Federal Circuit Refuses to Rehear Hitachi TV Set Duty Case

The Court of Appeals, Federal Circuit, refused to rehear en banc a case involving tariffs paid on plasma flat panel televisions assembled in Mexico between June 1, 2003, and December 27, 2005. The petition for rehearing was filed by plaintiff Hitachi Home Electronics in the case of Hitachi Home Electronics (America) vs. the U.S. The court said a poll of the judges showed no support for a rehearing.

Hitachi imported certain flat panel TVs that later were liquidated as dutiable under subheading 8528.12.72 of the Harmonized Tariff Schedule of the United States at a rate of 5.0% ad valorem.   Hitachi claimed that the televisions should be treated as duty-free under the North American Free Trade Agreement, and filed numerous protests with U.S. Customs and Border, followed by actions in the Court of International Trade. In May 2009, Hitachi filed an action in the Court of International Trade asserting it had jurisdiction under 28 U.S.C. §1581(a).  

Hitachi contended that its protest was denied or deemed denied under 19 U.S.C. §1515(a) because Customs had taken more than two years to act on its protest, or under 28 U.S.C. § 1581(i) if there was no jurisdiction under §1581(a).   Customs moved to dismiss for lack of jurisdiction.   The Court of International Trade dismissed for lack of jurisdiction, interpreting §1515(a) to impose neither automatic allowance nor automatic denial of a protest, and concluding that jurisdiction was therefore not proper under §1581(a) or (i).   The Court of International Trade did say all Hitachi needed to do to establish jurisdiction was to file for accelerated disposition under 19 U.S.C. §1515(b) and wait for a maximum of thirty days.

The case was appealed to the Federal Circuit, which did not overturn the CIT. The Federal Circuit, as usual, did not say why it refused rehearing.