Pistorino & Co. v. United States , 333 F. Supp. 541 ( 1971 )

Landis, Judge:

This case involving merchandise imported from Sweden and entered and liquidated at Boston, is a rehearing of Pistorino Co., Inc. v. United States, 65 Cust. Ct. 387, C.D. 4110, decided October 28, 1970,¹ wherein Judge Richardson in an opinion in Which I concurred as a member of the Third Division,² sua sponte remanded the cause to a single judge of this court pursuant to 28 U.S.C.A., section 2636(d), to determine the value of the merchandise in the manner provided by law. As the basis for such decision it was noted that:

* * * liquidation of the involved entry occurred on November 22,1965, or just 32 days after the merchandise was appraised. As such, appraisement never became final, the time within which the collector might appeal therefrom not having expired at the time of liquidation. Under 19 U.S.C.A., section 1503(a) the collector has but one value upon which he can lawfully assess duty, and that is the final appraised value of the merchandise which does not become final until the expiration of 60 days after the appraisement. Liquidation of an entry prior to the expiration of the time for appeal to reappraisement is null and void. United States v. Boston Paper Board Co., 23 CCPA 372, T.D. 48233 (1936). And the effect of such premature liquidation is to void the appraisement as there was no official act of the collector accepting the appraisement. United States v. Boston Paper Board Co., supra. Consequently, the matter must be remanded to a single judge of this court pursuant to 28 U.S.C.A., section 2636(d) to determine the value of the merchandise herein in the manner provided by law.

In order to understand the issues involved in this case a brief history of the proceedings is deemed pertinent. Plaintiff filed a protest claiming error in plaintiff’s failure to deduct the buying commission and the customs duty from the entry value of the merchandise.³ Subsequently, without objection, plaintiff amended the protest to claim the liquidation was illegal, null and void, for failure to give notice of the appraisement in accordance with section 501 of the Tariff Act of 1930, as amended, 19 U.S.C.A., section 1501.

After trial of the issues presented by plaintiff’s protest, briefs were filed by both sides, arguing the merits of plaintiff’s amended protest olaim that the collector’s liquidation of the imported merchandise was illegal, null and void for the reason that the collector at Boston failed to notify plaintiff of the appraised value of the merchandise, as plaintiff had allegedly requested pursuant to section 501, supra. Cf. United States v. International Importers, Inc., 55 CCPA 43, C.A.D. 932 (1968). The original opinion herein, upon weighing the evidence and discussing the arguments on the merits of that claim, found that plaintiff, as contended, had written the collector a letter (exhibit 1) which, in the context of the writing, was “sufficient to advise the collector of the plaintiff’s desire to receive a notice of appraisement * * The original opinion further found, however, that plaintiff had failed to establish that the letter was ever mailed, delivered or received by the collector. While ordinarily inclined to set aside the submission and give plaintiff an opportunity to prove the collector received the letter, the original opinion sua sponte disposed of the protest, as heretofore mentioned, by remanding it as a matter of law.

When, defendant moved for a rehearing, the parties for the first time briefed the issue upon which the court had sua sponte disposed of the case viz: the question of the validity of the appraisement and liquidation, where the liquidation occurred prior to the expiration of the time to file an appeal for re,appraisement under section 501 of the Tariff Act of 1930, supra. The rehearing having been granted, the parties, on July 30, 1971, relying on the memoranda and briefs filed of record, resubmitted the case for decision on the existing record, without offering any further evidence.

It thus appears that the parties are now more interested in obtaining an adjudication as to the validity of the liquidation where the liquidation took place prior to the time to file an appeal for reappraisement than a determination of whether the liquidation is invalid by reason of failure to send plaintiff a notice of appraisement under section 501.

Defendant’s stated position in support of the motion for rehearing (defendant filed a memorandum of law), which it carries into this rehearing, is that liquidation of an entry prior to the expiration of the time to file an appeal for reappraisement under section 501 does not void the appraisement, and that while the liquidation is voidable, it is valid in the absence of a proper party filing a timely appeal for reap-praisement under section 501. Plaintiff in its memorandum of opposition takes the position that whether or not the appraisement is void, a liquidation prior to the expiration of the time to file an appeal for reap-praisement -under section 501 is void and, therefore, the “[ojriginal decision of this court should not be disturbed.”

A brief filed by the Association of the Customs Bar⁴ basically postures that, contrary to the holding in the original decision, an appraisement is not voided by a liquidation prior to the expiration of the time to file an appeal for reappraisement and, as a matter of law, there is no basis for remanding such a protest. The Customs Bar does, however, agree with the original decision to the extent it holds that a protest sua sponte reflecting a liquidation prior to expiration of the time to file an appeal for reappraisement is void. The Bar suggests, citing precedents, that the original decision and judgment be modified by dismissing the protest as premature, and returning the official papers to the collector to be liquidated in accordance with law.

The memoranda of law and brief filed on the motion for rehearing, quite obviously, take no issue with the proposition that on the facts sua sponte raised of record, the appraisement is valid and remand unnecessary. At the very least, therefore, the original decision and judgment remanding the cause to a single judge on the ground that the appraisement is void should be modified and the judgment corrected as to that part.

The only divisive issue in the liquidation of the protest entry in this case prior to the expiration of the time to appeal for reappraisement under section 501, is whether, as a matter of law, the liquidation is absolutely void. The words “void and of no effect” are “often used in statutes and legal documents * * * in the sense of voidable, merely, that is, capable of being avoided, and not as meaning that the act or transaction is absolutely a nullity, as if it never had existed, incapable of giving rise to any rights or obligations under any circumstances.” Ewell v. Daggs, 108 U.S. 143, 148-149 (1883), Ballentine's Law Dictionary (1948 edition), page 1344, see also, Atlantia Coast Line Railroad Co. v. Florida et al., 295 U.S. 301, 311 (1935).

Current with our consideration of the motion for rehearing in this case, Chief Judge Eao, in a unanimous decision written for the Second Division of this court, John V. Carr & Son, Inc. v. United States, 66 Cust. Ct. 316, 319-320, C.D. 4209, 326 F. Supp. 973, decided April 29, 1971, disposed of the issue of the validity of a liquidation prior to the expiration of the time to file an appeal for reappraisement as follows:

Obviously, if a timely appeal for reappraisement had been filed, the liquidation herein would have been rendered void. That is the situation which existed in a number of cases where the court has stated that the liquidation is void or that the collector has no power to liquidate while an appeal for reappraisement is pending. Stubbs v. United States, 7 Ct. Cust. Appls. 399, T.D. 36967 (1917); United States v. Boston Paper Board Co. [23 CCPA 372, T.D. 48233 (1936)], supra; Lawrence Groom & Co. v. United States [64 Treas. Dec. 119, T.D. 46559 (1933)], supra; The New Home Sewing Machine Co. v. United States, 62 Cust. Ct. 895, R.D. 11655 (1969). See also United States v. European Trading Co., 26 CCPA 103, C.A.D. 1 (1938), where liquidation took place before the time to appeal from a decision of the Customs Court to the Court of Customs and Patent Appeals had expired.

While the word “void” has been applied to the liquidations in some of the decisions, that term is often used to signify various shades of infirmity from absolutely void for all purposes to merely voidable. Joseph Fischer v. United States, 38 CCPA 143, 150, C.A.D. 452 (1951). In that case the court found it significant that prior decisions had held that insufficient designation of packages to be examined rendered an appraisement null and void rather than void ab initio. It concluded that the action of the collector in failing to designate the prescribed number of packages “may be characterized as an act which he was empowered to perform but wliicb he performed in an improper maimer.” It was held that such act, not being void in an absolute sense, did not .vitiate the jurisdiction of the court in a reappraisement case.

In the instant case, the district director was empowered to liquidate the entry on the basis of the appraised value (absent a timely appeal for reappraisement or a finding of value by the Customs Court or the Court of Customs and Patent Appeals). This he did — the only alleged infirmity being that he did it prior to the expiration of the time during which an appeal might have been filed. The liquidation could have been voided by the filing of a timely appeal by either party. Since in this case none was filed, and the rights of neither party have been prejudiced, the liquidation remains valid.

While it has been customary until recent years to withhold liquidation until the period for appeal has expired, there appears to be no legislative policy in the public interest requiring it. In fact, at the present time there are reasons for the newer procedures.

The First Division of this court in Bradlow, Inc. v. United States, 66 Cust. Ct. 333, C.D. 4211, decided May 5, 1971, footnoted the issue and unanimously followed the Carr case.

It is interesting to note that the Third Division in an opinion written by Judge Bichardson in Garod Radio Corporation v. United States, 46 Cust. Ct. 473, Abstract 65612 (one judge dissenting), 'handed down in 1961, while it refrained from expressing any opinion as to whether 'the liquidation was void or voidable when made during the pendency of an appeal to reappraisement (although there could be no doubt of this under John V. Carr & Son, Inc. v. United States and Bradlow, Inc. v. United States, supra), nevertheless disposed of the case in a manner inconsistent with the liquidation 'being void. This follows from the holding that the court would not consider plaintiff’s protest claiming the liquidation to be void because it could find nothing to show that plaintiff’s ground of invalidity asserted at trial, viz: that tire liquidation was made during pendency of appeal for reappraisement, hiad been in plaintiff’s mind at the time protest was filed.⁵ Had the liquidation been considered void by the court, as urged by plaintiff at the time of trial, the fact this was not shown to be in plaintiff’s mind when protest was filed would have been irrelevant for it is wel‘1 settled that a void act or judgment may be attacked in any judicial tribunal, in any other cause, at any time the question arises. Cf. United States v. Robinson & Co., 12 Ct. Cust. Appls. 145, 154, 155, T.D. 40062 (1924); Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 460 (1874); Lincoln v. Tower, 15 Fed. Cas. 544, No. 8355, 2 McLean 473 (C.C.D. Ill. 1841); Moore v. Edgefield, 32 Fed. 498 (1887).

The New Home case, cited in the quote, supra,⁶ is clearly distinguishable from the case at bar. An examination of that case reveals that an appeal to reappraisement therein was taken prior to the liquidation. It is true that, through no fault of the importer, the appeal to reap-praisement was taken prematurely prior to appraisement as Customs prematurely, and prior to appraisement, had given the importer notice that the appraisement had already been made when in fact it had not. The court dismissed the appeal to reappraisement for the reason that it was premature. In our opinion, however, the appeal to reappraisement while premature was sufficient to void any liquidation made prior to the date the appeal was disposed of in this court.

Persuaded that the Carr and Bradlow cases are correct upon this issue, we further note that “[a]t the present time, under the Tariff Act of 1930, there is still no provision in the statute setting forth a time limit for the collector to make the liquidation”, cf. Dart Export Corp., et al. v. United States, 43 CCPA 64, 75, C.A.D. 610 (1956), certiorari denied 352 U.S. 824 (1956). On the strength of the foregoing authorities, we now hold that the collector was empowered to liquidate the entry on the basis of the appraised value (absent a timely appeal for reappraisement or a finding of value by the Customs Court or the Court of Customs and Patent Appeals). We further hold that the liquidation being voidable rather than absolutely void, said liquidation could have been voided by the filing of a timely appeal by either party. Since none was filed and neither party has been prejudiced, the liquidation remains valid.

This brings us to the remaining question which is before us for decision, viz, whether the liquidation is invalid by re'ason o’f .the failure to send plaintiff a notice of appraisement under section 501, supra. Consistent with the discussion of the evidence on the merits of that claim heretofore set forth, and for the reasons stated 'and as 'alluded to in the original decision, the protest claim that the liquidation is illegal, null and void for failure to send plaintiff a notice of appraisement is overruled. 1

The decision and judgment heretofore rendered is vacated. The protest is overruled and judgment will so enter.

1 Defendant moved the rehearing. 28 U.S.C.A., seetiom 2640. Judge Richardson voted to deny the motion; Judge Landis voted to grant the motion ; Judge Ford specially assigned to resolve the split, voted to grant the motion. Order granting the motion, for rehearing was entered June 11,1971.

2 At the time the cause was submitted for decision (November 13, 1968), as well as at the time the decision was handed down and judgment entered (October 28, 1970), Judge Rosenstein was an active judge of this court assigned to the Third Division. 28 U.S.C.A., section 254 (prior to amendment by the Customs Courts Act of 1970). For some unaccountable reason the case was never circulated to Judge Rosenstein as a judge of the Third Division. The two preliminary motions previously made in 1967 before two judges of the division do not, of course, preclude this case, which was heard and submitted before Judge Donlon at Boston in 1968, from being considered by the full division as it was then constituted of three judges, on submission date. In fact, it has been held that participation in writing of the opinion and rendering of judgment by a judge in a case which was heard and submitted prior to the judge becoming a member of the court was entirely appropriate and not a ground for reversal. David B. Roberts v. United States, 17 CCPA 215, 220, T.D. 43653 (1929).

Point I of the dissent herein, which takes the position that the motion should have been denied because the two judges who decided the case and entered the judgment could not agree on whether the motion should be granted, goes on, to suggest that now adding a third judge (Judge Ford), who did not participate in the original judgment, to resolve the split “appears to be inappropriate”. (Judge Rosenstein retired to Senior Judge status on January 1, 1971.) The rule of affirmance where judges are evenly divided in opinion is a relic of the common law of England which has been followed somewhat in the United States and is to the effect that where the appellate court is evenly divided in opinion, the judgment of a lower court will be affirmed. Veolay, Inc., et al. v. United States, 21 CCPA 268, T.D. 46804 (1933). The Court of Customs and Patent Appeals however, in Yeolay made it clear that the rule had limited application, viz :

* * * [The] rale is one of necessity. A review of the authorities will show that it is adopted only when there seems to be no alternative, and where to fail to do so would indefinitely prolong the litigation, with no useful result. * * *

* * * * * *

It will thus be seen, that the rule will not be invoked if by statute, by prospective changes in personnel, by the substitution of' other judges, or the filling of the court, it can be avoided, and the litigants have their cause decided upon its merits.

As we view the various provisions of law creating * * * the United States Customs Court, and fixing its jurisdiction and powers, there seems to be no necessity for the invocation of this rule when two of the judges of a division of such court are considering a case and are divided in opinion. In fact, it may well be concluded that one of the objects which the lawmakers had in mind was to avoid any such situation.

# * * * * * *

We are therefore of the opinion that the disagreement between Judges Cline and Evans did not, in law, constitute an affirmance of the judgment of the single judge. The case should have been placed upon the calendar for a retrial by the full division. [Pages 278, 280, 281.)

As observed in Veolay, the assignment of the third judge to this case is authorized by statute, 28 U.S.C., section 254. Moreover, as this record discloses, the parties to this litigation have consented to the assignment.

3 This claim has not been pressed and is deemed abandoned.

4 The Association of the Customs Bar was granted leave on January 22, 1971 to appear as amicus curiae, and to file a brief or legal memorandum concerning the issues raised in the motion of the United States for a rehearing, upon the representation that “[n]umerous protests are pending in the Customs Court which will be affected by the outcome of the * * * [motion for rehearing] in that they are filed against liquidations made within sixty days after appraisement, and * * * [t]he matters raised are of general interest and affect the future disposition of protests filed on behalf of many importers.”

5 Contrary to this holding, Judge Richardson in the original Pistorino decision (C.D. 4110), sua sponte held the liquidation void.

6 The New Home case Is also cited in the dissent.