GOLDHOFER FAHRZEUGWERK GMBH & CO., PETITIONER V. UNITED STATES OF
AMERICA

   No. 89-1172

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Federal Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A10) is reported
at 885 F.2d 858.  The decision of the United States Court of
International Trade (Pet. App. A14-A23) is reported at 706 F. Supp.
892.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. A11) was entered on
September 19, 1989.  A petition for rehearing was denied on October
20, 1989.  Pet. App. A12.  The petition for a writ of certiorari was
filed on January 17, 1990.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the notice regarding the duty that petitioner was required
to pay on its imported goods was constitutionally adequate.

                               STATEMENT

   1. The United States Customs Service determines and collects duties
on goods imported into this country.  A customs officer estimates the
value of incoming merchandise by using all reasonable means.  See 19
U.S.C. 1500(a);  19 C.F.R. 151.1-151.14.  He must then ascertain the
rate of duty applicable to such merchandise.  19 U.S.C. 1500(b).
After fixing the amount of duty to be paid, the customs officer
"liquidates" the entry of the merchandise.  19 U.S.C. 1500(c) and (d).
 /1/ He must give notice of the liquidation to the importer, its
consignee, or agent in accordance with the regulations prescribed by
the Secretary of the Treasury.  19 U.S.C. 1500(e).

   The Secretary's regulations require that notice of liquidation be
made on a "bulletin notice of liquidation" -- Customs Form 4333 or
4335.  19 C.F.R. 159.9(a).  That bulletin is to be posted for the
information of importers in a conspicuous place in the customhouse at
the port of entry.  19 C.F.R. 159.9(b).  The entries covered by the
bulletin notice are stamped "liquidated," which is deemed to be the
legal evidence of liquidation.  19 C.F.R. 159.9(c).  The regulations
also provide that the Customs Service will endeavor to provide
importers or their agents with Customs Form 4333-A, which is called a
"Courtesy Notice." That notice "shall serve as an informal, courtesy
notice and not as a direct, formal and decisive notice of
liquidation." 19 C.F.R. 159.9(d).

   The liquidation decision of the Customs Service is final unless a
protest is filed with the appropriate Customs officer within 90 days
after the notice of liquidation.  19 U.S.C. 1514(c)(2).  /2/ If the
protest is denied, the party may contest the denial by bringing a
civil action in the Court of International Trade.  28 U.S.C. 1581(a).

   2. Petitioner is a corporation organized under the laws of the
Federal Republic of Germany.  Pet. App. A3.  Petitioner imported a
multi-axle "gooseneck" semitrailer, Entry No. 101757, on February 16,
1980, at the Port of Norfolk, Virginia.  Ibid.  An error by the
Customs Service caused the name of an unrelated third party, Walsen
Design and Manufacturing, to be included on the computer printout
sheet that was to be posted in the customhouse on June 5, 1981.  Ibid.
 Before posting the "bulletin notice of liquidation," however, a clerk
manually corrected the error by writing in petitioner's name and
address.  Ibid.  The courtesy notice and the bill, however, were sent
to the party originally listed on the printout.  As a result,
petitioner never received a courtesy notice of the liquidation or an
original bill.  Ibid.

   The Customs Service prepared a "REBILL" on September 4, 1981 -- the
91st day after the June 5, 1981, liquidation -- and addressed it to
petitioner in West Germany.  Pet. App. A4.  Petitioner filed a protest
on December 1, 1981.  Ibid.  The Customs Service received the protest
179 days after the bulletin notice of liquidation.  Accordingly, the
Customs Service denied the protest as untimely because it was not
filed within the 90-day protest period set forth in 19 U.S.C.
1514(c)(2).  Ibid.

   3. Petitioner then filed this suit in the United States Court of
International Trade.  Petitioner argued that it had not received
proper "bulletin" notice as required by 19 U.S.C. 1500(e).  It also
claimed that the Customs Service's failure to send a courtesy notice
was a violation of the Due Process Clause.  Pet. App. A4.

   The trial court granted the government's motion for summary
judgment.  The court recognized that notice is inadequate if "the
importer could * * * have reasonably been misled or confused by the
bulletin notice of liquidation, as posted." Pet. App. A17.  But the
court stated that it could not "envision how (petitioner) could have
been misled by this notice." Ibid.  The court noted that:  (1)
petitioner's name was legible and easily seen, (2) petitioner's name
was clearly intended to replace the crossed-out name, and (3)
petitioner's name appeared in its proper alphabetical sequence, next
to the correct entry number as well as the correct date of entry.  The
trial court held:  "A prudent importer would have concluded that it
was his entry which was posted.  At the least, (petitioner) should
have inquired into the nature of the correction." Ibid.

   The trial court also ruled that the Customs Service was not
constitutionally required to send a courtesy notice by mail.  It noted
that "(t)he only notice that is statutorily mandated is bulletin
notice 'in a conspicuous place in the customhouse at the port of
entry.'" Pet. App. A19.  It further held that "(t)he agency has no
duty 'to enlarge or broaden the mandatory requirement of the law' * *
* merely because the importer has become accustomed to an extended
courtesy." Ibid.  The trial court rejected petitioner's contention
that this Court's decision in Mennonite Bd. of Missions v. Adams, 462
U.S. 791 (1983), means that posted notice is always constitutionally
inadequate where the name of the interested party is known.  Relying
on Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478
(1988), the trial court held that "the proper focus in determining the
sufficiency of notice is on reasonableness;  'whether a particular
method of notice is reasonable depends on the particular
circumstances.'" Pet. App. A21.  The trial court concluded that

      (c)learly, the bulletin notice is a means which is reasonably
      calculated to apprise an importer of the liquidation.  One who
      avails himself of the advantages of importing goods into this
      country can expect liquidation notice to be posted in a
      specified location, with little probability of it being removed.
       A reasonably prudent importer is amply apprised of any action
      taken with respect to his merchandise through the bulletin
      process and must merely monitor the bulletin to be aware of
      liquidation.

Id. at A22.

   4. The court of appeals affirmed.  The court agreed with the trial
court that the Customs Service's "posting 'bulletin notice' of
liquidation alone both complies with the applicable customs laws and
regulations and satisfies the minimum constitutional standards for due
process." Pet. App. A2.  The court of appeals observed that this
Court's decision in Mennonite Bd. of Missions means that the Customs
Service must provide notice that is as likely as notice by mail "to
ensure actual notice." Id. at A7.  The court then considered several
factors to determine whether the notice in this case met that standard
-- i.e., (1) whether the notice relied on chance alone to reach the
interested party, (2) whether the notice was designed to attract the
attention of the interested party, (3) whether the means of providing
notice was reliable, and (4) whether there were any "feasible and
customary" alternatives to the form of notice chosen.  Id. at A7-A9.

   The court of appeals concluded that the Custom Service's "posting
of bulletin notice of liquidation in the customhouse at the port of
entry alone was as certain to ensure actual notice of liquidation to
the importer of record or its local Customs broker as mail notice."
Pet. App. A9-A10.  The court reasoned that "(petitioner), by choosing
to enter its goods at a particular port of entry, knew that
liquidation would occur there and selected that precise location to
receive the notice of that liquidation." Id. at A7.  Moreover, the
court of appeals found that the notice was designed to attract the
attention of the interested party because it listed "the name of the
importer of record, the date of entry, the liquidation date, the
region/district/port number, the action, and the type of entry and
number." Id. at A8.  In addition, the court observed that there was no
evidence that bulletin notice was unreliable.  Id. at A9.

                               ARGUMENT

   Petitioner maintains (Pet. 7-9) that notice by mail is
constitutionally required in all cases where the intended recipient's
name and address are ascertainable.  /3/ Petitioner is mistaken;  this
Court's decisions do not impose such an inflexible requirement.

   It is well settled that "(a)n elementary and fundamental
requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections." Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  "The means
employed must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it." Id. at 315.  Under
Mullane, the determination whether a particular type of notice is
constitutionally adequate requires balancing the interest of the
government in finality and the individual's interest in actual notice.
 Id. at 314.

   Petitioner erroneously contends (Pet. 8) that the Court in
Mennonite Bd. of Missions rejected the Mullane approach and adopted a
per se rule requiring notice by mail in all cases.  In fact, the Court
in Mennonite Bd. of Missions stated that the "case (was) controlled by
the analysis in Mullane." 462 U.S. at 798.  And although the Court in
Mennonite Bd. of Missions required notice by mail in that case, it did
not create a per se rule that such notice is constitutionally required
in all cases.  On the contrary, the Court approved "(n)otice by mail
or other means as certain to ensure actual notice." 462 U.S. at 800
(emphasis added).  Thus, the Due Process Clause continues to mean that
the courts must look to the circumstance of a particular case to
determine the adequacy of notice.  See, e.g., Tulsa Professional
Collection Servs. v. Pope, 485 U.S. 478 (1988).

   In this case, the court of appeals followed the Court's command in
Mennonite Bd. of Missions that the notice given petitioner be as
reliable as notice by mail.  See Pet. App. 7, 9-10.  And petitioner
does not challenge the court of appeals' critical conclusion that the
notice in this case was as likely as notice by mail to result in
actual notice.  /4/ Thus, no further review is warranted.  /5/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   MICHAEL JAY SINGER

   MARY K. DOYLE

      Attorneys

   APRIL 1990

   /1/ "Liquidation" is defined as "the final computation or
ascertainment of the duties or drawback accruing on an entry." 19
C.F.R. 159.1.  With certain exceptions not here applicable, all
imported goods must be liquidated.  19 C.F.R. 159.2.

   /2/ Protests may be brought by:  (1) the importers or consignees
shown on the entry papers, or their sureties, (2) any person paying
any charge or exaction, (3) any person seeking entry or delivery, (4)
any person filing a claim for drawback, or (5) any authorized agent of
any of the above-described persons.  19 U.S.C. 1514(c).

   /3/ In its section entitled "Questions Presented for Review" (Pet.
i), petitioner also sets forth an equal protection issue.  Petitioner,
however, does not discuss that question in the text.

   /4/ The court of appeals reasonably found that petitioner's own
lack of care resulted in the absence of actual notice in this case.
Petitioner knew where the notice would be posted;  it simply chose not
to monitor the liquidation notices even though "(t)he need to monitor
the bulletin posting has been repeatedly emphasized." Pet. App. A19.

   /5/ The appellate court cases that petitioner cites (Pet. 9) did
not involve situations where the notice given was as likely as mail
notice to result in actual notice.  Thus, they do not conflict with
the holding in this case.