Slip Op. 03-53
UNITED STATES COURT OF I NTERNATIONAL

TRADE

_____________________________________ : 

### D ANIEL 

### A TTEBERRY 

### , : Plaintiff , : v. Court No. 02-00647

: 

### U NITED 

### S TATES 

### , : Defenda nt. _____________________________________: [Defendant’s motion to dis miss for l ack of su bject mat ter juris diction pu

rsuant to 28 U.S.C. §2636(a)(1) denied.] Dated: May 14, 2003 Vanessa von Struensee , for Plaintiff. Robert D. McCallum, Jr. , Assistan t Attorne y G eneral ; John J. Mahon , Acting Attorney-inCharge, International Trade Field Office, Commercial Li tigation Branch, Civil Division, United States Department of Justice ( Jack S. Rockafellow ); Yelena Slepak , Office of Ass istant Chi ef Counsel, International Trade Litigation, Burea

u of Custo ms and Border Protection, United States Department of Ho meland Se curity, Of Counse l; for De fendant
. OPINION RIDGWAY, Judge: The Unit ed States (“Government”) has moved to dismiss for lack of subject matter jurisdiction this action in which plaintiff Daniel Atteberry (“Importer”)

contests the decision

of theCourt No. 02- 00647 Page 2

1 Effective March 1, 2003, th e Customs S ervice was renamed the Bur eau of Customs and Border Protection of the United States De pa rt me nt of Ho me la nd Se cu ri ty. See Reorganization Plan Modificat ion for the

Departme

nt of Home land Secu rity , H.R. Doc. 108-32, at 4 (2003).
2 Althoug h th e Government asserts that the bill was mailed to the I mporter’s address of record , there i s no indica

tion in the r

ecord he re whether he ev er actu

ally receiv ed it. United States Customs Service (“Customs”) 1 re-cla ssify ing for tariff p urposes c ertain me

rchandi se whichhe describes as “bike[s]/kart[s]/scooter[s].” Specifically, the Gove rnment’s motion contends that this action is untimely

under 28 U.S.C. § 2636(a)(1) (2000), because it was a ssertedly filed more than180 days afte

r the mailing of Customs’ notice of denial of the I mporter’s protest challen g ing the agency ’s re-classification decision. For the rea sons set f

orth below, the Gov ernment ’s m o tion to dismiss for lack of subject matter jurisdiction pursuant to § 2636(a)(1) must be denied.
I. Background In late May

2001, a shipment of “bike[s]/kart[s]/scooter[s]” was entered duty-free throu gh the port of Se attle by

plaintiff Impor ter, Dan ie l Atteberry

(d/b/a Pedal Pedal GoKarts). La ter, Customs re-classified the merchandise, resulting in the imposition of duties on cert ain it ems. Customs notified the Importer of the age ncy ’s deter

mination in

late September 2001; and, in midOctober , Customs liq

uidated t he entry and bille d the I

mporter f or the unp aid dutie s. 2 Inresponse to Customs’ determination, the Importer submitted an “Application for further review [re Entry] 603 10483064 ” dated Dec ember 20, 2001, seeking reconsidera tion of the agency ’sCourt No. 02- 00647 Page 3

3 The Importer’s letter

dated October 3, 2002, attached to the Summons, has been deemed the Comp laint . At t he tim e this actio n was f iled, the Impo rter wa s acti ng pro se . decision. Customs treated that submission as a protest, and denied it on Apri l 3, 2002 (according to the date

on the face of the notice of denial). The a gency then mailed a copy

of the notice to the Importer. At issue here is the “date o f mail ing” of the notice. The Government’s motion is premised
on its assertion that Customs personnel mailed the notice of denial to the Importer the same day the protest was d enied. See Memorandum in Support of Defendant’s Motion to Dismiss Plaintiff’s Actionfor L ack of Su

bject Ma tter Jurisd

iction (“ Def.’s B rie f”) at 6. In contrast, the I mporter has consiste ntly maintaine d that the

notice wa s mailed si

x days later – on A

pril 9, 2002. See Summons (with Importer’s handwritten note “Mailed 4/9/02” in box captioned “Date Protest Denied”); Memorandum

in Support o f Plaintif

f’s Moti on f

or Judgment and in Opposition to Defendant’s Motion to Dismiss (“Pl.’s Brief”) at 6. This action wa s comm enced w it h the Court’s receipt of the Impor ter’s Summons and Complaint 3 on Monday, October 7, 2002 – 187 days afte

r April 3, 2002, and the first business day following Sunday, Oc

tober 6, 2002 (which was the 180 th day afte r April 9, 2002).
II. Analysis It is axiomatic

that “ ‘[t]he

United Sta

tes, as so vereig

n, is immun e from su

it save a s it consents to be sued

. . . , and [that] the terms of its consent to be sued in any court de fine that court’s jurisdiction to entertain the sui t.’ ” United Sta tes v. Mitc

hell , 445 U.S. 535, 538 (1980) ( quoting United States v. Sherwood , 312 U.S . 584, 586 (1941) ). Pointing to 28 U.S.C. § 2636(a)(1), theCourt No. 02- 00647 Page 4

Governm ent

asserts in its opening brief that this action therefore must be dismissed bec aus e “Congr ess only ga

ve this Court jurisdict ion over c iv il actions filed with

in 180 day

s” of Customs’ denial of a protest. Def.’s Brief a t 5. The ref erence d section

of the sta tute rea ds: § 2636. Tim e for com mence ment of a ction. (a) A civil a ction contesting the denial, in whole or in part, of a protest unde r sec tion 515 of the Tariff Act of 1930 [19 U.S.C. § 1515] is barre d unles s commenced

in accordance with the rules of the Court of International Trade

– (1) within

one hundred

and eig hty days afte r the date of mailing of notice of denia l o f a protest under section 515(a) of such Act; . . . 28 U.S.C. § 2636(a)(1) (2000) (emphasis added). As noted above, the G overnme nt’s clai m of untime liness is pr

emised on

its asser tion th a t Customs ma iled the notice of denial of protest o n April 3, 2 002 (the s ame day the prote st wa s denied). In support of that assertion, the Gover nment invokes the presumption of regularity , and cites a Customs regulation concerning notice. See generally Def.’s Brief at 6. The presumption of regularity holds, in essence, that “public officers p erform their duties
co rr ec tl y, fairly

, in good faith, and in accordance with the law and governing reg ulations.” Alaska Airlines , Inc. v. Johnson , 8 F.3d 791, 795 (Fed. Cir. 1993) ( quoting Parsons v. United States , 670 F.2d 164, 166 ( Ct. Cl. 1982) ). See also Takashima U.S.A., Inc. v. United States , 19 CIT 673, 677- 78, 886 F. Supp. 858, 861 (1995) (same). See generally Def.’s Brief at 6. The regulation on which the Government

relies – 19 C.F.R. §174.30 – provides that, for purposes of calculating the 180-dayCourt No. 02- 00647 Page 5

period for filing of a civil action challeng ing the denial of a protest, “the date appear ing on [the notice of denia

l of the pr otest] shal l be deemed the da te on whic h such noti ce was ma

iled.” 19 C.F.R. § 174.30(a

) (2000) . In li ght of those authorities, th e Gover nment ar gues, it “must be presumed , in the absence of evidence to the contrar y, that Customs mailed [the] notice of t he denial of [the Importer’s] protest on April 3, 2002, the date on which the pr otest was denied.” Def.’s Brief a t 6. To buttress the presumption of r e gularity ( and thus its claim of untimeliness), the Government

has also submittedthe sworn declaration of the Supervisory Customs Entry Officer f

or t he Port o f Seattle, who has attested in no uncertain terms to the clockwork pre cision with which Customs the

re handl es the ma

iling of notices o f denial s of prote sts: The procedure used

by our offi

ce . . . ha s been tomail the denial on the same day that is showninthe Customs

Automate d Commerc ial Sy stem (“A CS”) rec ord as the date of denial, and which is stamped or handwritten on the notice of denial of th e protest itself
. Specifically, once

the denial is recorded in ACS, an entry specialist places the notice of the denial of a protest into an envelope, and brings it to the mail room. All the outgoing

mail is del ivered by th e mailroom personnel to the U.S. Postal Service postal drop boxed located in the lower lobby of our building. Pick

up fromthe postal dr op bo xe s i s d ai ly. Attachme nt F (“Cu stoms Declar

ation”) to Decla

ration of Jack S. Rock

afellow WithAttachme

nts, ¶ 5 (emphases added). Whatever the procedure of Customs personnel in Seattle, the noticeof denial of the prote st inthis case

was not po stmarked

until April 9, 2002 – a full six days after the da te onthe face of the notice itself an

d the date on which t

he denia l was ente

red into Cu stoms’ ACS sy st em. See Pl.’sCourt No. 02- 00647 Page 6

4 Whether the delay

is attribu table tothe Customs

Service or to the Po stal Service, it is – in any event – attributable to an entity of the federal government. Signific antly , howeve r, neithe r party has intimated that fault here lies with the Postal Service, the overall efficienc y and re liabi lity of which ha ve been recog nized in ca se afte

r case o ver the y

ears. “Founded in the early da

ys of our national

life [, the Postal Service] has had . . . two centuries of successful operation . . . . [and] has justly ear ned the confidence of the people of the Uni ted States.” Charlson Realty Co. v. U nited State s , 384 F.2d 434, 447-48 (Ct. Cl. 1967) (Jones, J., concurring). It is the historic efficiency and reliability of the Postal Service that are the foundation of the “presumptionof delivery (arrival) and receipt of mail in due course ” which is often invoked, intandem with the presumption of regularity , in notice cases such as this. See , e.g. , Frontier Ins. Co. v. United States , 25 CIT ___, 1 55 F. Supp. 2d 779, 788-89 (2001). In short, the presumption of regula rity goes to proof of

mailing; and proof of mailing, in turn, “raisesa presumption of delivery .” See A.N. Deringer, I

nc. v. United States , 20 CIT 978, 986 (1996) ( citation omitted); Miller v. United States , 364 F. Supp. 1390, 1394 (Cust. Ct. 1973). Thus, more

than a ce ntury ago, it was already

a “well settled” rule tha

t “if a le tter prop erly dire ctedis provedto have be en eithe r put into the post off

ice or de livered

to the post

man, it is presumed, from the known course of business in the post offi ce department, tha t it reached its destination at the regular time, and was rec eived b y the person to whom it was addr essed.” Rosenthal v. Wa lker , 111 U.S. 185, 193 (1884), quoted in Miller , 364 F. Supp. at 1393. That presumption is, in a sense, a presumption of regularity

as to the operations of the U.S. Postal Service. See , e.g. , Charlson Realty Co. , 384 F.2d at 442 (explaining that justification for presumption of arrival of mail in d

ue cours e is that “ [p]ostal emp loy ees are presume d to discha

rge the ir duties in a proper manner” (citations omitted)

); United States v. Int ’l Imps., I nc. , 55 CCPA 43, 49 (1968) ( quoting Huntley v. Whittier , 105 Mass. 391, 392 (1870), for proposition that presumption of arrival of mail in due course is “founded on the probability that the office rs of the g overnme

nt will do th eir duty and [sic; in] the usual course of business”). Brief, Exh. 1 (copy of

envelope from Custo ms in

Seattle addressed to Importer , postmarked “Seattle WA APR09'02 ). And, a s discusse d above, this action was commenced on Monday, October

7, 2002 – t he fi rs t b us in es s d ay f

ol lo wi ng Su nd ay, October 6, 2002, which was the 180 th day afte

r April 9, 2002. However

impro bable , it i s at le ast co nceiv able t hat th e delay in post marki ng t he notice at issue is attributable not to Customs, but to the United States Postal Service. 4 In other word s, it is atCourt No. 02- 00647 Page 7

least possible (albeit unlikely) that Customs did in fact deposit the notice in the drop box in the lobby of Customs’ building in Seattle in a timely fashion on April 3, 2002, but that the Postal Service either failed to make its regular pickups for a matter of se veral day s in a row or it picked up the mail as schedule d but faile d to prompt ly process i

t. Inthis respect, one aside by the Government merits special attention. In a footnot e i n its opening brief, the Government observe s that –

by the terms of the statute itself – the 180-day cloc

k esta blished i n 28 U.S.C. § 2636(a)(1) begins running on the “da te of mailing” of the notice. Imply ing that Congress deliberately

chose the language “ date of mailing” over the lang uage “ date of post mark, ” the G overn ment p osit s that there i s no re ason “ that t he ‘dat e of mai ling’ of the notice of denial for

purposes of 28 U.S.C . § 2636(a

)(1) must be deeme d to be the da

te when the notice

is postmarked by the Post Office .” See Def.’s Brief at 7 n.4. The Government’s argument, in short, is that “an item quite

reasona bly might be placed i n
a box intended solely for U.S. Mail on a date earli er than the date of postmark, in which case the earlier date should be deemed the ‘date of mailing.’ ” Id . In essence, then, unde r the Government’s hypothetical

constructionof

§ 2636(a )(1), Cus toms perso

nnel in Sea

ttle could hold the da

y’ s worth of notices o f denial s of prote sts until mome nts after th e Post al Service mail carrier’s final pickup fromCustoms’ lobby

drop box on a Friday be fore a Monday holiday; then, as soon as the mail ca rrier departed, Customs could depo sit the notices in the drop box; and, according to the Government’s th eo ry, the notices would be deemed “mailed” and the 180-day period triggered as of Friday, eve n thou gh the notic es would not be postmarked ( and would not ente r the Postal Service’s deliveryCourt No. 02- 00647 Page 8

5 If one is inclined to float strained argument s on the triggering of the 180- day clock, the re is no reason to stop with the statute. As noted a bove, the Governm ent here

has invoke d a Customs regulation

which pr ovides tha

t, for purposes of calculating the 180-day period, “the date appearing on [the notice of denial of a protest] shall be deemed the date on which such notice was mailed.” Def.’s Brief at 6 ( quo ting 19 C .F.R. § 17 4.30) (e mphasis omi

tted). Re ading that reg

ulation in conjunctionwith 28 U.S.C. § 2636(a)(1) and extending to the regulation the same sort of reasoning that the Gove rnment a pplied tothe statute, the Government might argue that, regardless of when – or even whe ther – the notic e deny ing an im porter’ s protest i s deposited in a postal drop box or postmarked

by the Postal Service, the importer’s time for filing a civil action cha llenging the denial expires 180 days from the date which Customs places on the face of the notice. Inother wo rds, by that

reasoning, Customs could keep all notices of denials in a drawe r and mail them to the respective importers on Day 181 (or not at all), and then move to dismiss as untimely any civil actionsbrought challenging those de nials. To state such an absurd proposition is to reject it. Cf

. Knickerbocker

Liquors Corp. v. United States , 432 F. Supp. 1 347, 1351 ( Cust. Ct. 1977) (where court

was “unw

illing to p resume that customs

officia ls would inte

ntionally be guilt y of such bad faith and conduct as would be p rese nt where notifica tion of a d

enial of a protes t is withheld specifically to pre vent judicial review”). Inde ed, altho

ugh it may be “ the date of mailing of notice of denia l of a pro test” (e

mphasis added) which tri gger

s the 180- day

period of 28 U.S.C. § 2 636, the notice re quired by the statut e is perfected only upon receipt. See F.W. Myers & Co. v. United States , 6 CIT 215, 216, 574 F. Supp. 1064, 1065 (1983) (notingthat “[i]mp licit

in the term ‘noti ce,’ as co ntained in

[28 U. S.C. § 2636( a)], is the req uiremen t that the protestan

t shall be made aware of

the denia l of the pr otest”) ( emphasis added); see also United States v. Int’ l Imps
. , 55 CCPA at 53 (dis cussing

gener al rule that notice

is perfected upon rec eipt; in context of statutory require

ment that “notice” of increased appra isement be “given” to importer, “proof o f mailing is not ipso factoproof of notice given to the importer . .

. where . . . the unrefuted testimony is thatno notice was received”). I n this sense, then, withholding notification of a denial of protest could not prevent judicial review.

6 See Defendant’s Memorandum in Response to “Plaintiff’s Motion for Summary Judgment and for Denial of Defendant’s Motion to Dismiss” (“Def .’s Reply Brie f”) at 1, n.2, 3. The Go ve rn me nt im pl ic it ly co ncedes that the postmark date controls for purposes of calcula ting the 180-day period f or filing of a civi l action c

hallenging the d

enial of a protes t; and

it apparently doe s not challenge the authenticity of the postmark here. Id. at 1. sys tem) for

at least f our more day s. 5 To its credit, the Government is not pres sing tha t argument here. 6 It is, in any event, anCourt No. 02- 00647 Page 9

7 Such action on the part of the Government would be p articula

rly egregious where, a s here, its effect would be to non-suit a plaintiff. Reflecting on the grave consequences of the Government’s under takin gs in this area, the court in Orlex Dyes & Chemica ls Corp. v. United States , 168 F. Supp. 220, 223 (Cust. Ct. 1958), emphasized: “[I]t must be remembered that important rights are of ten made to depend in some manner upon notification by mail.” There, as here, “the rig ht of appeal
.

. . [was] influenced by the date of mailing, sinc e the statutory time for a ppeal . . . [was] reckoned fromthat date.” Id
. See also Plywood & Do or S. Corp. v. United States , 57 Cust. Ct. 309, 315 (1966) (“Bear in mind the fact that the g iving of notice . . . sets into motion a statute of limitations which affects and controls important rights of the importing public.”).
8 See n.4, supra . extraordinary

proposition, and one not borne out by the statute’s legislative history. Simply stated, there is nothing in the record of the lawmakers’ deliber ations to suggest that Congress intended to impose a string ent 180-d

ay clock on t

he filing of civil actions challenging denials of protests, and

– at the same time – to allow Customs to shave precious days off that c lock by “g aming the syste m.” One final note about the presumption of regularity and the sworn sta

tements pr

offere d in this actionconcerning Customs’ practices in the mailing of notices of denial of protests. To be sure, the sheer volume of

protests t o be processed is daunting. I t therefore would be difficult to criticize the overbur dened a gency if it were to confess that, while it strives to mail notices on the day tha t they issue, mailing is sometimes delayed. B ut it would be unseemly for the Governm ent to invoke a presumption of regularity if in fact the re is no r egular ity; and, dep ending

on the cir

cumstanc es, it might well constitute perjury f

or a federal

official to attest that an agency adhere s strictly

to certa in standar d proced ures if in fact it do es not. 7 Alth ough it is not possible here to entirely r ule out fault on the part of the U.S. Postal Service, it seems muc

h more like ly that the not

ice at iss ue lang uished in t

he custod y of Customs. 8 And thereCourt No. 02- 00647 Page 10

9 Indeed, the Seattle Customs official has affirmatively repres entedthat there was nothing whatsoever

unusual a bout the ma

iling of the notic e of deni al in this c ase. Customs Declaration ¶ 10.
10 While it might be tempting to dismiss this particular instance of de la ye d mailing as an isolated incident , there i s n othi ng i n the record to support such a conclusion. The Government’s reply offers no explanation for the discrepancy between the fact

of the postmark in this case and the swornstatements in the Customs Declaration filed in support of the Government’s motion. See generally Def.’s Reply B rief. Moreover, it would be

wrong t o assume t

hat such mailing d

elay s are ra

re simply because there are no si milar re

ported c ases. As

the Gove

rnment no tes (

see Defendant’s Statement of Undisputed

Material Facts ¶¶ 15-17; Def.’s R eply Brief a t 1 n.2), it request ed that the Imp orter in this case provide proof of the date of mailing, and filed its motion to dismiss only after the I mporter failed to respond. Presumably, if the I mporter had supp lied the Gov ernment with a copy of the postmark promptly upon request, the instant motion would never ha ve been filed. Thus, there may be other s imilar ca ses – perhaps even many other cases – where there wa s a similar discrepancy between the actual postmark date and the date on which Customs initially asserted that notice was mailed. But any suc

h cases would not have made it into the annals of the law if (as it soug ht to do here) the Government successfully ferreted out and resolved the “dat e of maili ng” disc repanc ies ear

ly in litiga tion, so tha

t they never be came the

subject o f unsucc essful mot ions to dismi ss. Further, this is a ra

re notic e case, because

the issue here is the date

of mailing. In the ty

pical notice c ase, the

issue is no t when , but whether notice was mailed. See , e.g. , F.W. Myers & Co. , 6 CIT 215, 574 F. Supp. 1064. Inthe ty pical ca se, the imp orter isin the position of (quite literally) try

ing to prove a negative (i.e., his non-receipt

of notice ); and the

result in s uch case s gene

rally turns on how airtig

ht a case the importer can make that his procedures for the handling of mail are so foolproof that the “m issi ng” notice could not

possibly have been duly

delivered and thereafter misplaced. Compare , e.g. , A.N. Deringer, Inc. , 20 CIT 978 (where cour t found that

procedures of plaintiff

broker/importer of record for handling of incoming notices were not “a s foolproof” as pla intiff’s testimony depicted) with United States v. Int’ l Imps
. , 55 CCPA 43 (where, considering importer’s testimony on its procedures for ha nd li ng of

in co mi ng no ti ce s a nd go ve rn me nt ’s te st im on y a s to agency ’s “regular mailing procedures,” court found in favor of impo rter ba sed on “st rong e vidence of irreg ularitie s” in government’s procedures). is no th in g t o s ug ge st th at th e h an dl in g o f t hi s n ot ic e w as an yth in g o ut of th e o rd in ar y; 9 thus, there
can be no assurance that other notices in other case s (perhaps even notices issued by othe r p orts) have not s

uffere d similar ma

iling de lay s. 10Court No. 02- 00647 Page 11

This case is thus unusual, in that here – due to the nature of the case – there is di rect, affirmative evidence controverting the Gover nment’s claim as to mailing. At a minimum, that evidence effectively

rebuts any

presumption of regularity in this case. But, arguably , it does much more. Ar gu ab ly, it also ten ds to corroborate (at least to some degr ee) other importers’ claims of nonre ceipt ; for, if –

notwithsta

nding Cus toms’ swor

n testimony

of ironc lad adhe

rence t o str ingen t procedures – at least some notices are mailed late, then per haps some

notices a re neve r mailed a t all. This ca se th us ca st s a sh ad ow ov er Cu st om s’ cl ai m t o t he pr es um pt io n o f r eg ul ar it y, at least i n the context of the mailing of notice.

11 This action may y

et meet an early

de mise. Asserting that the Importer failed to pay the outstanding duties be fore co mmencing this suit, th e Gover

nment has

also move d to dismiss t

he case for lack of subject matter jurisdiction under 28 U.S.C. § 2637(a) (2000). That motion remains pending, as does the I

mporter’s cross-motion for summary judgment.
12 In A.N. Deringer, I

nc. , 20 CI T at 985, the court counseled that an importer’s “claim of nonre ceipt

. . . must be

scrutinize d caref

ully . . . , giv en the inc entive th at a plain tiff may have to clai m that no notice was received.” But, as this case suggests, there is another side to that co in : Customs’ own incentive to claim that notice was timely mailed.

13 Another notice case sagely

cautions against treating as a “ presumption” something which has no basis in actual fact – what is, in truth, a “legal fiction” : “Presum

ptions or f

ictions se rve well enough for a while, but we must avoid mistaking them for reality .” Charlson R ealty Co. , 384 F.2d at 449 (Nichols, J., concurring). If the Importer here

had not retained the en

velope in which Customs mailed the notice of denial, his lawsuit

would have met a swift end. 11 But, in some respects, the Government’s stakes
are even higher. Particularly for an invete rate litigant such a s the Gove rnment, the cre dibility

of its witnesses is the coin

of the re alm. 12 Moreover, the Government can expect to continue to enjoy the presumption of regularity in the future only if experienc e shows that it is warranted. 13 Cases like this one c all that in

to doubt.Court No. 02- 00647 Page 12

III. Conclusion As the Government

apparently now

concedes, the notice of denial of protest here at issue was mailed on April 9, 2002. The 180-day period established in 28 U.S.C. § 2636(a)(1) for the filing of civilactions challenging such Customs actions thus expired on October 6, 2002. Since that day wa s
a Sunday, and since this ac tion was commenced on October 7, 2002 (the first business day thereafter), the action was timely filed. Defendant’s motion to dis miss for la ck of subj ect matte

r jurisdiction pursu

ant to 28 U .S.C. § 2636(a)(1) therefore must be, and he reby is, denied.

_____________________________________ Delissa A. Ridgway Judge Dated: May 14, 2003 New York, New York