Wolff Shoe Co. v. US
| Decision Date | 16 August 1996 |
| Docket Number | Slip Op. 96-138. Court No. 92-08-00557. |
| Citation | 936 F. Supp. 1084 |
| Parties | WOLFF SHOE CO., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sosnov & Associates (Steven R. Sosnov), Norristown, PA, for plaintiff.
Frank W. Hunger, Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (James A. Curley); of counsel: Edward N. Maurer, Office of the Assistant Chief Counsel, United States Customs Service, for defendant.
Plaintiff, Wolff Shoe Co. ("Wolff"), moves pursuant to Rule 56.2 of the Rules of this Court for summary judgment on the ground that there is no genuine issue as to any material facts. Defendant cross-moves for summary judgment seeking an order dismissing this case.
Wolff challenges the assessment by the United States Customs Service ("Customs") of countervailing duties and the underlying payment of interest on 203 entries of non-rubber footwear imported by Wolff from Spain between the years of 1980 and 1982.
Wolff filed five protests against liquidations of the various entries in this case which were decided in August and September of 1991. The grounds asserted in the protests were (1) countervailing duties should not have been assessed, or, alternatively, (2) if countervailing duties are applicable, the duty should not exceed the estimated amount, and/or (3) interest should not have been assessed from the date the estimated duties were deposited through the date of liquidation. Customs checked the "approved" box on these protests and added a handwritten "in part" and stamped "approved as to interest computation." The entries were then reliquidated only as to interest and the difference was refunded to Wolff.
Wolff then protested the reliquidations on November 19, 1991, re-asserting grounds (1) and (2) without the claim as to interest. This subsequent protest was denied on March 6, 1992, based on the conclusion that it was duplicative of the original protests filed in this matter.
Wolff then filed a summons in this Court on August 13, 1992. In response, defendant moved to dismiss this action claiming that this Court lacks jurisdiction because Wolff filed its summons more than 180 days after its protests were denied in violation of 28 U.S.C. § 2636(a) (1988) and, alternatively, that Wolff fails to state a claim upon which relief can be granted. The Court denied defendant's motion to dismiss finding that Customs approved Wolff's protest of the liquidation, Wolff's subsequent protest of reliquidation was valid and timely, and this action was timely brought pursuant to 28 U.S.C. § 2636(a). Wolff Shoe Co. v. United States, 18 CIT 768, 861 F.Supp. 133 (1994). On May 12, 1995, the Court denied Wolff's motion for order for judgment and Wolff subsequently filed the motion for summary judgment presently before the Court.
On September 12, 1974, Commerce published its countervailing duty determination with respect to non-rubber footwear from Spain. See Non-rubber Footwear From Spain, 39 Fed.Reg. 32,904 (1974). Wolff did not actively participate in this countervailing duty determination or subsequent § 751 reviews arising therefrom.
Wolff made 203 entries of non-rubber footwear from Spain over a three year period (1980, 1981 and 1982). On October 19, 1983, the court entered a temporary restraining order in Volume Footwear Retailers of Am. v. United States, Court No. 83-10-01500, 1986 WL 30013, restraining Customs from liquidating all entries of non-rubber footwear from Spain "currently classifiable under items 700.0500 through 700.4575, 700.5605 through 700.5673, 700.7220 through 700.8360, and 700.9515 through 700.9545 of the Tariff Schedules of the United States Annotated" and which were exported "on or before December 31, 1980, and entered, or withdrawn from warehouse, for consumption on or after January 1, 1980, and no later than May 2, 1982, and remain unliquidated as of 5 p.m. on the next business day following the date of service and receipt of this order." The court entered preliminary injunctions on November 9, 1983, and August 10, 1984, restraining Customs from liquidating entries of non-rubber footwear from Spain. See Volume Footwear Retailers of Am. v. United States ("Volume Footwear"), 10 CIT 12, 13, 1986 WL 30013 (1986). The preliminary injunctions were deemed to have expired on May 15, 1985. See id. at 15, 1986 WL 30013. Customs liquidated the involved entries in 1986.
Wolff filed Protest Nos. 1001-6-008054, 1001-6-008055, 1001-6-008056, 1001-6-008059 and 1001-6-008060 asserting the following grounds: (1) countervailing duties should not have been assessed, or (2) if countervailing duties are applicable, the duty should not exceed the estimated amount, and/or (3) interest should not have been assessed from the date the estimated duties were deposited to the date of liquidation. Customs checked the "approved" box on these protests and added a handwritten "in part" and stamped "approved as to interest computation." The choices on the form were "approved" and "denied in full or in part." The entries were reliquidated as to interest only and the difference was refunded to Wolff.
On November 19, 1991, Wolff protested the reliquidations under Protest No. 1001-91-108182 re-asserting grounds (1) and (2) of the earlier protest but not asserting a claim as to interest. On March 6, 1992, Customs denied Protest No. 1001-91-108182 on the ground that it was duplicative of the original protests filed in this matter. Wolff then filed a summons in this Court on August 13, 1992.
On a motion for summary judgment, it is the function of the court to determine whether there remain any genuine issues of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the court determines that no genuine issue of material fact exists, summary judgment is properly granted when the movant is entitled to judgment as a matter of law. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed.Cir.1987). In the case at bar, this Court finds there are no genuine issues of material fact with respect to the issues involving the entries listed under Schedules I and II in the attachments to Wolff's brief, the dispositive issues to be resolved are legal in nature and, therefore, summary judgment is proper. Regarding the ten entries listed under Schedule III in the attachments to Wolff's brief, there exists a genuine issue of material fact and, therefore, summary judgment is not appropriate. Accordingly, the ten entries listed under Schedule III are severed from the summary judgment motion before the Court and dismissed. See infra at 15, 1986 WL 30013.
Defendant urges the Court to reconsider its decision of August 24, 1994, denying defendant's motion to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim upon which relief may be granted. Defendant emphasizes that since that opinion was not a final decision by the Court, it may be reconsidered at this stage in the proceedings. Def.'s Opp'n to Pl.'s Mot. Summ.J. at 4-6. Defendant maintains that the only matter approved in Wolff's protests against liquidation was the recomputation of interest. Defendant supports its argument by emphasizing that Customs refunded only the recomputed interest which constituted a denial of the protests as to duty assessments. As such, defendant argues that in order for this Court to have jurisdiction, Wolff would have had to file the summons with this Court within 180 days from the date Customs denied the initial protests. Id. at 6-7.
The Court declines defendant's invitation to reconsider the jurisdictional issue decided by the Court in Wolff Shoe, 18 CIT at ___, 861 F.Supp. at 135-36. Wolff brought this action within 180 days of the denial of the protest of the reliquidations. Wolff could not have brought this action prior to receiving a denial of the protests from Customs, and since Customs did not deny the initial five protests, Wolff could not have filed an action in this Court until after the denial of the protest of reliquidation. Defendant's evidence regarding the refund checks is unpersuasive as it does not alter Customs' decision to check the "approved" box as opposed to the "denied in full or in part" box in response to the initial five protests. The refund of the interest only is as meaningless as the stamp on the form "approved as to interest computation." The Court adheres to its conclusion in Wolff Shoe that Customs left the substance of the protests open by not specifically denying it. Accordingly, Wolff properly protested Customs' reliquidation and timely filed a summons in this Court pursuant to 28 U.S.C. § 2636(a). This Court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (1988) which grants the Court exclusive jurisdiction over any civil action commenced to contest Customs' denial of a protest. The jurisdictional question decided, the Court now turns to the issues surrounding the liquidation of the entries.
Wolff maintains that 135 of the entries, attached to Wolff's brief as "Schedule I", were less than four years old when the suspension required by statute or court order ended, but more than four years old when Customs liquidated the entries. Wolff argues that pursuant to § 504 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1504 (1988), all entries not yet liquidated at the expiration of four years from the date of entry "shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record." Accordingly, Wolff asserts that the subsequent liquidations by Customs were voidable. Pl.'s Mem.Supp.Mot.Summ.J. at 4-5.
Defendant concedes that if the Court possesses jurisdiction, the Schedule I entries may be deemed...
To continue reading
Request your trial
-
Wolff Shoe Co. v. U.S.
...and that Wolff thus was entitled to a refund of all countervailing duties that it had paid after entry. See Wolff Shoe Co. v. United States, 936 F.Supp. 1084, 1090 (C.I.T.1996). The United States now appeals from the determination that the entries were liquidated by operation of law. In add......