Slip Op. 06-22 UNITED STATE S COURT OF INTERNATI ONAL TRAD E

__________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) Before: Barzilay, Judge

) v. ) Court No. 03-00005 ) GOLDEN GATE PETROLEUM CO., ) ) Defendant. ) __________________________________)

OPINION [Plain tiff ’s mot ion for summary

judg ment t o rec over unpa id dut ies a nd interes t is g

ranted.] Dated: February

21, 2006. Peter D. Keisler , Assistan t Attorne y G eneral ; (

Barbara S. Williams ), Attorney in Charg e, International Trade

Field Office, Commercial L itigation Branch, Civil Division, U.S. Department of Justice, Bruce Neal Stratv ert , ( Marcella Powell ); Michael

Felts , Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of counsel, for the plaintiff. Collier, Sh annon, Sc ott, PLLC ( Michael D. Sherman ), Thomas W . Mitche ll , for the defenda nt.

Barzila y, Jud ge: Plai ntiff, the United Sta

tes (the “ Government”), c ommence d this action pursuant to 28 U.S.C. § 1582(3) to recover unpaid duties in the amount of $ 1,359,172.50 and accrued interest claimed to be due on one entry made by

Defendant at the port of San Francisco, California, on October 8, 1985. The pa rties have filed cross-motions for summary judgmen t under U SCIT Ru

le 56. The

Government alleges that De fendant is liable f

or these duties because Customs’ liquidation on May 30, 1986, of the unde rlying e ntry was final.Court No 03-0005 Page 2

1 Golden Gate Petroleum Int’l is no longe r in business.

2 Dennis M. O’Keefe is President of Golden Gate Petroleum Co. and was President of Golden Gate Petroleum Interna tional, Ltd. He executed his affidavit on July 21, 2005. Defendant denies its liability, cla iming that Customs assessed duties against the wrong company and in the wrong amount. UNCONTESTEDFACTS The cen tral dispu te in this c ase conc erns the identity of the importer tha

t should be

held liable for the duties on the entry at issue. Defendant, Golden Gate Petroleum Company (“Golden Gate Petroleum”), claims that it was not the actual importer for purpose s of duty liability and that Golden Ga

te Petrole um Int ernational, L

td. (“Go lden Gate

Petroleu m Int’ l”), Gold

en Gate Petroleu m’s subsidi ary

– not a par

ty 1 to this case – is the liable importer. The evidence presented shows that in the underly ing transaction, Golden Gate Petroleum I nt’l purchased 225,464 barrels of leaded gasoline for $ 4,966,885.00 from Nichimen Corporation (“Nichimen”) in 1985. Aff. O’Ke efe 2 ¶ 6. Althou gh the in itial purc hase con tract lis ted “Gold

en Gate Petroleum Company” as the c ontracting party , Nichimen invoiced Golden Gate Petroleum I nt’l for the p urchase of the g asoline, and Golde n Gate Petroleum I

nt’l paid f or the me rchandi se with its loan proceeds from Inter national Bankers I

ncorporated, S.A. Aff. O’Ke efe , Ex. 4, Ex. 5. Golden Ga

te Petrole um Int ’l was al so the par

ty that char

tered th e vessel , the M/T N airi, to transport the purchased gasoline and toluene , bought in Japan, from the Soviet Union and Japan to the United States. Aff. O’Ke efe ¶ 9. Upon arrival in the United States, the M/T Nairi unloaded about 44 % of the gasoline in Portland, Oregon. The relevant entry

documents were completed allegedly by Golden Gate

Petroleum Int’l’s broker, L ivingston International, I

nc. Aff. O’Ke efe

¶Court No 03-0005 Page 3

12. “Golden Gate Petroleum” was identified as the importer of r ecord on the Customs Form 7501 (Entry Summary

) and as the “purchaser” on the Pro F orma Invoice. Aff. O’Keefe, Ex. 13. The Government liquidated the Portland entry as “motor fuel” under item 475.25, TSUS, the same tariff classification under which Golden Ga te Petroleum had entered the product. The M/T Nairi then transported the remaining g asoline, 5,235,720 gallons, and all of the toluene to San Francisco. Aff. O’Ke efe ¶ 13. The Customs Form 7501 for the San Francisco entry again i dentifie d “Golde

n Gate Petroleum”

as the importer of r

ecord a nd listed G olden Ga

te Petroleum’s importer number and bond number on the entry summary. The for

m was prepared and signed by

another broker, Thornley & Pitt. The San Francisco Form 7501 contained one apparent error: while the quantity of the merchandise unloaded in San Francisco was correct, the listed “entered value” of $ 4,966,885 was not corre ct because the amount reflected the va lue of the entir e shipmen

t instead o f the val

ue of the portion un

loaded in San Fra ncisco, w hich was $ 2,991,997. Apparently, the ove rstated value of the San Francisco entry had no immediate effect on Golden

Gate Petr

oleum’s c lassific ation and initial de posit of du

ties unde r item 475. 25, TSUS, a specific tariff applied to the quantity entered. Golden Gate Petroleum deposited estimated duties worth $ 130,893.00 on the leaded gasoline portion of the entry . Customs, however, liquidated the San Francisco entry under item 432.10, TSUS, as “a mixture in whole or in part of hydrocar bons derived in whole or in part from petroleum.” Aff. O’Ke efe ¶ 20. This reclas sificati on result

ed in a co lumn 2 tari ff rate of 30 per cent ad valorem , a higher rate than as entered, and Customs applied the 30 percent to the incorrec t “entered value” of $ 4,966,885, assessing additional duties of $ 1,359,172.50. Aff. O’Ke efe ¶ 20. On Ma

y 30 , 1986, Cust

omsCourt No 03-0005 Page 4

3 On July 8, 1991, Cu stoms comme nced an administr

ative pe nalty procee ding ag ainst Golden Gate Petroleum under 19 U.S.C. § 1592 concerning the Portland e ntry. Aff. O’Ke efe

¶ 22. The pr

e-pena lty n otice cla imed that G olden Ga

te Petrole um had bee

n “gro ssly

neglig ent” in classifying

the gasoline from Russia as “motor fuel” under 475.25, TSUS. Aff. O’Ke efe ¶ 22 . It further stated that Customs would seek over $ 2.7 million in additional duties and penalties. Aff. O’Keefe ¶ 22. Golden Gate Petroleum objected administratively to the pre-penalty

notice. Aff. O’Keefe ¶ 23. Customs then issued a notice of penalty lowe ring the level of culpability , alleging that Golden Gate Petroleum had “neglige ntly” classified the g asoline on the Portland entry, a nd demanding a penalty

and additional duties of over $ 1.6 million. Customs agreed to stay the administrative aspect of the penalty proceeding, contingent on Golden Ga te Petroleum’s billed Gol den Gate

Petroleu m’s suret y, F ireman’ s Fund I

nsuranc e Company

, and the s urety paid the liability limit of $ 200,000.00 under that bond. Golden Gate Petroleum timely pr otested this change in classification and liquidation. The protest named “Golden Gate Petroleum Company, Inc.” as the importer. The protest was made ag ainst Custo ms’ class ification of the me rchandi se in item 4 32.10, TSU S, claiming that it was prop erly

classifi able unde

r item 475. 25, TSUS, or

alterna tively under 47 5.35, TSUS, and did not challenge any

other aspects of Customs’ liquidation. It did not claim that the incorrect importer was liste d on the en

try document s, nor did i

t note the incorre ct value

used to ap

praise the entry and inc

rease the amount of duty . Four ye ars after the protest was filed, Customs denied the prote st. Golden

Gate Petr

oleum did n

ot challe nge tha t denial in this Court. It now

claims that it did not have funds to pay the $ 1,359,172 in additional assesse d duties, plus accrued interest at that time of $ 774,135, to meet the jurisdictional prerequisite for the filing of such a suit under 28. U.S.C. § 2636(a). Since the entries were liquidated, Customs has unsuccessfully attempted to collect the additional duty and acc

rued interest. As a result of Golden Gate’s fa ilure to pay, the Gove

rnment commenced this action pursuant to 28 U.S.C. § 1582(3). 3Court No 03-0005 Page 5

agreement to extend the statute of limitations for Customs to bring a court action to impose a penalty until November 22, 2004. Aff. O’Ke efe ¶ 24. It appears that the waiver on the statute of limitations

has run, a

nd the Gov ernment

has not fi led a penalty

action on the Portla

nd entry in this Court. Def.’s Opp. Br. 8.

4 At the time

of the en try , section

1505 provided in re levant pa rt: (a) Deposit of estimated duties and fees Unless merchandise is entered for ware house or transportation, or under bond, the importer of record shall deposit with the appropriate customs officer at the time of making entry

. . . the amount of duties estimated by such c ustoms officer to be payable the

reon. (b) Collection or refund DISCUSSION The court has exclusive jurisdiction over this case pursuant to 28 U.S.C. § 1582(3) (2004). Summary judg

ment is appropriate when “there is no genuine is su e a s t o a ny material fact.” USCIT R. 56(c)(emphas is added) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). On summary judgment motion, the court “shall if practicable ascer tain what materia l facts exist without su

bstantial controve rsy and what materia l facts a re actu ally and in good faith controverted.” See USCIT R. 56(d). I f no genuine issue of material fact e xists, the court de termines whether either p arty

“is entitl ed to a jud

gment a s a matter

of law.” USCIT R. 56(c). “ As to mate

riality, the subst

antive la w will iden

tify which fa cts are materia l. Only disputes o ver fac

ts that mig

ht affe ct the out

come of t he suit und

er the g overning

law will properly pre clude the entry of summary judg

ment.” Anderson , 477 U.S. at 248. 1. The Im porter’ s Identity for the Entr

y at Issue In this action, the Government seeks to re cover unpaid duties claiming that Defendant, as the import

er of re cord, is l iable fo r pay ment of e stimated d

uties and accrue d intere st pursua

nt to 19 U.S.C. § 1505. 4 “The identity of the importer is a material fact for determining duty liability.”Court No 03-0005 Page 6

The appropriate customs officer shall collect any increased or additional duties due or refund any

excess of duties deposited as determined on a liquidation or reliquidation. 19 U.S.C. § 1505 (1982 & Supp. V 1987) (emphasis added).

5 28 U.S.C. § 2639 (2000) provides for the burden of proof: (a)(1) Except as provided in paragr aph (2) of this subsection, in any civil action commenced in the Court of Interna tional Trade under section 515, 516, or 516A of the Tariff Act of 1930, the decision of the Secre tary of the Tr

easury, the administering authority, or the International Trade

Commission is presumed to be correct. The burden of proving otherwise shall rest upon the party challenging such decision. (2) The p rovisions of para graph (1) of th is subsec tion shall n

ot apply to any civil action c ommence d in the Cou rt of I nternat ional Tra de under section 1 582 of this title. Henry Mast Greenhouses, Inc. v. United States , 19 CIT 1414, 1416, 966 F. Supp. 1226, 1229 (1995). The Government bears the burden of establishing that Defendant is the importer for purposes of duty liability

. See 28 U.S.C. § 2639 5 ; Henry Mast Greenhouses , 19 CIT at 1417 n.6, (citi ng United States v. Bishop , 125 F. 181 (8th Cir. 1903)). Reading the facts of this case with the g overning substantive law establishes that the Government has me

t its burde n of showi

ng that Pl aintiff w as the importer for purposes of duty liability. Customs’ regulations define “ importer” as . . . the person primarily liable for the pay

ment of any duties on the mer chandise, or an authorized agent acting on his behalf. The importer may be: (1) The consignee, or (2) The importer o

f record , or (3) The actual owner of the merc handise, if an actual owner's dec laration and superseding bond has been filed in accordance with § 141.20 of this cha pter, or (4) The transferee of the mer chandise, if the right to withdraw merchandise in a bonded warehouse has been transferr ed in accordance with subpart C of part 144 of this cha pter. 19 C.F.R. § 101.1 (e

mphasis a dded). T he statute provides that the “ importer

of record” is lia

bleCourt No 03-0005 Page 7

for estimated duties. 19 U.S.C. § 1505(a). In addition, pursuant to 19 U.S.C. § 1484(a)(2)(B), “the required documentation or information shall be filed or ele ctronically tra nsmitted either by the owner or purchaser of the merc handise or, when appropriately designated by

the owner, purchaser, or consignee of the merchandise, a person holding a valid license under section 1641 of this title.” In this case, the entry documents for the San Francisco entry were completed by Golden Gate Petroleum’s broker. The official e ntry documents state that De fendant was the “importer of record” for the San Francisco entry . Specifically, “G olden Gate Petroleum” was designated as the importer of recor d on Form 7501 and its importer identification number was listed on F orm 7501. I

n addition , Golden G ate Petr oleum was

the princ ipal on the

bond, its importer number appears on the bond, and it is named on the pro forma invoice for the merchandise at issue. Notably , Golden Gate Petroleum’s surety , Fireman’s Fund I nsurance Company, has paid the limit of liability under that bond for the increase in duties on the San Francisco entry

. Nevertheless, De fendant

argue s that the i

mporter o f recor

d in this ca se is Golde

n Gate Petroleum Int’l and that the broker made a mistake by using

Golden Gate Petroleum’s identific ation numb er. The court ca nnot acc ept this ar

gument a s the entr

y do cuments s tate unambiguously that the importer of record is “Golden Gate Petroleum.” I n addition, at the time, Customs’ c omputer syst

em conta ined no re cord of a

n importer

by t he name o f “Golde

n Gate Petroleum International, L td.” or of a bond issued to that entity. See Letter from Customs , Apr. 10, 1996. M eanwhile , Customs re quires th at Each pe rson, busi ness firm , Govern

ment ag ency , or other

organ ization sha

ll file Customs Form 5106, Notification of Importer' s Number or Application forCourt No 03-0005 Page 8

Importer's Numbe

r, or Notice of Change of Name or Address, with the first formal entry which is submitted or the first re quest for services that will result in the issuance of a bill or a refund check upon a djustment of a cash collection. 19 C.F.R. § 24.5(a) (1985). Further supporting the Government’s satisfac tion of its burden, Golden Gate Petroleum was the party

that protested Customs’ liquidation of the San Francisco entry . The protest was filed by “Golden G ate Petroleum,” using its importer identification number and releva nt entry document number. Tellingly , in the accompany ing Memorandum in Support of Protest and Application for Further Review, Golden Gate Petrole um wrote “On October 7, 1995, Golden Gate Petr oleum Compa

ny, Inc . . . . impor

ted into Sa

n Franc isco a ca

rgo of p etroleu

m product s aboard the vessel M/T ‘Narai’ [sic].” Pl.’s Ex. B

. See Prestigeline v. United States , 75 Cust. Ct. 139, 143, 406 F. Supp. 532, 535 (1975) (finding that “the true identity of the protesting party

and plaintiff in [a classification action] is readily asc ertainable from the importer’s identify ing number appearing on the protests” that has to be f urnished under 19 C.F.R. §§ 24.5 and 174.13(a)(2)). Plaintiff has not pr

esented any evidenc e underm

ining the validity of the en try document s and the protest filed for the San Francisco entr y. I nstead, Defendant argues tha t the Government’s claim is unlawful and should be dismissed because Golden Gate Petroleum Int’l was the sole owner, shipper and importer of the g asoline. Defendant insists that the court look at the under lyin g trans action to

establish that Golde

n Gate Petroleum I

nt’l was t he “act ual” importer. In support of its position, Defendant cites to dicta in United Sta tes v. Che rry Hill Textiles, Inc. , where the Fed eral C ircui t stat ed tha t “if a liqu idati on were obtai ned th roughCourt No 03-0005 Page 9

unimpeachable procedures and stated the c orrect duty, it would not result in the imposition of liability on a pers on who had

nothing w

hatsoeve r to do with

the entr y bu t was mista

kenly identifie d as the imp orter or surety .” 112 F. 3d 1550, 15 60 (Fed . Cir. 1997 ). While Go lden Gate Petroleum has shown that Golden Gate Petroleum Int’ l negotiated and signed a contra ct for the purchas e of the g asoline f rom Nichi

men, and a

lso arra nged f or its tra nsportat ion, Def endant di d not demonstrate that Golden Gate Petroleum was mistakenly identified as the importer by the broker. The entry

documents and the filed protest show that Golden Gate Petroleum acted a s the importer for the San Francisco entry

. See Henry Mast Greenhouses , 19 CIT at 1417 (noting that the name on the official documents was the telling evidenc e of the importer’s identity) . The court takes these official documents at their fac e value and finds that under the governing law, Defend ant has be en conc lusively identifie d as the imp orter fo r purpose s of duty

liability in this

case. 2. Assess ment of D uties Defendant in this action also seeks to challenge the va lidity of duties sought by

the Go ve rn me nt by a rg ui ng th at th e a mo un t u se d t o a ss es s t he du ty w as er ro ne ou s. Sp ec if ic al ly, Defend ant arg ues that the Gover

nment is at

tempting to collect duties on

the merc handise t hat it knows wa s never i

mported a

t the Port o f San Fr

ancisco and that, theref

ore, the liquidation is void ab initio . The Government counters that 19 U.S.C. § 1514(a) makes Customs’ liquidation final on all persons unles s proteste d and unle ss a civil a ction con testing the denia l of the pr otest is commenced in the U.S. Court of Interna tional Trade. In this case, Golden Gate Petr oleum’s broker mistakenly listed the e ntered value of theCourt No 03-0005 Page 10

6 The court notes that the cases cited by Defendant are inapposite and even a dverse. See Ashland Chem. Co. v. United States , 7 CIT 362 (1984) (holding that Customs’ appraise ment of merchandise based on the unsupported addition of twenty percent to an invoice price was errone ous); United States v. Woodward-Newhouse Co. , 11 Ct. Cust. 284 (1922) (holding that where the entry

stated c orrect

ly the number

of bushel s and the price pe r bushel, but erroneously extended the total value, “the entered value” for pur poses of appraisement was the unit value and not the erroneous extension, and that it was the duty of the collector to multiply the number of bushels by

the value per bushe l and asse ss duty on the re sult); United States v. Muller, Maclean & Co. , 158 F. 405, 406 (1907) (holding, inter alia , that the Customs Administrative Act of 1890, requiring that duty

not be assessed on less than the invoice value, “does not require the collector to accept a mistaken value given in a pro f orma invoice, when he has before him the corr ect value given in a consular invoice.”). Nota bly, in Wood

ward-Newh ouse , the importer protested Customs’ liq

uidation s pecific ally

pointing out that the

value of the import

ation was a manife st clerical error. 11 Ct. Cust. at 285. Similarly, in Muller , the importer was appealing a decision of the Board of General Appra isers, a predecessor to this Court, with jurisdiction over protests. 158 F. at 406. These cases would have bee n relevant if Defendant availed itself of the a dministrative remedies under section 1514 or 1520(c). cargo as $ 4,966,885.00 rather than $ 2,991,997.00. The Portland entry documents showe d that Golden Gate Petroleum paid the estimated duties on the portion of carg o whose value was then included on the San Francisco Customs Form 7501, and Customs liquidated that entry without any cha nge in classification. Golden Gate Petroleum asserts that “ this error should have been apparent to both the Government and the broker fr om the documents already in their possession.” See Aff. O ’Keefe

¶ 15. Defendant claims that the Government’s case thus “includes the liqu idati on of 4 ,233, 802 gal lons of gaso line i n San F rancis co tha t were, in fact , imp orted throu gh Portland, where duties on it were paid and liquidated.” Def.’s O pp’n Br. 6. In

support, Defendant cites to the following Customs’ regulation 6 : When any mercha

ndise not corresponding with the description given in the invoice is found by the examining off icer, duties shall be assessed on the merchandise actually

found. If the discrepa

ncy appe ars conclusively to be the result of a mistake and not of any intent to defraud, no proceedings for for feiture shall be taken.Court No 03-0005 Page 11

7 Section 15 20(c) pr

ovided: (c) Reliquidation of entry or reconciliation Notwithstanding a valid protest was not filed, the appropriate customs office r may, in acc ordance with regulations prescribe d by the Secre tary, re liquidate an entry or re conciliation to correct-- (1) a clerical error , mistake of fact, or other inadvertence not a mounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by

documentary e

vidence, in any

entry, liquidation, or other customs transaction, when the error, mistake, or inadverte nce is brought to the 19 C.F.R. § 152.3. This regulation was promulgated in connec tion with 19 U.S.C. § 1499, laying out requirements for Customs’ inspection, examination, and appraisal of merchandise at entr y. Congress has given Customs the authority to “fix the final appraisement of merchandise by ascertaining or estimating the value . . . by all reasonable ways and means in [Customs’] power.” 19 U.S.C. § 1500(a). While Customs is responsible for appraising merchandise, the pertinent statute at the time provided: . . . decis ions of the

appropr iate cus toms offic er, incl

uding the legali ty o f all orders and findings entering into the same, a s to – (1) the appraised value of mercha ndise; (2) the classification and rate and amount of duties cha rgeable;

. . . (5) the liquidation or reliquidation of an entry , or any modifica tion thereof;

. . . shall be final and conclusive upon all persons (including the United States and any offic er thereof) unless a protest is filed in accorda nce with this section, or unless a c ivil action contest ing the d enial of a protes t, in whole

or in par t, is commenc ed in the U

nited State s Court of I

nternat ional Tra de in acc ordance

with chapter 169 of title 28 within the time prescribed by section 2636 of that title.
19 U.S.C. § 1 514(a) ( 1982 & Sup p. V. 1987 ) (empha sis added ). At the t

ime, the la

w also provided that any “ clerical error” could be broug ht to Customs’ attention within one year after the date of entry

for reliquidation. See 19 U.S.C. § 1520(c) 7 (1982 & Supp. V. 1987), repealedCourt No 03-0005 Page 12

attention of the Customs Service within one yea r after the date of liquidation or exaction; or (2) any a ssessment of duty on household or personal effects in respect of which an application for refund has been filed, with such employ ee as the Se cr et ar y of

th e T re as ur y sh al l d es ig na te , w it hi n o ne yea r a ft er th e d at e o f e nt ry.

8 In its motion for

summary judgmen t, Golden Gate als o challe

nged Cus toms’ reclassification of the merchandise in the San Fr ancisco entry

under item 432.10, TSUS. For the same re asons, the

court la cks jurisd iction to c onsider t

his issue a s Golden G ate did no t protest Customs’ de

nial of its protest. by Miscellaneous Trade and Technical Corre ctions Act of 2004, Pub. L. No. 108-429, § 2105, 118 Stat. 2434 (2004). The value error now challeng ed before the court was undoubtedly a protestable issue, and, alte rnative ly, the import

er could have als o pursued

relief t hrough 19 U.S.C. § 1 520(c). In its protest, however, Golden Gate Petroleum did not challeng e the value error. 8 Nor did Defendant commence a timely

action in this Court to perfect jurisdiction over its challenge. See, e.g., United States v. T.J. Manalo, Inc. , 26 CIT 1117, 1122, 240 F. Supp. 2d 1255, 1259-60 (2002) (stating that to challenge a denied pr otest in this Court, the importer must file a civil action within 180 d

ay s after t he date o f mailing

of notice of denia ls of a pr otest, 28 U.S.C. § 2636(a)(1), and pay the outsta

nding du ties and in

terest be fore the

action is c ommence d pursuan t to 28 U.S.C. § 2637(a)). Defendant’s arg ument that the liquidation of the San Francisco entry was void ab initio is without merit because the liquidation was not illegal in this case: Customs’ incorrect appraisement was a result of incorrect information provided by the importer on the entry documents. Cf. Cherry Hill Textiles ,112 F.3d at 1560 (holding, inter alia , that “[r]egardless of the acc uracy or proce dural correctness of the new liquid

ation, it w ould have

no lega l effect,Court No 03-0005 Page 13

because it would be

barred by principle s of res ju

dicata” after a deemed l iquidation

has become final). T he resul t is unfort unate, bu t the law i s unbendin

g in this c ase as D efenda

nt failed to challenge the liquidation based on a procedur al or factual error in its protest or otherwise. The Feder al Circui t has inter preted s ection 15 14 as pre cluding the reme dy s ought by

Defend ant in this case: The issue of the effect of the “final a nd conclusive” clause is thus simply one of statutory construction. The lang uage of section 1514, that a liquidation will be “final and conclusive” unless protested, is sufficiently broad that it indicates that Congre ss meant to

forecl ose unprotested iss ues from being r aised in a ny c ontext, not simply to impose a prerequisite to bring ing suit. Moreover, we discern no compe llin g poli cy consid erati on cou nseli ng again st giv ing th e stat utory lan guage its naturally broad re ading. To the contrary, under [the surety’s] position importers or sureties could by pass the protest mechanism in any case in which an underpayme

nt of duties is alleged, and then collaterally challenge the liquidation in the ensuing enforcement action. To give importers and sureties that option would create a gaping

hole in the administrative exhaustion requirement of section 1514 and would be inconsistent with the underly ing policy of se ction 1514, whic

h is to cha

nnel cha llenge s to liquida

tions throu

gh the protest mechanism in the first instance. Id. at 1557 (internal citations omitted). The Federal Circuit’s interpre tation of section 1514 requires that the court uphold the protest requirement as applica ble to this recovery

of duties case. B ecause

it did not pr

otest the i ssue, De fendant does not ha

ve a cau se of action before this
court to c orrect

the err or in its en

try document s. CONCLUSION The Government in this case is entitled to summary judgment as a matter of law and Defendant is found liable for duties in the amount of $ 1,359,172.50. Regar ding the Government’s pray

er for prejudgment interest from the fif teenth day a

fter the entry ’s liquidation until the da

te of ent ry of judgment, pre sently

the cour t is not incl ined to or

der Gold en GateCourt No 03-0005 Page 14

9 It sho uld be note d that although this Court has a

warded post-judg

ment inter

est citing to 28 U.S.C. § 1961, see, e.g. , Rico Imp. Co. v. United States , 17 CIT 183, 184(1993), this section on its own terms applies to money judgme nts in civil cases recovered in district courts and therefore does not apply

to this Court. See 28 U.S.C. § 1961(b)(4) (“This section shall not be construed to affect the interest on any judgment of any

court not specified in this section.”). While this court is not a “district court,” it “possess[es] all the powers in law and equity of , or as confer red by statute up on, a distr

ict cour t of the Un

ited State s.” 28 U.S. C. § 1585; see, e.g. , United States v. Hanover Ins. Co. , 82 F.3d 1052, 1054 (Fed. Cir. 1996) (distinguishing this Court from district courts, citing 28 U.S.C. § 1585.). For the reasons stated in Goodman , the court finds the rate of interest specified in 28 U.S.C. § 1961 applicable in this case. Goodman , 6 C IT at 140-41. Petroleum to pay such intere st. See United States v. Goodman , 6 CIT 132, 140, 572 F. Supp. 1284, 1289 (1983) (“In the a bsence of a statutory

provision to the contrary, a n award of prejudgment interest is a matter left to the sound discretion of the trial cour t, is governed by consideration of equity a

nd fairness, and is awarded to make the wrong ed party whole .”). Instead, the court orde

rs the parties to consult, negotiate, and agr ee upon the amount of prejudgment interest and to inform the court of such an a greement as directed in the accompa nyi ng orde r. The pa rties will calcula te preju dgment i nterest on the basi s of the r ate provided in 28 U.S.C. § 2644 and in accordance with 26 U.S.C. § 6621. See Goodman , 6 CIT at 140. Finally, the Gove

rnment is awarded post-judgment interest for the same equitable reasons 9 at the rate provided by

28 U.S.C. § 1961.

February

21, 2006 /s/ Judith M. Barzilay

____________________________ ______________________________ New York, NY Judi th M. Barzi lay, Jud ge