## United States Court of Appeals for the Federal Circuit

2006-1591

SAMUEL AARON, INC., Plaintiff-Appellant,

v.
UNITED STATES, Defendant-Appellee.

Joel K. Simon , Serko Simon Gluck & Kane LLP, of New York, New York, argued for plaintiff-appellant. Wi th him on the brief was Christopher M. Kane

. Gardner B. Miller, Jr. , Attorney, International Tr ade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justic e, of New York, New York, argued for defendant-appellee. With him on the brief was Barbara S. Williams , Attorney in Charge. Also on the brief were Peter D. Keisler , Acting Attorney General, and Jeanne E. Davidson , Director, of Washington, DC. Of counsel on the brief was Edward N. Maurer , Office of Assistant Chief Counse l, United States Customs and Border Protection, of New York, New York. Appealed from: United States C ourt of International Trade Judge Gregory W. Carman

## United States Court of Appeals for the Federal Circuit

2006-1591

SAMUEL AARON, INC., Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

_________________________ DECIDED: November 16, 2007

_______________ ___________ Before LOURIE, GAJARSA, and PROST, Circuit Judges

. LOURIE, Circuit Judge

. Samuel Aaron, Inc. (“Aaron”) appeals fr om the decision of the United States Court of International Trade granting the go vernment’s motion to dismiss for lack of jurisdiction. Samuel Aaron, Inc. v. United States , 452 F. Supp. 2d 1302 (Ct. Int’l Trade 2006). Because the trial court lacked jurisdiction, we affirm. BACKGROUND Aaron is an importer of Thai jewelry. Until 1998, certain im ports from Thailand and other developing countries had been eligible for a free rate of duty under the Generalized System of Pref erences (“GSP”) program. On June 30, 1998, however, theGSP expired. Between Augus t 10, 1998, and October 22, 1 998, Aaron filed sixty-six entries at the Port of New York (“Aaron’s entries”). U pon entry, Aaron paid estimated duties to the United St ates Bureau of Customs and Border Protection (“Customs”). On October 21, 1998, Congress reinstated the GSP and granted retroactive refunds for certain items that had been impor ted during the time in wh ich the GSP had lapsed. However, Aaron’s imports were not eligible for the retroacti ve GSP refunds provided for by the statute. Customs liquidated Aaron’s entries on two separate dat es, November 13, 1998, and December 11, 1998. Customs liquidated the entr ies duty-free and refunded, with interest, the estimated duties that Aaron had paid. On January 29, 1999, Customs sent a memorandum to the Port Director instruct ing reliquidation of all funds that had been erroneously issued for certain Thai imports . Customs subsequently determined that Aaron’s entries would need to be reliquidated. Based upon the dates of liquidation, the ninety-day periods during which Customs coul d legally reliquidate Aaron’s entries ended on February 11, 1999, and March 11, 1999, respectively. 1 On February 8, 1999, Customs placed a docu ment in “a notebook or binder” in Room 112 at the customhouse us ed by Customs at the Port of New York for making its bulletin notices of liquidation or reliquidation available to the public (“the off-line bulletin notice”). The off-line bulletin notice was entitled “BULLETIN NOTI CE of LIQUIDATION” and contained six columns of information: ENTRY TYPE, ENTRY NUMBER, ENTRY DATE, IMPORTER, IMPORTER NUMBER, and REMARKS. The REMARKS column for all of the entries on the off-line bulle tin notice stated, “RELIQUIDATION-INCREASE.”

1 Customs has ninety days from notice of th e original liquidation in which to voluntarily reliquidate an ent ry. 19 U.S.C. § 1501 (2000).

2006-1591 2That document is referred to as the “off-li ne” bulletin notice by the parties because it was not generated by Customs’ Automated Commercial System (“ACS”). The vast majority of bulletin notices at the Port of New York consist of computer printouts generated by ACS on a weekly basis. Those ACS-generated notices, like the off-line bulletin notice, are kept in Room 112, but in binders separate from any off-line notices. During the week of April 12, 1999, Customs ran a comput er script that created an ACS entry for Aaron’s entries listed on the o ff-line bulletin notice. On April 30, 1999, ACS generated a bill for the increased duties due on Aaron’s entries. On the same date that the bill was generated, Customs pl aced an ACS-generated bulletin notice in a binder in Room 112 (“the ACS bulletin notice”). The ACS bulletin notice was entitled “BULLETIN NOTICE OF ENTRIES LIQUID ATED.” It contained six columns of information: TYPE, FILER, ENTRY NUMBER, ACTION (increase/decrease), DATE OF ENTRY (with importer’s name), and DOCUMENT FILING LOCATION. The ACS bulletin notice contained all but one of Aa ron’s entries that appeared in the off-line bulletin notice. A reliquidation date of April 30, 1998 appeared on the ACS bulletin notice. Customs failed to r ed-line or otherwise note on t he ACS bulletin notice that reliquidation had been made on another date, as it ordinarily would if reliquidation had occurred on a date other than the date show n on the notice of reliquidation. Aaron filed a protest on July 29, 1999, to dispute the increased duties. On August 23, 2002, Customs denied that protest as untimely. Aaron then filed a complaint in the Court of International Trade. The Court of International Trade granted the government’s motion to dismiss for lack of jurisdiction. The court explained that the “linchpin issue” was whether there had

2006-1591 3been a valid reliquidation of Aaron’s entries on February 8, 1999. The court first determined that a final computat ion of duties, as required by 19 C.F.R. § 159.1 (1999), had occurred on February 8. Next, the court found that the off-line bulletin notice was legally sufficient. Although the court found t hat the posting of the bulletin notice of reliquidation had been “administr atively sloppy,” it also f ound that such sloppiness did not invalidate the notice. Samuel Aaron , 452 F. Supp. 2d at 130 9. Based on the fact that a reliquidation had occurred and valid no tice had been posted, the court concluded that reliquidation of Aaron’s entries occurred on February 8, 1999. Aaron’s protest, filed on July 29, 1999, more than ninety days afte r the date of reliquidation, was therefore untimely, and the court lacked jurisdiction to hear the case. Aaron timely appealed, and we have juri sdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION This court reviews a dismissal by the Court of International Trade for lack of jurisdiction de novo

. Int’l Light Metals v. United States , 194 F.3d 1355, 13 61 (Fed. Cir. 1999). On appeal, Aaron argues that the Court of International Trade had jurisdiction to hear his protest because it was filed within ninety days of April 30, 1999, which Aaron argues was the date on which reliquidation act ually occurred. According to Aaron, Customs failed to compute or ascertain t he duties due upon reliquidation on February 8, 1999, as required by 19 C.F. R. § 159.1, and therefore no reliquidation occurred on February 8. Aaron further ar gues that the posting of the off-line bulletin notice was legally insufficient under 19 C. F.R. § 159.2 because it was not posted in a conspicuous

2006-1591 4place. Furthermore, Aaron ar gues that the off-line bulleti n notice was not legally valid because an electronic bulletin notice on Customs Form 4333—as required by 19 C.F.R. § 159.9(a) and 19 U.S.C. § 1500—was not provided until April 30. The government responds that the Court of International Trade correctly held that it lacked jurisdiction because Aaron failed to file a protest within ninety days of the February 8th reliquidation. T he government contends that Customs completed the final computation of duties owed by Aaron on or before Februar y 8, 1999, thereby legally completing the reliquidation. The government also contends that the off-line bulletin notice was posted in a conspicuous place at the customhouse. The government further argues that liquidation bulletin notices need not be posted electronically, nor must they contain the phrase “Customs Form 4333.” We agree with the government that the Court of Inter national Trade correctly held that it lacked jurisdiction to hear Aaron’s appeal. As that cour t noted, the date of reliquidation is the “lin chpin issue” of this case. Cust oms has ninety days from the date of liquidation or the not ice of liquidation in which to e ffect a reliquidation of merchandise already liquidated. 19 U.S.C. § 1501. An importer has ninety days from the notice of reliquidation in which to file a protest, after which time the reliquidation is final and conclusive. 19 U.S.C. §§ 1514(a), 1514(c)(3)(A ). If reliquidation occurred on February 8, 1999, as the government argues, Cust oms reliquidated the entries within the statutory window granted for volu ntary reliquidations, and Aaron’s protest was untimely. If, as Aaron urges this court to find, the re liquidation did not occu r until April 30, 1999, then Aaron’s protest was timely filed, and the Court of International Trade had jurisdiction to hear his complaint.

2006-1591 5Thus, we must determine whether Customs effected a legally valid reliquidation on February 8, 1999, and whether the off-line bulletin notice was legally sufficient. A. Reliquidation on February 8, 1999 Liquidation is the “final computation or ascertainment of the duties . . . accruing on an entry.” 19 C.F.R. § 159.1. 2 Aaron claims that Customs failed to “compute or ascertain” the duties owed by February 8, 1999. In support of that contention, Aaron points to an entry that was in cluded in the off-line bulletin notice but was not included in the subsequent ACS bulletin not ice. The omission of that entry, Aaron argues, demonstrates that the final computation of duties owed did not occur on February 8. Aaron also claims that a small discr epancy between the duty amount refunded for one of Aaron’s entries at the original liquidation and the amount billed for that entry on reliquidation demonstrates that the final duty amount was not computed by Customs until April 30. Aaron’s arguments, however , are unpersuasive. The off-line bulletin notice contained an entry dated after the October 21, 1998 reinstatem ent of the GSP. 3 That entry, therefore, was properly liquidat ed duty-free and never should have been

2 Section 159 does not define “reliquidat ion” and we can fi nd no statutory requirements for voluntary reliquidations other than the notice requir ements of 19 C.F.R. § 173.3(b) and 19 U.S.C. § 1501 (which we discuss in det ail in Section B) and the proper authority needed to re liquidate under 19 C.F.R. § 173.3(a). Since the government appears to concede that reliqui dations must adhere to the same requirements as liquidations, in this Secti on A we shall treat them as statutorily interchangeable. 3 Aaron also points to an entry that was erroneously included in both the offline and ACS bulletin notices. That entry’s existence does not help Aaron’s case. An erroneous entry in both notices does not s uggest that Customs had not computed or ascertained the duty on Aaron’s entries on F ebruary 8. At most, it suggests that Customs improperly reliquidated the entry and failed to catch the error. Because Aaron did not protest the reliquidation in a timely manner, however, the reliquidation is final. 19 U.S.C. §§ 1514(a), 1514(c)(3)(A).

2006-1591 6reliquidated. The subsequent ACS bulletin noti ce correctly omitted that entry as did Aaron’s bill. Aaron urges us to infer that the removal of the entry on the ACS bulletin notice indicates that the fina l computation occurred some time between the issuance of the two bulletin notices, viz , when Customs ran the computer script on ACS. We find no grounds for making such an inference. Customs admits that the inclusion of the entry at issue in the off-line bulletin not ice was an error. That entry entered the U.S. after the renewal of GSP and ther efore was entitled to the duty-fr ee treatment that it initially received. Had Aaron felt that Customs erred in reliquidatin g the entry, it was free to protest such a reliquidation. See 19 U.S.C. § 1514; Juice Farms, Inc. v. United States , 18 Ct. Int’l Trade 1037, 1046 (1994) (liquidati on errors are determined via the protest procedure). But Aaron did not protest the entry’s erroneous inclusion in the off-line bulletin notice. After running the reliquidat ed entries through ACS in order to generate billing information and create an ACS record of the reliquidation, the entry was not included in the subsequent ACS bulletin notice or in Aaron’s bill. Ev en if the elimination of an erroneously included entry could have been considered a calculation, Customs still had ascertained the amount due on February 8, even if that amount was later adjusted. An adjustment by Customs—after reliquidation but prior to billing—to correct its own mistake should not invalidate an otherwise proper reliquidation. Moreover, the discrepancy between the re funded duty amount and the bill upon reliquidation does not prove Aaron’s case. O ne of Aaron’s entries contained multiple line items, two that were eligible for duty- free treatment (the “duty- free line items”) and one that was not (the “jewelry line item”). In November and December of 1998, Customs liquidated all three line items duty-f ree. Subsequently, Customs correctly

2006-1591 7reliquidated only the jewelry line item. In t he trial court, Customs claimed that it had ascertained the final duty owed on Aaron’s entries becaus e the duty amount was the same as Aaron had paid upon entry, as we ll as the same amou nt (with interest) refunded at liquidation. Aar on argues, however, that the “f inal” calculation involved subtracting the amount ref unded at liquidation for the duty- free line items (which were not reliquidated) from the tota l amount of the duty paid on Aar on’s entries. Aaron claims that that calculation was not performed bef ore Customs ran the script on ACS. That argument, however, is unavailing. Section 159.1 does not require Customs to bill an importer in order to complete reli quidation; it only requires Customs to compute or ascertain the amount due. 19 C.F.R. § 159.1. Aaron has not shown any evidence that the amount due on each line item (as opposed to each entry) differed from the amount paid on entry and subsequently refunded at liquidation. While it may be true that the ACS script differentiated which li ne items from each entry were to be reliquidated, the amounts due on each of those line items were indis putably ascertained by Customs before February 8. Also, by February 8, Cu stoms had already determined which items were to be reli quidated (Thai jewelry enter ed before October 21, 1998). The fact that Customs chose to run a co mputer script to generate bills after the reliquidation does not violate 19 C.F.R. § 159.1, nor does the fact that the script differentiated between line items to be reliquidated. Thus, the reliq uidation on February 8, 1999, complied with 19 C.F.R. § 159.1. B. Reliquidation Notice Requirements Pursuant to 19 U.S.C. § 1500(e), Customs mu st give notice of any liquidation to an importer “in such form and manner as the Se cretary shall by regul ation prescribe.”

2006-1591 8Reliquidations are governed by the same notice requirements. 19 U.S.C. § 1501. The requirements that Customs must adhere to in providing notice of liquidations to importers are outlined in 19 C.F.R. § 159. Voluntary reliquidations, such as the reliquidation in this case, have the same noti ce requirements as initial liquidations. 19 C.F.R. § 173.3. Aaron argues that the off- line bulletin notice was legall y deficient in three ways. First, the notice was not posted in a “conspic uous” place or another place where it could be easily located; second, it was not on Customs Form 4333; and third, the notice did not provide Aaron with “electronic notice.” We address and reject each contention in
turn. 1. Conspicuous Place Aaron argues that Customs’ off-line bulletin notice did not comply with the requirement set forth in 19 C.F.R. § 159.9(b) that notic e be posted in a conspicuous place or other suitable place be cause it was placed in a “small binder” in a “large room.” Aaron claims that there was no reason for an importer to know that the off-line liquidation log existed because it was not updated on a weekly basis and maintained in chronological order as the standard ACS notice log was, and no sign directed importers to the off-line liquidation log. As further evi dence of invalidity, Aar on points to Customs’ failure to red-line the ACS bulletin notice to reflect the fact that an earlier reliquidation had occurred. Customs is required to post bulletin notic es of reliquidation “in a conspicuous place in the customhouse”, or “at some other suitable place in the customhouse in such a manner that it can readily be located and consulted by al l interested persons.” 19

2006-1591 9C.F.R. § 159.9(b). We have stated that Customs’ methods for giving notice under § 159.9(b) are “evaluated according to th e standard of a prudent importer or other interested person exercising a r easonable amount of diligence.” Frederick Wholesale Co. v. United States , 754 F.2d 349, 352 (Fed. Cir. 1985). Here, the off-line bulletin notice was placed in the same room as the standard ACS-gene rated reliquidation notices. The off-line bulletin notice was placed in the binder or folder in the room in which all off-line bulletin notic es were placed. Although Customs failed to red-line the ACS bulletin notice to reflect the earlier reli quidation date, that ov ersight alone does not invalidate the off-line bulletin notice. A prudent importer would reasonably have encountered the off-line bulleti n notice without being directed to it by the ACS bulletin notice. While ACS-generated notices constitu te the vast majority of the liquidation notices posted by Customs, t he use of the off-line bulletin notice in this case, a method that Customs has used for over thirty years, is not so extraordinary as to evade a prudent importer exercising r easonable diligence. We thus conclude that under the reasonable importer standard, the off-line bulle tin notice was posted in a sufficiently conspicuous place. 4
2. Customs Form 4333 Aaron further argues that the off-line bu lletin notice was insufficient because it was not printed on Customs Fo rm 4333 as required under 19 C.F.R. § 159.9(a). Aaron notes that the ACS bulletin notice clearly contains the phrase “Customs Form 4333,” whereas the off-line bulletin notice does not. Customs’ regulation st ates that liquidation

4 Aaron further argues that the posting of the off-line bulletin notice violates his due process rights. We find that argum ent to be unpersuasive for the same reasons detailed above.

2006-1591 10notices “shall be made on a bulletin notice of liquidation, Customs Form 4333.” 19 C.F.R. § 159.9(a). We do not agree that the failure to us e Form 4333 made the notice invalid. The off-line bulletin notice in this case cont ained all of the information on Form 4333 including district and port, ent ry type, entry number, date of entry, importer name, and remarks. The only discernibl e differences between the form of the off-line bulletin notice and that of the ACS bulletin notice are that the form numbe r does not appear on the offline bulletin notice, and no document refer ence number appears on the off-line bulletin notice. However, those differences do not invalidate the notice. Formality need not prevail over substance. A prudent importer w ould not be confused by the lack of a form number on an otherwise conforming document, or by the lack of a document reference number. All of the vital information on Fo rm 4333 appeared in a similar layout on the off-line bulletin notice. Thus, Customs’ failu re to include the form number on the off-line bulletin notice did not in validate that notice. 3. Electronic Notice Finally, Aaron argues that Cu stoms did not provide Aar on with electronic notice of the reliquidation as requir ed by 19 U.S.C. § 1500(e). Aar on claims that Customs is obligated to provide electronic notice to impor ters. Aaron’s argument misinterprets the
statute. Section 1500(e) states that Customs must: give or transmit, pursuant to an elec tronic data interchange system, notice of such liquidation to the importer . . . in such fo rm as the Secretary shall by regulation prescribe. 19 U.S.C. § 1500(e) (1999).

2006-1591 112006-1591 12 Customs is thus granted the option to either give notice in a manner prescribed by the Secretary or to transmit notice via an electronic data exchange system in a manner prescribed by the Secr etary. Nothing in § 1500( e) indicates that Congress intended to take away Custom s’ traditional notice means, viz , posting bulletin notices in the customhouse. Thus, the plain meaning of the statut e gave Customs the option of electronically notifying importers of liquidations; it did not r equire it. Accordingly, we conclude that the off-line bulletin notice was valid. CONCLUSION For the foregoing reasons, Aaron’s prot est of Customs’ February 8, 1999 reliquidation was untimely, and t he Court of International Tr ade lacked jurisdiction to hear Aaron’s complaint. AFFIRMED