Appeal from the United States Court of International Trade in case no. 09-CV-0191, Chief Judge Jane A. Restani.
The opinion of the court was delivered by: Linn, Circuit Judge.
Before BRYSON, LINN, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN.
Dissenting opinion filed by Circuit Judge REYNA.
Hitachi Home Electronics (America), Inc. ("Hitachi") appeals from the Court of International Trade's dismissal for lack of jurisdiction of its action seeking duty-free treatment of certain plasma flat panel televisions made or assembled in Mexico and imported into the United States and seeking recovery of tariffs paid thereon. Because the Court of International Trade correctly determined that it lacked jurisdiction, this court affirms.
Hitachi imported certain plasma flat panel televisions made or assembled in Mexico between June 1, 2003, and December 27, 2005. Hitachi Home Elecs. (America), Inc. v. United States, 704 F. Supp. 2d 1315, 1315-16 (CIT 2010). These televisions were liquidated as dutiable under subheading 8528.12.72 of the Harmonized Tariff Schedule of the United States at a rate of 5.0% ad valorem. Id. at 1316. Hitachi claims that the televisions should be treated as duty-free under the North American Free Trade Agreement. Id. Hitachi filed numerous protests with United States Customs and Border Protection ("Customs"), followed by actions in the Court of International Trade. Id. at 1316-17.
On March 6, 2007, Hitachi filed its protest as to tariffs paid on televisions imported between November 19 and December 27, 2005. Id. at 1317. In May 2009, Hitachi filed an action in the Court of International Trade asserting jurisdiction under 28 U.S.C. § 1581(a). Id. Hitachi contended that its protest was denied or deemed denied under 19 U.S.C. § 1515(a) because Customs had taken more than two years to act on its protest, or under 28 U.S.C. § 1581(i) if there was no jurisdiction under § 1581(a). Id. Customs moved to dismiss for lack of jurisdiction and Hitachi cross-moved to consolidate that case with other pending cases and for summary judgment. Id. at 1317-18. Hitachi then argued that jurisdiction was proper under § 1581(i) and that Hitachi was entitled to recover the amounts protested because Hitachi's protests were allowed by operation of law when Customs failed to act within the two-year period required by § 1515(a). Id.
The Court of International Trade dismissed for lack of jurisdiction, interpreting § 1515(a) to impose neither automatic allowance nor automatic denial of a protest, and concluding that jurisdiction was therefore not proper under § 1581(a) or (i). Id. at 1319-22. The Court of International Trade noted that all Hitachi needed to do in order to establish jurisdiction was to file for accelerated disposition under 19 U.S.C. § 1515(b) and wait for a maximum of thirty days. Id. at 1320.
Hitachi timely appealed the dismissal and this court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
This court reviews the Court of International Trade's decision to dismiss for lack of jurisdiction de novo. Xerox Corp. v. United States, 423 F.3d 1356, 1359 (Fed. Cir. 2005). The Court of International Trade based its decision on its interpretation of 19 U.S.C. §§ 1514 and 1515 and 28 U.S.C. § 1581, which interpretation this court also reviews de novo. Id. at 1359; Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed. Cir. 1995).
B. Possible Statutory Bases for Jurisdiction
Two provisions of 28 U.S.C. § 1581 are relevant to Hitachi's claim to jurisdiction in the Court of International Trade. Section 1581(a) provides (emphasis added): "The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under § 515 of the Tariff Act of 1930." This section is the basis of what now appears to be Hitachi's alternative argument for jurisdiction, which we address briefly after addressing Hitachi's main argument. More relevant to Hitachi's appeal is § 1581(i), a catchall jurisdictional clause which provides in relevant part:
[T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for . . . tariffs, duties, fees, or other taxes on the importation of mer- chandise for reasons other than the raising of revenue . . . .
Hitachi's appeal turns on the question of whether, if Customs fails to allow or deny a protest within the two-year period provided by 19 U.S.C. § 1515(a), the protest is deemed allowed by operation of law and Customs' power to act on the protest is expired, and whether § 1581(i) therefore provides jurisdiction for Hitachi to recover the duties subject to the protest.
C. Allowance by "Operation of Law"
While this court has not previously decided whether § 1515(a) causes all claims not denied within the two-year period to be allowed by operation of law, we do so now with ample guidance from the Supreme Court and our own precedent. For the reasons discussed below, we hold that it does not, and that Hitachi therefore failed to establish jurisdiction under § 1581(i).
1. Time Limits, Mandatory and Directory
The Supreme Court has "long recognized that many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them . . . do not limit their power or render its exercise in disregard of the requisitions ineffectual." United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993) (quotation omitted). Thus, "if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction." Id. In James Daniel Good, the Supreme Court explained that "the failure of Congress to specify a consequence for noncompliance with the timing requirements [of the statute at issue] implies that Congress intended the responsible officials . . . to have discre- tion to determine what disciplinary measures are appropriate when their subordinates fail to discharge their statutory duties." Id. at 64-65.
In Brock v. Pierce County, 476 U.S. 253, 266, 260 (1986), in holding that the Comprehensive Employment and Training Act's "requirement that the Secretary 'shall' take action within 120 days does not, standing alone, divest the Secretary of jurisdiction to act after that time," the Supreme Court observed that "[w]hen, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act." See also Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003) ("Nor, since Brock, have we ever construed a provision that the Government 'shall' act within a specified time, without more, as a jurisdictional limit precluding action later." (emphasis added)); Regions Hosp. v. Shalala, 522 U.S. 448, 459 n.3 (1998) (where statute contained "shall report" provision and Secretary "[m]iss[ed] the deadline by some years," the "failure to meet the deadline, a not uncommon occurrence when heavy loads are thrust on administrators, [did] not mean that official lacked power to act beyond it").
In United States v. Montalvo-Murillo, 495 U.S. 711 (1990), the Supreme Court interpreted a provision of the Bail Reform Act that reads, in relevant part:
DETENTION HEARING. -- The judicial officer shall hold a hearing to determine whether any condition or combination of conditions . . . will reasonably assure the appearance of such person . . .
The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance . . . .
Id. at 714. In Montalvo-Murillo, "[t]he sole question presented on certiorari [was] whether . . . [the detainee] must be released as a remedy for the failure to hold a hearing at his first appearance." Id. at 716. Applying Brock,the Supreme Court held that "the word 'shall' in the Act's hearing time requirement does not operate to bar all authority to seek pretrial detention once the time limit has passed. Although the duty is mandatory, the sanction for breach is not loss of all later powers to act." Id. at 718. As the Supreme Court further explained:
There is no presumption or general rule that for every duty imposed upon the court or the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent . . . [and w]e do not agree that we should, or can, invent a remedy to satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits.
By contrast, 18 U.S.C. § 3162(a)(2) is a statute that actually states a consequence for failure to comply with a time limit: "If a defendant is not brought to trial within the time limit required . . . the information or indictment shall be dismissed on motion of the defendant." The Supreme Court has confirmed that "[t]he sanction for a violation of the [Speedy Trial] Act is dismissal . . . ." Zedner v. United States, 547 U.S. 489, 509 (2006). Thus, the Supreme Court has amply distinguished between statutes that impose consequences and statutes that do not.
And this court has consistently followed Supreme Court precedent in deciding whether particular statutes impose consequences for failure to comply with statutory time limits. In Canadian Fur Trappers Corp. v. United States, 884 F.2d 563 (Fed. Cir. 1989), Customs failed to liquidate certain entries within a 90-day period, established by 19 U.S.C. § 1504(d), following the lifting of a suspension of liquidation. Id. at 566. The parties argued that "once [Customs] fails to complete the liquidation within the 90 day period, the articles must be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer." Id. (emphasis added). This court observed that "[w]hile Congress included the operative language 'deemed liquidated' in [other parts of § 1504], no such consequential language appears in the [relevant section and . . .] the lack of consequential language . . . if [Customs] does not meet that time frame leads us to conclude that Congress intended this part . . . to be only directory." Id.; see also U.S. Tsubaki, Inc. v. United States., 512 F.3d 1332, 1334 (Fed. Cir. 2008) (same); Am. Permac, Inc. v. United States, 191 F.3d 1380, 1382 (Fed. Cir. 1999) (same).
In Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir.
2002), this court surveyed precedent including James Daniel Good,
Montalvo-Murillo, and Brock, and stated that "[o]ur own precedent has
faithfully applied this rule of law as formulated by the Supreme Court
. . . that, 'even in the face of a statutory timing directive, when a
statute does not specify the consequences of non-compliance, courts
should not assume that Congress intended that the agency lose its
power to act.'" Id. at 1376-77 (quoting Kemira Fibres Oy v. United
61 F.3d 866, 871 (Fed. Cir. 1995)); see also Gilda Indus., Inc. v.
United States, 622 F.3d 1358, 1365 (Fed. Cir 2010) ("[A]bsence of a
consequence [in the statute] indicates . . .
[the relevant subsection] is a directory provision and not
This court therefore addresses the present question respecting § 1515(a) in view of the great weight of precedent that when Congress intends there to be consequences for noncompliance with statutory deadlines for government action, it says so expressly. *fn1
2. No Automatic Allowance Under 19 U.S.C. § 1515(a)
i. The Plain Terms of Section 1515(a)
Hitachi argues that its protest was allowed by operation of law when Customs failed to allow or deny it within the statutory time limit of two years. According to Hitachi, "the plain meaning of the statute is that any protest not expressly denied by Customs within two years is allowed by Customs." Appellant Br. 11 (capitalization removed).
19 U.S.C. § 1515(a) provides in relevant part (emphases added):
Unless a request for an accelerated disposition of a protest is filed in accordance with subsection (b) of this section the ap-propriate customs officer, within two years from the date a protest was filed in accordance with section 1514 of this title, shall review the protest and shall allow or deny such protest in whole or in part. Thereafter, any duties, charge, or exaction found to have been assessed or collected in excess shall be remitted or refunded and any drawback found due shall be paid . . . . Notice of the denial of any protest shall be mailed . . . [and] shall include a statement of the ...