Opinion

Isaac Industries, Inc. v. United States

  • 780 F. Supp. 2d 1372
  • 33 I.T.R.D. (BNA) 1797
  • 2011 Ct. Intl. Trade LEXIS 93
  • 2011 WL 3320733
Court
United States Court of International Trade
Filed
Aug 2, 2011
Status
Published
Author
Pogue
On the bench
Pogue
Cited by
1 cases
Authority
More cited than 47.1%

The opinion

SLIP OP 11-93

UNITED STATES COURT OF INTERNATIONAL TRADE

ISAAC INDUSTRIES, INC.,

Plaintiff,

Before: Pogue, Chief Judge

Court No. 07-00178

v.

UNITED STATES,

Defendant.

OPINION

[Defendant’s motion for summary judgment is granted.]

Dated: August 2, 2011

Peter S. Herrick, PA (Peter S. Herrick) for Plaintiff Isaac

Indus.

Tony West, Assistant Attorney General; Barbara S. Williams,

Attorney in Charge, International Trade Field Office, Commercial

Litigation Branch, Civil Division, U.S. Department of Justice

(Edward F. Kenny); Sheryl A. French, Of Counsel, Office of

Assistant Chief Counsel, International Trade Litigation, U.S.

Bureau of Customs and Border Protection for Defendant United

States.

Pogue, Chief Judge: In this matter, Plaintiff Isaac

Industries (“Isaac”) seeks review of the Defendant United States

Customs and Border Protection Service’s (“Customs”) denial of

Isaac’s claims for drawback.1 Plaintiff filed drawback claims

1

A drawback is the refund of duty paid on an import that is

subsequently re-exported. 19 U.S.C. § 1313(a) (2006). Further

Court No. 07-00178 Page 2

and related protests during a transitional period within which

Customs closed the Drawback Center at the Port of Miami (“Miami

office”) and gradually transferred claim processing to the

Drawback Center at the Port of Los Angeles (“Los Angeles

office”). Plaintiff alleges that the Los Angeles office had no

authority to make drawback determinations denying its claims.

Before the court are Defendant’s motion for summary judgment

and Plaintiff’s cross-motion for a stay of the proceedings and

remand to the Miami office. The court has jurisdiction pursuant

to 28 U.S.C. § 1581(a).

After a brief review of relevant background and the standard

of review, the court will explain below that there is no genuine

dispute as to any material fact, Customs properly denied

Plaintiff’s drawback entries and protests, and Plaintiff’s

summons is untimely filed. Accordingly, Defendant’s motion for

summary judgment is granted.

BACKGROUND

Prior to July 2002, Isaac imported polyether polyol into the

United States, later re-exported it, and filed three separate

drawback entries2 (“entries”) for this merchandise with Customs’s

citations to Title 28 of the United States Code are to the 2006

edition.

2

Plaintiff filed AGK-4509025-7 on July 17, 2002; and AGK-

0613025-8 and AGK-1234567-6 on July 31, 2002. Def.’s Mot. Summ.

J. 2.

Court No. 07-00178 Page 3

Miami office.

Shortly thereafter, Customs adopted and published a final

rule announcing the planned closure, on July 23, 2003, of the

Miami office for processing drawback claims. Consolidation of

Customs Drawback Centers, 68 Fed. Reg. 3381, 3381 (Dep’t Treasury

Jan. 24, 2003). The rule promulgated a “phased-in” closure plan,

requiring the Miami office to continue processing unliquidated

claims for twelve months following the date of effective closure,

i.e., until July 23, 2004.3 Id. After July 23, 2004, the Miami

Office would forward all unprocessed claims to the Los Angeles

drawback center. Id. at 3383.

Customs ultimately denied all three of Isaac’s drawback

claims, on December 22, 2004, and, in a January 21, 2005 letter

from the Los Angeles office, notified Isaac of the denial and

liquidation of the three entries without any drawback. Letter

from John S. Beck to Isaac Industries, Jan. 21, 2005, ECF No. 39-

2 at 2 (“Drawback Denial Letter”). Furthermore, Customs posted a

bulletin notice, detailing the liquidation, at the Port of Miami

3

An initial error in the parties’ motions contended that

the Miami office closed in November 2004, which would have

extended its jurisdiction accordingly until November 2005. Pl.’s

Mot. Opp. Def.’s Mot. Summ. J. 2; Def.’s Mot. Summ. J. 3. Both

parties corrected the error in a conference call with the court

and agreed that the Miami Office closed on July 23, 2003.

Court No. 07-00178 Page 4

on February 5, 2005.4 Customs Bulletin Notice of Entries

Liquidated for February 4, 2005, ECF No. 39-2 at 14 (“Bulletin

Notice”).

On April 18, 2005, Plaintiff filed a protest of Customs’s

drawback denial. Protest No. 2704-05-100868 regarding Drawback

Entry No. AGK-4509025-7, AGK-0613025-8, and AGK-1234567-6, Apr.

18, 2005, ECF No. 39-2 at 16–18 (“First Protest”). Customs later

sent Isaac a letter stating that “[d]rawback protest[s] can no

longer be filed in the Miami Port. Please submit protest to a

port where drawbacks are filed.” Decl. of Peter S. Herrick, Jun.

8, 2005, ECF No. 42-2 at 11, (“Resolution Request”). The record

contains copies of Isaac’s protest forms stamped “Received” by

the Los Angeles Office. Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 5;

First Protest 16. The Los Angeles office denied Isaac’s protest

on November 9, 2005, reasoning that the protest “had no support

and no amendment [was] received within 180 days.”5 First Protest

4

“The bulletin notice of liquidation will be posted for the

information of importers in a conspicuous place in the

customhouse at the port of entry . . . . This posting or lodging

will be deemed the legal evidence of liquidation. For electronic

entry summaries, the date of liquidation will be the date of

posting of the bulletin notice[.]” 19 C.F.R. § 159.9(b) - (c)(1)

(2011).

5

According to the relevant regulations, “[a] protest may be

amended at any time prior to the expiration of the period within

which the protest may be filed . . . . [It] may assert additional

claims pertaining to the administrative decision . . . relating

to the same category of merchandise that is the subject of the

protest.” 19 C.F.R. § 174.14(a) (2011).

Court No. 07-00178 Page 5

15-18.

Plaintiff commenced this action on May 24, 2007 to contest

the denial of its protests.6 Ct. Summons 1-2. Defendant moves

for summary judgment, claiming entitlement to judgment as a

matter of law because the court lacks jurisdiction over

Plaintiff’s untimely complaint.

STANDARD OF REVIEW

The court may grant a party’s motion for summary judgment

when “there is no genuine issue as to any material fact,” and

“the movant is entitled to judgment as a matter of law.” USCIT R.

56(c). Genuine issues entail “[m]aterial issues [that] arise

6

On April 18, 2006, a year after the first set of protests,

but before filing suit, Plaintiff filed a second set of protests,

this time with the Los Angeles office. Def.’s Mot. Summ. J. 4.

Customs denied this second set of protests on July 20, 2006,

stating that it was untimely filed. Protest No. 2704-06-101358

regarding Drawback Entry No. AGK-4509025-7 (Jul. 20, 2006);

Protest No. 2704-06-101359 regarding Drawback Entry No. AGK-

0613025-8 (Jul. 20, 2006); Protest No. 2704-06-101360 regarding

Drawback Entry No. AGK-1234567-6 (Jul. 20, 2006)(ECF No. 39-2 at

19-22). During this second round of protest evaluation, Isaac’s

counsel sent a June 5, 2006 letter to Customs, in which he

explained that he “did not file an amendment [during the original

protest evaluation] because [he] did not have the protest

number[.]” Letter from Peter S. Herrick to Port Director, Long

Beach Drawback Branch Office, June 5, 2006, ECF No. 39-2 at 24.

Plaintiff’s counsel further claimed that he had originally sought

the protest number via a June 7, 2005 letter, and in turn, now

requested “the opportunity to amend the protest.” Id. Customs

thus labeled the June 7, 2005 letter as a “§ 1520(c) claim,”

which it denied on January 19, 2007 as untimely filed. Letter

from John Beck, Drawback Specialist, U.S. Customs and Border

Protection, to Isaac Industries, Jan. 19, 2007, ECF No. 39-2 at

26–27); Def.’s Mot. Summ. J. 5. Isaac, however, does not rely on

or raise its second set of protests here.

Court No. 07-00178 Page 6

when ‘facts . . . might affect the outcome of the suit under

governing law[.]’” Trumpf Med. Sys., Inc. v. United States, __

CIT __, 753 F. Supp. 2d 1297, 1305 (2010) (citations omitted).

Whether jurisdiction exists is a question of law. See Sky

Techs. LLC v. SAP AG, 576 F.3d 1374, 1378 (Fed. Cir. 2009).

Plaintiff, “[the] party seeking the exercise of jurisdiction in

its favor[,] has the burden of establishing that . . .

jurisdiction exists.” Rocovich v. United States, 933 F.2d 991,

993 (Fed. Cir. 1991) (citing KVOS, Inc. v. Associated Press, 299

U.S. 269, 278 (1936)).

DISCUSSION

Plaintiff’s alleged issues of material fact

In opposing summary judgment, Plaintiff alleges four

disputed material facts: (1) its awareness of the drawback

authority transfer to Los Angeles; (2) the timing of the port of

Miami’s retention and transfer of jurisdiction; (3) the

controlling nature of Customs’s bulletin posting in Miami; and

(4) the location and timing of Plaintiff’s first set of protests.

Each is discussed, in turn, below.

First, Plaintiff claims that it was unaware of Customs’s

decision to close its Miami office, generating a “misleading”

process that culminated in this case. Pl.’s Mem. Opp. Def.’s

Court No. 07-00178 Page 7

Mot. Summ. J. 5-6.7 This argument is unavailing. “The

publication of rules . . . in the Federal Register gives legal

notice of their contents to those subject to, or affected by,

them, ‘regardless of actual knowledge . . . or of the hardship

resulting from innocent ignorance.’” Higashi v. United States,

225 F.3d 1343, 1349 (2000) (citing Federal Crop Ins. Corp. v.

Merrill, 332 U.S. 380, 385 (1947)).8 Isaac therefore cannot rely

on its unawareness of the Miami office’s planned closure to argue

that the Los Angeles office lacked jurisdiction over drawback

claims.

Plaintiff’s second factual contention asserts that the

Federal Register notice mandated that the Port of Miami would

retain drawback jurisdiction during the period in question.

Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 6 (“the Port of Miami was to

retain unliquidated drawback entries until November, 2005, or

July, 2005"). This argument, however, relies on a flawed reading

of the Federal Register notice. The notice explicitly states

7

Because of this lack of awareness, Isaac argues, it filed

its protests with the Port of Miami, thereby leading Plaintiff to

allege that the Miami office, not the Los Angeles office, had

jurisdiction over its drawback claim. Pl.’s Mem. Opp. Def.’s

Mot. Summ. J. 5-6.

8

See also Cathedral Candle Co. v. U.S. Int’l Trade Comm’n,

27 CIT 1541, 1549 n.10, 285 F. Supp. 2d 1371, 1378 n.10 (2003)

(“[T]he publication of an item in the Federal Register

constitutes constructive notice of anything within that item”)

(citations omitted).

Court No. 07-00178 Page 8

that the Miami office would retain jurisdiction over all

unprocessed drawback claims for a year after its effective

closure date of July 23, 2003; after July 23, 2004, the Los

Angeles office would assume jurisdiction over all of the Miami

office’s unprocessed claims. Consolidation of Customs Drawback

Centers, 68 Fed. Reg. at 3381-83. Thus, Plaintiff erroneously

claims that the Miami office still had authority to assess

drawback claims through July or November 2005.9 It is clear that

at all times during the period in question,10 the Los Angeles

office had jurisdiction to assess drawback entries. See

Consolidation of Customs Drawback Centers, 68 Fed. Reg. at 3381-

83.

Plaintiff’s third contested factual issue turns on the

bulletin notice posted at the Port of Miami. Plaintiff contends

9

July 2005 represents an incorrect calculation based on the

original Federal Register notice, which effectively transferred

jurisdiction in July 2004. Consolidation of Customs Drawback

Centers, 68 Fed. Reg. at 3381-83; Pl.’s Mot. Opp. Def.’s Mot.

Summ. J. 2. The mention of November 2005 can be attributed to the

parties’ earlier erroneous assertion that the Miami office closed

in November 2004. See infra note 5 (highlighting the parties’

initial confusion over the Miami office’s actual closing date).

10

Plaintiff originally filed the claims with the Miami

office in 2002, when that office was still open, but Customs did

not make the drawback determination until the period from

December 22, 2004 to February 5, 2005, during which it denied

Plaintiff’s drawback entries, formally notified it of the denial

(with extensive documentation of the reasons), and then posted

the liquidation results. Bulletin Notice at 14; Drawback Denial

Letter at 2; Drawback Entry Forms at 3-14.

Court No. 07-00178 Page 9

that “Miami had the authority to act on these entries which it

did on February 5, 2005 by liquidating [them with] no change.”

Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 3. While February 5, 2005

was the legal date of the liquidation, Plaintiff’s argument

builds upon a misunderstanding of this posting.11 Just because a

notice of liquidation is posted at a particular port does not

mean that the port itself possesses drawback authority. Granted,

Isaac filed its claims in Miami when the Miami office was still

open, but the claims were properly transferred, along with

jurisdiction, to Los Angeles.12 Therefore, the existence of a

Miami bulletin notice posting does not preclude the Los Angeles

office’s authority to review Plaintiff’s drawback claim. See 19

C.F.R. § 191.61; Consolidation of Customs Drawback Centers, 68

Fed. Reg. at 3381-83.

In Plaintiff’s fourth basis for its cross motion, it claims

that the Miami office should have made the drawback determination

because Isaac filed its protests with the Port of Miami on April

11

The bulletin must be posted at the customhouse at the

port of entry of the goods in question. 19 C.F.R. § 159.9(b). As

such, Customs was legally required to post the bulletin at the

Port of Miami because that is where the goods in question were

entered.

12

19 C.F.R. § 191.61(a)(2) also enables “[t]he port

director selecting the claim for verification [to] forward” the

claim “to other drawback offices when deemed necessary.”. 19

C.F.R. § 191.61(a)(2). Clearly, the closure of a port’s drawback

office would qualify as such a necessary situation.

Court No. 07-00178 Page 10

29, 2005. Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 2. The legal

authority to process the claims, however, lay with the Los

Angeles Drawback Center. In addition, the initial denial of

Plaintiff’s drawback claim, which came from the Los Angeles

office, and the June 8, 2005 Customs letter related thereto both

clearly indicate that the Los Angeles office had taken over

processing Plaintiff’s claim.13 See Resolution Request at 11;

Drawback Denial Letter at 2. As noted earlier, the Miami Office

closed in July, 2003 and transferred all remaining claims to the

Los Angeles office by July, 2004. Plaintiff has no basis for

claiming that the Miami Office should have made the drawback

determination, especially when that office had been closed for

two years.

Therefore, there is no genuine issue of material fact in

dispute, and the court will consider Defendant’s motion for

summary judgment. USCIT R. 56(c).

Defendant’s motion for summary judgment

Customs properly asserts that this court may not hear

Plaintiff’s claim because it is untimely filed. 28 U.S.C.

13

The record reflects this change of authority. While

Isaac’s counsel avers that he faxed the protests to the Port of

Miami on April 29, 2005, Defendant’s copies of the same forms

suggest that they were first received by the Los Angeles office.

See First Protest at 16 (highlighting the fact that Customs has

submitted copies of Plaintiff’s protests marked as “RECEIVED” by

the Los Angeles office).

Court No. 07-00178 Page 11

§ 2636(a) requires that an action contesting the denial of a

protest must be filed within one hundred and eighty days after

the date of denial. 28 U.S.C. § 2636(a). Customs argues that

because Isaac filed its summons on May 24, 2007, long after

Customs’s November 9, 2005 denial of its April 29, 2005 protests,

the court cannot consider Plaintiff’s complaint.14 Def.’s Mot.

Summ. J. 11. Plaintiff correctly responds that the protests

themselves were timely, having been filed fewer than 180 days

after Customs’s liquidation. 19 U.S.C. § 1514(c)(3)(A); Pl.’s

Mot. Opp. Def.’s Mot. Summ. J. 7-8. However, the timely filing

of a protest does not change the fact that Isaac filed its

complaint more than a year and a half after Customs’s protest

denial and well past the 180 day statutory time limit for such a

filing. See 28 U.S.C. § 2636(a).

Thus, because Isaac filed this action outside of the

statutory time limits, the court may not hear this case. See

Computime, Inc. v. United States, 8 CIT 259, 261, 601 F. Supp.

1029, 1030 (1984) (“[P]laintiff’s remedy was to file an action in

this court within 180 days of notice of the denials . . . not

file another set of protests”).

14

Customs further argues that Isaac’s second set of

protests were invalid and that this court has no jurisdiction

over the rejection of Isaac’s § 1520(c) claim. Because Isaac has

not addressed these issues, the court need not consider them.

Court No. 07-00178 Page 12

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary

judgment is granted, and Plaintiff’s cross-motion for a stay of

the proceedings is denied.

/s/ Donald C. Pogue

Donald C. Pogue, Chief Judge

Dated: August 2, 2011

New York, N.Y.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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