United States Court of Appeals 

for the Federal Circuit 

__________________________ 

HITACHI HOME ELECTRONICS (AMERICA), INC., 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

UNITED STATES CUSTOMS AND BORDER 

PROTECTION, AND 

ROSA HERNANDEZ, PORT DIRECTOR, 

UNITED STATES CUSTOMS AND BORDER 

PROTECTION, 

Defendants-Appellees. 

__________________________ 

2010-1345 

__________________________ 

 Appeal from the United States Court of International 

Trade in case no. 09-CV-0191, Chief Judge Jane A. Restani. 

__________________________ 

ON PETITION FOR PANEL REHEARING AND 

REHEARING EN BANC 

__________________________ 

 SIDNEY N. WEISS, of New York, New York, filed a 

petition for panel rehearing and rehearing en banc for 

plaintiff-appellant. With him on the petition was STEVEN 

B. ZISSER, Zisser Customs Law Group, PC, of San Diego, 

California. 

 JUSTIN R. MILLER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of New York, New York, filed a response to the 

petition for defendants-appellees. With him on the re-
HITACHI HOME ELECTRONICS v. US 2

sponse were BARBARA S. WILLIAMS, Attorney in Charge, 

International Trade Field Office; TONY WEST, Assistant 

Attorney General, and JEANNE E. DAVIDSON, Director, of 

Washington, DC. Of counsel was PAULA S. SMITH, Office 

of Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of 

New York, New York. 

JOHN M. PETERSON, Neville Peterson LLP, of New 

York, New York, for amicus curiae American Association 

of Exporters and Importers. With him on the brief was 

RICHARD F. O’NEILL. 

MICHAEL S. O’ROURKE, Customs and International 

Trade Bar Association, of New York, New York, for 

amicus curiae Customs and International Trade Bar 

Association. 

__________________________ 

Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON, 

LINN, DYK, PROST, MOORE, O’MALLEY, REYNA, and 

WALLACH, Circuit Judges. 

PER CURIAM. 

REYNA, Circuit Judge, with whom NEWMAN, Circuit 

Judge, joins, dissents from the denial of the petition for 

rehearing en banc. 

O R D E R 

 A combined petition for panel rehearing and rehearing en banc was filed by Plaintiff-Appellant, and a response thereto was invited by the court and filed by 

Defendants-Appellees. 

The petition for panel rehearing was considered by 

the panel that heard the appeal, and thereafter the petition for rehearing en banc, response, and briefs amicus 

curiae were referred to the circuit judges who are authorized to request a poll of whether to rehear the appeal en 

banc. A poll was requested, taken, and failed. 
3 HITACHI HOME ELECTRONICS v. US

Upon consideration thereof, 

IT IS ORDERED THAT: 

(1) The petition of Plaintiff-Appellant for panel rehearing is denied. 

(2) The petition of Plaintiff-Appellant for rehearing 

en banc is denied. 

 (3) The mandate of the court will issue on April 

6, 2012. 

FOR THE COURT

March 30, 2012 

—————————— 

Date 

/s/ Jan Horbaly 

—————————— 

Jan Horbaly 

Clerk 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

HITACHI HOME ELECTRONICS (AMERICA), INC., 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

UNITED STATES CUSTOMS AND BORDER 

PROTECTION, AND 

ROSA HERNANDEZ, PORT DIRECTOR, UNITED 

STATES CUSTOMS AND BORDER PROTECTION, 

Defendants-Appellees. 

__________________________ 

2010-1345 

__________________________ 

 Appeal from the United States Court of International 

Trade in Case No. 09-CV-0191, Chief Judge Jane A. 

Restani. 

__________________________ 

REYNA, Circuit Judge, dissenting from the denial of 

the petition for rehearing en banc, with whom NEWMAN, 

Circuit Judge, joins. 

__________________________ 

 This case presents an issue of paramount importance 

to the U.S. trade community and warrants en banc rehearing by this court. 
HITACHI HOME ELECTRONICS v. US 2

The issue on appeal is whether the two-year deadline 

set out in the Customs protest statute, 19 U.S.C. 

§ 1515(a), is mandatory or merely aspirational. As my 

dissenting opinion in this case explains in detail, the 

statute’s command is clear that Customs “shall review . . . 

and shall allow or deny” every protest on its merits 

“within two years.” See generally Hitachi Home Elecs., 

Inc. v. United States, 661 F.3d 1343, 1351-61 (Fed. Cir. 

2011) (hereinafter, “Dissent”). Much is argued about 

whether the word “shall” imposes an obligation upon 

Customs, yet we cannot avoid that Congress chose the 

strongest imperative in the English language, fully intending to express a charge that was not to be evaded. 

The importance of correctly resolving this issue is underscored by the amicus briefs filed by the American 

Association of Exporters and Importers (“AAEI”) and the 

Customs and International Trade Bar Association 

(“CITBA”), which strongly support en banc review to 

overturn the majority’s decision. As explained by CITBA, 

“importers require timely certainty as to their liability for 

duties on imported goods. Any interpretation of the law 

that creates even a technical possibility that Customs 

may refuse to act on a protest for more than two years is 

simply inconsistent with today’s business realities.” 

CITBA Br. at 8. 

Congress addressed those business realities when it 

set out plain language that there can be no other result 

under § 1515 than a protest being “allow[ed] or den[ied]” 

upon the two-year deadline. The majority, however, 

writes into the statute a third option for Customs—to 

delay beyond the two years or, in its discretion, to never 

make a substantive determination on a protest. 
3 HITACHI HOME ELECTRONICS v. US

Lest there be any doubt as to the mandatory nature of 

§ 1515, the legislative history repeatedly made clear that 

the deadline was an “overall limit” or “maximum” time 

period by which Customs “must” complete its protest 

review. S. Rep. No. 91-576, at 11, 28. When § 1515 was 

enacted in 1970, Customs was not viewed as likely to 

exceed—or even require—the full two-year period to 

complete its review of all protests. Indeed, data provided 

by Customs to Congress at that time showed that “all 

protests were processed in an average period of 58 days 

from the date of receipt, and more than 97 percent were 

fully processed within 90 days of the date of their receipt.” 

S. Rep. No. 91-576, at 28. Congress gave Customs a much 

longer deadline than was necessary so as to afford protestors “a maximum opportunity for meaningful administrative review.” H. Rep. No. 91-1067, at 28 (emphasis added). 

Congress understood that the substantive value derived 

from the issuance of a protest determination is premised 

on Customs’ undertaking a meaningful analysis of specific 

business-related facts. Congress wisely recognized that 

the increasingly global trade environment would come to 

mark protests with technicalities and complexities, such 

as rules of origin requirements under free trade agreements and cross-border trade between related companies, 

and acted on the need for certainty and predictability for 

U.S. trade through timely and meaningful administrative 

protest reviews by Customs. 

Hence, Congress intended a departure from the practice prior to the Customs Courts Act of 1970 (which codified § 1515), whereby Customs’ failure to decide a protest 

within the then-proscribed 90-day time period caused 

Customs to lose jurisdiction, and the protest was automatically transferred to the Court of International Trade 

for review. There was no provision to “allow” a protest if 

the 90-day deadline was not met. The majority’s decision 
HITACHI HOME ELECTRONICS v. US 4

frustrates these legislative objectives by interpreting the 

statute in a way that disincentivizes timely and meaningful administrative review and converts protestors into 

unwilling plaintiffs who face further considerable delay 

and litigation costs. Indeed, the Hitachi protests in this 

case were filed as early as 2005, meaning that Customs 

has permitted those protests to remain undecided nearly 

five years beyond the two-year deadline. Even Hitachi’s 

most recent protests have languished for more than three 

years beyond the two-year deadline. Yet the majority 

instructs Hitachi that if it believes the delay is unjustifiable, it should now abandon the protests and seek a 

deemed denial under 19 U.S.C. § 1515(b) so as to be free 

to sue in court. This result inspired by the majority in 

dicta is clearly not envisioned in the statute or its legislative history. 

The linchpin of the majority opinion is reliance upon 

statutory construction cases such as Brock v. Pierce 

County, 476 U.S. 253 (1986), and its progeny. The majority reads these cases to suggest a “rule” that renders the 

mandatory “shall” language merely aspirational because 

§ 1515 allegedly fails to specify a consequence for Customs’ inaction. These cases do not compel the majority’s 

ultimate conclusion because § 1515’s two-year deadline 

was not interpreted in any of them. There is no applicable “precedent” to this case. Thus, if we must construe 

the plain language of § 1515, we should do so in accordance with its own unique text and in light of its own 

unique legislative history. To be sure, analogous precedent may in certain circumstances be helpful to issues of 

statutory construction, but Brock and its progeny are 

unhelpful here because they involve short statutory 

deadlines of a fundamentally different character than the 

two-year deadline of § 1515. See, e.g., Dissent at 1354 

(explaining that “[t]he short time limits [of 120 days or 
5 HITACHI HOME ELECTRONICS v. US

less] in the respective statutes [in Brock etc.] were plainly 

intended to ‘spur’ the agency to take prompt action in 

various contexts,” such as in bringing criminal indictments). 

Nor is the majority correct that the statute does not 

specify a consequence for Customs’ inaction. The statute 

plainly provides that Customs shall at the end of the twoyear time period either allow or deny the protest. If it 

denies the protest, Customs is required to issue a denial 

letter stating reasons for the denial so that the protestor 

can make future business decision on the basis of the 

denial, or to serve as a basis to challenge the denial in 

court. See 19 U.S.C. § 1515(a). If Customs does not deny, 

then it faces the consequence of its inaction by having to 

allow the protest, which means that Customs is required 

to issue a notice of reliquidation and a refund check for 

any overpaid duties. The majority apparently takes issue 

with the notion of allowance by operation of law absent 

statutory language that describes a protest as being 

“deemed allowed” by inaction. Finding only the word 

“allowed” in § 1515, in effect the majority is looking for a 

notice of allowance. Yet, in these types of Customs transactions, the allowance of a protest requires nothing more 

than a notice of reliquidation and a refund. A detailed 

letter regarding an allowance is not required since protestors have no incentive or viable legal basis to challenge 

the allowance in court. Indeed, the Committee Reports 

explained that “no useful purpose would be served by 

imposing on customs the burden of mailing separate 

notices of allowance” since “protest allowances are reflected in the notices of reliquidation and in refund payments.” S. Rep. No. 91-576, at 30 (1969); H. Rep. No. 91-

1067, at 29-30 (1970). 
HITACHI HOME ELECTRONICS v. US 6

The government attempts to ease this court’s concerns 

regarding delay by representing that only about 8.7% of 

protests require more than the two-year statutory time 

period for Customs to complete its review. See Government’s Response to Hitachi’s Petition for Panel Rehearing 

and Rehearing En Banc, at 11 (representing that “for 

calendar year 2009, 36,040 protests were filed . . . [and] 

[o]f that number, 32,908 protests (approximately 91.3%) 

were decided . . . within two years”). On the scale at 

which protests are filed, however, even this small fraction 

amounts to 3,132 undecided protests in 2009 alone. Over 

time, the undecided protests represent a very large number of imports and a massive sum of contested duties. 

Significantly, the government argues that protests like 

Hitachi’s take a long time to review because they are 

difficult and complex, but this argument precisely demonstrates why such protests should be timely resolved. 

When considered in the aggregate, the large number of 

undecided protests, the substantial economic value of the 

duties held in abeyance, and the lack of timely, meaningful administrative guidance on the most significant of 

important trade issues does nothing but hinder trade in a 

manner opposite of what Congress intended when it 

enacted § 1515. 

If Customs’ best efforts to manage its docket cannot 

result in all protests being decided within the two-year 

deadline, its remedy lies before Congress. Under the 

majority’s rule, however, Customs has no incentive to 

appeal to Congress or attempt to reduce the percentage of 

undecided protests. As aptly explained by the AAEI, “[i]f 

processing protests is a discretionary duty that may be 

discontinued without consequence, [Customs] will logically concentrate its resources on revenue-collecting and 

law-enforcement activities, rather than protest-processing 

activities, which can only result in the flow of monies out 
7 HITACHI HOME ELECTRONICS v. US

of the treasury.” AAEI Br. at 9. In light of § 1515’s plain 

language and clear purpose, we should not permit any 

more protests to languish in this fashion. 

For the foregoing reasons, I conclude that Customs’ 

practice of indefinitely putting off its statutory obligation 

to review and decide all protests within two years should 

be put to an end.