Nobelpharma U.S.A. Inc. v. U.S.

• Decision Date: 13 January 1997
• Docket Number: Slip Op. 97-6.,Court No. 91-02-00097-S.
• Citation: 955 F.Supp. 1491
• Parties: NOBELPHARMA U.S.A. INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

955 F.Supp. 1491

NOBELPHARMA U.S.A. INC., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 97-6.

Court No. 91-02-00097-S.

United States Court of International Trade.

January 13, 1997.

Wasserman, Schneider & Babb, New York City (Louis Schneider, Patrick C. Reed and David M. Steiner), for plaintiff.

Frank W. Hunger, Assistant Attorney General, Washington, D.C.; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, New York City (Mark S. Sochaczewsky, Edith Sanchez Shea and Barbara Silver Williams); and Office of Assistant Chief Counsel, U.S. Customs Service, New York City (Chi S. Choy), of counsel, for defendant.

AQUILINO, Judge:

The defendant has interposed a motion for summary judgment, dismissing this test case within the meaning of CIT Rule 84(b) on the alternative grounds of lack of subject-matter jurisdiction or correct classification by the U.S. Customs Service of the predicate merchandise under item 658.00 of the Tariff Schedules of the United States ("TSUS") ("Articles of base metals not provided for in the foregoing provisions of this subpart, not coated or plated with precious metal"), with duties assessed at a rate of 5.9 percent ad valorem. In its pleadings and own motion for summary judgment, the plaintiff prays for reliquidation duty free under TSUS item 870.67 ("Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons: ... Other") (1988).

I

Postdating the parties' cross-motions and pending before the court is plaintiff's motion to file a second amended complaint in which it "seeks to plead that its summons commencing this civil action under 28 U.S.C. § 1581(a) is or may be deemed timely filed on February 14, 1991." The latter motion is hereby granted, not only upon the response of the defendant, deferring to the court's discretion, but also in light of the following facts and circumstances:

4. On or about November 22, 1989, and pursuant to section 1121(j)(2) of the Omnibus Trade and Competitiveness Act of 1988, plaintiff filed with ... Customs ... a timely submission ... in which [it] requested reliquidation of a number of its entries made between August 1985 and January 1989, including the entries involved in this civil action[,] ... to classify the imported merchandise retroactively in item 870.67, TSUS, and to refund all excess duties to plaintiff....

5. [] Customs ... assigned the number "0401-89-000860" to the November 1989 Submission and, shortly after receiving it, returned a copy ... to plaintiff's attorneys on which ... "Protest # 0401-89-000860" was written by the responsible ... official. ...

6. [] Customs ... denied the request for reliquidation set forth in the November 1989 Submission on or about August 13, 1990....

7. A copy of the denied November 1989 Submission ... was mailed to plaintiff's attorneys, with the following handwritten message ... appearing on [it]: "Protest Denied. Original decision reviewed an[d] found to be correct. Ref: CF6445." ...

8. [] Customs ... treated plaintiff's November 1989 Submission ... as a protest in all respects, and processed, reviewed, and denied it under the procedures used for protests filed on [C]ustoms [F]orm CF19....

9. On or about September 20, 1990, plaintiff attempted to file a protest (the "September 20th protest") with [] Customs ..., protesting the denial of the request for reliquidation set forth in [the] November 1989 Submission.... The September 20th protest was designated number 0401-90-000897....

10.... Customs ... returned the September 20th protest ... to plaintiff's attorneys, accompanied by a cover slip which contained the following handwritten message ...: "Rejected — protest already denied based on facts presented. No new issues ... presented." ...

11. Subsequently, at the insistence of plaintiff's attorneys, ... [C]ustoms agreed to process the September 20th protest....

12. On December 19, 1990, plaintiff filed ... a request for accelerated disposition of the September 20th protest ... pursuant to ... 19 U.S.C. § 1515(b)[].... Customs ... failed to act on the September 20th protest within 30 days after either the mailing or the ... receipt of plaintiff's request for accelerated disposition....

13. On February 5, 1991, plaintiff commenced ... Court Number 91-02-00097. Plaintiff's summons states that the civil action contests the denial of protest number 0401-90-000897, as well as the denial on August 13, 1990, of the November 1989 Submission (no. 0401-89-000860) requesting retroactive reliquidation. Plaintiff's summons was filed (a) more than 30 days after both the mailing and the ... Service's receipt of plaintiff's request for accelerated disposition of protest no. 0401-90-000897 and (b) within 180 days of the ... Service's denial of the November 1989 Submission (no. 0401-89-000860)....¹

The defendant admits each of these paragraphs. See Defendant's Response to Plaintiff's Statement of Material Facts as to Which There Is No Genuine Issue To Be Tried, pp. 1-2. It does not contest that the September 20th protest was filed in accordance with the requirements of 19 U.S.C. § 1514 (1988). See Defendant's Memorandum, p. 6, n. 5. Rather, it argues that plaintiff's

request for accelerated disposition was void because it was prematurely mailed on, instead of after, the 90th day following the filing of the September 20th protest. See 19 U.S.C. § 1515(b) (1988). Accordingly, the September 20th protest was not denied until February 13, 1991. Thus, this Court lacks jurisdiction here, as Nobelpharma prematurely filed a summons on February 5, 1991, eight days before the September 20th protest was denied.

Id. at 5-6 (emphasis in original; footnote omitted). On the other hand, the defendant does note that,

inasmuch as the protest filed by plaintiff was in fact denied on February 13, 1991, and that protest was apparently timely filed, the Court may, in its discretion, deem the action to have been timely filed on the day following that date.

Id. at 1, n. 1, citing Wear Me Apparel Corp. v. United States, 1 CIT 194, 511 F.Supp. 814 (1981).

In that case, the court recognized that the filing with and denial by Customs of a protest are prerequisites for the effective commencement of an action of the kind at bar but held in view of the denial of the protest that dismissal of the action

would be an empty formalism because plaintiff could immediately after dismissal file a new action over which this court would unquestionably have jurisdiction under section 1581(a). However, ... plaintiff is directed to file ... an amended complaint with respect to those of its claims as to which a protest has been denied.

1 CIT at 197, 511 F.Supp. at 817. As indicated above, the plaintiff herein has followed this admonition, and this court has granted its motion to file a second amended complaint — without opposition by the defendant.

As for plaintiff's earlier filing with the Service, the defendant recounts that the November 1989 submission "clearly and unambiguously states that § 1121(j) of the 1988 Act was the statutory basis for reliquidation; it does not state that it was filed pursuant to § 1514." Defendant's Memorandum, p. 14 (emphasis in original). And it argues that, even

if the November 1989 Submission could be construed as a protest, it was not timely filed as to the entries at issue. To constitute a valid protest under § 1514, a request for reliquidation must be filed within 90 days after notice of liquidation.... The entries at issue in this action were liquidated on July 25, 1986, November 7, 1986, and January 30, 1987. Nobelpharma's November 1989 Submission requesting reliquidation was not made until more than two years after these entries were liquidated. Accordingly, ... it is not a valid § 1514 protest.

Id. at 17 (citations omitted; emphasis in original).

Subject-matter jurisdiction under 28 U.S.C. § 1581(a) is linked statutorily to 19 U.S.C. § 1515, which, in turn, refers to protests filed in accordance with section 1514. As the defendant indicates, subsection (c)(2) thereof calls for their filing within 90 days after but not before notice of liquidation or reliquidation. However, the cited section 1121(j)(2) of the Omnibus Trade and Competitiveness Act of 1988, Pub.L. No. 100-418, 102 Stat. 1107, 1143, provided that, "[n]otwithstanding section 514 of the Tariff Act of 1930 or any other provision of law", a request for reliquidation could be filed for qualifying merchandise entered on or after August 12, 1985 up to 180 days after "the date that is 15 days after the deposit of the United States ratification of the Nairobi Protocol[²]", which occurred on May 15, 1989. Cf. Presidential Proclamation No. 5978, 54 Fed.Reg. 21,187 (May 17, 1989). Plaintiff's November 1989 submission to Customs was thus timely, which the Service admits. See Defendant's Memorandum, p. 3, n. 3.

That submission requested the

reliquidation of the entries listed on Schedules ... to [it] and the refund of all duties assessed on dental implants and related products and instruments for osseointegrated implant dentistry imported in these entries. These articles are specially designed for the use or benefit of handicapped persons. They are entitled to retroactive duty-free entry under the Nairobi Protocol and its implementing legislation, the Omnibus Trade and Competitiveness Act of 1988....

Affidavit of Patrick C. Reed, Exhibit A, p. 1. It set forth more than adequate information for the Service to discern the nature of the importer's position. Cf. Mattel, Inc. v. United States, 72 Cust.Ct. 257, 262, 377 F.Supp. 955, 960 (1974) ("however cryptic, inartistic, or poorly drawn a communication may be, it is sufficient as a protest for purposes of section 514 if it conveys enough information to apprise knowledgeable officials of the importer's intent and the relief sought"). Indeed,...