Samuel Aaron, Inc. v. U.S.
| Decision Date | 17 August 2006 |
| Docket Number | Slip Op. 06-126. Court No. 03-00053. |
| Citation | 452 F.Supp.2d 1302 |
| Parties | SAMUEL AARON, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Serko & Simon LLP (Joel K. Simon, Christopher M. Kane, Jerome L. Hanifin) New York, NY, for Plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; Barbara S. Williams, Attorney in Charge; Jack. S. Rockafellow, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Edward N. Maurer, Of Counsel, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs & Border Protection, for Defendant.
Before: Gregory W. Carman, Judge.
This Court heard oral argument on August 10, 2006, in this matter. Plaintiff Samuel Aaron, Inc. ("Plaintiff' or "Samuel Aaron") brings this action under 19 U.S.C. § 1514(a)(5) (2000),1 challenging the validity of the United States Customs Service's, now Bureau of Customs and Border Protection ("Customs" or "Defendant"), reliquidation of subject entries. Before this Court are parties' cross-motions for summary judgment. In its cross-motion, Defendant challenges this Court's jurisdiction. For the reasons stated herein, Plaintiffs motion for summary judgment is denied and Defendant's motion for summary judgment is granted for lack of jurisdiction.
This action involves jewelry from Thailand. Certain merchandise from Thailand was eligible for duty-free treatment under the Generalized System of Preferences2 ("GSP"). On June 30, 1998, GSP expired. Stipulated Facts ¶ 1. On the same day, the Executive Office of the President, Office of the United States Trade Representative, published a notice in the Federal Register restoring GSP eligibility for subject entries effective as of July 15, 1998. Stipulated Facts ¶ 2; see Restoration of Preferential Tariff Treatment Under the Generalized System of Preferences for Certain Articles from Thailand, 63 Fed. Reg. 35,632 (USTR June 30, 1998) ("Restoration Notice"). GSP, however, was not statutorily reinstated until four months later. On October 21, 1998, Congress passed legislation providing for a one-year renewal of GSP to any entry "of an article to which duty-free treatment .. . would have applied if such entry had been made on July 1, 1998." Stipulated Facts ¶ 5. By law, retroactive refunds applied to entries that were eligible for GSP on July 1, 1998. HQ 228645 (Feb. 1, 2002). However, the subject merchandise at issue in this case was not accorded GSP eligibility until July 15, 1998. Restoration Notice, 63 Fed.Reg. at 35,632. Because subject merchandise did not obtain GSP eligibility until July 15, 1998, such merchandise was not eligible for the retroactive GSP refunds provided by statute. Customs acknowledged this discrepancy:
We do recognize that the [Restoration Notice] is contrary to the statutory language on retroactivity. However, we cannot allow retroactivity, for the subject merchandise, as we are bound by the language of statute. Furthermore, there is no indication that the [Restoration Notice] was ever modified in any way, in order for the subject merchandise to be eligible for retroactive GSP treatment.
HQ 228645.
Plaintiff filed sixty-six paperless entries at the port of New York between August 10, 1998, and October 22, 1998. Stipulated Facts ¶ 4. On November 13, 1998, and December 11, 1998, Customs liquidated the subject entries duty-free pursuant to GSP. Stipulated Facts ¶ 6-7.
On January 29, 1999,3 the Customs Director of Trade Agreements issued a memorandum to the Port Director directing reliquidation of erroneous refunds issued for the subject entries. Stipulated Facts ¶ 8; Pl.'s Mem. of Law in Supp. of Pl.'s Mot. for Summ. J. ("PL's Mem.") at EL 3. On February 8, 1999, "Customs placed a document in a notebook or binder in the room used by Customs at the Port of New York for making its bulletin notices of liquidation or reliquidation available to the public." Stipulated Facts ¶ 9. For simplicity's sake, parties have deemed this document the "offline" bulletin notice. Pl.'s Revised Statement of Material Facts ("Pl.'s Facts") ¶ 12; Def.'s Revised Statement of Undisputed Material Facts ("Def.'s Facts") ¶ 16.
Pursuant to 19 U.S.C. § 1501 (2000)4, Customs may voluntarily reliquidate an entry. This ninety-day reliquidation period applicable to subject entries ended on February 11, 1999, and March 11, 1999 depending on the date of original liquidation. Stipulated Facts ¶¶ 10, 12. On March 2, 1999, Customs issued a memorandum to "Importers, Broker and Other Interested Parties" stating that Stipulated Facts ¶ 11. During the week of April 12, 1999, Customs ran a computer script on the subject entries in its Automated Commercial System ("ACS"). Stipulated Facts ¶ 13. On April 30, 1999, "ACS generated bills to plaintiff for increased duties for the entries at issue." Stipulated Facts ¶ 15.
Furthermore:
ACS generated bulletin notice of liquidation that included the entries at issue. On this date, Customs put the bulletin notice of liquidation in a binder that was marked to indicate that it contained April 30, 1999 bulletin notices of liquidation. The binder was placed by Customs in the room used by the Port of New York for making its bulletin notices of liquidation or reliquidation available to public. No red-line or other notation was made on the April 30, 1999 bulletin notice of liquidation for the entries at issue to indicate that (re)liquidation had been made on another date.
Stipulated Facts ¶ 14. On July 29, 1999, Plaintiff filed a protest to dispute the increased duties on the subject entries. Stipulated Facts ¶ 16. The actual bulletin notices posted in the Port of New York Customhouse were destroyed on September 11, 2001. Pl.'s Facts ¶ 26; Def.'s Facts ¶ 27. On August 23, 2002, Customs denied this protest. Stipulated Facts ¶ 17. On February 10, 2003, Plaintiff commenced this action. Stipulated Facts ¶ 18.
Plaintiff claims this Court has jurisdiction under 28 U.S.C. § 1581(a) (2000).5 Compl. ¶ 1; Pl.'s Facts ¶ 1. Plaintiff contends its protest was timely filed. Pl.'s Facts ¶ 3. Plaintiff admits that "[a]t some time after December 11, 1998, the Port of New York posted an `off-line bulletin notice of reliquidation' of the entries at issue." Pl.'s Facts ¶ 12. Plaintiff asserts, however, that the February 8, 1999, offline bulletin notice "had no legal impact as it was neither on the official bulletin notice of liquidation Customs Form 4333, nor was it the result of a calculation to determine the amount of duties owing on the goods on the entries at issue." Pl.'s Resp. to Def.'s Revised Statement of Undisputed Material Facts ("Pl.'s Resp. to Def.'s Facts") ¶ 12. Although conceding that even the ACS-generated bulletin notices are not printed on Customs Form 4333, Plaintiff asserts that the April 30, 1999, ACS-generated bulletin notice has the requisite identification of "CF 4333." Oral Argument Tr. 30:1-24, Aug. 10, 2006. In further support of its position, Plaintiff urges that the February 8, 1999, offline bulletin notice was not posted in a "conspicuous place" as required by 19 C.F.R. § 159.9(b) (1999).6 Pl.'s Mem. at 25-27. Plaintiff also posits that Customs failed to follow its own procedure of redlining the April 30, 1999, ACS-generated bulletin notice to indicate that the subject entries had been previously reliquidated. Pl.'s Resp. to Def.'s Facts ¶ 28. Plaintiff offers that the final computation or ascertainment necessary for liquidation occurred the week of April 12, 1999, when the "script" was run in the ACS. Pl.'s Resp. to Def.'s Facts ¶ 21. Accordingly, Plaintiff insists that the April 30, 1999, ACS-generated bulletin notice was the legal reliquidation date. Id. Because the original liquidations occurred on November 13, 1999, and December 11, 1999, Plaintiff surmises that Customs' attempt to reliquidate subject entries was outside the scope of the ninety-day limit for voluntary reliquidation. See 19 U.S.C. § 1501; 19 C.F.R. § 173.3 (1999).7 Therefore, Plaintiff advances that this Court has jurisdiction to hear this matter, pleads for favorable judgment by determining that Customs' April 30, 1999, reliquidation of the subject entries was statutorily void, and prays for duty-free reliquidation of said entries.
Defendant contends that this Court does not have jurisdiction to hear this matter because "the protest was filed more than 90 days after reliquidation of the subject entries on February 8, 1999." Def.'s Facts ¶ 1. Because the protest was not timely filed, Customs maintains that it was properly denied. Def.'s Facts ¶ 3. Defendant claims that the offline reliquidation of February 8, 1999, was valid. Mem. in Supp. of Def.'s Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. ("Def.'s Mem.") at 3. Defendant asserts that it had "ascertained the duties on each entry prior to posting the off-line bulletin notice of liquidation." Ryan Decl. ¶¶ 7-8; Def.'s Facts ¶ 19. Furthermore, Defendant declares that Ryan Supplemental Decl. ¶¶ 2, 3. Defendant explains that offline bulletin notices are "maintained in the same room used by the Port of New York for making its bulletin notices of liquidation or reliquidation available to the public." Def.'s Facts ¶ 14; see also Chmura Decl. ¶¶ 3-4.
Although conceding that...
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Samuel Aaron, Inc. v. U.S., 2006-1591.
...States Court of International Trade granting the government's motion to dismiss for lack of jurisdiction. Samuel Aaron, Inc. v. United States, 452 F.Supp.2d 1302 (Ct. Int'l Trade 2006). Because the trial court lacked jurisdiction, we Aaron is an importer of Thai jewelry. Until 1998, certain......