Travelers Indemnity Co. v. United States

Slip Opinion 08-104

UNITED STATES COURT OF INTERNATIONAL TRADE

TRAVELERS [NDEMNITY CO.,

Plaintiff,

Before: WALLACH, Judge

v. : Court No.: 06-00151

UNITED STATES,

Defendant.

[Plaintiff's Motion for Surnmary judgment is DEN[ED; Defendant’s Cross-M0tion for Sunimary

Judgment is GRANTED.]

Dated: September 29, 2008

Akin Gurng Strauss Hauer & Feld LLP (Warren E. Connelly , and (Anne K.Cusick), C0-C0unsel

for Plaintiff Travelers lndemnity Co.

Giunfeld Desiderio Lebowitz Si]vennan & Klestadt LLP (Edward B. Ackerrnan), Co-Counsel

for Plaintiff Trave]ers Indemnity Co.

Grego;y G. Katsas, Assistant Attorney General; Barbara S. Willia:ins, Attorney in Charge,

Intemational Trade Field Office, Comrnercial Litigation Branch, Civil Division, U.S. Departrnent

of Justice (Amy Rubin); Edward N. Maurer, Deputy Assistant Chief Counsel, lnternational Trade

Litigation, U.S. Customs and Border Protection, and William J. Kovatch Jr., Senior Attorney,

Office of the Chief Counse1 for lmport Adrninistration, U.S. Department of Commerce, of

C0unsel, for Defendant United States.

OPINION

Wallach, Judge

I

INTRODUCTION

This case establishes that publication of a case in the Customs Bulletin Weeklv ("the

Bulletin”) is not sufficient notice to the United States Bureau of Customs and Border Protection

("Customs") ' to invoke the deemed liquidation rule of 19 U.S.C. § l504(d) (“Section l504(d)").

Plaintiff Travelers Indemnity Company, (“Travelers") has filed a Motion for Summary judgment

claiming publication leads to deemed liquidation Defendant United States has cross-

moved. This court exercises jurisdiction pursuant to 28 U.S.C. § 15 Sl(a). Because publication

of a case in the did not constitute "notice" under Section l504(d),2 the deemed

liquidation rule of Section l504(d) does not apply. Accordingly, Plaintiff’ s Motion for Summary

Judgment is denied and Defendant’s Cross-Motion for Summary Judgment is Granted.

II

BACKGROUND

On December 29, 1986, the United States Department of Commerce (“Commerce")

published the final results of the first administrative review of imports from producers of certain

Taiwanese color television receivers "CTVs" that entered the United States between Oct0ber l9,

1983, and March 3l, l985. §ee_ Color Te1evision Receivers. Except for Video Monitors. From

Taiwan; Final Results of Antidumping Duty Adrnin. Review, 51 Fed. Reg. 46895 (December 29,

1986) ("the 1983-1985 Review"); Plaintiff’ s Brief in Support of Its Motion for Summary

l The United States Customs Service is now called the Bureau of Customs and Border Protection. g

Homeland Seeurity Aet of 2002, Pub. L. No. 107-296, §1502, 116 Stat. 2136 (2002); and Reorganization

Plan for the Department of Homeland Security, I-I.R. Doc. No. 108-32 (2003). This opinion will refer to

Customs rather than the Customs Border Patrol, because the facts occurred during a period (1981-1995)

when Customs administered the deemed liquidation rule of Section 15 04(d).

2 19 U.S.C. § l504(d) (“Section l504(d)") provides in relevant part:

when a suspension required by statute or court order is removed, the Customs

Service shall liquidate the entry... within 6 months after receiving notice of the

removal from the Department of Commerce, other agency, or a court with jurisdiction

over the entry. Any entry ... not liquidated by the Customs Service within

6 months after receiving such notice shall be treated as having been liquidated

at the rate of duty, va]ue, quantity, and amount of duty asserted at the time

of entry by the importer of record.

Judgrnent ("Plaintiff’s Motion") at 2. One of the Taiwanese producers that participated in the

initial review was AOC Intemational ("AOC”). Plaintiff’ s Motion at 2. ln the 1983-1985

Review, Commerce established a cash deposit rate of 1.38% for CTVs that AOC exported to the

United States and that had entered American customs territory after December 29, 1986. §

Between November 1987 and March 1988, a company called Funai USA imported 17 entries of

AOC-manufactured CTVs into the United States and paid cash deposit of 138% ad valorem

antidumping duties on the 17 entries. lc_l_.

On December 16, 199l, Commerce published the final results of a subsequent

administrative review of CTVs exported by various Taiwanese producers for the period April 1,

1987 through March 31, l988. S_e§ Color Television Receivers, Except for Video Monitors.

From Taiwan; Final Results of Antidumping Dutv Admin. Review. 56 Fed. Reg. 65218

(December 16, 1991) ("the 1987-1988 Review"). The 1987~1988 Review results covered the 17

Funai USA entries at issue. § @; Plaintiff"s Motion at 3. Commerce imposed an antidumping

duty margin of 7.43% for the 17 Funai USA entries from the 1987-1988 Review period.

Plaintiff’ s Motion at 3. Upon notification of the results of the 1987-1988 Review, AOC appealed

Commerce’s final results. _Id_= While the appeal to this court was pending, liquidation remained

suspended on the 17 Funai USA entries pursuant to a preliminary injunction under 19 U.S.C. §

15 l6a(c)(2). This court affirmed both Commerce’s original determination and the remand

determination decision. Zenith Elecs. Co;p., v. United States, 18 CIT 1105 (1994), appeal after

yi, 19 CIT 602 (1995). AOC appealed that affirmation to the Court of Appeals for the

Federal Cireuit ("Federal Cireuit"). §ge Zenith Elecs Coru.. v. United States, 99 F.?)d 1576 (Fed.

Cir. 1996), (“ze_riiri_i_i_l")?

The Federal Circuit affirmed and held that Commerce had correctly calculated the

antidumping duty margin in the 1987-1988 Review. I;d. at 1579. was issued by the

Federal Circuit on November 7, 1996, but a petition for rehearing with a suggestion for rehearing

g b_an__g was filed. I;d. at 1576; Defendant’s Memorandum in Opposition to Plaintiff’ s Motion for

Summary Judgment and ln Support of Cross-Motion for Summary Judgment, ("Defendant’s

Response and Cross-Motion") at 3. The petition was denied in an unpublished order on February

26, 1997. Defendant’s Response and Cross-Motion at 3. The time for petitioning for a writ of

certiorari expired on May 27, 1997, without a petition being filed. Ld. At that point,

became final, and suspension of the liquidation was removed. Defendant’s Response and Cross

Motion at 3; _S_e§ Fuiitsu Gen. Am.. Inc. v. United States, 283 F.3d 1364 (Fed. Cir. 2002).

ln the Federal Circuit determined that substantial evidence supported the final

results of Commerce’s 1987-1998 Review. , 99 F.3d at 1577; Defendant’s Response and

Cross Motion at 3. On October 22, 1997, after the Federal Circuit had rejected AOC’s cause of

action in , Customs published the decision in its publication.

Plaintiff" s Motion, Exhibit 4.

On March 18, 2005, Customs liquidated the 17 Funai USA entries, in accordance with

electronic message No. 5035206 which was issued by Commerce on February 4, 2005. l_d=

Customs assessed the increased antidumping duties at the 7.43% rate, plus interest, for a total bill

of $615,767.17. Defendant’s Response and Cross-Motion at 4. The figure equaled the difference

SZenith Elecs. Co;p., v. United States, 99 F.3d 1576 (Fed. Cir. 1996). In this opinion when the court uses

"Zenith Il" it is referring to the 1996 Federal Circuit opinion and not the earlier Court of Intemationa1

Trade decision.

4

between the cash deposit calculated using the entered rate of 1.38% and the higher final rate of

7.43%, plus accrued interest. Plaintiff’ s Motion at 5; § Customs sent the bills to Funai USA’s

business address in Tetersboro, New Jersey, but upon learning that Funai USA had dissolved,

Customs issued a demand upon Funai USA’s surety, Travelers. Plaintiff’ s Motion at 5.

Defendant’s Response and Cross Motion at 4. Travelers timely filed a protest on September 12,

2005 and the protest was denied on November 10, 2005. Defendant’s Response and Cross

Motion at 4. On May 8, 2006, Travelers paid $90,000 to Customs, which was the limit of its

liability as surety on Funai USA’s bond. Plaintiff’ s Motion at 6.

Travelers claims that the October 22, 1997 publication of Zenith II in the

constituted notice to Customs of removal of suspension of the 17 Funai USA entries of CTVs.

Plaintiff’ s Motion at 5. Additionally, Trave1ers asserts the 17 Funai USA entries were deemed

liquidated on April 22, 1998, (six months after the publication of the Zenith 11 decision in the

Bulletin) using an antidumping rate of 1.38%. Ld. at 5-6. Customs disagrees. Both parties have

moved for summary judgment and maintain that there are no genuine issues of material fact to be

resolved by a trial on the merits. Plaintiff’ s Motion at 1-2, 6; Defendant’s Reply and Cross-

Motion at 4. The sole issue is whether Customs received notice of the liquidation suspension

removal for purposes of Section l504(d) more than six months before it liquidated the entries at

issue. § Plaintiff' s Motion at 1-2, 6; Defendant’s Response and Cross-Motion at 6.

III

STANDARD FOR DECISION

Summary judgment is appropriate if the court determines that "the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there are no genuine issues as to any material fact, and that the moving party is

entitled to a judgment as a matter of law." USCIT R.56 (d); Anderson v. Libertv Lobbv. lnc., 477

U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986). Under 28 U.S.C. § 2640(21)(1), this

court reviews § n_gy_q the denial of an administrative protest under 19 U.S.C. § 1515.

IV

DISCUSSION

A

The Deemed Liquidati0n Rule Requires Notice to Customs

Travelers bases its entire case upon application of the "deemed liquidation" doctrine.

Section 1504(d) provides that when a suspension of liquidation required by statute or court order

is removed, Customs shall liquidate the entry within six months after receiving notice of the

removal from Commerce, another agency or a court with jurisdiction over the entry. Section

1504(d). Any entry not liquidated by Customs within six months after receiving such notice shall

be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty

asserted at the time of entry by the importer of record. lcL Because Section 1504(d) provides that

an entry will be deemed liquidated by operation of law if Customs does not liquidate the entry

within six months of receiving notice, it is "critical to determine ... what constitutes notice of the

removal [of liquidation] suspension to Customs." lnt’l Trading Co. v. United States, 281 F.3d

6

1268, 1271 (Fed. Cir 2002).

For deemed liquidation to occur: "(1) the suspension of liquidation that was in place must

have been removed; (2) Customs must have received notice of the removal of the suspension;

and (3) Customs must not liquidate the entry at issue within six months of receiving such notice."

h, 283 F.3d at 1376. The notice Customs must receive to remove suspension is the central

issue here. The Federal Circuit has held that specific liquidation instructions from Commerce via

email or mailed notice, and publishing notice of a decision in the Federal Regjster are adequate

fonns of "notice" under Section 1504(d). NEC Solutions (Am.), lnc. v. United States, 411 F.3d

1340, 1347 (Fed. Cir. 2005); _l§`_qjitiu, 283 F.3d 1364 at 1382; lnt’l Trading, 281 F.3d at 1275.

These methods of notice are acceptable, but they are not exclusive Thus, publication in the

must be analyzed as a potential additional method of adequate notice.

B

Publication in the Bulletin Does Not Initiate the Deemed Liquidation Rule

1

The Bulletin ls Not a "Familiar Manner of Providing Notice"

111 Int’l Trading, the Federal Circuit held that publication in the Federal Register and

direct email to Customs are both sufficient notice under Section 1504(d). Int’l Trading, 281 F.3d

at 1275. Contrary to Travelers’ arguments (Plaintiff’ s Motion at 9-10), however, Int’l Trading

does not hold that any publication of a judicial decision affirming the results of an antidumping

duty order provides Customs with adequate notice.

Travelers attempts to equate the publishing of Zenith l`[ in the Bulletin to publication of

final results in the Federal Register as "a familiar manner of providing notice to parties" in

antidumping proceedings. lnt’l Trading, 281 F.3d at 1275. Travelers believes lnt’l Trading refers

to any general publication of an administrative review or a decision affecting a review,

(Plaintiff"s Motion at l0), although the case only addresses publication in the Federal Regjster

when it says “publication in the Federal Register is a familiar mariner of providing notice to

parties in antidumping proceedings." lnt’l Trading, 281 F.3d at 1275.

Timing also distinguishes Int’l Trading, 'l`here, the results were final when published; the

results in Zenith Il were not." In fact, the publication of Zenith [[ is not the

unambiguous and familiar notice described by Int’l Trading,

2

Publication in the Bulletin Does Not Impute Knowledge to Customs Employees

In i, the Federal Circuit held that publication of a court decision does not

necessarily result in notice to Customs of removal of liquidation suspensions 1, 283 F.3d at

1383. Commerce published notice of a case in the Federal Register. l_cL at 1369. Commerce then

sent Customs an e-mail instructing it to liquidate pertinent entries at the affirmed rate. Ld;

Customs liquidated the entries within six months after the email was sent. ld._ at 1370. Fujitsu

sued claiming Customs received notice before the email was sent because the earlier decision

was available commercially in a variety of print and electronic media.§ l_d; at 1379-80.

The Federal Circuit determined that the availability of the earlier case in a "variety of

commercially available print and electronic media" did not constitute public and unambiguous

‘Zenith l`l was not final when issued because Zenith II’s petition for rehearing was pending and the time for

seeking a writ of certiorari had not expired

5 Fujitsu also involves certain jurisdictional questions not at issue here. § Fujitsu Gen. Am., Inc. v.

United States, 283 F.3d 1364, 1370~76 (Fed. Cir. 2002).

5 Fujitsu claimed in an earlier case the Clerk of the Federal Circuit served counsel for the Department of

Justice ("DOJ") and service upon him constituted notice. I_d. at 1379. The Federal Circuit disagreed. I;d.

8

notice. Ld. lt rejected the notion that because the decision was widely available through that

media, Customs was provided with notice for purposes of Section 1504(d). Ld. at 1380. The

court further stated that “there is no evidence that in fact Customs received general media

notice. ..." E;

Travelers is not relying on service of Zenith 11 on Govemment’s counsel or on its general

media publication (@ §§ n.6). Rather, it relies on the ’s status as a Customs

publication Plaintiff's Motion at 12. That fact alone, however, does not prove that the

publication in the constituted unambiguous and public notice; Travelers has offered

neither positive evidence to support its conclusion, nor rebuttal evidence to contest the contrary

testimony offered by Defendant. § discussion in@ Part lV D la-d, 2.

Rather, Travelers has asserted that because the _l§irll;etin is a Customs publication, the

entire agency had notice when Zenith ll appeared in the Bulletin. Plaintiff"s Motion at l5;

Defendant’s Response and Cross Motion at 14-15. I1nputing knowledge to all Customs

employees because of a publication in the Bulletin too broadly defines notice. That supposition

of implied notice is both factually incorrect and it directly contradicts l;`i_ij@’s holding that

publication of a court decision does not necessarily result in receipt by Customs of notice that a

suspension of liquidation had been removed. 1, 283 F.3d at 1383. Indeed, Travelers’

argument implicitly seeks to impute knowledge of any Customs employee to the entire Agency

and by extension, to hold gl_l Customs employees responsible for knowing the information

available to each employee. Such omniscience may not be implicated by law.

Publication in the Bulletin Does Not Constiiute Unambiguous Notice to the Reasonable

Customs Oflicial

Travelers also relies on NEC Solutions, 411 F.3d at 1340. That case considered whether

an email message Commerce sent to Customs provided unambiguous and public notice that

suspension of liquidation had been removed after dumping margins case had become final.? Ld__. at

1341-1342. The court held that for notice from Commerce to trigger the six month period within

which Customs has to liquidate entries, the notice must be unambiguous that suspension of

liquidation has been lifted but does not need to include specific liquidation instructions. _ld_. at

1344. Here, Travelers has not proved the is unambiguous notice that would be

recognized by a "reasonable Customs official" (@ at 1346; g mg Part lV D la-b), nor has it

proven that reading the is a required task for Customs workers, a position Customs has

contradicted by direct evidence.

C

Customs’ Administrative Policies Do Not Require Reading the Bulletin

Travelers argues that the marmer by which Customs proceeds to liquidate entries (OTO3

message board) is irrelevant to the issue of whether Customs has received adequate notice of

removal of suspension of liquidation because the OTO3 message board is also used for accepted

forms of notice such as Federal Register notices announcing final court decision (§ijits£) or the

final results of an administrative review (lnt’l Trading). Plaintiff` s Response to Defendant’s

TNEC Solutions, also addresses whether service of an opinion on DOJ is service on Customs because DOJ

represented Commerce. NEC Solutions, §Am. 1, Inc. v. United States, 411 F.3d 1340, 1346 (Fed. Cir.

2005). 'I`he court ruled that DOJ receipt of court opinions lifting the suspension of liquidation did not give

Customs notice of such lifting. I_€L

10

Memorandum in Opposition for Summary Judgment and Opposition to Defendant’s Cross-

Motion for Summary Judgment ("Plaintiff" s Response") at 10-13. Travelers carmot however,

ignore the reality that publication in the Federal Register is an acknowledged, unambiguous and

public notice recognized by Customs, this court, and the Federal Circuit. The is not an

unambiguous and public form of notice, particularly because the Customs employees who are

charged with liquidation are not: 1) responsible to read the , 2) do not receive the

on a regular basis, and 3) receive notice only through the OTO3 message board where

the is never posted. §§ g Part IV, D, la~d, 2).

D

While Genuine Issues of Material Fact Defeat Travelers’ Motion, Customs

Has Submitted Suflicient Competent Evidence to Support Its P0siti0n

CIT Rule 56 standards require that a party seeking summary judgment must on, an issue

by issue basis, submit admissible evidence properly cognizable by the court, which supports each

element of that party’s claim or defense. § USCIT R. 56. On a Motion for Summary

Judgment, the movant has the burden of propounding evidence to support the factual allegations

in its clairns. See Celotex Cog:_) v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d 265

(1986)(quoting Fed. R. Civ. P. 56(c)) ("a party seeking summary judgment always bears the

initial responsibility of informing the district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue

of material fact.") A party opposing summary judgment may do so i@' L, by demonstrating

the incompetence of a witness, the inadmissibility of evidence, or the failure of the evidence to

11

conclusively establish a necessary fact.

ln this case, the key contested element is whether Bulletin publication constitutes notice

to Customs. Defendant has submitted to the court competent declarations demonstrating that, in

fact, its employees who are concerned with liquidation neither necessarily regularly read nor rely

upon, the contents of that publications Travelers has not responded to Defendant’s evidence with

competent countervailing evidence. g Plaintiff' s Response at 2, 11. lt failed to do so at its

legal peril.

1

Customs Has Demonstrated the Bulletin Is Not an Unambiguous Form of Notice

Defendant has submitted to the court four Customs employee declarationsg to

demonstrate the ambiguous nature of the Each declaration provides relevant factual

information on personal knowledge about the way the interplays with everyday work at

Customs,

a

Declaration of Dirik Lolkus

ln essence, Defendant argues that its employees actually charged with liquidation

simply do not necessarily read each copy of the Bulletin, and that in any case, they are trained

and instructed not to rely on its contents. Central to Customs’ argument is the Lolkus

Declaration.

s § Defendant’s Response and Cross Motion, Attachment A: Declaration of Karen Biehl ("Biehl

Declaration"); Attachment B: Declaration of Dirik J. Lolkus ("Lolkus Declaration"); Attachment C:

Declaration of David Genovese ("Genovese Declaration"); Mr. Genovese is the Chief of the

Antidumping/Countervailing Duty Policy and Programs Branch. Genovese Declaration at l 11 1_

9 Customs submitted the factual Biehl Declaration, Lolkus Declaration, and Genovese Declaration as well

as a legal/factual analysis. Attachment D: Declaration of Edward Maurer. ("Maurer Declaration”).

12

Mr. Lolkus is a Senior lrnport Specialist at the Port of Los Angeles. Defendant’s

Response and Cross Motion, Attachment B: Declaration of Dirik Lolkus ("Lolkus Declaration")

at 1 11 1. Lolkus was the team leader of Tearn 737, the team which handled the entries at issue

and he has no recollection of noticing the 1997 Zenith ll decision in the Bulletin. ld_: at 2 ‘|l 4.

More importantly, however, he sets out clearly, the general practices in which he and his team are

trained:

[I]mport specialists are instructed to stay current on information relating

to their work, and providing a copy of the Bulletin is one way that import

specialists are encouraged to stay current. However, reading the Bulletin

is not required. lt is up to each specialist, to the extent he or she believes

necessary or appropriate to review the Bulletin for information that may

be relevant.

Lolkus Declaration at 1-2 1111 2-5 (emphasis in original).

He goes on:

[I]mport specialists are specifically instructed that the only source for

instructions upon which they are to take action with respect entries

subject to antidumping or countervailing duties ... are the instructions

contained in messages that are posted to what is known as the OTO3

bulletin board.

ld_. ‘[Hi 5, 7 (emphasis in original).

Defendant has offered probative evidence that the Bulletin is not the unambiguous notice

of lnt’l Trading, Irnport specialists are not required to read the , and the amount of time

an import specialist might spend on reading the varies widely. Lolkus Declaration at 2-3

1111 3, 5-7. Given its failure to refute Lolkus’s testimony, Travelers has not proved that the

is a "familiar manner of providing notice" as described in lnt’l Trading, 231 F.3d at

1275.

13

The Lolkus Declaration is evidence that the is not unambiguous notice to the

"reasonable Customs official." NEC Solutions, 411 F.3d at 1346. Defendant has given

unchallenged evidence ti'orn a "reasonable Customs official" (Lolkus) that illustrates that

publication in the was not unambiguous notice. l_<L

The Lolkus Declaration is relevant to the core question here,w and is made upon personal

knowledge, it is properly submitted under CIT Rule 56(c), and to the extent it might represent

hearsay, it would qualify for a business records exception under Fed. R. Evid. 803(6). _S__g_e United

States v. Emeno a, 1 F.3d 473, 485 (7th Cir. 1993); USCIT R. 56(c). The Lolkus Declaration

factually demonstrates that Customs’ employees may properly fulfill their duties without reading

the Bulletin, that the Bulletin is specifically not regarded as a proper source for liquidation

information, and that it may well have no significance at all to a Customs officer doing his or her

routine liquidation duties. Lolkus’s Declaration is supported by other competent evidence.

b

Declaration of David Genovese

Defendant argues that: (1) Customs employees who actually liquidate are not required to

read each copy of the , (2) the Los Angeles antidumping duty branch employees did not

likely know about , and (3) that Customs workers may only receive liquidation messages

from the OTO3 electronic _l;ql@ board. Defendant’s Response and Cross Motion at 9;

Defendant’s Reply at 4-5; Defendant’s Response and Cross Motion, Attachment D: Declaration

of David Genovese ("Genovese Declaration") 1111 3-7 .

‘° Plaintiff argues "we submit that, to experienced Customs personnel the significance of the publication of

(Zenith ll) in the Bulletin was absolutely clear." Plaintiff’ s Motion at 17.

14

Genovese addresses those issues. The Branch he headsll acts as a liaison between field

offices (the ports) and Commerce conceming the liquidation of entn`es, id at 2 '|l 3, and as part of

its duties it actually prepares the liquidation instructions for the OTO3 message board which it

checks with Commerce before posting lrL at 2 11 5.

Mr. Genovese states that import specialists at the ports are "instructed that the OTO3

electronic bulletin board is the g source they are to rely upon for processing any affected

entries." lcj; (emphasis added). He adds that “reading the is not required of personnel in

this Branch." lgl_._ at 2 11 5.

The “Branch does not receive a copy of the[_l?_»_im<_etin]," and it does "not have any record

of the [Zenith ll] opinion having been pointed out to us for purposes of reading or reviewing or

for taking action up to and including the time we received the instruction which we subsequently

disseminated at Message 5035206 dated February 4, 2005." Genovese Declaration at 2 11 7.

Because it provides factual evidence tending to prove that reading the copy of Zenith ll in

the was neither necessary to prepare the OTO3 notice, nor that it was actually read by his

Branch, the Genovese Declaration supports Defendant’s contention that the Zenith ll publication

in the l did not constitute unambiguous notice of the sort required by the deemed

liquidation rule. § discussion 1 Part IV, D, la. That is not to say that the OTO3 posting

board is the only notice to Customs, m_e §lj@, 283 F.3d at 1364, just that the

publication here was not notice under the facts provided.

“ Mr. Genovese is the Chief of the Antidumping/Countervailing Duty Policy and Programs Branch, Office

of Trade Policy & Programs, Office of lntemational Trade, United States Customs and Border Protection.

Genovese Declaration at 1 11 l.

15

c

Declaration of Karen Biehl

One of Traveler’s central assumptions is that publication in the is equivalent to

notice to all Customs employees. "There is no question that each is circulated widely

within Customs because the Govemment Printing Office ‘currently prints approximately 2,700

copies of each issue"’. Plaintiff’ s Motion at 15 citing § Ex. 9 at 6, Defendant’s Response to

Plaintiff s First lnterrogatory and Request for Production (April 26, 2007), Answer to

lnterrogatory No. 15. As a factual proposition Defendant attacks this assumption through the

Declaration of Karen Biehl, Defendant’s Response and Cross Motion. Attachment A: Biehl

Declaration ("Biehl Declaration").

Biehl notes that under current practice 2,421 copies of the are printed and that

"about 2000" copies are sent to Customs offices where, according to Defendant, it currently

employs approximately 43,000 people. Biehl Declaration at 2 11 6; Defendant’s Response and

Cross Motion at 15 n. 16 (citing Perfonnance and Accountabilitv Ret)ort, Fiscal Year 2006, at 2,

available at http://nemo.cbp.gov/ot?customs_report.pdf) Neither party seems to be aware of the

numbers for 1997, though Ms. Biehl asserts the practices are the same. Biehl Declaration at 2 1[ 7.

Ms. Biehl’s statements, while not dispositive since they deal with an unrecorded past,

tend to indicate that Customs followed its current practice of distributing the to its

employees at a ratio of less than twenty to one. Plaintiff has not even attempted to refute that

factual assertion. Thus, the evidence presented in the Biehl Declaration tends to disprove

Plaintiff' s assertion that publication in the Bulletin necessarily reached all Customs employees.

16

d

Declaration of Edward Maurer

lr1 its Motion for Sumrnary Judgment, Plaintiff relies on discovery responses where

Defendant states that: (1) the ’s purpose "is generally, to educate and inform the public of

matters conceming Customs and related subjects"" (Plaintiff’ s Motion at 15 Ex. 9 at 2 11 3) and

(2) the subtitle of the including the language "Weekly Compilation of Decisions ...

Conceming Customs and Related Matters of the ... U.S. Court of Appeals for the Federal Circuit

..." (i;d.), to prove that "one or more of the members of Team 737 generally reviews the

"13 (L Ex. 10 at 2 11 4) and that a Customs’ employee may read "one or more of the items

in the m quite caeaiiiy""* rn Ex. 10 ar 2 s 3).‘5

Even without further contradiction, Plaintiff’ s reliance upon these Responses for the

propositions stated is, at best, attenuated. Defendant has not, however, chosen to rest on that

failure. Edward Maurer, a lawyer at Customs, provided a declaration stating that he reviewed

publication of the Lle__;_tm for the years 1995 through 200016 and determined that publication of

Federal Circuit opinions during that time "did not seem to follow any consistent pattem."

12 Defendant’s Response to Plaintiff" s First lnterrogatory and Request for Production, (April 26, 2007),

Answer to lnterrogatory No. 3.

'3 Defendant’s Response to Plaintiff’s Second lnterrogatory and Request for Production, (June 2, 2007),

Answer to lnterrogatory No. 4.

14 I_d., Answer to lnterrogatory No. 3.

15 In its reliance on these responses, Plaintiff fails to note both Defendant’s objections and, more

importantly its full response to lnterrogatory No. 3 in the Second lnterrogatory which notes that ..the

degree of attention an employee may pay to the Bulletin may vary from week to week, and may run the

gamut from paying no attention to reading one or more items in the Bulletin quite carefully." I_d. lt is

difficult to assess the validity of the objections, or indeed the full intent or impact of the responses, since

neither party provided the court with the interrogatory questions to which the documents respond.

16 Except for certain minimal missing issues, id at 1 ‘|l 2.

17

Defendant’s Response and Cross Motion, Attachment D: Declaration of Edward N. Maurer at 1 11

3. His analysis of the timing of case publication supports that conclusion. Ld. at 2 1111 4a-6.

Thus, because publication of Federal Circuit opinions is not consistent, the BLIL,

according to Defendant, cannot be relied upon for notice, and therefore there was no reason any

Customs employee should have been expected to take notice from it. The argument is

persuasive, not least, because Plaintiff provides no m to refute it. Rather, Plaintiff continues

in its (Response and Opposition) to either attempt to apply the facts demonstrated by Defendant

to its version of the law, (@, gg. Defendant’s Response and Cross Motion at 15 n. 16), or to

ignore them entirely. The failure to assert genuine issues of contravening material facts is, when

taken with the law, fatal to Plaintiff" s case.

2

Plaintiff Has Not Refuted Customs’ Declarations and Has Not Adequately Proven That the

Bulletin ls Unambiguous Notice

Defendant relies on the factual information submitted in the Customs workers’

declarationsn to prove its summary judgment argument that the publication of Zenith ll in the

did not constitute unambiguous notice and that Travelers has not met its burden of

proving that there are no genuine issues of fact. The declarations offer proof that the Customs

employees who liquidated the entries had: (1) no responsibility to read the ; (2) were not

aware of the publishing of the Zenith ll decision in the ; and (3) did not rely on the

to liquidate the entries. §§ Lolkus Declaration at 2-3 11 3, Genovese Declaration at 2 1111

5~»7. Travelers argues that the Customs workers’ declarations are irrelevant. Plaintiff’ s Response

" § Biehl Declaration; Lolkus Declaration Genovese Declaration; Maurer Declaration.

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at 2. Travelers however, does not provide any evidence to contradict the proof provided through

the declarations because it claims the issue to address is solely "whether Customs, as an agency,

received legally adequate notice that the suspension of liquidation had been removed, not

whether a particular individual actually read the Zenith [ll| decision in the §1@.” l;d_

When the party moving for summary judgment supplements its Motion for Summary

Judgment by affidavit or other material, the non-moving party "carmot respond with mere

allegations." (W First Nat'l Bank v. Cities Serv. Co.. 391 U.S. 253, 289, 88 S. Ct. 1575 20 L.

Ed. 2d 569 (1968)), nor may the non-moving party rest on mere assertions made in pleadings,

legal memoranda, or oral argument. Y Bercklev lnv. Group Ltd. v Colkitt, 455 F.3d 195, 201

(3d Cir. 2006); USCIT R.56(e). Customs has submitted proof that the Bulletin is not

unambiguous notice. Travelers has neither refuted Customs’ evidence nor does it provide any

case law, statutes, affidavits, declarations, or otherwise to demonstrate that the declarations are

irrelevant or inadmissible. §§ Plaintiff’ s Response at 10~11. Travelers’ assertions of fact,

unreinforced by evidence, are only unfounded assertions. A "non-moving party is required to

provide opposing evidence under [CIT]Rule 56(e)18 only if the moving party has provided

evidence sufficient, if unopposed, to prevail as a matter of law." Saab Cars USA, lnc. v. United

States, 434 F.3d l359, 1369 (Fed. Cir. 2006). See e.g., Sweats Fashions, lnc. v. Parmill K_nitting

Co., lnc. 833 F.2d 1560, 1562 (Fed. Cir. 1987[ ("where amovant has supported its motions with

m CIT Rule 56(e) provides in part,

When a motion for summary judgment is made and supported as provided in

of the adverse party’s pleading, but the adverse party’s pleading by affidavits

or as otherwise provided in this rule, must set forth specific facts showing there

is a genuine issue for trial. If the adverse party does not so respond, summary

judgment, if appropriate shall be entered against the adverse party.

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affidavits or other evidence which, unopposed, would establish its right to judgment, the non-

movant. .. must proffer countering evidence") (emphasis added). The Customs declarations

prove that the Bulletin is not unambiguous notice and provide evidence that reinforces Customs’

summary judgment claim. Travelers’ failure to offer countervailing evidence: 1) is fatal to its

claim that the Bulletin constitutes unambiguous notice, and 2) renders its motion for summary

judgment untenable.

V

CONCLUSION

Plaintiff has not proven on the basis of law or fact that publication in the is

unambiguous notice, nor has Plaintiff responded to or refuted Defendant’s factual declarations.

Additionally, Plaintiff has not proven that publication in the is the same sort of

unambiguous notice as publication in the Federal Register. Given that arnbiguity, the deemed

liquidation rule does not apply. For the foregoing reasons, Plaintiff’ s Motion for Summary

Judgrnent is DENlED, Defendant’s Motion for Summary Judgrnent is GRANTED. The

antidumping duty rate 7.43% that was applied to the 17 Funai USA entries of CTVs from

November 1987 to March 1988 is AFF[RMED.

___/s/ Evan J. Wallach_

Evan J. Wallach, .ludge

Dated: September 29, 2008

New York, New York

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