivers, and, therefore, had been properly classified as "other solid-state (tubeless) radio receivers," under items 685.23 or 685.24, TSUS.

By the present motion, plaintiff seeks to have the court vacate and set aside its judgment, and decide the case "on facts actually stipulated by the parties, rather than on new `facts' added by defendant, without plaintiff's concurrence." Specifically, plaintiff contends that "in this case

674 F. Supp. 873

the decision has been based upon a brief containing ... factual allegations not contained in the stipulation...."

After a thorough consideration of the plaintiff's motion the court holds that the plaintiff has not satisfied the requirements for the granting of a rehearing. Since plaintiff has failed to demonstrate any grounds that would justify the granting of its motion, plaintiff's motion for rehearing is denied.

It is well established that the decision to grant or deny a motion for a rehearing lies within the sound discretion of the court. See, e.g., ILWU Local 142 v. Donovan, 10 CIT ____, Slip Op. 86-28 (Mar. 13, 1986); Oak Laminates v. United States, 8 CIT 300, 601 F.Supp. 1031 (1984), aff'd, 783 F.2d 195 (Fed.Cir.1986). In addition, Rule 59(a) of the rules of this court provides that a rehearing may be granted "for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States...." USCIT R. 59(a).

In W.J. Byrnes & Co. v. United States, 68 Cust.Ct. 358, C.R.D. 72-5 (1972), the appropriate grounds for the granting of a rehearing were set out as follows:

A rehearing may be proper when there has been some error or irregularity in the trial, a serious evidentiary flaw, a discovery of important new evidence which was not available, even to the diligent party, at the time of the trial, or an occurrence at trial in the nature of an accident or unpredictable surprise or unavoidable mistake which severely impaired a party's ability to adequately present its case. In short, a rehearing is a method of rectifying a significant flaw in the conduct of the original proceeding.

Id. at 358.

In support of its contention that the decision in this case should be vacated and reheard, plaintiff cites Brookside Veneers, Ltd. v. United States, 9 CIT 596 (1985). In Brookside Veneers, the plaintiff submitted to the court a brief which appended as exhibits, materials which had not been stipulated by the parties. The court granted defendants motion to strike plaintiff's brief, and directed plaintiff to file a new brief which did not contain materials that contradicted or supplemented the stipulated facts. In its decision, the court noted that the parties were bound by the stipulations of the parties, and, therefore, materials which contradicted the stipulated facts had "been improperly presented to the Court." 9 CIT at 597. The court also stated the basic principle that, when stipulated facts and exhibits constitute the entire trial record, "evidence outside the stipulation is not properly before the Court." Id. Accordingly, in reaching its decision, the court refused to consider evidence improperly offered or submitted. Id. (citing R.C. Williams & Co., Inc. v. United States, 10 CCPA 210, 217-18, C.A.D. 19 (1938)).

The court addressed a related or similar issue in Jimlar Corp. v. United States, 10 CIT ____, 647 F.Supp. 932 (1986). In...