Knickerbocker Liquors Corp. v. United States

• Decision Date: 09 June 1977
• Docket Number: C.R.D. 77-5,Court No. 74-11-03088.
• Citation: 78 Cust. Ct. 192,432 F. Supp. 1347
• Parties: KNICKERBOCKER LIQUORS CORP. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

432 F. Supp. 1347

78 Cust. Ct. 192

KNICKERBOCKER LIQUORS CORP. v. UNITED STATES.

C.R.D. 77-5; Court No. 74-11-03088.

United States Customs Court.

June 9, 1977.

Rode & Qualey, New York City (Peter Jay Baskin, New York City, of counsel), for plaintiff.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C. (Laura D. Millman, New York City, trial atty.), for defendant.

MEMORANDUM OPINION

BOE, Judge:

Pursuant to rules 4.7(b)(2) and 4.12 of the rules of court, the defendant has moved to dismiss the above-entitled action for lack of jurisdiction because of plaintiff's failure to timely file the summons in said action pursuant to 28 U.S.C., section 2631(a), providing:

§ 2631. Time for commencement of action

(a) An action over which the court has jurisdiction under section 1582(a) of this title is barred unless commenced within one hundred and eighty days after:

(1) the date of mailing of notice of denial, in whole or in part of a protest pursuant to the provisions of section 515(a) of the Tariff Act of 1930, as amended; or

(2) the date of denial of a protest by operation of law pursuant to the provisions of section 515(b) of the Tariff Act of 1930, as amended.

The following facts, pertinent to the determination of this motion, are undisputed:

(1) the plaintiff filed a protest in the within action on April 26, 1972,

(2) a notice of denial was mailed to the plaintiff on November 1, 1974, and

(3) the plaintiff filed a summons in said action on November 7, 1974.

In support of its motion to dismiss the defendant asserts that the timeliness of the filing of the summons in the instant action must be determined in conjunction with the provisions of 19 U.S.C., section 1515, providing:

§ 1515. Review of protests; administrative review and modification of decisions; request for accelerated disposition of protest.

(a) Unless a request for an accelerated disposition of a protest is filed in accordance with subsection (b) of this section the appropriate customs officer, within two years from the date a protest was filed in accordance with section 1514 of this title, shall review the protest and shall allow or deny such protest in whole or in part. Thereafter, any duties, charge, or exaction found to have been assessed or collected in excess shall be remitted or refunded and any drawback found due shall be paid. Upon the request of the protesting party, filed within the time allowed for the filing of a protest under section 1514 of this title, a protest may be subject to further review by another appropriate customs officer, under the circumstances and in the form and manner that may be prescribed by the Secretary in regulations, but subject to the two-year limitation prescribed in the first sentence of this subsection. Notice of the denial of any protest shall be mailed in the form and manner prescribed by the Secretary.

(b) A request for accelerated disposition of a protest filed in accordance with section 1514 of this title may be mailed by certified or registered mail to the appropriate customs officer any time after ninety days following the filing of such protest. For purposes of section 1582 of Title 28, a protest which has not been allowed or denied in whole or in part within thirty days following the date of mailing by certified or registered mail of a request for accelerated disposition shall be deemed denied on the thirtieth day following mailing of such request.

The defendant concludes from the foregoing statute that the failure of a customs official to either allow or deny a protest within a period of two years from the day of its filing constitutes a constructive denial thereof, causing the 180-day time limitation to automatically begin running on the day immediately following the last day of said two-year period, namely — April 26, 1974. By the time the summons was actually filed on November 7, 1974, the defendant charges that a total period of 196 days had elapsed thus causing the filing of the summons in question to be untimely.

This court is unable to accept the contention urged by the defendant. It appears that in its reasoning the defendant misconceives the purpose and the intent evidenced by the Congress in the enactment of 19 U.S.C., section 1515(a). The foregoing section relates to the manner in which administrative review shall be conducted and determined by customs officials. It is regulatory in character and prescribes the period of time and the form in which the obligations and responsibilities of these officials are to be performed. The specific obligation is imposed thereby on customs to mail a notice of denial to a protestant. This section does not serve as a statute of limitation with respect to the commencement of an action, but only provides for the act or occurrence from which the 180-day time limitation provided by 28 U.S.C., section 2631(a)(1) begins to run.

It is this latter section (section 2631(a)(1)) which imposes the limitation period on the commencement of a court action and specifies when this period commences. The language of this section is plain and unequivocal. The 180-day limitation period begins to run not from the date a protest is denied, but from the date the notice of denial is mailed to the plaintiff. Thus, until the independent, though related, obligation to mail the notice of denial is complied with by customs, the corresponding obligation imposed on the plaintiff by 28 U.S.C., section 2631(a)(1), to file a summons within 180 days thereafter does not attach. To accept the defendant's contention that the 180-day limitation period automatically commences by operation of law in cases where no administrative review of a protest occurs within two years of its filing, would not only ignore the unambiguous phraseology of 28 U.S.C., section 2631(a)(1), but would also dispense with the directive contained in 19 U.S.C., section 1515(a) that customs mail notices of denial to protestants in all such cases.

Had Congress intended the automatic commencement of the 180-day limitation period after two years of administrative inaction on a protest by customs, it, indeed, would have expressly so provided. The intent of Congress is clearly evidenced by the contrasting statutory provisions relating to a protest subject to accelerated disposition. 19 U.S.C., section 1515(b) provides that a protest, which has not been allowed or denied within 30 days following the date of mailing of a request for an accelerated disposition is deemed denied. With respect to the protest subject to accelerated disposition, the Congress has placed the affirmative burden on the plaintiff to commence an action by the filing of a summons within 180 days after the date of the constructive denial. No notice of denial is required to be mailed by customs. Accordingly, in the same manner that section 2631(a)(1) refers to section 1515(a) in order to specifically provide the time and/or occurrence from which the 180-day limitation period commences (date of mailing notice of denial), so in the case of a protest subject to accelerated disposition, section 2631(a)(2) refers to section 1515(b) for the purpose of providing the specific but dissimilar time and/or occurrence from which the 180-day limitation period commences (the 30th day following the mailing of a request for accelerated disposition). To place a construction on 19 U.S.C., section 1515(a) and 28 U.S.C., section 2631(a)(1) where accelerated disposition is not requested, as urged by the defendant, would destroy the very distinction so patently intended by the Congress.

The legislative history of the Customs Courts Act of 1970 illustrates the intent of Congress with respect to the issue presented by the present motion. In its formative stages the Senate Bill 2624, which eventually became the 1970 Act, contained an additional subsection (c) amending section 515 of the Tariff Act of 1930 and providing for the constructive denial of protests after a period of two years without administrative action. The proposed subsection provided in pertinent part:

Sec. 515. Review of Protests. —

(c) Constructive Denial of Protest. — Any protest which has not been allowed or denied in whole or in part in

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