Sea-Land Service, Inc. v. US

• Decision Date: 02 April 1990
• Docket Number: Court No. 85-07-00910.
• Citation: 735 F. Supp. 1059,14 CIT 253
• Parties: SEA-LAND SERVICE, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

735 F. Supp. 1059

14 CIT 253

SEA-LAND SERVICE, INC., Plaintiff, v. UNITED STATES, Defendant.

Court No. 85-07-00910.

United States Court of International Trade.

April 2, 1990.

Ragan & Mason, Gerald A. Malia, Washington, D.C., and Michael F. Di Croce, Alexandria, Va., (Robert C. Zuckerman, of counsel), for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, New York City, and Barbara Epstein, for defendant.

OPINION

TSOUCALAS, Judge:

This case is before the Court on defendant's motion to sever and dismiss seventy-three (73) entries for lack of jurisdiction.¹ Defendant claims that the entries in issue are not properly before the Court because the action was not commenced within 180 days after notice of denial of their protests was mailed to plaintiffs, as required by 19 U.S.C. § 1514(a) (1988) and 28 U.S.C. § 2636(a) (1982 and Supp. II 1984). Plaintiff counters that the notice of denial provided by Customs was not sufficient to start the statute of limitations running, and alternatively, if the statute did begin to run, the faulty notice tolled the statute until the error in the notice was cured.

Background

Customs assessed duty on certain work done on plaintiff's ships upon the vessels' arrivals in the United States. Between 1981 and 1983, Sea-Land filed timely protests for the entries.² Customs denied those protests between 1982 and 1984. The Trade Agreements Act of 1979, Pub.L. 96-39, § 1001(b)(2) added an amendment to 19 U.S.C. § 1515(a) stating that notice of denial of any protest by the appropriate customs officer

shall include a statement of the reasons for the denial, as well as a statement informing the protesting party of his right to file a civil action contesting the denial of a protest under section 1514 of this title.

19 U.S.C. § 1515(a) (1988). However, the notice of denial sent out by Customs did not include the statement informing the protesting party of its right to commence an action. Plaintiff also asserts that the statement of reasons was inadequate.

Sea-Land filed a summons contesting the denial of the protests with the Court of International Trade on July 2, 1985.³ The Trade Agreements Act mandates that an action contesting the denial must be commenced within 180 days of the date when the notice of denial was mailed by Customs. 28 U.S.C. § 2636(a)(1). Plaintiff's summons regarding seventy three (73) of the entries was filed after this statute of limitations expired. Hence, Customs has brought this motion to sever and dismiss those entries from the main action.

Discussion

It is a well established principle that the United States Government, as sovereign, is immune from suit except as it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Moreover, governmental consent to be sued is construed strictly. Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

Congress created such consent in 19 U.S.C. § 1514(a), which provides that Customs decisions regarding assessed duties are

final and conclusive ... unless a protest is filed ... or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28 within the time prescribed by section 2636 of that title.

If a protest is filed, Customs must review that protest, then allow or deny it, within two years of the date of the protest.

If the protest is denied, Customs must mail out notice of denial to the party. Once the notice is mailed, the protesting party has 180 days within which to commence a civil action contesting the denial in this Court. 28 U.S.C. § 2636(a)(1). Plaintiff does not deny that it commenced its action more than 180 days after notice of denial of the protests was mailed by Customs. Rather, plaintiff argues that the notice did not operate to start the 180 day period running because the notice did not contain either notice of plaintiff's right to commence a civil action or "sufficient" reasons for denial. Plaintiff's Opposition to Defendant's Motion to Sever and Dismiss at 4-6 ("Plaintiff's Opposition Brief").

The reason provided by Customs for its denial of the protests was a reference to 19 C.F.R. § 174.21, a regulation which directs Customs to "act on a protest ... within 2 years from the date the protest was filed." 19 C.F.R. § 174.21(a) (1989). In essence, Customs' "reason" for denying the protests was that the two year period for review was expiring. It is circular reasoning to claim that this is a reason for denying a protest.

A reason is "an expression or statement offered as an explanation ... or as a justification of an act or procedure." Webster's Third New International Dictionary at 1891 (1986). 19 C.F.R. § 174.21(a) requires Customs to "act on" the protest, that is, either allow or deny it within two years pursuant to 19 U.S.C. § 1514. For Customs to state as a reason for denying the protests that it had to either allow or deny them within two years is to circumscribe completely the congressional intent of the statute. Obviously, Customs had to "act on" the protests; that does not explain or justify why it chose to deny, rather than allow them. Hence, the notice of denial was incomplete in that it failed to state a reason for the denial.⁴

Sea-Land also claims the notice was invalid because it lacked a statement informing Sea-Land that it had a right to commence a civil action contesting the denial. Because of a misprint, certain of Customs' notices of denial failed to include notice of the right to commence a civil suit, in accordance with 19 U.S.C. § 1515(a) and 19 C.F.R. § 174.30(a) (1989). Plaintiff asserts that this failure is fatal error and, as a result, the notices of denial are invalid and the 180 day statute of limitations did not begin to run upon mailing. The gravamen of plaintiff's argument is that the statute mandates notice of the right to file a civil action and that failure to include it renders the entire notice of denial inoperative, requiring Customs to reassess the protests, starting the 180 day period anew.

Defendant counters that the statute is merely "directory" and its omission will not invalidate the entire notice. Defendant's Motion to Sever and Dismiss at 11. Defendant also asserts that plaintiff had actual notice of its right to bring suit, therefore was not prejudiced by the lack of the notice and should not succeed in defeating the motion to sever and dismiss.

The central issue is whether the notice of the right to sue is statutorily required and, if it is, what the consequences are if it is missing from the notice of denial. The statute directs that Customs "shall" inform the protesting party of its right to commence a civil action. 19 U.S.C. § 1515(a). Defendant has cited cases indicating that, "as against the government, the word `shall,' when used in statutes, is to be construed as `may,' unless a contrary intent is manifest." Barnhart v. United States, 5 CIT 201, 203, 563 F.Supp. 1387, 1389 (1983) (quoting Railroad Co. v. Hecht, 95 U.S. 168, 170, 24 L.Ed. 423 (1877)).⁵ A contrary intent is indeed manifest from the legislative history to the section. The call for Customs to provide protesting parties with notice of their right to sue was added to the Tariff Act of 1930 when it was amended in 1979. The Senate Report on the Trade Agreements Act of 1979 states that, in order to conform United States law to Article 11.3 of the MTN Customs Valuation Agreement,

Section 1001(b)(2) ... would amend section 515(a) so as to require the Customs Service to include reasons in its notice of denial of a protest as well as a statement that the importer may file a civil action in the Customs Court to contest the denial.

S.Rep. 249, 96th Cong., 1st Sess. 254, reprinted in 1979 U.S.Code Cong. and Admin.News 381, 639-640 (emphasis added).

When the congressional intent is unclear, an argument may be made for construing "shall" to be permissive or directory. But in the present case, Congress could not have made its intent more clear; the provision is mandatory.⁶ Customs does not have discretion to include or exclude either notice of the right to file a civil action or the reasons for the denial of a protest. As stated previously by this Court, both are "formal requirements for a protest denial." Wally Packaging, Inc. v. United States, 7 CIT 19, 23, 578 F.Supp. 1408, 1412 (1984). Hence, the notice of denial was incomplete.

The question then is, what are the consequences if mandatory provisions of the notice of denial are missing. While the statute orders Customs to include those statements in the notice, it does not indicate the consequences if Customs does not comply.⁷ Plaintiff would have the Court vacate the denial and order Customs to re-assess the protests, then deny or allow them, after which plaintiff would have 180 days to bring suit in this Court.

There is no question that when a government agency acts "without observance of procedure required by law," courts have the power to set aside that action. Woodrum v. Donovan, 4 CIT 46, 52, 544 F.Supp. 202, 207 (1982) (citing Administrative Procedure Act § 706(2)(D), 5 U.S.C. § 706(2)(D) (1976)); American Motorists Ins. Co. v. United States, 5 CIT 33, 43, 1983 WL 4994 (1983). However, it is equally well settled that courts will not set aside agency action for procedural errors unless the errors "were prejudicial to the party seeking to have the action declared invalid." Woodrum, 4 CIT at 52, 544 F.Supp. at 207; Katunich, 8 CIT at 162, 594 F.Supp. at 749; American Motorists, 5 CIT at 43; Timken v. Regan, 4 CIT 174, 179...