Slip Op. 08-93 

UNITED STATES COURT OF INTERNATIONAL TRADE 

WESTERN POWER SPORTS, INC., 

 Before: Richard W. Goldberg 

 Plaintiff, Senior Judge 

 v. 

UNITED STATES, Court No. 06-00242 

 Defendant, 

OPINION

[Customs’ Cross-Motion for Partial Summary Judgment is Granted.] 

 Date: September 9, 2008 

Joel R. Junker & Associates (Joel R. Junker) for Plaintiff 

Western Power Sports, Inc. 

Gregory G. Katsas, Assistant Attorney General; United States 

Department of Justice; Jeanne E. Davidson, Director, Patricia M. 

McCarthy, Assistant Director, Barbara S. Williams, Attorney in 

Charge, International Trade Field Office, Commercial Litigation 

Branch, Civil Division, United States Department of Justice 

(Edward F. Kenny) for Defendant United States. 

Goldberg, Senior Judge: This matter is before the Court on 

Plaintiff Western Power Sports, Inc.’s (“Western Power”) motion 

for partial summary judgment and Defendant United States Customs 

and Border Protection’s (“Customs”) cross-motion for partial 

summary judgment. For the reasons that follow, the Court grants 

Customs’ cross-motion for partial summary judgment. 
Court No. 06-00242 Page 2

I. BACKGROUND

 On November 15, 2005, Western Power imported certain items 

of men’s clothing (“imports”) which it claimed originated from 

Hong Kong. On February 2, 2006, Customs asked Western Power for 

additional documentation supporting its country of origin 

declaration. In response to Customs’ request, Western Power 

produced delivery records, employee time cards, and other 

production-related documents. Customs, however, determined that 

these documents failed to substantiate Western Power’s 

declaration and issued a Notice of Redelivery (“Notice”). 

Western Power protested arguing that it had sufficiently 

established Hong Kong as the country of origin. Customs denied 

this protest (“Protest Denial”) based upon its determination 

that Western Power’s documentation was falsified. Customs then 

issued a Notice of Liquidated Damages Incurred and Demand for 

Payment due to Western Power’s failure to redeliver its 

merchandise to Customs. 

 In its original complaint, Western Power’s sole claim was 

that Customs had incorrectly rejected its country of origin 

declaration. Subsequently, Western Power amended its complaint 

to allege that Customs’ Notice and Protest Denial violated its 

constitutional and administrative rights by failing to 

specifically list the reasons for its rejection of Western 

Power’s country of origin declaration. Western Power and 
Court No. 06-00242 Page 3

Customs now move for partial summary judgment on this procedural 

claim. 

II. JURISDICTION AND STANDARD OF REVIEW

 The Court has jurisdiction over this case pursuant to 28 

U.S.C. § 1581(a) (2000). When presented with a motion for 

summary judgment, the Court is to determine “whether . . . there 

is sufficient evidence favoring the nonmoving party for a jury 

to return a verdict for that party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249 (1986). Summary judgment is appropriate 

even when there are factual disputes if: (1) the moving party 

has met its burden for summary judgment; and (2) the evidence 

favoring the nonmoving party is “merely colorable” or “not 

sufficiently probative.” See id. at 249-50. 

 

III. DISCUSSION

 Western Power argues that Customs’ Notice and Protest 

Denial violated its constitutional and administrative rights. 

These arguments are addressed in turn. 

A. Customs Did Not Violate Western Power’s Constitutional 

 Due Process Rights 

 Western Power claims that both Customs’ Notice and Protest 

Denial were constitutionally deficient as they failed to provide 

Western Power with adequate notice and opportunity to respond. 

Specifically, Western Power argues that Customs erred in failing 

to explain the rationale underlying its rejection of Western 
Court No. 06-00242 Page 4

Power’s country of origin declaration.1 However, Western Power 

asks for a more stringent analysis than is constitutionally 

required. To satisfy the requirements of Fifth Amendment 

procedural due process, agency notice is only required to: (1) 

alert interested parties of the issue at hand; and (2) provide a 

reasonable opportunity for the recipient to object to the issues 

raised. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 

306, 314-15 (1950). In short, procedural due process only 

requires that within the context of the notice, the surrounding 

context would alert a reasonable importer to the issue at hand. 

Essex Mfg., Inc. v. United States, 27 CIT 630, 650, 256 F. Supp. 

2d 1285, 1303 (2003). 

 Here, both Customs’ Notice and Protest Denial met the 

requirements of procedural due process. First, Customs’ Notice 

was sufficient as it identified the entry number, the date of 

entry, and provided a general description of the merchandise it 

wanted redelivered. Customs’ Notice also explained that the 

agency was acting pursuant to 19 C.F.R. § 141.113(b), which 

provides that Customs may recall textile goods imported to the 

United States within 180 days of their release if it determines 

 

1

 Western Power and Customs also dispute whether the company had 

a property interest meriting due process protection. The Court 

need not address this issue because even if Western Power had a 

cognizable property interest, its argument would still fail as 

Customs’ Notice and Protest Denial met constitutional standards. 

 
Court No. 06-00242 Page 5

the country of origin was misrepresented. See 19 C.F.R. § 

141.113(b) (2005). Thus, Customs’ Notice was sufficient to 

alert Western Power of the issue at hand and to provide 

reasonable opportunity for the company to respond. Similarly, 

Customs’ Protest Denial was constitutionally sufficient. 

Customs provided its reasons for denying Western Power’s 

protest—explaining that the documentation did not substantiate 

the country of origin determination. Customs’ Protest Denial 

also informed Western Power of its right to object to its 

findings and to file an appeal to preserve its rights, which the 

company eventually did. Accordingly, Western Power’s procedural 

due process claim lacks merit. 

B. Customs Did Not Violate the Principles of Administrative 

 Law 

 Western Power also claims that Customs’ Notice and Protest 

Denial violated the fundamental principles of administrative 

law. Specifically, Western Power contends that Customs is 

required to provide its rationale for rejecting Hong Kong as its 

imports country of origin to satisfy the requirements of 

administrative law. This argument also fails. Western Power is 

unable to point to any specific regulations or statutes violated 

by Customs. In fact, the only regulation referenced by Western 

Power is 19 C.F.R. § 174.30, the procedure governing protest 

denials. Section 174.30 requires that Customs’ Protest Denial 
Court No. 06-00242 Page 6

shall include “a statement of the reasons for the denial, as 

well as a statement informing the protesting party of the right 

to a civil action contesting the denial of the protest under 

section 514.” Id. Customs Protest Denial complied with these 

requirements as well as it provided its reason for denying the 

protest—that the documentation did not substantiate Western 

Power’s country of origin declaration. Customs’ Protest Denial 

also informed Western Power of its right to appeal to this 

Court, and thus satisfied both agency regulations and any 

constitutional requirements. No similar regulation or statute 

was referenced regarding Customs’ Notice. 

 Even if Western Power’s administrative arguments were 

valid, the company still failed to demonstrate that any 

prejudice resulted from Customs’ actions. A court will not set 

aside an agency action for procedural errors unless the errors 

“were prejudicial to the party seeking to have the action 

declared invalid.” Woodrum v. Donovan, 4 CIT 46, 52, 544 F. 

Supp. 202, 207 (1982). In Sea-Land Service, Inc. v. United 

States, the Court upheld the sufficiency of several protest 

denials despite their failure to provide the reason for the 

denials and to inform the importer of its right to appeal as 

required by statute. 14 CIT 253, 155—56, 735 F. Supp. 1059, 

1062—64 (1990). Despite the clear deficiency of the protest 

denials, the Sea Land Court refused to vacate the penalties 
Court No. 06-00242 Page 7

imposed because the importer was aware of its right to bring 

suit, and thus had not been prejudiced by the administrative 

oversight. Here, Western Power is similarly unable to 

demonstrate prejudice as the company timely filed suit before 

this Court. Accordingly, Western Power’s administrative law 

claim fails. 

IV. CONCLUSION

 For the foregoing reasons, the Court grants Custom’s crossmotion for partial summary judgment. 

 

 /s/ Richard W. Goldberg

 Richard W. Goldberg

 Senior Judge 

Date: September 9, 2008 

 New York, New York