Supreme Court Declines to Hear Hitachi CBP Protest Time Limit Case; Legislative Solution Could be Slow
The Supreme Court will not hear Hitachi’s challenge of time limits for CBP action on customs protests, after denying certiorari to Hitachi Home Electronics v. U.S. on Dec. 3. The denial means the Federal Circuit’s November 2011 ruling that the two-year time limit imposed on CBP by 19 USC 1515(a) is not mandatory will stand, and that accelerated disposition remains the remedy for importers who want to force CBP action. Several trade associations are discussing legislation to impose a mandatory time limit for CBP action on protests. But given the broad-based issues Congress is confronting in its lame duck session, any legislative solution will probably have to wait, said Susan Kohn Ross of Mitchell Silberberg.
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After CBP exceeded the two-year statutory time limit in Section 1515(a) for some Hitachi customs protests, the company filed suit in court. Hitachi argued that by exceeding the two-year time limit, its protests should be deemed approved. The Court of International Trade and CAFC disagreed, saying that because that consequence, nor any consequence, is explicitly stated in the law, there is no consequence for CBP’s failure to act within two years. Hitachi could have filed for accelerated disposition if it sought resolution, they said. The Supreme Court’s refusal to hear the case means that CAFC’s ruling will stand.
Several associations have been discussing changes to the law to provide a consequence for exceeding the time limit, and therefore making CBP act within two years. The American Association of Exporters and Importers has proposed such legislation, and the American Bar Association International Law Section was monitoring Hitachi as well, ITT has previously reported. (See ITT’s Online Archives 12082404 for summary of a push for a legislative solution).
But Kohn Ross, who is a member of the AAEI Industry Leadership Council, is doubtful that such legislation will be passed anytime soon. “If you asked everyone that is in favor of the change when would you like to see it happen, the answer would be today,” said Kohn Ross. “But the reality is we have a lame duck session, with issues that are, certainly from a broad-based definition, more pressing,” she said. The fiscal cliff, tax reform, and cybersecurity are all higher priority issues, Kohn Ross said. The fact that CBP has gone so long without a permanent commissioner is an indication that neither Congress nor the Obama Administration is particularly concerned about operational trade issues, she said. And while practitioners may see CBP protest time limits as a pressing issue, the larger trade community may be more focused on broader market access and enforcement issues, she said.
Damon Pike of the Pike Law Firm said he was “not surprised by the [certiorari] denial; the SCOTUS rarely takes customs cases.” The ABA Customs Law Committee will discuss the legislative options on its monthly conference call next week, he said.
(See ITT’s Online Archives 11111428 for summary of CAFC’s ruling, and 12040207 for summary of the denial of Hitachi’s request for CAFC rehearing. See also ITT’s Online Archives 12090701, 12110606, and 12111432 for summaries of briefs submitted to the Supreme Court by several trade associations, the government, and Hitachi, respectively.)