Siemens America, Inc. v. U.S.
| Decision Date | 12 November 1982 |
| Docket Number | No. 82-12,82-12 |
| Citation | 692 F.2d 1382 |
| Parties | , 1 Fed. Cir. (T) 9 SIEMENS AMERICA, INC., et al., Appellants, v. The UNITED STATES, Appellee. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Louis Schneider, New York City, argued for appellants. With him on the brief was Freeman, Wasserman & Schneider, New York City.
Madeline B. Kuflik, New York City, argued for appellee. With her on the brief was Asst. Atty. Gen., J. Paul McGrath, Washington, D.C.
Before RICH, Circuit Judge, COWEN, Senior Circuit Judge, and KASHIWA, Circuit Judge.
This appeal is from the decision and judgment of the United States Court of International Trade, 2 CIT ---, Slip.Op. 81-91 (October 7, 1981), on remand from the United States Court of Customs and Patent Appeals (CCPA), in United States v. Siemens America, Inc., 84 Cust.Ct. 180, C.D. 4856, 496 F.Supp. 266 (1980), rev'd, 68 CCPA ---, C.A.D. 1266, 653 F.2d 471 (1981), holding that an established and uniform practice to classify the merchandise at issue (surge voltage protectors [SVPs] under TSUS item 687.60 did not exist within the meaning of 19 U.S.C. Sec. 1315(d) and that, therefore, no published notice was required before the Customs Service imposed a higher rate of duty under TSUS item 685.90. We affirm the judgment dismissing the action.
Familiarity is presumed with the background of this case, as found in the opinions cited above.
Notwithstanding the CCPA ruling that the merchandise is properly classified under TSUS item 685.90, the sole issue on this second appeal is the validity of appellants' contention, considered on remand from the CCPA, that such classification is not applicable to appellants' importations because the Customs Service change in classification of the SVPs to item 685.90 from item 687.60 was a change in an "established and uniform practice" as contemplated by 19 U.S.C. Sec. 1315(d) which, therefore, required notice by publication before it could become effective.
OPINIONThe Court of International Trade stated that "plaintiffs do not contend that the letter of July 27, 1970 contains a finding of an established and uniform practice respecting the classification of SVPs." (Emphasis ours.) Nor do they so contend in this court. It is here argued that the letter ruling "mandated the establishment of a uniform practice," that it "[created] a uniform practice," and that it "established in fact this uniform practice."
As noted by the government, however, the statement in the unpublished letter ruling that "This decision is being circulated to all Customs Officers in order that the merchandise may be uniformly so classified at each port at which it may be entered," is a practice which is necessary in order to conform with the constitutional mandate that "all Duties, Imposts and Excises shall be uniform throughout the United States." U.S.Const. art. I, Sec. 8, cl. 1. Accordingly, this does not aid appellants in their argument that from that letter ruling alone "there resulted an established and uniform practice."
Notwithstanding that appellants cannot point to a "finding" by the...
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