Novelty Imports, Inc. v. United States

• Decision Date: 06 April 1972
• Docket Number: C.R.D. 72-7,Court No. 71-5-00180.
• Citation: 341 F. Supp. 1228
• Parties: NOVELTY IMPORTS, INC. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

341 F. Supp. 1228

NOVELTY IMPORTS, INC. v. UNITED STATES.

C.R.D. 72-7; Court No. 71-5-00180.

United States Customs Court.

April 6, 1972.

Serko & Sklaroff, New York City (Murray Sklaroff and Joel K. Simon, New York City, of counsel), for plaintiff.

L. Patrick Gray, III, Asst. Atty. Gen. (John A. Gussow, New York City, trial attorney), for defendant.

John S. Rode, New York City, amicus curiae.

C.R.D. 72-7; Port of New York, N. Y., Court No. 71-5-00180 on man-made fibers.

RAO, Judge:

The motion presently before the court has been made by defendant for an order

(1) quashing the summons and dismissing the entire civil action pursuant to an order dated October 22, 1971 (referred to as the decree nisi) or

(2) vacating the decree nisi, dated October 22, 1971, and an order, also dated October 22, 1971, which dismissed the civil action as to entries numbered 1110266 and 751722, and dismissing the entire civil action, or, should both motions be denied

(3) permitting an interlocutory appeal to the Court of Customs and Patent Appeals pursuant to Rule 13.2 of the rules of this court.

The summons herein was filed on May 26, 1971 to commence a civil action to contest the denial of multiple protests covering entries of man-made fibers.

Said summons was not in proper form and on October 22, 1971, an order or decree nisi was entered quashing the summons and dismissing the action unless within 15 days plaintiff filed an amended summons in full compliance with the rules and a verified statement that all liquidated duties, charges or exactions were paid prior to the time the original summons was filed, giving the date and place of such payment.

At the same time an order was entered dismissing the civil action as to entries 1110266 and 751722 included in protests XXXX-X-XXXXXX and 25273/70, in view of the fact that liquidated duties had not been paid as to those entries.

Within the time limit plaintiff filed an amended summons in conformity with the rules, but included said entries 1110266 and 751722. It also filed a verified statement that all liquidated duties, charges or exactions were paid prior to the time of filing the summons at the appropriate customs facilities at the port of New York. No dates were given.

Thereafter, the instant motion was made. A number of subsidiary motions have been disposed of and need not be considered further. While defendant claims that there has been a failure of compliance with the decree nisi of October 22, 1971, and an order of February 1, 1972, I find that plaintiff has substantially met the conditions stated. The inclusion of entries 1110266 and 751722 in the amended summons was evidently an inadvertence. They are deemed stricken therefrom.

The issue remaining, which is one of first instance, is whether under 28 U.S. C. § 1582, as amended by the Customs Courts Act of 1970, this court may entertain jurisdiction of a civil action combining a number of denied protests covering several entries when liquidated duties have not been paid as to some of the entries.

The Customs Courts Act of 1970 amended section 1582 of title 28 of the United States Code to read, so far as here pertinent:

(a) The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, * * *

* * * * * *

(c) The Customs Court shall not have jurisdiction of an action unless (1) * * * a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended, and denied in accordance with the provisions of section 515 of the Tariff Act of 1930, as amended, * * * and (2) * * * all liquidated duties, charges or exactions have been paid at the time the action is filed.

(d) Only one civil action may be brought in the Customs Court to contest the denial of a single protest. However, any number of entries of merchandise involving common issues may be included in a single civil action.

Actions may be consolidated by order of the court or by request of the parties, with approval of the court, if there are common issues.

Said Act also amended section 2632 of title 28, U.S.C., to provide, so far as here pertinent:

(a) A party may contest denial of a protest under section 515 of the Tariff Act of 1930, as amended, * * * by bringing a civil action in the Customs Court. A civil action shall be commenced by filing a summons in the form, manner, and style and with the content prescribed in rules adopted by the court.

(b) There shall be a filing fee payable upon commencing an action. * * *

(c) The Customs Court shall provide by rule * * * for consolidations, severances, and suspensions of cases, * * *.

* * * * * *

(f) Upon service of the summons on the Secretary of the Treasury or his designee, the appropriate customs officer shall forthwith transmit the following items, if they exist, to the United States Customs Court as part of the official record of the civil action: (1) consumption or other entry; (2) commercial invoice; (3) special Customs invoice; (4) copy of protest; (5) copy of denial of protest in whole or in part; * * * and (9) the summary sheet. * * *

Section 514(b) (1) of the Tariff Act of 1930, as amended, states, in part:

(1) * * * Only one protest may be filed for each entry of merchandise, except that where the entry covers merchandise of different categories, a separate protest may be filed for each category. * * *

Plaintiff claims that each protest involves a separate customs transaction and that the condition precedent in section 1582(c) (2) relates severally to each transaction; that the statute requires only that "the action sought to be maintained must be one in which a protest has been filed against a particular Customs transaction and all duties have been paid on the entry covering that particular transaction." In other words, it is claimed that each denied protest constitutes a separate cause of action and that any in which the condition precedent has not been met may be excised and dismissed, without affecting the balance.

It is the Government's position that the civil action provided for by the statute is unitary and that the payment of liquidated duties as to all the entries covered is a condition precedent to the court's jurisdiction over the entire action. It claims that since the condition precedent has not been met here in its entirety, the action should have been dismissed in toto.

Defendant relies on Pharmacia Laboratories, Inc. v. United States, 67 Cust. Ct. ___, C.D. 4275, 67 Cust.Ct., C.R.D. 71-5 (1971), in which the court stated:

By statute (28 U.S.C. § 1582, as amended) the fact that all liquidated duties, charges or exactions have been paid at the time an action is filed in this court is a jurisdictional condition precedent to instituting such action. If payment of duties has not been made, the court lacks jurisdiction to entertain the action. From this requirement there can be no departure. * * *

That case, however, did not involve multiple protests and the court did not consider the effect of section 1582(d), supra.

The provisions of the statute, except section 1582(d), are in the singular and contemplate one entry, one protest, and one civil action. The liquidated duties, charges and exactions referred to are necessarily those attributable to the entry involved. Subsection 1582(d), however, while providing that only one civil action may be brought to contest the denial of a single protest, permits the inclusion of any number of entries involving...