Old Republic Ins. Co. v. United States
| Decision Date | 02 January 1986 |
| Docket Number | Court No. 83-6-00801. |
| Parties | OLD REPUBLIC INSURANCE COMPANY, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sandler & Travis, Gilbert Lee Sandler, Miami, Fla., for plaintiff.
Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial
Litigation Branch, Kenneth N. Wolf, New York City, for defendant.
Plaintiff, a surety, brings this action challenging the United States Customs Service's (Customs) classification of merchandise invoiced as "LPG equipment for cars" under item 711.78, Tariff Schedules of the United States (TSUS). Defendant moves to dismiss the action for lack of jurisdiction claiming that the protest was not timely filed. The motion is denied.
On September 10, 1980, the merchandise entered the United States under a single entry consumption entry bond. The entry was liquidated, and a bill for duties sent to the importer was not paid.
On November 5, 1981, Customs mailed to plaintiff a letter which in part states:
Attached to the letter was a computer printout listing 484 bills. The listing for the bill in question set forth the bill number, the billing date, the port of entry and the amount due. No information concerning the bill was set forth in the columns on the printout designated "Delinquent Debtor Name and Address" and "Entry No."1
On January 29, 1982 Customs sent another letter to plaintiff, saying in part:
The list attached to the January 29, 1982 letter provided the name of the importer for each of the five listed bills. The enclosed copy of the single entry bond for the transaction in question contained the importer's name as well as the entry number.
On February 12, 1982, plaintiff filed a protest challenging the classification of the merchandise, and on December 3, 1982, the protest was denied as untimely. On June 1, 1983, plaintiff brought this action contesting the denial of the protest.
Defendant alleges that, under 19 U.S.C. § 1514(c), plaintiff had 90 days from the November 5, 1981 mailing in which to file a protest; the letter of January 29, 1981 was a follow-up demand that did not cause the jurisdictional period to run anew; and the action must be dismissed because the February 12, 1982 protest was filed more than 90 days after November 5, 1981.
Plaintiff argues that the action is timely because the November 5, 1981 letter provided insufficient information to notify it that demand was being made on the applicable bond; a sufficient demand was not mailed until January 29, 1982; and the February 12, 1982 protest is timely because it was filed within 90 days of January 29, 1982.
The issue before the Court is whether the November 5, 1981 letter was a sufficient notice of demand for payment against the applicable bond.
A decision by Customs regarding the classification of merchandise and the rate and amount of duty chargeable is final and conclusive unless a protest is timely filed. 19 U.S.C. § 1514(a). The Court does not have jurisdiction over any action where a protest was filed later than the time provided by statute. San Francisco Newspaper Printing Co. v. United States, 9 C.I.T. ___, 620 F.Supp. 738 (1985); Texas Mex Brick & Import Co. v. United States, 72 Cust.Ct. 291, C.R.D. 74-2, 371 F.Supp. 579 (1974). Section 1514(c)(1)(A) provides that protests may be filed by "importers or consignees shown on the entry papers, or their sureties." The section further provides:
A protest by a surety which has an unsatisfied legal claim under its bond may be filed within 90 days from the date of mailing of notice of demand for payment against its bond. If another party has not filed a timely protest, the surety's protest shall certify that it is not being filed collusively to extend another authorized person's time to protest as specified in this subsection.
19 U.S.C. § 1514(c)(2). Neither the statute nor the regulations specify what information must be provided to a surety in the notice of demand in order to commence the running of the 90-day period in which a protest may be filed. See 19 U.S.C. § 1514(c)(2); 19 C.F.R. § 174.12(e)(3) (1985).
Plaintiff argues that a notice which does not enable a surety to determine the transaction for which a protest may be filed is deficient. It contends that the printout attached to the November 5, 1981 letter, which listed 484 bills, did not give plaintiff "notice of demand for payment against its bond" under section 1514, because it did not identify the entry, importer or bond applicable to the bill in question. Defendant disagrees, arguing that even though the November 5, 1981 letter and printout did not identify the importer's name, the entry number or the bond for the bill in question, the notice of demand was nonetheless sufficient. It contends that section 1514 only requires that the notice set forth a monetary demand.2
Defendant states that a surety must obtain on its own the information necessary to identify the protestable transaction, and that if plaintiff requested information from Customs concerning any of the 484 bills listed on the computer printout, Customs would have identified for plaintiff the corresponding importer, entry number or bond. Defendant argues that if Customs did not respond to such an inquiry in a timely manner, "the Government would conceivably agree or the Court could find that a toll may operate during the `unavailability' of the requested information."3
Defendant also argues that a surety could monitor Customs bulletin notices of liquidation or require its principals to notify it when an entry covered by a bond is liquidated. By filing its protests within 90 days of liquidation or reliquidation under section 1514, a surety could protest its interests without waiting to receive notice of demand for payment.
Defendant's reasoning would deny effect to Congress' amendment of section 1514 in 1979.4 To protect the rights of sureties, Congress specifically provided that...
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