The opinion
CONCURRING OPINION
Nichols, Judge:
I concur in the result and in the opinion except for the part of the headnote; captioned “Stare Decisis” and the paragraph beginning: “We realize, of course, that in departing from our holding in the previous Adams case, supra, * * *.” I would leave these portions out. The court says either too much about stare decisis, or not enough.
*440 This is a perfectly ordinary situation in our jurisprudence. Counsel for the importer appeared in three 1961 protests involving the same issue. He tried one, in this court, and did not prevail. He moved for rehearing, without success. Then he brought forward the other two (which had been under suspension) instead of appealing. He tried them and made a new record. We are of the opinion that he should prevail on the new record. Being of that view, we would violate our oaths of office if we did not sustain the protests. I do not see why we should apologize for doing what we are bound to do.
Not in this case, to such a degree as in others, perhaps, the inadequacy of evidence at the first trial of a protest is frequently striking. We may see a case lost for absence of proof which, we are sure, must be easily obtainable, and later is obtained, e.g., as to component material of chief value, or chief use. In such instances, no question of stare decisis is involved if the decision of the second case differs from the first, obviously. Herein, the court’s statement that the current decision is based on the new exhibits would seem made to remove occasion for any concern about stare decisis, and discussion of stare decisis becomes surplusage accordingly.
When the same counsel seems to be deliberately presenting a weak original case, to test out the court or opposing counsel, and when he then brings up all his artillery at the trial of the “new case,” there is a temptation to hoist him by his own petard, treating the first holding as stare decisis. But it is in the first place impossible to be sure this abuse has been wilfully committed, and in the second place, even if we were sure, we would still be obliged to apply the facts and the law as we saw them to the “new case.”
The protests now adjudicated being contemporary with that in the first case, there is nothing before us to show that our former decision was followed except in the very entry that was before the court, and it did not require to be acted on as it called for no reliquidation. Hence, our present action is “contrary to the desired effect of uniformity”— in the court’s phrase — only as to that single entry, so far as we know, and as to that only because of the procedure plaintiff elected. As long as suspended cases were not abandoned, the former case could not reasonably have been made the basis of a practice. As the decision affirmed the collector, it made no change in the then practice of customs officers. Had it gone the other way, their practice would not have changed if the Government had decided to make a new case. Non-uniformity with respect to a single entry is manifestly a lot less serious than nonuniformity as to practice generally. Obstinacy in a wrong holding would sooner or later lead to nonuniformity as to practice.
In Adolphe Hurst & Co., Inc. v. United States, 33 CCPA 96, C.A.D. *441 322, which the heaclnote and text refer .to, our court of last resort overruled its decision which had stood for almost 6 years and, according to the dissent therein, had guided the trade and “no doubt there has grown up a settled practice.” The dissent urged that in the interests of “uniformity,” when a case is the basis of a “settled and well-understood administrative practice” it should not be disturbed even though a “position, technically more correct, might be arrived at” upon new consideration. Though he did not say so expressly, the dissenting judge may have had in mind that lapse of time with trade and administrative acquiescence might make an incorrect decision correct. The situation here is so different that there is no reason to consider the dissent applicable, supposing we could or should give weight to what it urges.
As long as we entertain “new cases,” as it would seem we must, we should receive any matter offered by the former losing party ungrudg-ingly and without adverse preconceptions. The necessity of apologizing for a decision in his favor might create a bias in our minds, and so we should not establish the precedent of making such apologies.
The matter most calling for apology, if anything does, in “new case” procedure, is the prolongation of uncertainty as to the correct tariff classification of merchandise. The instant controversy is, relatively, a baby. As this is being written, there are protests pending before this division for adjudication involving 1944 and 1945 entries, kept undecided by suspense and “new case” procedures. Such delays may cause damage to foreign producers, kept from exporting to United-States markets 'by administrative assessment of illegally high duties. Or if the importation is not stopped, the illegal duties may be passed on to consumers in the form of higher prices. Then if, eventually, a lower rate prevails, the importer who has passed along the duty payments gets a windfall and the injury to others is uncorrected.
This appears to me an abuse, though I am not at all clear how it can be or should be controlled. This court cannot be and is not indifferent to long delays in litigation before it, from any cause. Many of them, however, are not in the power of the court to correct. The controversy now before us arose in 1959, and how near it is to final disposition is anybody’s guess, yet the proceedings of counsel do not appear dilatory, nor was the evidence in the first trial carelessly presented.
I do not think it is desirable to intimate in any form of words that in a “new case” the court will more willingly affirm than overrule the former decision, and if the subject requires to be discussed at all, the above better indicates what I deem it proper to say.