U.S. Court of International Trade Cases in 2011 in Penalty and Liquidated Damages Collection Actions under 28 U.S.C. S. 1582 and Its First Government Procurement Country of Origin Case under 28 U.S.C. S. 1581(e)

Article excerpt

TABLE or CONTENTS

I.   INTRODUCTION
II.  THE COURT'S FIRST RULING UNDER 28 U.S.C. [section] 1581 (e) FINDS
     JURISDICTION TO REVIEW A CUSTOMS RULING THAT DOES NOT
     COMPLY WITH A STATUTORY REQUIREMENT THAT IT DETERMINE
     THE COUNTRY OF ORIGIN FOR GOVERNMENT PROCUREMENT
     ELIGIBILITY
     A. Xerox Corp. v. United States
        1. Section 305 (b) (1) of the Trade Agreements Act
           of 1979
        2. Case Background
        3. Case Holding and Reasoning
           i.  Whether HQ H009107 Is a Section 305(b)(1) Determination
           ii. Whether Xerox's Claim Is a Justiciable Issue
III. IN ACTIONS TO COLLECT DUTIES AND LIQUIDATED DAMAGES
     UNDER 28 U.S.C. [section] 1582, IMPORTERS AND SURETIES LOST
     DEFENSES CONCERNING PAYMENT OF ANTIDUMPING AND
     COUNTERVAILING DUTIES AND PAYMENT OF PREJUDGMENT
     INTEREST
     A. United States v. American Home Assurance Co.
        1. Case Background
        2. Case Holding and Reasoning
     B. United States v. Great American Insurance Co. of
        New York
        1. Case Background
        2. Case Holding and Reasoning
           i.   The Bonds We're Not Invalid Under Agency Law
                Because the Agents Had Apparent Authority to Issue
                the Bonds and Customs Did Not Authorize Bonds in
                Excess of the Limits Specified in Its Database
           ii.  Lack of Notice of Suspension of Liquidation Did
                Not Invalidate That Suspension, Regardless of the
                Level of Prejudice Caused
           iii. Customs' Failure to Give Great American Notice of
                the Suspension of Liquidation Did Not Invalidate
                the Suspension, and Great American's Obligations
                Under the Bonds Were Not Discharged Because the
                Error Was Harmless
           iv.  The Government's Claims Regarding Two Entries
                That Liquidated Earlier Than the Rest Were Time-Barred
     C. United States v. Canex International Lumber Ltd
        1. Case Background
        2. Case Holding and Reasoning
           i.  The Related Federal Circuit Review of Whether the
               Classification of Merchandise Required SLA Permits
               Was Found Not to Be "Pertinent" and Did Not
               Prevent the Court from Having Jurisdiction Over a
               Ripe Liquidated Damages Claim
           ii. Prejudgment Interest Was Ordered Under the Court's
               Equity Powers in Amounts Exceeding the Bond
               Amounts Despite the Absence of Any Bad Faith
               Dilatory Failure to Pay Liquidated Damages
IV.  THE COURT ADDRESSED 19 U.S.C. [section] 1592 ISSUES OF LEVEL OF
     CULPABILITY, CALCULATION OF PENALTIES, AND PERSONAL
     SERVICE REQUIREMENTS UNDER 28 U.S.C. [section] 1582
     A. United States v. Trek Leather, Inc.
        1. Case Background
        2. Case Holding and Reasoning
     B. United States v. Inner Beauty International (USA)
        Ltd.
        1. Case Background
        2. Case Holding and Reasoning
     C. United States v. Zatkova
        1. Case Background
        2. Case Holding and Reasoning
V.   CONCLUSION

I. INTRODUCTION

In 2011, the U.S. Court of International Trade issued for the first time a decision within its exclusive jurisdiction under 28 U.S.C. [section] 1581(e) (1) over challenges to determinations pursuant to section 305(b)(1) of the Trade Agreements Act of 1979 (2) (TAA) on whether "an article is or would be a product of a foreign country or instrumentality" for purposes of favorable treatment in the U.S. government procurement process. The Court's opinion took care to protect the scope and exercise of its jurisdiction under section 1581(e) in a manner more assertive than for some of its other jurisdictions.

In addition, the Court rendered in 2011 six decisions that refined substantive and procedural holdings under its jurisdiction in 28 U.S.C. [section] 1582 (3) over certain types of collection actions brought by the United States against importers and sureties. …