*1 Justice, trademarks) Department United States and irrevo- copyright York, York, response New New filed a court.” 355 cably federal S.W.3d petition defendants-appellees. for him on were Barbara response With S. an important have missed Today, we Williams, Attorney Charge, Internation- our case and to to correct law Office; West, Tony al Trade Field Assis- of Chris- reading our acknowledge that General, Attorney tant and Jeanne E. tianson, arguably justified, if once even Davidson, Director, Washington, DC. so. can no Smith, Office Of counsel was Paula S. Counsel, Assistant Chief International Litigation, Trade States Customs United Protection, York, and Border of New New York. Peterson, M.
John Neville Peterson LLP, York, York, for New New amicus ELECTRONICS curiae American Association HOME HITACHI INC., (AMERICA), Plaintiff- Importers. him on brief With Appellant, F. Richard O’Neill. O’Rourke, Michael S. and In-
v. Association, of ternational Trade Bar New STATES, United States Cus- UNITED York, York, New amicus curiae for Protection, Rosa Border toms and Bar toms and International Trade Associa- Hernandez, Director, Port United tion. and Border Protec- States Customs Defendants-Appellees. tion, RADER, Judge, Before Chief BRYSON, NEWMAN, LOURIE, LINN, 2010-1345. DYK, MOORE, O’MALLEY, PROST, of Appeals, States Court REYNA, WALLACH, Judges. Circuit Federal Circuit. Judge, with whom
March joins, Judge, dissents petition from the denial of the rehearing en banc.
ORDER PER CURIAM. panel rehearing petition combined Weiss, York, of New New was filed Plain-
Sidney N. en banc York, panel rehearing thereto petition tiff-Appellant, response plaintiff-appel- banc for invited and filed Defen- the court dants-Appellees. lant. him on the was Steven With PC, Zisser, Group, B. Law Zisser Customs panel Diego, of San California. that heard considered Miller, re- appeal, Trial thereafter Attorney, R. Com- Justin Branch, Division, hearing and briefs ami- response, Litigation Civil mercial *2 (“CITBA”), circuit which strongly cus curiae referred to the Association were request a judges authorized to en support who are banc review overturn the appeal en of to rehear the poll explained by whether majority’s decision. As CIT- taken, requested, was poll banc. BA, “importers require timely certainty as failed. liability imported on to their for duties Any goods. interpretation of the law that thereof,
Upon consideration possibility creates even a technical It Is Ordered That: refuse act on a (1) Plaintiff-Appellant The than simply two inconsistent rehearing is denied. today’s business realities.” CITBA (2) Plaintiff-Appellant The Br. at 8. en banc is denied. Congress addressed those business real- (3) The of the will issue mandate court language ities when set out plain April on there be no other result under a protest than or “allow[ed] Judge, dissenting from upon deadline. The den[ied]” the denial of the however, majority, writes into the statute with whom third option for Customs—to Judge, joins. years or, discretion, the two in its para- presents This case an issue never make a determination substantive on importance mount to the trade com- U.S. munity by and warrants banc this court. Lest there be as to the doubt man- appeal
The issue on is whether two- datory nature of pro out set history repeatedly made clear that statute, 1515(a), test 19 U.S.C. is manda deadline was an limit” “overall or “maxi- tory my or merely aspirational. As dis period mum” time senting opinion explains case “must” review. detail, the statute’s command clear that at 28. When Customs “shall review ... allow and shall enacted Customs was deny” every on its “with merits likely not viewed as to exceed—or even years.” generally See full require—the to com- Elecs., States, Home Inc. v. plete protests. its review of all (herein (Fed.Cir.2011) F.3d 1351-61 provided Congress data at “Dissent”). after, Much argued that time showed that “all were whether imposes the word “shall” an obli processed in an average days of 58 Customs, gation yet upon we cannot avoid receipt, from the date of and more than 97 Congress impera strongest chose the percent fully processed within 90 English language, fully tive intend receipt.” of the date of S.Rep. their express charge not to be Congress gave evaded. a much than toms necessary so as to afford “a importance correctly resolving maximum this issue is underscored the amicus ad- briefs ministrative review.” H. No. 91- the American Association of added). (“AAEI”) 1067, at Importers (emphasis the Customs and International Trade Bar that the value understood substantive de- linchpin majority opinion of the deter- rived from the issuance upon statutory construction reliance cases under- on Customs’ premised mination County, Brock v. Pierce U.S. analysis specific taking a *3 248 106 S.Ct. 90 L.Ed.2d Congress wisely facts. business-related majority progeny. and its reads these global increasingly the recognized that cases to a “rule” that renders the suggest come mark would to trade environment mandatory language merely aspira- “shall” and complexi- technicalities protests with § allegedly tional because fails to ties, origin requirements rules of a specify consequence for Customs’ inac- cross- agreements under free trade compel tion. These cases do not the ma- companies, related border trade between jority’s conclusion ultimate certainty need for and acted on the § not two-year deadline was inter- through trade time- predictability for U.S. preted any in There is no appli- them. protest administrative ly Thus, “precedent” cable this case. to if we by Customs. reviews must construe the Hence, Congress departure intended § we in accordance should do so prior from to the Customs the unique in light its own text and of its own (which codified Courts Act of sure, unique legislative history. To be 1515), § to de- whereby Customs’ failure precedent in certain analogous cir- then-proscribed cide a within the cumstances to issues of helpful statuto- caused 90-day time Customs construction, ry progeny but Brock and its jurisdiction, the auto- lose unhelpful are here because involve In- to the Court of matically transferred statutory short deadlines of a fundamen- Trade for review. There was ternational tally two-year different character than the provision See, no to “allow” a if the 90- e.g., § Dissent day was not met. (explaining that short time lim- “[t]he objec- legislative respective these in the less] decision frustrates [of way plainly in- [in etc.] the statute in a statutes Brock by interpreting tives ‘spur’ agency prompt tended the to take that disincentivizes contexts,” action various as protes- review and converts administrative indictments). bringing criminal fur- unwilling plaintiffs tors who face delay litigation ther considerable majority correct that Nor the the Hitachi costs. the consequence does specify statute not early meaning as as case were filed plainly inaction. The statute Customs’ permitted has those Customs at the provides that Customs shall end of nearly five remain the time either allow or Hita- the deadline. Even deny protest, If it denies languished have chi’s recent most required to issue a denial letter years beyond two- than three stating for the denial so reasons majority Yet instructs deadline. future business protestor make deci- denial, if it believes or to sion on the basis of the serve unjustifiable, should now abandon the it as a basis to the denial court. 1515(a). a deemed denial under If Customs and seek See U.S.C. does 1515(b) deny, consequence so as to be free to sue it faces the not then U.S.C. protest, inspired having ma- inaction to allow the court. This result jority clearly not which means in dicta is envisioned refund history. issue notice of the statute or its major- overpaid gate, large check for duties. The number of undecided ity apparently takes issue with the notion tests, the substantial economic value of the by operation of allowance of law absent abeyance, duties held in and the lack of statutory language that describes a timely, meaningful guidance administrative “deemed allowed” inaction. significant on the most important trade Finding the word “allowed” in nothing issues does but hinder trade in a majority looking in effect the no- opposite manner of what intend- Yet, types allowance. in these ed when enacted transactions, the allowance of a *4 protest requires nothing more than a no- If Customs’ best efforts to manage its reliquidation and a refund. de- docket protests cannot result in all regarding tailed letter an allowance is not deadline, decided within its since have no incentive remedy Congress. lies before Under the legal viable basis to the allow- rule, however, Customs has no ance in court. the Committee Re- appeal Congress incentive to or attempt ports explained that purpose “no useful to reduce the percentage pro- of undecided would be served imposing on customs aptly explained by AAEI, tests. As mailing separate burden of notices of processing protests “[i]f a discretionary allowance” “protest since allowances are duty that may be discontinued without reflected in the notices of consequence, logically [Customs] will con- payments.” in refund centrate its resources on revenue-collect- (1969); at 30 H. at 29- ing activities, and law-enforcement rather 1970 U.S.C.C.A.N. activities, than protest-processing government attempts to ease this only result the flow of monies out of court’s concerns regarding delay by repre- treasury.” AAEI Br. at 9. In light of senting protests 8.7% of purpose, clear require more than two-year statutory permit any we should not time period for languish in this fashion. review. See Response Government’s Hitachi’s Petition Rehearing Panel reasons, For foregoing I conclude Banc, and Rehearing En at 11 (represent- that Customs’ indefinitely put- 2009, 36,040 that “for calendar ting off statutory obligation to review protests were ... that num- [and] [o]f within decide all ber, 32,908 91.3%) protests (approximately should put to an end. were decided ... years”). within two On filed, the scale at which protests are how-
ever, even this small fraction amounts to
3,132 undecided in 2009 alone. time,
Over protests repre-
sent a very large imports number of
massive sum of contested Signifi- duties.
cantly, government argues
tests like long Hitachi’s take a time to
review are difficult and com-
plex, argument but this precisely demon- why
strates should be
resolved. When aggre- considered in the