United States v. Boe

• Decision Date: 04 November 1976
• Docket Number: Appeal No. 76-22.
• Citation: 543 F.2d 151
• Parties: The UNITED STATES, Petitioner, v. Nils A. BOE, Chief Judge, United States Customs Court, Respondent, The Servco Company, Respondent-Party In Interest.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

543 F.2d 151

The UNITED STATES, Petitioner, v. Nils A. BOE, Chief Judge, United States Customs Court, Respondent,

The Servco Company, Respondent-Party In Interest.

Appeal No. 76-22.

United States Court of Customs and Patent Appeals.

November 4, 1976.

Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Andrew P. Vance, Chief, Customs Section, New York City, Mark K. Neville, Jr., counsel of record, for petitioner.

Nils A. Boe, New York City, counsel of record, for respondent.

Robert Glenn White, Glad, Tuttle & White, Los Angeles, Cal., counsel of record, for respondent-party-in-interest.

E. Thomas Honey, New York City, counsel of record, for amicus curiae.

Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.

MARKEY, Chief Judge.

The United States (petitioner), pursuant to 28 U.S.C. § 1651(a), petitions for a writ of prohibition and mandamus against The Honorable Nils A. Boe, Chief Judge of the United States Customs Court (respondent), seeking, in Consolidated Customs Court No. 75-5-01351, Servco Company v. United States, (1) to prohibit the Customs Court from asserting jurisdiction over that civil action, (2) to prohibit the Customs Court from engaging in any other conduct inconsistent with the writ, (3) to order the Customs Court to vacate the Orders entered on January 12 and March 1, 1976, (4) to order dismissal of the civil action for lack of jurisdiction, and (5) to order return of the official entry papers to the appropriate District Directors of Customs. The petition is granted.

Issues

The issues are (1) whether the Customs Court lacks jurisdiction over the involved civil action and, if so, (2) whether this court should exercise its discretionary authority to issue the requested writ.

Background

The imported merchandise is claimed by the importer to consist of nonmagnetic austenitic drill collars identical to those in United States v. Servco Co., 477 F.2d 579, 60 CCPA 137, C.A.D. 1098 (1973). The present merchandise was entered at New Orleans on July 8, July 24, and August 29, 1974, and at Houston on October 17, 1974, and classified under items 610.51 and 610.52, TSUS.

On December 3, 1974, and January 14, 1975, counsel for importer wrote to the District Directors of New Orleans and Houston, respectively, stating: that the merchandise was identical to that held classifiable under item 664.05 in C.A.D. 1098, supra; that there had been no limitation of that decision; that the importer had tendered duties "excessive" in view of C.A.D. 1098; and that prompt and "proper" liquidation was requested.

The response of the Director at Houston stated:

This office is presently acting under advice from the Assistant Chief Counsel, Customs Court Litigation, New York, New York, in not following the decision in The United States v. The Servco Company, C.A.D. 1098. This advice was given to all interested ports, and read in part: The Government is presently considering the possibility of limiting that decision and retrying the issues therein. Consequently, the decision should not be followed, either in the review of protests or in current liquidations, pending resolution of that question.

Regarding the Directors' responses as "decisions" of Customs officers, counsel for importer filed "protests" on January 20, 1975, and February 18, 1975, which were purportedly denied. The "protests" repeated, essentially, the statements in counsel's letters referred to above, adding reference to the Directors' "refusal" to comply with the decision in C.A.D. 1098 and to denial of due process of law.

On May 27, 1975, and July 1, 1975, the importer initiated separate actions in the Customs Court, which were consolidated to create the subject civil action on September 15, 1975.

In October 1975, the importer filed a complaint alleging, inter alia, that the decisions protested were those of the District Directors referred to above and that the goods were identical to those in C.A.D. 1098. The complaint ended with this prayer:

THEREFORE, plaintiff prays for judgment overruling the decision of the responsible Customs officers at the Ports of entry in refusing to direct entry and liquidation of the merchandise in issue under Item 664.05, TSUS, and directing that the said referenced appropriate and responsible Customs officers liquidate the entries in question under Item 664.05, TSUS, as amended, and for refund of the exactions made of the plaintiff, upon liquidation under Item 664.05, TSUS, as amended.

Petitioner moved to dismiss the action for lack of jurisdiction because the entries had not yet been liquidated, i. e., because the "protests" were premature. The importer responded, asserting jurisdiction existed pursuant to 19 U.S.C. § 1514(b)(2)(B). Petitioner filed a reply accompanied by two affidavits, each stating that no liquidation had occurred and that no decision refusing to liquidate had been made. Both affidavits expressed an intent to follow C.A.D. 1098, the second affidavit ending with this assertion:

In fact, since the filing of the instant protest, a decision has been reached to liquidate these entries in accordance with the Court of Customs and Patent Appeals decision in C.A.D. 1098, insofar as they involve merchandise which is in all material respects similar to the merchandise then before the court, and equally dedicated to use as drill collars.

Petitioner argued in its reply that the Directors never "decided" not to liquidate; that 19 U.S.C. § 1514(b)(2)(B) is inapplicable; that no time limit exists for liquidation; and that the Customs Court has no equity jurisdiction.

On January 9, 1976, respondent issued an order (entered on January 12) that a proposed judgment based on an agreed statement of facts be submitted within 90 days or, in the alternative, that an answer be filed by petitioner within 120 days. The order included the following as its basis:

It appearing under the statutes of the United States and the rules of court that jurisdiction properly has been obtained in this court and that the right of the plaintiff to present his cause of action for speedy determination has been unnecessarily prolonged, and

It further appearing * * * that the defendant has reconsidered its prior decision with respect to the classification of the merchandise involved in the within action provided that such material is in all respects similar to the merchandise involved in the Court of Customs and Patent Appeals decision C.A.D. 1098 and that, accordingly, no disagreement between plaintiff and defendant with respect to the issues originally involved herein may continue to exist * * *.

Petitioner then moved for rehearing and reconsideration or, in the alternative, for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1541(b). On March 1, 1976, respondent denied both motions and filed a Memorandum Opinion reading, in its entirety, as follows:

In its prior order of January 9, 1976, the court has provided two alternatives:

1. The settlement of the within action through the established judicial procedure of the forum in which the action is presently pending, or

2. The filing of an answer by the defendant.

If the provision in the prior order of the court relating to a voluntary settlement on an agreed statement of facts — which customarily includes consultation with and the recommendation of the customs service — is feared by the defendant to be an application of supervisory powers over this administrative department, the fullest opportunity to proceed with the orderly trial of all issues of fact and law in the instant case is afforded by the filing of an answer.

The joinder of issue and subsequent trial may properly permit a more complete consideration of all of the facts alleged by the plaintiff in its complaint presently on file prior to a determination of the question of jurisdiction raised by the defendant herein.

The goods have been entered and released by Customs. Servco has deposited the estimated duties provided under item 610.52 with the additional duties of items 607.01 and 607.02, while asserting its entitlement to the lower duty of item 664.05. To date there has been no liquidation, and there can be none while this action is pending, the entry papers being in the custody of the court.

Before us, petitioner filed an exhaustive brief accompanied by numerous exhibits. A response was filed by respondent. Briefs were filed by the respondent-party in interest (importer) and by the Association of the Customs Bar as amicus curiae. Petitioner filed a reply.

OPINION

Jurisdiction

The United States cannot be sued without explicit waiver of its sovereign immunity. Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); Honda v. Clark, 386 U.S. 484, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). Statutes waiving immunity, and thereby defining jurisdiction, must be strictly construed. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Blackfeather v. United States, 190 U.S. 368, 23 S.Ct. 772, 47 L.Ed. 1099 (1903). In United States v. Sherwood, supra, 312 U.S. at 586, 61 S.Ct. at 769, the Supreme Court stated:

The United States, as sovereign, is immune from suit save as it consents to be sued, * * * and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. Citations omitted.

The consent of the sovereign to be sued in the Customs Court is found in 28 U.S.C. § 1582,¹ which both establishes and limits the jurisdiction of that court. The terms of consent herein applicable are three in number. They specifically confine the jurisdiction of the Customs Court to actions in which (1) "a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended 19 U.S.C. 1514,"² (2) such protest has been "denied in accordance with * *...