Takashima USA, Inc. v. US, Slip Op. No. 95-87. Court No. 93-01-00052.
| Decision Date | 09 May 1995 |
| Docket Number | Slip Op. No. 95-87. Court No. 93-01-00052. |
| Citation | 886 F. Supp. 858,19 CIT 673 |
| Parties | TAKASHIMA U.S.A., INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Politis, Pollack & Doram, Los Angeles, CA (Elon A. Pollack and John N. Politis), for plaintiff.
Frank W. Hunger, Asst. Atty. Gen. of the U.S., Joseph I. Liebman, Attorney-in-Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, (John J. Mahon), Washington, DC, for defendant.
Plaintiff, Takashima U.S.A., Inc., challenges the classification and liquidation of its imported merchandise, plastic sheeting in continuous lengths, consisting of woven polyethylene fabric, laminated on both surfaces with non-transparent polyethylene plastic. Defendant moves to dismiss this action for lack of jurisdiction because, defendant argues, plaintiff commenced this action more than 180 days after the United States Customs Service (Customs) mailed the notices of denial of protests. The United States Court of International Trade (CIT or Court) has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(a) (1988).1
Plaintiff imported the eight entries at issue here between December 14, 1983, and November 6, 1984. The entries were liquidated on various dates in 1984 and plaintiff's protests followed in 1985. For purposes of simplicity, the following chart lists the eight entries, the protest numbers, and the pertinent dates not in dispute:
Date of Entry Entry Number Protest Number Date of Date
Liquidation Protest
Filed
10-19-84 XX-XXXXXX XXXX-X-XXXXXX 11-30-84 02-25-85
12-14-83 XX-XXXXXX XXXX-X-XXXXXX 02-03-84 03-28-85
12-14-83 XX-XXXXXX XXXX-X-XXXXXX 02-03-84 03-28-85
11-06-84 XX-XXXXXX XXXX-X-XXXXXX 03-09-84 03-28-85
02-05-84 XX-XXXXXX XXXX-X-XXXXXX 03-16-84 03-28-85
03-07-84 XX-XXXXXX XXXX-X-XXXXXX 04-27-84 03-28-85
06-05-84 XX-XXXXXX XXXX-X-XXXXXX 07-27-84 03-28-85
05-10-84 XX-XXXXXX XXXX-X-XXXXXX 08-03-84 03-28-85
The record is not clear when Customs claims it denied the protests in question, as defendant's papers reflect two different dates for some of the protests:
DATE PROTEST DENIED
Protest Number as per Def.'s Mot. to Dismiss as per Def.'s Reply Br
XXXX-X-XXXXXX 08-07-87 08-07-87
XXXX-X-XXXXXX 01-25-88 12-05-88
XXXX-X-XXXXXX 01-25-88 12-05-88
XXXX-X-XXXXXX 01-25-88 12-05-88
XXXX-X-XXXXXX 01-25-88 12-05-88
XXXX-X-XXXXXX 01-24-88 12-05-88
XXXX-X-XXXXXX 01-25-88 12-05-88
XXXX-X-XXXXXX 03-28-86 03-28-86
CONTENTIONS OF THE PARTIES
Plaintiff maintains it never received the notices of denial of protests that Customs claims to have sent. In June 1992, plaintiff contends, its records reflected that the protests at issue here were still pending. After contacting Customs concerning the pending protests, plaintiff wrote Customs requesting accelerated disposition of the protests. Plaintiff argues Customs failed to allow or deny the protests within thirty days of plaintiff's request and thus, the protests were deemed denied on December 24, 1992. (Pl.'s Opp'n to Def.'s Mot. to Dismiss (Pl.'s Br.) at 1-2.) See 19 C.F.R. § 174.22(d) (1992). Plaintiff filed a summons commencing this action on January 22, 1993.
To support its claim that it did not receive the notices of denial, plaintiff submitted several affidavits which purport to describe the practice of handling incoming mail at Mandel & Grunfeld (M & G)2 and the maintenance of the law firm's ledger where denied protests were recorded. A former M & G partner stated that after dissolution of M & G, "GDL & S designated two attorneys ... to open all mail received by the firms, and to direct the same to the appropriate recipient in the firms." (Florsheim Aff. ¶ 5.) "In the case of all protests (M & G and GDL & S), both denied and approved, it was (and still is) the established practice to deliver the same to Kenneth Rich, GDL & S's Customs Specialist." (Id.) One of the attorneys responsible for opening the mail affirmed that denied protests were delivered to Mr. Rich who forwarded them to the paralegal assistant for entry in the appropriate summons log book. (Klestadt Aff. ¶¶ 2, 4.) Plaintiff produced the affidavit of a clerical assistant employed by GDL & S from November 1985 to October 1987, who stated that after receiving denied protests from Mr. Rich or his assistant, she entered information in the appropriate log book. (Watson Aff. ¶¶ 1, 3.) Plaintiff conducted a search of the appropriate M & G logs in New York and Los Angeles and failed to uncover any notation M & G had received the notices of denial. (Pl.'s Br. at 2, 6-7.)
Plaintiff argues the non-receipt of the notices of denied protests raises a presumption that the notices were not mailed by Customs. (Id. at 4 (citation omitted).) Because the "evidence demonstrates that plaintiff did not receive any notices of denial," (id. at 7), plaintiff concludes, "the burden now shifts to the government to establish by clear and convincing evidence the fact of proper mailing," (id. at 9).
Defendant alleges the protests in this case were denied during the period March 28, 1986, through January 25, 1988, or December 5, 1988.3 (Def.'s Mot. to Dismiss at 1.) Because this action commenced considerably after the 180-day period provided by statute, defendant argues, "the summons was untimely filed, and this court lacks jurisdiction over the action." (Id.)
Defendant underscores the well-established presumption of regularity enjoyed by government officials in the performance of their lawful duties. (Def.'s Reply Br. at 2 (citations omitted).) Coupled with this presumption, defendant argues, is the evidentiary presumption that "proof of mailing of a notice pursuant to standard office procedures creates a presumption that the notice was received." (Id. at 3 (citations omitted).) Therefore, defendant reasons, the notices of denial of the protests at issue here are presumed to have been issued and duly mailed and delivered to M & G in the regular course of mail delivery.
In response to plaintiff's arguments of non-receipt, defendant challenges "plaintiff's reliance upon the accuracy of the office practices of Mandel & Grunfeld as misplaced and not dispositive of the issue of non-receipt." (Id. at 4-5.) Defendant also contests the accuracy of plaintiff's log books by pointing out several errors and omissions regarding the disposition of several protests listed in the sample pages of the log books produced during discovery. (Id. at 8-10.) Taken together, defendant contends "plaintiff's evidence of proof of non-receipt of the notices of denial of the eight protests in issue here is insufficient and fails to shift the burden of proving mailing to the Government." (Id. at 13.)
A civil action challenging the denial of a protest is barred unless commenced within the time provided by statute. The applicable statute provides:
28 U.S.C. § 2636(a)(1) (1988). The statute provides a hard and fast deadline that, if not met, leaves the Court without jurisdiction to hear the case. See Neptune Microfloc, Inc. v. United States, 8 CIT 353, 355, 1984 WL 6081 (1984) ().
The Court construes defendant's pending motion as a U.S. CIT R. 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter. The Court of Appeals for the Federal Circuit has laid out a concise analysis to follow in deciding Rule 12(b)(1) motions:
Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993) (footnote and citations omitted), cert. denied, ___ U.S. ___, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994). Defendant has not filed an answer to the complaint and its pending motion does not appear to attack the sufficiency of the allegations in plaintiff's pleadings. Instead, defendant asserts plaintiff's action is barred as untimely. In effect, defendant challenges the factual basis of plaintiff's allegations of jurisdiction — that is, plaintiff's assertion that this action is timely and is properly before the Court.
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