Brief in Opposition to Petition for Writ of Certiorari — United States v. Cajo Trading, Inc.

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JUN <¥ 1968

“Ie THE’.

Supreme Court of the Mniten States

OCTOBER TERM, 1968 .

UNITED STATES OF AMERICA,

Petitioner

% Vv.

CaJO TRADING, INC.

On Petition for'a Writ of Certiorari to the United

States Court of Customs and Patent Appeals

Ss

BRIEF FOR THE RESPONDENT IN OPPOSITION

JAMES R. SHARP

Attorney for Respondent

1108 - 16th’ Street, N.W.

Washington, D.C. 20036

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\ INDEX

Opinions below

Jurisdiction -

* Questions presented ; , a .

Statutes involved

Statement

Reasons for denying the writ .

Argument <n :

Conclusion

¢

CITATIONS

Cases: i

American Bitumuls & Asphalt Co. et al v. United

' States, 37 U.S. Cust. Rep. 58, 68, C.D, 1799 ___

Badger v. Custmano, 130 U.S. 39.

Buttfield y. Stranahan, 192 US. 470, 48 L. ed.

525, 24 S. Ct. 349

Erhardt v. Schroeder, 155 U.S. 124

Falcon Sales Co. v. United States, 47 Cust. Ct. 129,

C.D. 2292

Field v. Clark, 148 U.S. 649; 86 L, ed. 294, 128. Ct.

495

Hampton, Jr. and Co. ¥. United States, 276 US.

~—-« 94, 72 L. ed. 624, 48 S, Ct. 348

James S. Kean V. United States, 20 C.C.P.A. (cm

toms) 888, T.D. 46186 (1933)

Mahler v. Eby, 264 U.S. 82, 44 S. Ct. 283, 68 L. ed.

549

Muser.v. Magone, 155 U.S. 240

Norwegian Nitrogen Prod. Co. v. United States,

288 U.S. 294, 77 L, ed. 796 (1933) -

_ Oberteuffer v. Robinson, 116 U.S. 499

| Panama Refining Co. v. Ryan, 298 U.S. 388, p. 421

79 L. ed. 446 (1935)

Robertson v. Prank Bros. Co., 182 U.S. ‘17

. r

ii : FNDEX: (Continfied)

Page

’ Stahel & Co. v. United States, 11 Ct. Cust. App.

_ 1430, T.D. 89485 (1923) __. 12

Stein v. United States, 1 Ct. Cust. App. 36, T.D.

81007 (1910) 12

Stubbs v. United States, 7 Ct. Cust. App. 399, T. D.

_ 86967 (1917) 13

United States v. Bush & Co., 310 U.S. 371, 379,

84 L, ed. 1259 (1940). 8

Untted States v. William Heyer, 31°C.C.P.A. (Cus- ©

toms) 111, C.A.D. 259 (1943) 13

United States V. C. O.: Mason, Inc., 5 C.C.P.A. 107, /

C.A.D. 994, certiorari denied, 379 U.S. 999, 138

L. ed. 2d 701 (1965) 3, 5, 6,10, 11, 14

United States v. Alex Murphy & Co., 16 Ct. Cust.

App. 461, T.D. 48210 (1929) 13

United States v. Passavant, 169 U.S. 16 (1898) 11, 12, 13

United States v. James H. Rhodes & Co., 40

C.C.P.A. (Customs), 1 C.A.D. 488 (1952). 13

. United States v. Tampa Boz Co., 15 Ct. Cust. App. — .

360, T.D. 42561 a 13

Statutes:

. Tariff Act of 1930:

/ ‘Section 505, 46 Stat. 732, 19 U.S.C. 1505 _.._2, 3, 4, 6

Section 514, 46 Stat. 734, 19 U.S.C. 1514.2, 8, 4, 14

_ Customs eee Act of 1890

Section 18, 26 Stgt. 181, 187 , 12

Customs Administrative Act of 1938

_ Section 16(b), 52 Stat. 1084, 28 U.S.C.

2636 (d) 13

* Miscellaneous: | |

U.S. Constitution, Article I, Sections 1, 7 and 8 A,

Presidential Proclamation No. 3211 (T.D. 54498) _2, 3, 10

Sec

-IN THE -

maaan Court of the United States

OcToBER TERM, 1967

No. 1440:

UNITED Grarus. OF AMERICA,

| Petitioner

Yd 4.

Caso TRADING, ‘INC.

BRIEF FOR THE RESPONDENT IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CUSTOMS AND

PATENT APPEALS

Respondent prays that the Petition for a Writ of Cer-

- tiorari filed by the Solicitor General on behalf of the

United States be denied. |

OPIN IONS BELOW

The Customs Court, First Division (56 Cust. Ct.) 148,

C.D. 2621, the Court of Customs and Patent. Appeals

(2 Cust. Bull, No. 10, p. 78, March 6, 1968) both held

for the Plaintiff (the. Respondent here). See Appendix

Petitioner’s Petition. d |

Q \

JURISDICTION “\_,

The judgment of the Court of Customs & Patent Appeals

was' entered on February 15, 1968. A timely petition for

7

rst

- Writ of Certiorari was filed by the United States on May

15, 1968. The jurisdiction of this Court is invoked under

28 U.S.C. 1256..

QUESTIONS PRESENTED

1. On Petition For Writ: Whether the decision below

~ is in conflict with decisions of this Court; whether there

is a conflict in the decisions of the Court below, and -

‘whether a substantial federal yee of substance is in-

volved. .

2. If Writ is Granted: Whether a ‘“iquidation” by.the

Collector of Customs of an entry of imported articles in

“accordance with a void Executive Order of the President

is a liquidation as required by law which becomes final

under Sec, 514 of the Tariff Act of 1930 if not protested

in writing with the Collector within 60 days after the

Collector’s action. In essence, if the writ is granted, the

question is whether a liquidation pursuant to. a yoid duty

rate (the Presidential Proclamation being an exercise of

a legislative function properly delegated but improperly

exercised) is also void.

STATUTES INVOLVED

The relevant provisions of the Tariff Act of 1930, 46

Stat. 732, 19 U.S.C. 1505 are set forth at pages 2 and 3

of the Petition. ‘

STATEMENT

The merchandise involved here, consisting of spring

clothespins, was liquidated -by the Collector of Customs

at. New York on December 27, 1957, and the duties were

assessed at the rate of 20 cents per gross as direeted by

- Presidential Proclamation No. 3211 (T.D. 54493). No

protest was filed by the Respondent against this liquida-

alti PERO Mer ee, | _

I OE NO nm

8

tion within the bs day limitation ‘period prescribed by

Section 514.

Thereafter, on October 18, 1961, the Customs Court,

First Division; in its decision in Falcon Sales Co, v.

United States, 47 Cust. Ct. 129, C.D. 2292, held that. Presi-

dential Proclomation No. 3211 was,“void.” Accordingly, it

held that the 20% rate of duty applied by the Collector

was not the proper rate of duty but that instead the duty

rate: gh0uld have been 10% per gross prescribed by an .

earlier legally issued Presidential Proclamation.

‘The decision in Falcon Sales, not having been appealed,

_ Respondent on January 25, 1963, believing the December

‘27, 1957 Collector’s liquidation to be as void as Presi-

dential Proclomation No. 3211 had been held to be, served -

on the Collector a written demand to liquidate the entry

as provided by law. The Collector refused to do so and

Respondent filed the protest which has given rise to the

present litigation.

Respondent’s position that a valid liquidation had never

‘taken place and that the entry should be liquidated as |

provided by law at the valid duty rate of 10¢ per gross

‘was upheld by the Customs Court. That Court concluded

that there had been no valid liquidation because the De- |

cember 27, 1957 “liquidation” .was pursuant to a void

Presidential Proclamation. Accordingly, the Respondent’s

. protest was dismissed as premature (protests may be

filed only after a liquidation “as provided by law” has

taken place), the Court holding that the Collector was

inder an obligation to liquidate the entry “as provided by.

law” under Sec. 505 of the Tariff Act of 1930.

In reaching its decision, the Customs Court relied on

United States v. €. O. Mason, Inc., 5 CCPA 107, CAD.994,

certiorari denied 379 U.S: 399, 13 L. ed. 2d 701. (1965).

In that decision the Court of Customs and Patent Appeals

held that the Sec. 514 sixty-day protest provision did not’ .

apply to a liquidation under a statute later held to be un-

'

4 ‘

constitutional, beapiie the voidness of the statute made

the subsequent liquidation equally void.

In the decision of the. Customs Court in the present liti- °

gation, the Court found there was no valid distinction

between a liquidation based on an unconstitutional statute

and one based, as here, on an unconstitutional Procla-

mation of the President issued pursuant to the Trade

Agreements Extension Act—both were equally void.

The United States appealed that decision to the United

States Court of Customs and Patent Appeals. By a divided

8-2 opinion,’ that Court affirmed the decision of the lower

Court, (Petitione?’s Brief, App. 23-24) saying:

“We have the same difficulty as did the Customs

Court in finding a valid distinction between an un-

constitutional statute on the one hand, and an invalid

Presidential proclamation on‘ the other—the effect is

‘the same in both cases. * * * we do not think it can

fairly be said that. Congress intended — 514 to

control in either instance.”

The United States now petitions for issuance of a Writ

of Certiorari permitting this Court to review the decision

below... It relies primarily on the contention that the de-

. cision may be applied in matters far beyond the limited

field of customs law and the provisions of Sections 505

and 514 of the Tariff Act of 1930. )

REASONS FOR DENYING THE WRIT

The decision of the Courts below was a just one and to

_ reverse it would violate basic principles of justice and

‘fair play.

The opinion of each of the five Judges of the CCPA was that

the Appellee’s protest should be dismissed, the majority holding

it should be dismissed because it was filed in advance of any valid

'* liquidation having occurred and the minority holding that it should

_ be’dismissed because it was filed more than 60 days after the-

December 27, 1967 liquidation which took place pursuant to the

void Presidential order as to the rate of duty to be applied. to

entries of the article involved. !

5

7 : 4

“ Rule 19 of the Rules of this Court specifies the consid- _

erations which are to govern Review on Certiorari. The

case at hand does not qualify wi review by this Court.

. (a) The question involved is not a question of sub-.

stance, or a case decided contrary to applicable decisions

of this Court.

5 (b) The decision below is not in conflict with the de-

cisions of the Court of Customs and Patent Appeals, the

only appellate court dealing with customs problems. In-

. stead; the-decision is in accordance with that Court's’ de-

cision in M ,

(c) The issues do not involve a state or territorial

question. ies

(d) The decision below does oe involve an important .

question of federal law. ae .*

(e) The decision below has not decided a federal ques-

tion in a way in conflict with any decision of this Court.

(f) The decision below does not depart from any ac-

cepted and usual course of judicial proceedings.

oe ARGUMENT |

Unauthorized acts of government officials often have a

_ gubstantially damaging effect on the citizens affected.

When such an act takes place, the government and the.

courts should minimize and not perpetuate this damage.

To hold that a liquidation based on a void act of the

President is valid because a statute of limitations barred

any question regarding the validity of that liquidation

would be to give validity indirectly to what is otherwise .

invalid. Some might require a man lift himself by his

bootstraps, but not the Courts where justice cannot there-

by be served.

In: order to induce the Court to grant certiorari’ the

Petitioner argues that the decision of ac Court below and

‘the principles therein enunciated may be applied in a

variety of circumstances—some in the area of customs

law not involving void statutes and. void Presidential

Proclamations and some far afield. Petitioner erroneously

assumes:

(a). That the decision of the court below would apply

_ to all improper liquidations made by the Collector.

_(b) The de¢ision ‘is of importance as a precedent to

federal statutes ‘other than the customs statutes, includ-

ing patent and trademark cases.

On! the-basis of these assumptions the Petitioner argues

that the decision involves an important federal question

of substance, i.e., the maintenange of the validity of the

specific terms of all federal statutes of limitations. *

We submit that both the assumptions made by Peti-

+ and and the conclusions drawn therefrom as to the

| question involved and its importance are un-

justified.

Both the Customs Court and the ‘aneiie of the Court

of Customs and Patent Appeals could find .no distinction

between ;the case at hand and the decision in Mason,

supra. In other words, neither found any distinction be-

_ tween a liquidation by the Cellector under a void statute

and one under a void. Presidential Proclamation. The

Customs Court expressed concern about whether its. de-

cision in the case at hand was an exterision. of the Mason

decision relating to a void statute and the minority in the

Court below believed it to be an unjustified extension, the

implications of which could not be readily determined.

But the decisions of both Courts were right. There is

po distinction. Mason held that a liquidation under Sec.

+ 505 under a void statute was not a liquidation “as pro- -

vided by law.” The statute, béing void wb initio, all things

‘flowing therefrom were obviously void for they were not:

“as provided " law. 2g nan

* .

~_T 7

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The: case here involves a liquidation pursuant to a void

Presidential. proclamation adopted pursuant to a Trade

- Agreements Extension Act. While the proclamation was

issued by the President, he was acting in assistance of

the Legislative Branch, ‘and the proclamation partook of

the nature of legislation in that it sought to establish a

. new, rate of duty, something reserved to the Congress

under Article I, Sections I, 7 and 8 of the Constitution.

But it has long been held by this Court that the Con-

gress may properly delegate to the Executive Branch of:

the Government thé determination of a lawful rate of .

» duty to be applied by the Executive pursuant to declared

congressional policies ‘and according to congressionally

established standards. As this Court, speaking through

Mr. Justice Hughes, put it in Panama Refining Co. v.

Ryan, 293 U.S. 388, at p. 421, 79 L. ed. 446 (1935) the

Congress is vested exclusively with legislatively powers

under the Constitution, and

“manifestly is not permitted to abdicate, or to

transfer to others, the essential legislative functions

with which it is thus vested. Undoubtedly legislation

must often be adapted to complex conditions involv- -

‘ing a host of details with which the national legis-

lature cannot deal directly. The Constitution has

never been regarded as denying to the Congress the

» necessary resources of flexibility and practicality,

{ which will enable it to perform its function in laying

down policies and establishing standards, while leav-

ing to selected instrumentalities the making of sub-

‘ordinate rules within prescribed limits and the deter-

mination of facts to which the policy as declared by

the legislature is to apply. Without capacity to give

authorizations of that sort we should have the anoma-

ly of .a legislative power which in many circum-

stances calling for its exertion would be but a futility

”? j . .

The exercise of the delegated power (within the stand-

ards and pursuant to the policies declared by the Con-

gress) is, according to Justice Douglas, but “one stage of

8

the legislative process” both “in substanée and to a great

extent in form.” [Emphasis added.] United States v.

. Bush & Co., 310 U.S. 371, 379, 84 L. ed, 1259 (1940). In

Norwegian ‘Nitrogen Prod. Co. v."United States, 288 U.S.

294, 77 L. ed. 796 (1933) Justice Cardozo, in discussing

. the congressionally authorized process of the initiation of

an increased rate of. duty by means of a Presidential

Proclamation after receipt of Tariff ‘Commuiasion advice,

pointed out (P. 305):

_ “What is done by the Tariff Commission and the

President in changing the tariff rates to conform to-

new conditions is in substance a delegation, though

a permissible one, of the legislative process, [Empha- —

sis added. ] Hampton Jr. and Co. v. United States,

276 U.S. 394, 72 L. ed. 624, 48 S. Ct. 348; Buttfield

v. Stranahan, 192 U.S. 470, 48 L. ed. 525, 24 S. Ct.

349; Field v. Clark, 143 US. 649, 36 L. ed. 294, 12

S. Ct. 495. The inference is, therefore, a strong one

that the kind of hearing assured by the statute to

“those affected by the change is a hearing f the same

‘order as had been given by congression 1 committees

when the legislative process .was in the hands of

. Congress and no one else.”

In the decision in Hampton, Jr. and Co. cited in the

above quotation from the opinion of Judge Cardozo, Chief .

Justice Taft said at page 409:

“If Congress shall lay down by legislative act an

intelligible principle to which the person or body

‘authorized to fix such rates is directed to conform,

such legislative action is not a forbidden —

of legislative power.” |

: referring to the decision of this Court in ‘Seapwn,

Jr., supra, the Court of Customs, in commenting on the

— _constitutionality of a power delegated by Congress to: the

President to set rates of duty under prescribed circum-

stances, pointed out:

“In its essentials, it required on the part of the ~

Congress the establishing of certain criteria to guide

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‘the President and the prescribing of certain limits of

change. On the part of the President it required the

completion of certain conditions precedent and the

use of a proclamation to effect the change in the law.

“It is not open to doubt that, in the case of. the

flexible tariff provisions, it is the proclamation of

the President which changes the law. The President,

acting as the agent of the legislature, proclaims ns

tariff rates. The proclamation is akin to the legis-

lative act, It is not merely declaratory of a situation

which exists -without it—it + is the law itself. .

“As has been said, the use of the device of dele-

.gating authority to the President to change tariff

rates under an intelligible principle: and in acco

ance with certain conditions and limitations was in-

corporated into the Trade Agreements Act and into _

the extensions thereof here involved. ‘Retained as a

basic and integral part of the device was the re- ©

quirement that the President proclaim the modifica-

tions of duties, restrictions upon imports, or customs

or excise treatment of articles covered by foreign

trade agreements. The Act refers, not to the ‘agreed’

duties and other import restrictions, but to the “pro-

claimed’ duties and pther import restrictions, a clear

indication that Congress considered the trade agree-.

ment to’ be in the nature of a condition prece-

dent to the issuance of. a valid proclamation, but

that the change in the law is effected, not by the

trade agreement, but by the proclamation. By this

means, not only is the inherently legislative char-

acter of the act preserved, but also the constitutional

separation of powers is maintained.” American Bi-

tumuls & Asphalt Co., et al v. United States, 37

U.S. Cust. Rep. 58, 68, CD 1799. [Emphasis in part

supplied. ]

The legislative nature of an act of the executive for

which there is no authority other than the delegation of

legislative power is also confirmed by the opinion of

Chief Justice Taft in Mahler v. Eby, 264.U.S. 32 at

page 44, 44 Sup. Ct. 288, 68 L. ed. 549:

“te 10

“tt is essential that’ when the executive is exercis-

ing delegated legislative power he should substantial-

ly comply with all the statutory requirements in its

exercise...” |

_ Essentially, Siciiti a Présidential action such as

Proclamation 3211 under which the merchandise in‘this

appeal was allegedly diquidated, was legislative in nature,

_albeit an action of the Executive within the powers dele-

gated to the Executive by the Congress. And in this lies

-a rational identification with the unconstitutional statute

situation involved in Mason. Also—in this fact lies the

essential difference between the case at hand and theV

much broader circumstances Petitioner asserts the deci-

sion below could be extended to, such as mistakes by the

Collector, whimsical actions. by: an administrative official

in the field of patents and trademarks and | in fact all

federal statutes of limitations.

When the Collector mistakenly. classifies .merchandise

under a wrong section of the statute, his action is not

legislative in.nature. He had no delegated authority to

change. the law—his decision is not law. The President,

however, under the Trade Agreements Extension Act,

was authorized to issue proclamations under stated con-

ditions which changed the law pursuant to the previously

delegated Congressional authority. It cannot be denied

that a validly issued Proclamation under that Act con-

stitutes the law from and after date of its issuance.

Whether it be an Act of Congress setting a rate, or a

‘Proclamation of the President validly issued, it is leg-

islative in character in that it establishes a new. rate.

‘Not so with the mistakes or whimsical acts of other ad-

ministrative officials for in performing such acts they

are engaged in administration pure and simple. Not so

with mistakes by the Courts in the application of laws,

for that is judicial, not legislative in nature. “en

And there lies the dividing line which we believe made

it difficult for the majority below and the Court of Cus-

toms to distinguish between Mason and the case here:

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“We have the same difficulty as’ did the Customs

Court in finding a valid distinction between an un-

constitutional statute on the one hand, and an in-

valid Presidential] Proclamation on the other-+-the

effect is the same in both cases.”

Even the minority of the Court below did not contend

that the decision in Mason was erroneous. Instead, it -

stated: :

“We have gone so far as to make a judicial (not

Congressional) exception in the case of unconstitu-

tional statutes. Now that it has been shown to us.

*.* * where so-called ‘logical’ extensions of that

exception clearly lead, .it behooves us to stop. where

we are and make no further exceptions, for we are

on-a.collision course with express Congressional in-

tent.”

The difficulty with the minority was that it ‘failed to

perceive that both Mason and Cajo involved instances in -

which “the law” pursuant to which the liquidation was

made was void. And not only Mason is right but so is -

-Cajo, for a Presidential Proclamation becomes “the law”

unless, as here, it is void—and all‘ actions taken by the

Executive Department pursuant to a liquidation pursuant i

to a void “law” must perforce be void.

Petitioner fails to cite any decision of the Const below

with which the decision’ in Cajo is in conflict. In fact, |

the decision bélow was held by that Court to be indis-

tinguishable from Mason—which this Court refuséd to

review. Similarly it fails to cite any decision of this Court

which is in conflict with the decision below. Instead, the

' decisions of this Court are in accord with the conclusions

of the Court below and with those in Mason.

The doctrine of void liquidations derives from a long

lineof Supreme Court decisions culminating in United

States v., Passavant, 169 U.S. 16 (1898).

In Passavant the appraiser had included in his ap-

praisement the amount of a tax remitted to the exporter

12- °

by the exporting country. The importer did not. appeal. to

the Board of General Appraisers for reappraisement, but

instead protested after liquidation. Section 13 of the Cus-

toms Administrative Act of 1890' made the decision of

‘the appraiser “final and conclusive as, to the dutiable

value of such merchandise against all parties interested

therein” if’ an. appeal to reappraisement were not taken

within two days after appraisement. This imitation, the

government contended, deprived the Board and the appel-

late courts of jurisdiction to determine the appraisement

issue. i

The Court, however, overruled the govenment’s conten-

tion— ..

. .While the general rule is that the valuation is

iesaticen upon all parties, nevertheless, the appraise-

merit is subject to be impeached where. the appraiser

or collector has proceeded on a wrong principle con- .

trary to law or has transcended the powers conferred

by statute.” (169 U.S. 21)?

and proceeded to hold, on the merits, that the remitted t tax

was not properly a part of dutiable value. |

The Passavant rule has been expressly followed by this

Court and the Court of Customs & Patent Appeals. °

After the establishment of the Customs Court in 1926,*

the rule of Passavant was judicially modified to the ex-

tent that when, upon protest, a liquidation was voided

for any reason requiring further appraisement pro-

|

126 Stat. 131, 187.

a

“r 2 ee also the prior cases reaching the same result. Oberteuffer V. ‘

Robinson, 116 U.S. 499; Badger v. Cusimano, 180 U.S. 89; Robert-

son V. Frank Bros. Co., 132 U.S. 17; Erhardt.v. Schroeder, 155 US.

' .124; and Muser Vv. Magone; 155, U. S. 240.

%See Stein v. United States, 1 Ct.. Cust: App. 36, T.D. 31007

(1910) and Stahel & Co.\v. United States, 11 Ct. owed Aw. 430,

T.D. 39435, (1923). ae

4¢. 411, Secs. 1 and 2, 44 Stat. 669.

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ceedings, the cause was remanded to the collector for a

new appraisement rather than the court itself ‘deter-

‘mining the appraisement question.* Finally, the problem -

of what 'to do with. appraisement questions resulting from ~

the voiding of a liquidation upon protest was. resolved

by the Customs Administrative Act.of 1938°. which re-

quires that such questions be remanded for determination

by a single judge of the Customs Court sitting in reap-

praisement,. -

Thus, Passavant. established the doctrine that an ap-.

praisement will be “impeached,” and the liquidation based

on it voided, if made on “a wrong principle contrary to

law” or if the appraiser or collector “has transcended the

_powers\conferred by statute,” this notwithstanding the PA

statute of limitations which bars the review of appraise- - “f,

ment questions if no timely appeal to reappraisement is”

taken. See United States v. James H. Rhodes & Co.,

- 40 C.C.P.A., (Customs) 1 C.A.D. 488: (1952) ; James S.

_. Kean v. United States, 20 C.C.P.A.. (Customs) 388, T.D.

*46186 (1933) ; United States v.. William Heyer, 81. -

C.C.P.A. (Customs) 111, C.A.D. 259 (1943) ; Stubbs v.

United States, 7 Ct. Cust. App. 399. T.D. 36967 (1917).

Thus there is no conflict in the law as developed judi-

cially. The decisions consistently holdthat a liquidation

tainted. with a constitutional infirmity is void. The in-

corporation ef a rate of duty which derives from a Presi-

dential Proclamation judicially declared void as an over-

stepping by the President of rate setting powers delegated:

to him by the Congress is no less serious an infirmity

than a rate derived from a statute judicially declared to

have been unconstitutional.

The decisions of the Court of Ciel and of the

_C.C.P.A. in ‘the field of Cus Law are. of.particular

_~ , 5See United States v. Tampa Box 15 Ct. Cust. App. 360,

T. D. 42561 (1928) and especially United’ States v. Alex Murphy &

Co., 16 Ct. Cust. App. 461, T.D. 48210 (1929). ;

Sec. 16(b), 52 Stat; 1084, 28 U.S.C. 2636(d).

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application only to ie valuation, classification and pro-

cedural ‘problems involved in the Customs field. They

_ have not generally been cited as authority or followed in

either the trademark or patent fields, nor in decisions of

courts of general jurisdiction. The spectre raised ‘by Peti-

tioner that the decision below may lead to a change in

federal law relating to statutes of limitation generally,

finds no support in the decisions of this or other courts.

¢ and is without substance.

Finally, the Government argues that this Court should

review the decision below because thé effectiveness of the

Statute of Limitations in Section 514 is at stake here and,

perforce, it contends an important federal question is in-

volved. It points out that Section 514 involves all de-

cisions of the collector, including the legality of all orders

and findings entering into same, ‘as to ‘the rate and

- amount of duties chargeable, —

This is another straw man and without substance. The

principle involved here is of. limited application. There

have been but few cases where a Collector of Customs has

acted pursuant to a void statute or Presidential Procla-

mation and, the government’s ‘unwarranted assumption to -

the contrary, there are not likely to be many in the

future. Such cases could only multiply if there was a

diministra deterioration in the.ability of lawyers advising © -

inistrators and lawmakers on the validity of proposed

‘statutes: ‘and ‘proclamations, ‘

At page 12 of its petition for writ of certiorari in -

Mason, the government submitted the same reasons it now

urges in Cajo for granting certiorari. Whatever else the .

_ Supreme Court’s denial of the government’s petition for

certiorari in Mason may signify, it indicates that this

Court was not sufficiently disturbed by the government’s

recital there of other possible applications to wish to re-

view the e Sees of the Court below in that case. ,

.

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CONCLUSION | .

For the reasons‘stated, it is respectfully submitted that

the petition for a writ of certiorari be denied. *

JAMES R. SHARP

: Attorney for Respondent —

June 1968. . °

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