United States v. Torch Manufacturing Co., Inc., Customs Appeal No. 74-33.

• Decision Date: 13 February 1975
• Docket Number: Customs Appeal No. 74-33.
• Citation: 509 F.2d 1187
• Parties: The UNITED STATES, Appellant, v. TORCH MANUFACTURING CO., INC., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

509 F.2d 1187

The UNITED STATES, Appellant, v. TORCH MANUFACTURING CO., INC., Appellee.

Customs Appeal No. 74-33.

United States Court of Customs and Patent Appeals.

February 13, 1975.

Carla A. Hills, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Joseph I. Liebman, New York City, for the United States.

Stanley S. Getzoff, Joseph Winston, New York City, attys. of record, for appellee.

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

MILLER, Judge.

This is an appeal from a judgment of the United States Customs Court denying defendant-appellant's motion to dismiss and granting plaintiff-appellee's motion for summary judgment.¹ We reverse.

The case was commenced in the Customs Court in 1967. Pursuant to Rules 14.6 and 14.9 of the court, it was placed in the October 1970 Reserve File. No action having been taken by October 31, 1972, to remove the case from the file as required by Rule 14.6(b), or to obtain an extension of time, as provided by Rule 14.6(e), the case was dismissed in accordance with Rule 14.6(c), which provides in part:

An action which is not removed from the reserve file within a period of 2 years shall be dismissed for lack of prosecution, and in the absence of the filing of a motion under sub-part (e) of this rule, the clerk shall enter an order of dismissal without further direction of the court.

Rule 8.3(d) of the Customs Court provides:

Unless the court otherwise specifies in its ruling, a dismissal under ... (b) which includes dismissal of actions in the reserve file ... shall operate as an adjudication upon the merits.

The basic error assigned by defendant-appellant is the court's order granting plaintiff-appellee's motion, filed June 1, 1973, to set aside the court's original order of dismissal, entered April 20, 1973.² Defendant-appellant then moved for rehearing and reconsideration of the order to set aside and vacate. This was denied. Subsequently plaintiff-appellee filed an amended complaint; defendant-appellant answered and moved to compel a reply to its answer; plaintiff-appellee moved for summary judgment; and defendant-appellant moved to dismiss.

Appellant acknowledges the merits of appellee's substantive claim. Before the Customs Court, appellee alleged inadvertence and mistake of its counsel, who, by affidavit, stated that he had been under the impression that a proposed stipulation sent to the Department of Justice in 1967 had been signed and filed with the court. The Customs Court noted that the stipulation had been "pending without attention by the defendant since December 4, 1967," and that the defendant had interposed no objection to an extension of time during which a related case would remain on the October 1970 Reserve File.

In denying defendant-appellant's motion for rehearing and reconsideration of the order to set aside and vacate, the Customs Court expressed the opinion that the original motion to set aside did not constitute a motion for rehearing or retrial as contemplated by 28 U.S.C. §§ 2638 and 2639. These sections, which appear in Chapter 169 — Customs Court Procedure, provide as follows:

§ 2638. Decision; findings of fact and conclusions of law; effect of opinions

(a) A decision of the judge in a contested case shall be supported by either (1) a statement of findings of fact and conclusions of law, or (2) an opinion stating the reasons and facts upon which the decision is based.

(b) The decision of the judge is final and conclusive, unless a retrial or rehearing is granted pursuant to section 2639 ... or an appeal is made to the Court of Customs and Patent Appeals ....

§ 2639. Retrial or rehearing

The judge who has rendered a judgment or order may, upon motion of a party or upon his own motion, grant a retrial or a rehearing, as the case may be. A party's motion must be made or the judge's action on his own motion must be taken, not later than thirty days after entry of the judgment or order.

The Customs Court was also of the opinion that its order to set aside and vacate was within the exercise of its inherent judicial power and the rules of the court.

Throughout the proceedings below and before this court, defendant-appellant has contended that the original motion to set aside constituted a motion for retrial or rehearing which was subject to the thirty-day limitation set forth in section 2639, that the motion was filed twelve days late, and that the Customs Court was without authority to ignore the statutory time limit and set aside and vacate its original order of dismissal.

We would agree that if section 2639 is applicable, the thirty-day period must be satisfied. The Customs Court could not enlarge its jurisdiction by its own rules. See Washington-Southern Navigation Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 635, 44 S.Ct. 220, 68 L.Ed. 480 (1924). This court, in Minkap of California, Inc. v. United States, 55 CCPA 1, C.A.D. 926 (1967), noted that a motion to rehear, which had been filed one day late, was "untimely" and said: "We find no alternative but to apply the direct unambiguous terms of 28 U.S.C. § 2640."³ Although the Customs Court did not regard the motion to set aside as a motion for rehearing or retrial within the contemplation of the statute, it appears that it formerly was of a different opinion. Thus, in Borneo-Sumatra Trading Co. v. United States, 49 Cust.Ct. 510, A.R.D. 150 (1962), which was on an application for review of an order denying appellant's motion to set aside an order of dismissal, the Customs Court said (at 513):

Section 2640... is a provision authorizing a rehearing or a retrial of a decided case. By every intendment, the words "rehearing" and "retrial" presuppose an original hearing or an original trial and, hence, normally relate to decisions on the merits after a hearing has been held. By logical extension, they must also include instances where an opportunity for an original hearing or an original trial has been made available and final judgment, not necessarily on the merits, has been entered. Kaiser Reismann Corp. et al. v. United States, 47 Cust.Ct. 363, Abstract 66205 (1961), holding motion, made more than thirty days from date of entry of judgment, to set aside an abandonment on ground of inadvertence was in effect one for rehearing controlled by 28 U.S.C. § 2640.

In Gehrig, Hoban & Co. v. United States, 49 Cust.Ct. 403, Reap.Dec. 10343 (1962), the Customs Court ruled that a motion (to vacate a judgment dismissing reappraisement appeals) filed more than thirty days after entry of the judgment was controlled by 28 U.S.C. § 2640 and that the court had lost jurisdiction and was without authority to set aside its judgment, notwithstanding plaintiff's averment of clerical inadvertence, mistake, or oversight. The court said that, while it had the power to rectify its own clerical mistakes and omissions, a mistake on the part of plaintiff was not subject to correction. This case was cited as setting forth the controlling legal principles in Aut Customs Brokers, Inc. v. United States, 49 Cust.Ct. 427, Reap.Dec. 10356 (1962), where the court denied an untimely filed motion to vacate a judgment dismissing an appeal for nonappearance and failure to prosecute. The Kaiser, Gehrig, and Aut cases were cited as authority by the Appellate Term, which held that it was error for the trial court to grant a motion for vacation of judgment of dismissal and for reinstatement of the case, in United States v. Williams, Clarke Co., 52 Cust.Ct. 639, A.R.D. 173 (1964). Citing 28 U.S.C. § 2640, the court said:

We deem it unimportant whether a motion upon the facts of the instant case or those above cited Kaiser, Gehrig, and Aut were designated as a motion for rehearing, for retrial, or for vacation of judgment; the entitlement is of little significance. The relief actually sought is a retrial or rehearing.

In the Williams case, the Customs Court also cited United States v. Maier, 18 CCPA 409, T.D. 44679 (1931), in which this court reversed a judgment of the Customs Court modifying its final order more than thirty days after entry of the final order⁴ and at a time when no application for rehearing was pending or had been allowed. It was determined that the modification of the final order (making a new finding of dutiable value) was not the mere "correction of a clerical error," but "a matter of substance affecting the character of the judgment." This court said:

The statute has fixed a limitation upon the time within which a rehearing may be applied for, and it seems to follow, as a logical conclusion, that after such period of limitation has expired, and at a time when no petition for rehearing is pending, there is no power in the United States Customs Court to reopen the judgment and re-adjudicate the subject matter.

Further insight to 28 U.S.C. § 2640 was provided by this court in A. W. Fenton Co. v. United States, 53 CCPA 98, C.A.D. 884, cert. denied, 385 U.S. 970, 87 S.Ct. 508, 17 L.Ed.2d 434 (1966). Appeals had been called for hearing on November 15, 1962, but no appearance was made. Appellant knew that the appeals had been called. On oral motion of the Government, the Customs Court entered judgment dismissing the appeals for failure to appear and prosecute. On August 15, 1963, appellant filed a motion for rehearing asking for rehearing and for an order vacating and setting aside the judgment. This was denied. An application for review by the Appellate Term was dismissed on the ground that the court lacked jurisdiction to entertain it. On appeal, this court said:

We consider the "Motion" of August 15, 1963 first as a motion for rehearing. Based on the record before us, we find no error in the Appellate Term's dismissal of the Application for Review on the ground that it could not entertain an appeal from the trial court's denial of the motion for rehearing.... Since the filing of the motion for rehearing was untimely according to statute (28 USC 2640), the

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