Monday, November 28, 2011

Ford, Horizon & Cisco (Pun-based Title TBA)

The last month has been extremely busy and December does not look to be any less so. Consequently, you are about to get the shortest court decision summaries possible. Catch me in January, when it looks like I will have more breathing room, and I will do better.

Ford Motor Company v. United States

Ford, which is rapidly becoming the go-to litigant for interesting issues, challenged Customs' denial of a post-entry NAFTA claim in which it had failed to provide NAFTA certificates. The Court of International Trade dismissed Ford's challenge on the grounds that it failed to properly make the claim and, therefore, the Court lacked jurisdiction. The Federal Circuit reversed (see this prior post) holding that the lack of a NAFTA certificate was not jurisdictional. Rather, the Court had jurisdiction and the question to be decided was whether the claim was properly made.

On remand, the CIT had to decide whether Customs and Border Protection properly denied the post-entry claim. According to the Court, it did. The basis for this is that the NAFTA Agreement and the implementing regulations are very specific about the need to provide the NAFTA CO at the time of the claim. In this case, "the claim" is made when the importer asserts the right to duty-free entry, not at some subsequent point in time when the importer produces the document. Thus, the statute and NAFTA-specific regulations, in the context of a post-entry claim, require that the importer produce the Certificate of Origin. According to the Court, that trumps a general regulation permitting importers to produce documents supporting duty-free claims at a later time. Frankly, I am not sure that is correct but I am just giving you what the court said.

Horizon Lines LLC v. United States

This is another case involving the 50% duty on repairs to U.S.-flag vessels conducted outside the United States. See 19 USC 1466 for the details. In this case, the vessel was the Horizon Crusader, which had its bottom recoated with tin-free anti-fouling paint as an upgrade to comply with an international convention requiring the use of tin-free anti-fouling systems. Apparently, tin is not good for the ocean environment. [That makes me wonder just how awful the copper-based bottom paint I used to spray on my boat was for Lake Michigan.] The ship was, according to the Court, in good working order and any repairs done to the hull were incidental to the recoating operation. Consequently, this bottom painting operation was not a dutiable repair.

Judge Wallach, soon to be of the Court of Appeals for the Federal Circuit, gets extra points for distinguishing between classes of expert witnesses as percipient and non-percipient. Your run of the mill expert retained for his or her academic or professional expertise is a non-percipient expert. Experts who know a lot about a specific topic because they were actually involved in the facts that gave rise to the case are percipient experts. In Customs litigation, we traditionally use a lot of engineers, chemists, marketing people, and other personnel from the importer who know a lot about the products involved. They are percipient experts. In most courts, percipient and retained experts are treated slightly differently. In the CIT, they are treated basically the same.

Cisco Systems, Inc. v. United States

This is one of those cases that makes me wonder whether the Court of International still has a culture of cooperation and accommodation that moves cases toward decision on the merits. But that discussion is for another day. This case involves the classification of networking equipment. As a preliminary matter, the government moved to dismiss the case on the grounds that the protests filed with Customs and Border Protection were not sufficiently detailed to qualify as valid. This is the same issue we discussed in reference to Estee Lauder here. Based on that case, Customs and Border Protection should have seen how this would turn out. The Court of International Trade cited a line of cases stretching back to 1877 stating that technical precision is not required in a protest so long as it is sufficiently clear to permit Customs to understand what is in the mind of the protestant. Further, more recent cases have indicated that Customs has some level of duty to inquire when the protest is not sufficiently clear. Finally, protests are construed liberally in favor of finding them valid.

The gist of the claim is that Cisco described the merchandise as "networking equipment." The United States claims that this phrase is overly broad and does not specify the type of merchandise at issue. The Court noted that Customs has used the same phrase in its own publications to describe Cisco's products. Further, in relation to the entries at issue the description is sufficiently clear. And, because the protests were valid, the subsequent timely amendments were also valid. Thus, the motion to dismiss was denied.

The Court also denied the plaintiff's technical argument that the motion was procedurally defective and should have been treated as a motion for summary judgment. If you are interested in that level of detail, you are probably a party to the case. If you are not a party to the case and want to know more, read the decision.

4 comments:

jaylen watkins said...

It seems that you are going through very hectic schedule. Take care for your health.

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Anonymous said...

Just wnated to write that just because you wrote something doesnt mean you own it, you fucking idiot. There is no such thing as "intellectual property" you capitalist pig. These notions of ownership will destroy us all.

Larry said...

Excuse me, Comrade Anonymous, I would appreciate clarification. Are you simply opposed to the notion of ownership in intangibles such as copyrights or are you actually operating under the delusional belief that there is no such thing? If it is the former, please do not try writing, composing, painting, film making, or other creative endeavors as a means of making a living since you will have no way to profit from your efforts. If it is the latter, I suggest you take yourself and all your illegally downloaded content over to the nearest FBI office and see if they agree.

Matt said...

Dear Mr. Capitalist Pig:

I think Mr. Anonymous is just demonstrating that, while he grasps the idea of "property" within the larger construct of dialectical materialism, there is little chance of anything "intellectual" entering his sphere of existence.

C'mon, 'fess up. You wrote this comment for comic relief. Nice touch with the spelling and grammar errors.

Sincerely,
A Fellow Fucking Idiot