CUSTOMS CASES: DECISIONS UNDER 28 U.S.C. § 1581(a) AND 28 U.S.C. § 1582

Georgetown Journal of International Law, Fall 2007 by Williams, Barbara S

In finding that the Government was not required to introduce evidence in order to defeat a motion for summary judgment, the Court stated that, "Saab failed to meet its burden of contradicting Customs' presumed correct factual finding that Saab's merchandise was not damaged at importation."28 The Court explained that:

A non-movant need not always provide affidavits or other evidence to defeat a summary judgment motion. If, for example, the movant bears the burden and its motion fails to satisfy that burden, the non-movant is 'not required to come forward' with opposing evidence.29

The Federal Circuit concluded, "that a non-movant was required to provide opposing evidence under Rule 56 (e) only if the moving party provided evidence sufficient, if unopposed, to prevail as a matter of law," which Saab had not done.30

The Court then turned to the issue of whether 19 C.F.R. § 158.12 permitted an allowance for damage discovered years after entry, or was limited to, as contended by the Government, an allowance for damage discovered or readily discoverable at entry. In finding for Saab, the Federal Circuit explained that:

The better reading is that the words "at the time of importation" [in 19 C.F.R. § 158.12] modify the phrase "partially damaged," not the verb "found." Read thus, the regulation permits allowances for merchandise that the port director finds, at any time, to have been partially damaged at the time of importation. The government's interpretation would lead to absurdity: because "importation" occurs in a "moment," United States v. Arnold Pickle & Olive Co., 68 C.C.PA. 85, 659 F.2d 1049, 1053 (1981), a requirement that defects be identified at the "time of importation" would preclude recovery for any defects not identifiable at a single glance.31

The Federal Circuit finally reviewed whether Saab's evidence was sufficient to permit the Court to objectively determine whether the repairs reflected damage existing on importation. Saab's evidence essentially consisted of warranties and computer spreadsheets, which contained one to four word descriptions of the part that was repaired, but did not detail the nature of the repair. The Court essentially used a sliding scale, and determined that for those repairs made very close to importation, such as at the port, less description regarding the repair performed was necessary. However, for repairs performed well after importation, significantly more detail was necessary.32 The Court concluded that most of the repairs identified by Saab had occurred well after importation, and the brief details provided by Saab for these repairs were not sufficient.33

2. Motorola, Inc. v. United States,34 and California Industrial Products, Inc. v. United States35

Both of these actions were decided by the Federal Circuit on the same day and address slightly different sections of 19 U.S.C. § 1625(c).36 Motoro/aheld that 19 C.F.R. §l77.12(c) (I)(U) permissibly detailed the types of Customs actions which could comprise a treatment under 19 U.S.C. § 1625 (c). California Industrial Products, Inc. v. United States, on the other hand, held that 19 C.F.R. §l77.12(c)(l) incorrectly limited the nature of a treatment under 19 U.S.C. § 1625 (c).37 In particular, in Motorola, the Federal Circuit .examined the proper classification under the HTSUS of circuits used in battery packs for cellular phones and the effect of ruling letters issued by Customs.