USFC {A5DC64AB-BSSE-4E AF88E6DT} {83240} { :122537} {041107} APPELLEE'S BRIEF

Transcription

1 IIIIII IIMIIII I[J lille MIIII MII MIIIII IIIIII MIIII Ill USFC {A5DC64AB-BSSE-4E AF88E6DT} {83240} { :122537} {041107} APPELLEE'S BRIEF

2 SAMUEL AARON, INC., Plaintiff-Appellant, V,,_ UNITED STATES, Defendant-Appellee. On Appeal From the United States Court of International Trade, Court No , Judgment entered August 17, 2006, Honorable Gregory W. Carman BRIEF FOR APPELLEE, THE UNITED STATES PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director Of Counsel: Edward N. Maurer Office of Assistant Chief Counsel U.S. Customs and Border Protection New York, New York BARBARA S. WILLIAMS Attorney in Charge International Trade Field Office GARDNER B. MILLER Commercial Litigation Branch Civil Division, Dept. of Justice 26 Federal Plaza, Room 343 New York, New York Attorneys for Defendant-Appellee Tel. No or 9230

3 TABLE OF CONTENTS STATEMENT OF THE ISSUE l STATEMENT OF THE CASE... 2 I. Statement Of Facts... 2 II. Decision Of The Court Below... 6 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 I. STANDARD OF REVIEW ON APPEAL... 9 II. THE COURT OF INTERNATIONAL TRADE CORRECTLY HELD THAT IT DID NOT POSSESS JURISDICTION BECAUSE OF AARON'S FAILURE TO FILE A PROTEST WITHIN THE STATUTORY LIMIT... 9 III. CUSTOMS COMPLETED THE FINAL COMPUTATION OR ASCERTAINMENT OF DUTIES OWED BY AARON ON THE MERCHANDISE ON OR BEFORE FEBRUARY 8, i 3 A. Customs Did In Fact Identify All Of The Entries Subject To Reliquidation B. The Processing Of A "Script" For Billing Purposes Is Not The Final Computation Or Ascertainment Of Duties C. Aaron's Argument That Customs Reliquidates Entries, Not Line Items Is Equally Ineffectual IV. THE FEBRUARY 8, 1999 BULLETIN NOTICE OF RELIQUIDATION WAS LEGALLY SUFFICIENT A. The Offline Bulletin Notice Was Posted In A Conspicuous Place At The Customhouse B. Aaron's Due Process Concerns Are Unfounded C. Bulletin Notice Of Liquidations Need Not Contain The Phrase "Customs Form 4333" To Be Valid i

4 D The Importance Of Customs' March 1999 Memorandum Was Not To Cure Any Defect, But As Evidence That Customs Had Already Reliquidated The Subject Merchandise And Only The Issuance Of A Bill Remained lii. CUSTOMS IS NOT REQUIRED TO PROVIDE ELECTRONIC NOTICE UNDER 19 U.S.C. 1500(e) IV. THE COURT SHOULD GRANT DEFERENCE TO CUSTOMS' CONSTRUCTION OF THE RELEVANT STATUTORY AND REGULATORY LANGUAGE A Customs' Interpretation Of 19 U.S.C. 1500(e) Should Be Accorded Skidmore Deference B Customs' Interpretation Of Its Own Regulations Is Entitled To Deference CONCLUSION TABLE OF AUTHORITIES Cases Air-Sea Brokers, Inc. v. United States, 66 CCPA 64 (1979) American Motoristslns. Co.v. United States, 5 CIT33 (1983)... 21,26,27 Awad v. United States, 301F.3d 1367 (Fed. Cir. 2002)... 9 Bacardi Corp. v. United States, 11 Ct. Cust. App. 252 (1922) Bowlesv. Seminole Rock & Sand Co., 325 U.S. 410(1945) Butlerv. Principi, 244 F.3d 1337 (Fed. Cir. 2001) Cavalier Shipping Co. v. United States, 39 Cust. Ct. 219 (1957) ii

5 Cathedral Candle Co. v. United States International Trade Commission, 400 F.3d 1352 fled. Cir. 2005) Frederick Wholesale Corp. v. United States, 754 F.2d 349 (Fed. Cir. 1985)... 13, 24, 28, 29 Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 706 F. Supp. 892, 13 CIT 54 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989)... 24, 29, 37 Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 885 F.2d 858 (Fed. Cir. 1989)... 11, 22, 25, 32, 34, 35 Greene v. Lindsey, 456 U.S. 444 (1982) Gustafson v. Alloyd Co., 513 U.S. 561 (1995) Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) Jazz Photo Corp. v. United States, 439 F.3d 1344 (Fed. Cir. 2006) Juice Farms, Inc. v. United States, 18 CIT 1037 (1994) Lee v. United States, 329 F.3d 817 (2003) Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)... 32, 35 New Zealand Lamb Co. v. United States, 40 F.3d 377 (Fed. Cir. 1994)... 13, 20 Penrod Drilling v. United States, 727 F. Supp. 1463, 13 CIT 1005 (1989) Rocovich v. United States, 933 F.2d 991 (Fed. Cir. 1991)... 9 iii

6 Russell Stadelman & Co. v. United States, 242 F.3d 1044 (Fed. Cir. 2001)... 9 Samuel Aaron, Inc. v. United States, 452 F. Supp. 2d 1302 (CIT 2006)... 6 Skidmore v. Swift & Co., 323 U.S. 134 (1944)... 43, 44 South Dakota v. Yankton Sioux Tribe, 522 U.S ) Tropicana Prods., Inc. v. United States, 909 F.2d 504 (Fed. Cir. 1990)... 13, 43 United States v. A.N. Deringer, Inc., 593 F.2d 1015 (CCPA 1979) United States v. Chemical Foundation, 272 U.S.! (1926)... 14, 28, 33 United States v. Mead Corp., 533 U.S. 218 (2001) United States v. Judson Sheldon Div., Nat'i Carioading Corp., 42 CCPA 202 (1955)... 24, 36, 37 United States v. V.P. Roberts & Co., 34 CCPA 135 (1947) United Technologies Corp. v. United States, 315 F.3d 1320 (Fed. Cir. 2003) Statutes_ Harmonized Tariff Schedule of the United States Subheading , I I, 14, 19, 20, U.S.C. 1500(e)... 8,passim ,11,23,34,41, (a) iv

7 1514(c)(3)(A)... 1,! 0 28 U.S.C. 1581(a)... 1! 9 C.F.R ,passim , 23, 43, 44, (a) (b)... 11, 24, (c)(1) (a)... I (b) MISCELLANEOUS Tariff Act of 1930, Section 520(e)(1 ) Tariff Act of 1930, Section

8 STATEMENT PURSUANT TO RULE 47.5 In accordance with Rule 47.5 of the Rules of the United States Court of Appeals for the Federal Circuit, counsel for defendant-appellee makes the following statement: (1) To our knowledge, no other appeal in, or from, the civil action brought before the United States Court of International Trade was previously before this, or any other appellate court under the same or similar title. (2) To our knowledge, there is no other case pending in this or any other court that will directly affect or be directly affected by this Court's decision in the pending appeal. vi

9 IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT SAMUEL AARON, INC., Plaintiff-Appellant, Vo UNITED STATES, Defendant-Appellee. On Appeal From the United States Court of International Trade Court No , Judgment Entered August 17, 2006, Honorable Gregory W. Carman, Judge BRIEF FOR APPELLEE, THE UNITED STATES STATEMENT OF THE ISSUE Whether the Court of International Trade correctly dismissed this action for lack of subject matter jurisdiction under 28 U.S.C (a) when no timely protest against the reliquidations in issue was filed within 90 days of notice of those reliquidations pursuant to 19 U.S.C. 1514(c)(3)(A) (1999).

10 STATEMENT OF THE CASE This is an appeal by plaintiff-appellant, Samuel Aaron ("Aaron"), challenging the decision of the United States Court of International Trade to grant defendant-appellee's, United States ("the Government"), motion for summary judgment, holding that the court lacked subject matter jurisdiction because Aaron failed to timely protest the reliquidation at issue. I. Statement Of Facts The dates of entry of the merchandise at issue are between August 10, 1998, and October 22, Appendix _ The merchandise was entered under subheading , Harmonized Tariff Schedule of the United States ("HTSUS"). A0030. On November 13, 1998, U.S. Customs and Border Protection ("Customs") liquidated certain of the entries at issue, assessing duty on the merchandise at a free rate of duty pursuant to the Generalized System of Preferences ("GSP") program. A0025; A0191; A0229. On December 1 l, 1998, Customs liquidated the balance of the entries at issue, also assessing duty on the remaining merchandise at a free rate of duty pursuant to the GSP program. A0025; A0191; A0229. Upon liquidation of these entries, Customs refunded estimated duties that Hereafter, the Appendix will be referred to as "A." 2

11 had been deposited on the merchandise at entry, plus interest. A0025; A0191. The 90-day period pursuant to 19 U.S.C within which Customs may, if deemed necessary, reliquidate entries liquidated on November 13, 1999, ended on February I 1, The 90-day period permitted for reliquidation of the entries liquidated on December 11, 1998, ended on March 11, On or about January 29, 1999, Customs' Director of Trade Agreements forwarded a memorandum to the Port Director. A0229; A The memorandum explained that "[r]efunds were erroneously issued for goods imported from Thailand classifiable under HTSUS numbers and entered during the period the GSP was lapsed, July 1, October 20, 1998." A0047. Customs subsequently concluded that the liquidations of Aaron's entries which took place on November 13 and December 11, 1998, were erroneous, in that the merchandise was not eligible for duty-free treatment under the GSP program. A0025; A0192. On February 8, 1999, Customs reliquidated all of Aaron's entries by placing a bulletin notice ofreliquidation in a notebook or binder in the room used by Customs at the Port of New York for making its bulletin notices ofreliquidation available to the public. A0229. The procedure of posting offline bulletin notices of reliquidation has been in place for over thirty years. A

12 The room used by Customs for this purpose was Room 112 at the Customhouse, formerly located at Six World Trade Center. A0055. Customs used this room to post "online" bulletin notices (i.e., bulletin notices generated by Customs' Automated Commercial System ("ACS")) and "offline" bulletin notices, which do not generate a record in ACS. A ; A , A ; A , A The notice ofreliquidation placed in the notebook or binder in Room 112 on February 8, 1999, was an offline bulletin notice of reliquidation. The offline bulletin notice ofreliquidation at issue contained the words "RELIQUIDATION-INCREASE" as was applicable to each entry. A0213. Bulletin notices of reliquidation, whether generated by ACS or offline, do not contain any explanation or indication of the amount of any change in duties or the reason for the change, only that the change has resulted in an increase or decrease. A The amount of increased duties due on Aaron's entries was known at the time of reliquidation because it was equal to the same amount of duties which had (i) originally been deposited by Aaron itself with respect to the subject merchandise in each entry, and (ii) then been refunded during the November 13 and December 11, 1998 liquidations. Thus, the amount of increased duties already resided in the ACS record for each entry. A0193; A ; A ; A0201-

13 06; A Approximately three weeks after the offline bulletin notice of reliquidation was posted, Customs issued a memorandum directed to "Importers, Brokers and Other Interested Parties" dated March 2, A0230. The memorandum indicated that refunds had erroneously been issued with respect to jewelry from Thailand between July 1 and October 20, A0230. The memorandum stated that importers "will be billed for the appropriate Customs duties and interest." A0230. On April 30, 1999, Customs issued ACS-generated bills to Aaron for the increased duties assessed in the February 8, 1999 offline reliquidation for the entries at issue. A0230; A ; A The bills reflected the duties originally deposited by Aaron on the merchandise entered under subheading , HTSUS, at the November 13 and December 11, 1998 liquidations and subsequently erroneously refunded. A0226. However, as a result of limitations in ACS, the bills generated on April 30, although based upon the February 8, 1999 reliquidations -were included in the ACS-generated printout, which became the bulletin notice of liquidation dated April 30, A0198. Thus, the notice dated April 30, 1999, erroneously indicated that reliquidation took place on April 30, 1999, although it had actually

14 occurred previously on February 8, A0198. Ordinarily, in this situation, Customs' port personnel will manually line through ("red-line") the listing of the affected entries on the ACS-generated printout and annotate by hand that the entries were reliquidated on an earlier report. A0194. There is no evidence that Aaron's entries had been "red-lined" and annotated by hand to indicate that the entries had been reliquidated on February 8, A0030. Aaron did not file a protest in regard to the reliquidations at issue until July 29, A0230. Customs denied this protest on August 23, A In the denial of the protest, Customs relied upon the reasoning of HQ for its finding that the protest was untimely. A0030. II. Deeision Of The Court Below The Court of International Trade succinctly explained that "[t]he linchpin issue, which also decides the issue of jurisdiction, is whether there was a valid reliquidation of the subject entries on February 8, 1999." Samuel Aaron, Inc. v. United States, 452 F. Supp. 2d 1302, (CIT 2006); 2 A0010. The court found that there was sufficient evidence that Customs had calculated the duties due upon reliquidation so as to satisfy the requirements of 19 C.F.R The Slip Opinion appears at A

15 (1999). A001 I. Section provides: "Liquidation means the final computation or ascertainment of the duties or drawback accruing on an entry." The court then held that the posting at the Customhouse of the offline bulletin notice ofreliquidation titled "Bulletin Notice of Liquidation" containing the words "RELIQUIDATION -- INCREASE" was sufficient to satisfy the requirements of 19 C.F.R (1999). A Section provides in relevant part: (a) Bulletin notice of liquidation. Notice of liquidation of formal entries shall be made on a bulletin notice of liquidation, Customs Form (b) Posting of bulletin notice. The bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customhouse at the port of entry (or Customs station, when the entries listed were filed at a Customs station outside the limits of a port of entry), or shall be lodged at some other suitable place in the customhouse in such a manner that it can readily be located and consulted by all interested persons, who shall be directed to that place by a notice maintained in a conspicuous place in the customhouse stating where notices of liquidation of entries are to be found. (c) Date of liquidation -- (1) Generally. The bulletin notice of liquidation shall be dated with the date it is posted or lodged in the customhouse for the information of importers. This posting or lodging shall be 7

16 deemed the legal evidence of liquidation. For electronic entry summaries, the date of liquidation will be the date of posting of the bulletin notice of liquidation. Customs will endeavor to provide the filer with electronic notification of this date as an informal, courtesy notice of liquidation. The court found that the date of the reliquidation was February 8, A0014. The court then concluded that, because Aaron had not filed a protest until July 29, 1999, the court lacked subject matter jurisdiction to entertain the action. A0015. SUMMARY OF THE ARGUMENT The Court of International Trade correctly held that it did not possess subject matter jurisdiction to entertain this action as Aaron failed to file a protest in regard to the challenged reliquidation within the statutorily required time period. First, Customs completed a final computation or ascertainment of the duties owing on the entries on or before February 8, 1999, in accordance with 19 C.F.R Second, the offline bulletin notice ofreliquidation posted on February 8, 1999, was legally sufficient notice ofreliquidation. Third, under 19 U.S.C. 1500(e) and 1501, Customs is not required to provide Aaron with notice pursuant to an electronic data interchange system. Fourth, the court granted deference to Customs' construction of the relevant statutory and regulatory

17 language. Finally, the court correctly concluded that it lacked subject matter jurisdiction due to Aaron's failure to file a protest within the statutorily required time period in regard to the February 8, 1999 reliquidations. ARGUMENT I. STANDARD OF REVIEW ON APPEAL "The grant and denial of summary judgment by the Court of International Trade are matters of law that we review de novo." Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001). II. THE COURT OF INTERNATIONAL TRADE CORRECTLY HELD THAT IT DID NOT POSSESS JURISDICTION BECAUSE OF AARON'S FAILURE TO FILE A PROTEST WITHIN THE STATUTORY LIMIT It is well settled that "'[a] party seeking the exercise of jurisdiction in its favor has the burden of establishing that such jurisdiction exists.'" Awad v. United States, 301 F.3d 1367, 1375 (Fed. Cir. 2002) (quoting Rocovich v. United States, 933 F.2d 991,993 (Fed. Cir. 1991)). Section 1514 of title 19, the United States Code, provides that certain enumerated decisions made by Customs will be deemed final unless a plaintiff files a protest within the required period. Section 1514 states, in relevant part: Except as provided in [sections not relevant to this case], decisions of the Customs Service, including the legality

18 of all orders and findings entering into the same, as to-- 5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28 within the time prescribed by section 2636 of that title. 19 U.S.C. 1514(a) (1999). Section 1514 provides that a protest must be filed within 90 days of the notice ofreliquidation. 19 U.S.C. 1514(c)(3)(A) (1999). As noted above, liquidation is the "final computation or ascertainment of duties or drawback accruing on an entry." 19 C.F.R (1999). "[W]ithin 90 days from the date notice of the original liquidation is given to the importer, consignee, or agent, [Customs] may reliquidate on his own initiative a liquidation or a reliquidation to correct errors in appraisement, classification, or any other element entering into the liquidation or reliquidation, including errors based on misconstruction of applicable law." 19 C.F.R (a) (1999). This Court has explained that "the only notice of liquidation required is bulletin notice 'posted for the information of importers in a conspicuous place in the customhouse at the port 10

19 of entry.'" Goidhofer Fahrzeugwerk GmbH & Co. v. United States, 885 F.2d 858, 860 (Fed. Cir. 1989) ("Goldhofer I") (quoting 19 C.F.R (b)). The notice ofreliquidation has the same requirements. See 19 U.S.C and 19 C.F.R (b). In the ease at bar, the merchandise at issue was entered under subheading , HTSUS, which is dutiable at 5.7 percent. The value of the entered merchandise was documented and the amount of duties owing was also noted. 3 A0193; A ; A ; A ; A Customs liquidated Aaron's entries on November 13 and December 11, 1998, returning the amounts deposited on the merchandise at issue based upon the assumption that the merchandise was entitled to duty-free treatment. On or about January 29, 1999, Customs' Director of Trade Agreements forwarded a memorandum to the Port Director, indicating that "[r]efunds were erroneously issued for goods imported from Thailand classifiable under HTSUS numbers and entered during the period the GSP was lapsed, July 1, October 20, 1998." A0047. During all times relevant to this case, Lawrence Ryan was a Supervisory Liquidator with Customs. A0201. Mr. papers. 3 Attached at A is a representative sample of ten entry summary 11

20 Ryan explained that, "[s]ince ACS retains the entered duty information, the actual dollar and cents amount of the increase in duties that was going to be billed after the offline bulletin notice of liquidation were posted already resided in the ACS record for each entry." A0203. To this end, Customs identified the entries at issue and posted a bulletin notice of reliquidation on February 8, Customs referred to this particular bulletin notice as an "offline" bulletin notice because it was not generated by ACS. The procedure of posting offline bulletins ofreliquidation has been in place for over thirty years. A Moreover, the offline bulletin notices "were placed in binders or similar types of secure fastenings and appropriately labeled." A This offline bulletin notice bore the title "Bulletin Notice of Liquidation" and contained the following information for the entries at issue: (1) district and port; (2) entry type; (3) entry number; (4) date of entry; (5) importer's name; and (6) remarks. A ; A The "remarks" section of this offline bulletin notice contained the phrase "RELIQUIDATION - INCREASE." This offline bulletin notice was placed in a folder in Room 112 at Customhouse and was open and accessible to the public. This Court has explained that such a placement satisfies the requirement that bulletin notices be posted in a conspicuous place at the Customhouse. 12

21 Frederick Wholesale Corp. v. United States, 754 F.2d 349, 350 (Fed. Cir. 1985) ("Frederick Wholesale"). Consequently, as required by statute and regulation, Customs fixed a final computation or ascertainment of duties owed on the entries at issue, provided notice in a conspicuous place at the Customhouse, and thus the February 8, 1999 offline reliquidations were valid and binding. Notwithstanding the foregoing, Aaron did not file a protest until July 29, As the trial court correctly found, Aaron's failure to file a timely protest forecloses judicial review. Tropicana Prods., Inc. v. United States, 909 F.2d 504, (Fed. Cir. 1990) ("Tropicana"); see also New Zealand Lamb Co. v. United States, 40 F.3d 377, 380 (Fed. Cir. 1994) ("New Zealand Lamb"). III. CUSTOMS COMPLETED THE FINAL COMPUTATION OR ASCERTAINMENT OF DUTIES OWED BY AARON ON THE MERCHANDISE ON OR BEFORE FEBRUARY 8, 1999 Aaron attacks the decision of the trial court by arguing that Customs failed to complete the final computation or ascertainment of duties owed prior to the February 8, 1999 reliquidation. As such, Aaron reasons, there was no protestable decision until a final computation or ascertainment was done. Aaron's theory is that there was no final computation or ascertainment of duties until the April 30, 1999 posting. A0198. To support this argument, Aaron points out the following. First, Aaron asserts that Customs failed to identify all the entries subject to 13

22 reliquidation. Blue Br Second, Aaron argues that the fact that Customs used a "script" to generate the bill is further evidence that a final computation or ascertainment of duties had not yet been completed. Blue Br Third, Aaron points to a discrepancy in one of the entries at issue as another indication that a final computation or ascertainment of duties had not been completed. Blue Br The liquidation analysis begins with a presumption of regularity. It is wellsettled that "[t]he 'presumption of regularity' supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.".united States v. Chemical Foundation., 272 U.S. 1, (1926) ("Chemical Foundation"), cited with approval in Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Jazz Photo Corp. v. United States, 439 F.3d 1344, 1351 (Fed. Cir. 2006). As outlined above and discussed in greater detail below, "[a]t the time of reliquidation, the Customs officers knew that the entries were being reliquidated for the purpose of assessing the duty that had been erroneously refunded for the merchandise entered under subheading , HTSUS." Se.. ee HQ at A0038. Moreover, as the trial court held, Aaron's arguments that Customs did not comply with 19 4 Aaron's brief will be referred to as "Blue Br." 14

23 C.F.R are meritless. A. Customs Did In Fact Identify All Of The Entries Subject To Reliquidation Aaron rightly points out that there cannot be a final computation or ascertainment for a reliquidation until all of the affected entries are identified. Aaron then asserts that Customs had not identified all of the entries affected by the reliquidation prior to February 8, To support its argument that Customs had not identified all of the entries to be reliquidated, Aaron notes that, on February 8, 1999, two entries were listed for reliquidation even though their entry dates were aiier October 21, 1998, which was the date that the duty-free treatment came back into effect. Blue Br Aaron then states that only one of these entries was included in the ultimate bill that it received on April 30, Blue Br. 35. Aaron identifies this discrepancy as proof that Customs had not yet identified all of the entries that were to be reliquidated. Aaron argues, "[b]ecause Customs was in such a hurry to beat the 90-day reliquidation deadline, it did not even properly identify the entries that were potentially subject to reliquidation." Blue. Br. 34. The conclusion that Aaron would like the Court to draw from this inconsistency is that Customs had not identified the entries affected prior to February 8, 1999, and as such, there was no reliquidation on February 8, 1999, to 15

24 be protested. This argument is baseless. Customs did in fact identify the entries at issue for reliquidation and posted an offline bulletin notice ofreliquidation on February 8, 1999, that listed the affected entries. That list of entries "shall be deemed the legal evidence of liquidation." 19 C.F.R (c)(1). If Customs included any entries in this reliquidation improperly (e.., the entry was still entitled to dutyfree treatment), then that would have been a mistake. However, as this Court has explhined, "[Section 1514 of title 19] contemplates that both the legality and correctness of a liquidation be determined, at least initially, via the protest procedure." Juice Farms, Inc. v. United States, 18 CIT 1037, 1046 (1994) ("Juice Farms") (quoting United States v. A.N. Deringer, Inc., 593 F.2d 1015, 1020 (CCPA 1979)). Thus, whatever the value of this discrepancy, it did not relieve Aaron of its obligation to timely protest, nor did it render the February 8, 1999 reliquidations null and void. B. The Processing Of A "Script" For Billing Purposes Is Not The Final Computation Or Ascertainment Of Duties Aaron's next argument is that Customs' use of a "scripting" function is evidence that Customs did not complete a final computation or ascertainment of duties until after February 8, Aaron claims that it was only when the script 16

25 was run that Customs made the final computation or ascertainment of the duties. Blue Br. 36. This assertion is incorrect. The so-called script is simply a computer program. In this context, a "script" is a program that mimics the keystrokes that would be made to "generate the same kind of ACS record as would have been created had the entry been liquidated 'online.'" A In this way, the scripting process simply assisted the preparation of bills and updated the ACS system to reflect the duties due pursuant to the February 8, 1999 reliquidations. A Therefore, it was not the final computation or ascertainment of duties, and Aaron has failed to support its bald assertion that the final computation or ascertainment of duties was not accomplished until the running of the script. C. Aaron's Argument That Customs Reliquidates Entries, Not Line Items Is Equally Ineffectual Aaron asserts that, "[w]hen Customs liquidates duties, it does so on an entry as a whole." Blue Br. 38. Aaron notes that some of entries at issue involve more than one line item of an entry. Aaron then states that, "[i]n order to reliquidate the entries, Customs was required to review each line of each and every entry to determine which merchandise in each entry was subject to duty due and then calculate that duty due amount for that entry." Blue Br Aaron then 17

26 concludes that there was, in effect, no protestable reliquidation until this was done. Blue Br. 40. To illustrate this position, Aaron points to one of the entries in the reliquidations at issue, which was not a mirror image of the amount of duty previously refunded: Blue Br. 40. Aaron's argument is without merit for several reasons. First, Aaron cites to no authority for the proposition that Customs was required to go line by line through Aaron's entries before a valid reliquidation could be effected. Nevertheless, even if this were required, it was certainly done when the entries were initially liquidated on November 13 and December 11, Aaron states that, nevertheless, on February 8, 1999, Customs could not have known what the amount of duties due for each entry was. Blue Br. 39. Aaron overlooks the fact that, with one minor difference, the amount of duties due was the amount that Customs had refunded to Aaron in connection with the November 13 and December 11, 1998 liquidations. A Therefore, at the time of the offline reliquidation, Customs knew from the prior liquidations the amount of duties due. Thus, the reliquidations were valid because a final computation of duties had been done. Second, Aaron's reliance upon Entry No is misplaced. The 5 A sampling often other entry summaries is attached at A

27 reason why the amount refunded during the initial liquidation was not the mirror image of the amount to be recouped as a result of the reliquidation is as follows: At liquidation, Customs had refunded not only the duties paid on the subject jewelry from Thailand, but also 47 cents based upon allowance of duty-free treatment under GSP for certain other merchandise imported under this entry that was not subject to the Thailand jewelry issue. Customs correctly did not include this 47 cents in the bill. While the bill was not the mirror image of the refund for this entry, nevertheless, the ACS record for this entry includes the amount of regular customs duties deposited relating to merchandise classified under Subheading ($11,798.77), which exactly equals the amount of the regular customs duties billed on April 30, Declaration of Edward N. Maurer at A Thus, during the initial liquidations, one entry was composed of a quantity of merchandise entered under subheading , HTSUS, and a quantity of merchandise entered under another subheading. Review of the entry summary reveals that the merchandise was entered with a value of $206, and was entered under subheading , HTSUS, which has a corresponding duty rate of 5.7 percent. A0316. The entry summary further reveals that the amount of duties owed on this merchandise was $11, A0316. A refund was issued on the deposited duties as Customs believed that both quantities of merchandise were entitled to duty-free treatment. Declaration of Lawrence Ryan at A0202. The 19

28 February 8, 1999 reliquidation simply stripped the duty-free status of the merchandise that came in under subheading , HTSUS, leaving the dutyfree status of the other merchandise intact. In regard to the remaining entries, the amounts due and owing upon reliquidation exactly equaled the customs duties previously refunded. A As such, there was no need for any further computation or ascertainment. The amounts which would later be billed to the importer through the ACS-generated system were known and "final" as they were the amounts that Customs had refunded to Aaron during the November 13 and December 11, 1998 liquidations. Third, Aaron cites a number of cases that are either irrelevant or with which the actions of Customs are completely consistent. Aaron's reliance upon New Zealand Lamb., 40 F.3d 377, is misplaced. In that case, the issue was when an importer's time to protest begins to run on an assessment of interest not referenced in the bulletin notices of liquidation or in the entry documentation. The Court concluded that there was no decision for plaintiff to protest until Customs informed the plaintiffthat interest was due. 40 F.3d at The facts of New Zealand Lamb are starkly dissimilar to the present case. A reliquidation is a protestable decision, which, in the present case, was made known by the posting of the offline bulletin notice ofreliquidation on February 8, Aaron does not 20

29 explain how New Zealand Lamb bears upon the present case or how the actions of Customs in the present case are inconsistent with that holding. Aaron's reliance on American Motorists lns. Co. v. United States, 5 CIT 33, 41 (1983), is also misplaced. Aaron quotes a series of steps followed by a Customs official in a specific case. Blue Br However, Aaron does not explain how the steps taken by that Customs official are relevant to the present case. If it is Aaron's intention to imply that the steps taken by that Customs official are prerequisites for a valid reliquidation, then the argument must be rejected. The issue before the court in American Motorists was one ofestoppel against the Government and whether the actions of the particular Customs official would limit the jurisdictional arguments of the Government in that specific case. 5 CIT at Aaron cites to numerous other cases that are clearly distinguishable from the present case. See Barcardi Corp. v. United States, 11 Ct. Cust. App. 252,254 (1922) (holding that Customs had a duty, when reliquidating, to determine the quantity of distilled spirits then in bond instead of relying on a gauge made three years earlier); United States v. V.P. Roberts & Co.., 34 CCPA 135, (1947) (holding a liquidation ineffectual to the running of plaintiff's time to protest where notice of liquidation did not name the plaintiffand where the liquidation took 21

30 place without considering a re-weighing and the re-determining clean content yield of the subject bales of wool). In contrast, here, the subject reliquidations took place with full knowledge of the value of the merchandise, its proper classification, and the amount of duties owed thereon. In short, Aaron's entries were properly reliquidated in accordance with the definition of liquidation set forth in 19 C.F.R IV. THE FEBRUARY 8, 1999 BULLETIN NOTICE OF RELIQUIDATION WAS LEGALLY SUFFICIENT Aaron makes four arguments that the offline bulletin notice is legally insufficient. First, Aaron argues that the offline bulletin notice was not in a conspicuous or other suitable place. Second, Aaron claims that the offline bulletin notice fails to meet the due process test as articulated by this Court in Goldhofer I, 885 F.2d 858. Third, Aaron states that the offline bulletin notice is facially deficient because it does not contain the phrase "Customs Form 4333" on it. Fourth, Aaron argues that the March 1999 memorandum did not cure the lack of legal bulletin notice of reliquidation. The procedures for liquidation are provided in 19 U.S.C. 1500, which provides, in relevant part: The Customs Service shall, under rules and regulations prescribed by the Secretary - 22

31 (e) give or transmit, pursuant to an electronic data interchange system, notice of such liquidation to the importer, his consignee, or agent in such form and manner as the Secretary shall by regulation prescribe. 19 U.S.C. 1500(e). The procedures for a reliquidation are set forth in 19 U.S.C. 1501, which states: A liquidation made in accordance with section 1500 of this title or any reliquidation thereof made in accordance with this section may be reliquidated in any respect by the Customs Service, notwithstanding the filing of a protest, within ninety days from the date on which notice of the original liquidation is given or transmitted to the importer, his consignee or agent. Notice of such reliquidation shall be given or transmitted in the manner prescribed with respect to original liquidations under section 1500(e) of this title. 19 U.S.C As the lower court correctly stated, "[i]t is well-established that the posting of a legally sufficient notice serves as the date of liquidation." A0011 (citing Tropicana, 909 F.2d at 506). Under the relevant regulations, "[n]otice of liquidation of formal entries shall be made on a bulletin notice of liquidation, Customs Form 4333." 19 C.F.R The regulations also provide that this notice: [S]hall be posted for the information of importers in a conspicuous place in the customhouse at the port of entry 23

32 (or Customs station, when the entries listed were filed at a Customs station outside the limits of a port of entry), or shall be lodged at some other suitable place in the customhouse in such a manner that it can readily be located and consulted by all interested persons, who 'shall be directed to that place by a notice maintained in a conspicuous place in the customhouse stating where notices of liquidation of entries are to be found. 19 C.F.R (b) (1999). This Court has explained that the sufficiency of these methods of notice "are evaluated according to the standard of a prudent importer or other interested person exercising a reasonable amount of diligence." Frederick Wholesale, 754 F.2d at 352. It is well-established that the notice is legally sufficient if"the importer could [not] have reasonably been misled or confused by the bulletin notice of liquidation, as posted... " United States v. Judson Sheldon Div., Nat'l Carloading Corp., 42 CCPA 202, (1955) ("Judson Sheldon Division"); se_. e also Goidhofer Fahrzeugwerk GmbH & Co. v. United States, 706 F. Supp. 892, 894, 13 CIT 54, 56 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989) ("Goldhofer II"). As we demonstrate below, Customs complied with all the statutory, regulatory, and judicial requirements when it posted the February 8, 1999 offline bulletin notice. 24

33 Ag The Offline Bulletin Notice Was Posted In A Conspicuous Place At The Customhouse Aaron argues that the offline bulletin notice ofreliquidation posted on February 8, 1999 was not posted in a conspicuous place as required by law. Blue Br. 42. However, Aaron begins by detouring to address an unrelated argument. We will address this first. Aaron attempts to denigrate the offline bulletin notice of reliquidation by stating that "Customs regulations have no provision for the existence of 'off-line' logs or other unofficial notations, and certainly, they provide no legal importance to anything other than the official bulletin notice of liquidation." Blue Br. 42. Although cleverly worded, this bald assertion is of no import. Although Aaron repeatedly refers to the offline bulletin notices as "unofficial" and the online bulletin notices as "official," this distinction is entirely invented by Aaron and finds no basis in law or fact. It is well-established that "the only notice of liquidation required is bulletin notice 'posted for the information of importers in a conspicuous place in the customhouse at the port of entry.'" Goldhofer I, 885 F.2d at 860 (quoting 19 C.F.R (b)(1988)). Customs has never referred to the offline bulletin notice ofreliquidation as "unofficial" and Aaron's repeated statements that it is "unofficial" do not make it so. 25

34 In addition, Aaron points to the fact that, when the April 30, 1999 bills were issued, they were not red-lined so as to indicate they had been previously reliquidated. Blue Br. 44. In its statement of facts, Aaron referenced some of Customs' standard operating procedures, which refer to the use ofoffline bulletin notices and state that a red line should be drawn through the entries on any additional bulletin notices of liquidation generated for billing purposes, and a note placed that the entry had been previously reliquidated. Blue Br Thus, the April 30, 1999 bills appeared as if they were bulletin notices. A0198. Aaron does not elaborate on this argument, but the implication is that, as Customs did not redline the subject entries, it is now estopped from claiming that they were previously reliquidated. The general rule is that equitable estoppel cannot be raised against the United States. See Air-Sea Brokers, Inc. v. United States, 66 CCPA 64, 68 (1979). In Air-Sea Brokers, the court, while recognizing that this rule is not absolute, held that equitable estoppel "is not available against the Government in cases involving the collection or refund of duties on imports." Air-Sea Brokers, 66 CCPA at 68. In American Motorists, 5 CIT at 41, Customs reliquidated several entries, using a stamp that indicated that the basis of the reliquidation was section 520(c)(1) of the Tariff Act of Customs intended to reliquidate the entries 26

35 pursuant to section 521 of the Tariff Act in order to correct the fraudulent representations of the importer. American Motorists, 5 CIT at Under the former statute, the reliquidations were untimely; under the latter, the reliquidations were timely. Id._._. at 41. The court held that equitable estoppel "is not available against the Government in cases involving the collection or refund of duties on imports." Id. at 42. Although the rule is not absolute, Aaron has not submitted any evidence nor a novel theory for why the Court should veer from this wellestablished tenet. This preliminary argument dispatched, we now turn to the issue of the conspicuousness of the offline bulletin notice ofreliquidation. The undisputed facts are that Customs placed a document in a folder in the room used by Customs at the Port of New York for making its bulletin notices of liquidation or reliquidation available to the public. A0229. The facts are also undisputed that Customs has followed this exact procedure for at least thirty years. A Aaron does not assert that it reviewed any bulletin notices of liquidation, offline or otherwise, although it is well- established that "[t]he importer bears the burden for examining all notices posted to determine whether its goods have been liquidated, and to protest timely." Penrod Drilling v. United States, 727 F. Supp. 1463, 1467, 13 CIT 1005, 1009 (1989). 27

36 In addition, the Government enjoys a presumption of regularity. It is wellsettled that "[t]he 'presumption of regularity' supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Chemical Foundation, 272 U.S. at Further, judicial precedent has examined the sufficiency of posting bulletin notices of liquidation and reliquidation. In Frederick Wholesale., 754 F.2d at 350, plaintiff complained that the bulletin notice of liquidation was not posted in a conspicuous place because there was "no sign anywhere in the Customhouse advising the public that the bulletin notices were maintained in Rooms 345 and 331." In rejecting this argument, this Court explained: A prudent importer or other interested person exercising a reasonable amount of diligence would have been directed to the proper room by consulting the Customs Information Office located on the plaza level in conjunction with, if necessary, the offices of the Regional Commissioner of Customs or the Area Director of the New York Seaport Area, which are also located in the Customhouse. We refuse to apply a wooden construction to the term "conspicuous" as urged by appellant. Instead, in determining that the bulletin notices were posted in a conspicuous place by their open and accessible placement in Rooms 345 and 331 of the Customhouse in conjunction with customary means for locating those rooms, we comply with the underlying standard of prudence applicable to importers and other 28

37 interested persons. Frederick Wholesale, 754 F.2d at 352. Thus, once the importer arrives at the appropriate room in the Customhouse, the bulletin notices are conspicuously posted if they are placed in the open and are accessible. In Goldhofer II, a bulletin notice of liquidation was printed with the incorrect name of the importer. Goldhofer II, 706 F. Supp. at 893. A clerk had manually corrected the mistake, although breaking up plaintiffs name into three parts. Id. at 893. The court concluded that "[a] prudent importer would have concluded that it was his entry which was posted. At the least, plaintiff'shouid have inquired into the nature of the correction." ld.., at Thus, an importer has a duty to inquire, and, in Goldhofer II, the inquiry would have been in regard to the unusual notation on a bulletin notice. In sum, these cases make clear that Customs is presumed to have posted the offline bulletin notice in a conspicuous place, that such notices are conspicuous if placed in an open and accessible area, and that an importer must inquire regarding any questions it has. The burden on the importer to monitor the bulletin notices is significant. A lack ofsignage or minor mistakes will not relieve an importer of its duty to act nor of the consequences for its lack of vigilance. In the case at bar, Aaron argues that there was no way that a prudent person 29

38 would find the folder for offline bulletin notices ofreliquidation. 6 Blue Br. 44. In support of this argument, Aaron refers to the folder ofoffline bulletin notices of reliquidation as "small" and to the room as "large" and to the other binders in the room as "numerous." Blue Br. 44. In addition, Aaron cites to an affidavit from Joel K. Simon, a managing partner of Serko & Simon, counsel for appellant. A In this affidavit, Mr. Simon indicates that he visited Room 112 on January 23, 2001 (nearly two years after the offline bulletin notice of reliquidation was originally posted) and found the folder ofoffline bulletin notices of reliquidation on a table on which there were "many large Bulletin Notice of Liquidation binders." A Aaron's argument is unavailing. As noted above, Customs reliquidated all of Aaron's entries by placing a bulletin notice of reliquidation in a folder in the room used by Customs at the Port of New York for making its bulletin notices of reliquidation available to the public. A0229. The procedure of posting offline bulletin notices ofreliquidation has been in place for over thirty years. A This argument is purely academic as there is no evidence, nor does Aaron claim, that anyone on behalf of Aaron checked any of the bulletin notices at Room 112 at or around the time of the February 8, 1999 posting. Now, however, having been stung by its lack of vigilance, Aaron implies that had it monitored the bulletin notices, it would have come across the offline bulletin notice of reliquidation only by chance. 30

39 Aaron does not even claim that it attempted to look for a reliquidation notice nor that it made any inquiries regarding the reliquidation notice. Therefore, all of the evidence shows that the trial court was correct in finding that the offline bulletin notices ofreliquidation were posted in a conspicuous location. Finally, Aaron's reliance upon the Simon affidavit is misplaced. The Simon affidavit does not rebut the presumption that Customs posted the offline bulletin notice in a conspicuous place or lodged it in an otherwise suitable place at the Customhouse. This affidavit simply establishes that, on the one day that Mr. Simon visited Room 112 nearly two years after the relevant period here, he found the offline bulletin notice folder on a table on which there were other folders that contained bulletin notices as well. At worst, this demonstrates the status of offline bulletin notices in At best, it establishes that the Government is correct and the offline bulletin notice folder was placed in an open and accessible place in the appropriate room at the Customhouse. Therefore, the trial court correctly rejected Aaron's argument that the offiine bulletin notice of reliquidation was not posted in a conspicuous place at the Customhouse. 31

40 B. Aaron's Due Process Concerns Are Unfounded Aaron argues that the use of the offline bulletin notice of reliquidation runs afoul of the due process clause of the Constitution. Blue Br. 50. Aaron cites to the test set outby this Court in Goldhofer I, 885 F.2d 858 (Fed. Cir. 1989). Blue Br In that case, this Court noted that, in judging the sufficiency of the form of notice, the Supreme Court has considered four factors. First, "whether the form of notice relies on chance alone to reach the attention of the interested party." Goldhofer I, 885 F.2d at 861. Second, "whether the form of notice is designed to attract the attention of the interested party." Id.. Third, "whether the actual means of providing notice is reliable." ld_.. Fourth, the court should consider the reasonableness of the notice "with reference to the existence of 'feasible and customary' alternatives and supplements to the form of notice chosen." Id. (quoting Greene v. Lindsey, 456 U.S. 444, 454 (1982) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950))). In Goldhofer I, this Court analyzed the bulletin notice to these four considerations and found that it was sufficient to withstand the constitutional challenge. Goldhofer I, 885 F2d at Stripped of any viable attack on the 32

41 form of the bulletin notice posted on February 8, 1999, 7 Aaron attempts to subject the placement of the folder in Room 112 to the same four considerations. Blue Br Again, the analysis begins with a presumption of regularity. It is wellsettled that "[t]he 'presumption of regularity' supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Chemical Foundation, 272 U.S. at In this case, it must be presumed that Customs posted the offline bulletin notice in a conspicuous place or lodged it in an otherwise suitable place at the Customhouse. Aaron alleges that Customs violated its due process obligations because of the location in which Customs placed the folder containing the offline bulletin notices. Blue Br Aaron asserts that the absence of a sign directing importers to the folder of offline bulletin notices of reliquidation and the "seemingly comprehensive nature" of the folders of online bulletin notices of reliquidation could have misled a prudent importer into thinking that all of the bulletin notices had been reviewed. Blue Br. 51. The issue of the necessity of the phrase "Customs Form 4333" on a bulletin notice will be addressed below. 33