can be given no probative weight. For the common meaning of a tariff term is a question of law and an affidavit is no place for opinions—such as here contained-for conclusions of law. See 6 Moore's Federal Practice (2d ed. 1976) pp. 56–1312-56–1318. In these circumstances, defendant's cross-motion for summary judgment must also fail.

To sum up, both plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment are denied.

(C.R.D. 77-4)

POINT FOUR LTD., INC. v. UNITED STATES

Leather sport shoes

MOTION TO DISMISS-PLEADING JURISDICTIONAL DEFECT IN ANSWER Motion by government to dismiss action on jurisdictional grounds will be denied without prejudice to asserting the jurisdictional defense in its answer as the court would be ill advised to decline jurisdiction in the case if the allegations in the complaint relating to alleged deceptive and improper practices of customs officials in misdirecting and delaying the filing of the importer's protests can be given full credence.

Court No. 76-9-01963

Port of Cleveland (Toledo)

[Motion denied.]

(Dated May 12, 1977)

Paul A. Tscholl for the plaintiff.

Barbara Allen Babcock, Assistant Attorney General (Steven P. Florsheim, trial attorney), for the defendant.

RICHARDSON, Judge: In this action embracing importations of athletic footwear from Taiwan defendant moves pursuant to Rule 4.7(b) for an order dismissing the action for lack of jurisdiction. Defendant contends that the entries were liquidated on December 5, 1975, that the two protests involved herein were filed against these liquidations on March 16, 1976, or 102 days after the liquidations, and that the protests are untimely because not filed within 90 days of liquidation as required by 19 U.S.C.A., section 1514, as amended.

Plaintiff-importer opposes the motion, contending that, acting without counsel, it was advised by customs personnel at the port of entry (Toledo, Ohio) that it should file its protests at Chicago,

Illinois (regional commissioner's office), that it seasonably mailed the protests to Chicago as advised, and that the Chicago office sat on the protests until the protest time limitation expired, and then forwarded them to the district director at the headquarters port (Cleveland, Ohio) where they were received and filed as of March 16, 1977. Plaintiff argues that defendant should not be allowed to benefit from its erroneous advice to plaintiff followed by its deliberate and wilful delay in transmission of the protests to the Cleveland district director.

In the present posture of the action plaintiff has filed a complaint in which it is averred, among other things:

3. Protest was mailed, upon advice of the Toledo office, to U.S. Customs Service, Chicago, Illinois, February 27, 1976. They forwarded it to Cleveland, Ohio office where it was stamped March 15, 1976 and dated filed as March 16, 1976.

No answer to the complaint has been interposed inasmuch as defendant obtained an order of the court on January 5, 1977, on consent for an extension of 60 days for the reason "that additional time is required to investigate the factual allegations set forth in the complaint, so that said allegations may be accurately and appropriately answered." Section 1514(b)(1)(2), as amended, requires, among other things, that a protest be filed with the appropriate customs officer designated in regulations prescribed by the Secretary [of the Treasury] within 90 days after notice of liquidation. And, according to section 174.12 (d) of the customs regulations, the appropriate customs officer for the filing of the protests in this case would be either the district director at Cleveland or the port director at Toledo where the involved entries were made.

Although customs officials are not required to advise importers as to the nature and extent of their rights, see Flagstaff Liquor Company v. United States, 73 Cust. Ct. 132, 137, C.D. 4563, 388 F. Supp. 554 (1974), and cases cited on page 138, nevertheless, the rights of importers will not be forfeited as a consequence of deceptive or improper practices indulged in by customs officials. See A. H. Burr v. United States, 9 Cust. Ct. 13, 19–20, C.D. 651 (1942) [improper delay by customs officials in time-stamping the importer's entry papers until after the closing of a cattle quota]; Henry A. Wess, Inc. v. United States, 25 Cust. Ct. 34, 37, C.D. 1259 (1950) [examination of merchandise by the wrong customs official acting under color of authority]; and Snake King v. United States, 18 Cust. Ct. 33, 35, C.D. 1041 (1947) [acceptance of protest by deputy collector after

1 It is to be noted that the moving papers do not address themselves to Notice of Liquidation, but only to the liquidation per se. However, the statute runs from the date of Notice of Liquidation, and not from the date of liquidation, if liquidation occurs on a different date.

the regulation closing hour on the 60th day after liquidation]. If full credence be given to the allegations in the third paragraph of the complaint in this case it is clear that the ends of justice as well as the objective of the statute of limitations will be ill served by a declination of jurisdiction on the part of the court. But at this point in the proceedings a judgment in the matter either way is premature, there being no evidentiary record before the court in connection with this motion.

However, inasmuch as defendant has procured a postponement in the joinder of issue under a commitment to answer the complaint, it is appropriate that it be required to do so. Accordingly, defendant's motion to dismiss is denied, without prejudice, however, to raising the jurisdictional issue herein by way of its answer.

Rode & Qualey (Peter Jay Baskin of counsel) for the plaintiff.

Barbara Allen Babcock, Assistant Attorney General (Laura D. Millman, trial attorney), for the defendant.

BOE, Judge: Pursuant to rules 4.7 (b) (2) and 4.12 of the rules of court, the defendant has moved to dismiss the above-entitled action for lack of jurisdiction because of plaintiff's failure to timely file the summons in said action pursuant to 28 U.S.C., section 2631(a), providing:

§ 2631. Time for commencement of action.

(a) An action over which the court has jurisdiction under section 1582(a) of this title is barred unless commenced within one hundred and eighty days after:

(1) the date of mailing of notice of denial, in whole or in part of a protest pursuant to the provisions of section 515(a) of the Tariff Act of 1930, as amended; or

(2) the date of denial of a protest by operation of law pursuant to the provisions of section 515(b) of the Tariff Act of 1930, as amended.

The following facts, pertinent to the determination of this motion, are undisputed:

(1) the plaintiff filed a protest in the within action on April 26, 1972,

(2) a notice of denial was mailed to the plaintiff on November 1, 1974, and

(3) the plaintiff filed a summons in said action on November 7, 1974.

In support of its motion to dismiss the defendant asserts that the timeliness of the filing of the summons in the instant action must be determined in conjunction with the provisions of 19 U.S.C., section 1515, providing:

§ 1515. Review of protests; administrative review and modification of decisions; request for accelerated disposition of protest.

(a) Unless a request for an accelerated disposition of a protest is filed in accordance with subsection (b) of this section the appropriate customs officer, within two years from the date a protest was filed in accordance with section 1514 of this title, shall review the protest and shall allow or deny such protest in whole or in part. Thereafter, any duties, charge, or exaction found to have been assessed or collected in excess shall be remitted or refunded and any drawback found due shall be paid. Upon the request of the protesting party, filed within the time allowed for the filing of a protest under section 1514 of this title, a protest may be subject to further review by another appropriate customs officer, under the circumstances and in the form and manner that may be prescribed by the Secretary in regulations, but subject to the two-year limitation prescribed in the first sentence of this subsection. Notice of the denial of any protest shall be mailed in the form and manner prescribed by the Secretary.

(b) A request for accelerated disposition of a protest filed in accordance with section 1514 of this title may be mailed by certified or registered mail to the appropriate customs officer any time after ninety days following the filing of such protest. For purposes of section 1582 of Title 28, a protest which has not been allowed or denied in whole or in part within thirty days following the date of mailing by certified or registered mail of a request for accelerated disposition shall be deemed denied on the thirtieth day following mailing of such request.

The defendant concludes from the foregoing statute that the failure of a customs official to either allow or deny a protest within a period of two years from the day of its filing constitutes a constructive denial thereof, causing the 180-day time limitation to automatically begin running on the day immediately following the last day of said two-year period, namely April 26, 1974. By the time the summons was actually filed on November 7, 1974, the defendant charges that

a total period of 196 days had elapsed thus causing the filing of the summons in question to be untimely.

This court is unable to accept the contention urged by the defendant. It appears that in its reasoning the defendant misconceives the purpose and the intent evidenced by the Congress in the enactment of 19 U.S.C., section 1515(a). The foregoing section relates to the manner in which administrative review shall be conducted and determined by customs officials. It is regulatory in character and prescribes the period of time and the form in which the obligations and responsibilities of these officials are to be performed. The specific obligation is imposed thereby on customs to mail a notice of denial to a protestant. This section does not serve as a statute of limitation with respect to the commencement of an action, but only provides for the act or occurrence from which the 180-day time limitation provided by 28 U.S.C., section 2631(a)(1) begins to run.

It is this latter section (section 2631(a)(1)) which imposes the limitation period on the commencement of a court action and specifies when this period commences. The language of this section is plain and unequivocal. The 180-day limitation period begins to run not from the date a protest is denied, but from the date the notice of denial is mailed to the plaintiff. Thus, until the independent, though related, obligation to mail the notice of denial is complied with by customs, the corresponding obligation imposed on the plaintiff by 28 U.S.C., section 2631(a)(1), to file a summons within 180 days thereafter does not attach. To accept the defendant's contention that the 180-day limitation period automatically commences by operation of law in cases where no administrative review of a protest occurs within two years of its filing, would not only ignore the unambiguous phraseology of 28 U.S.C., section 2631(a)(1), but would also dispense with the directive contained in 19 U.S.C., section 1515(a) that customs mail notices of denial to protestants in all such cases. Had Congress intended the automatic commencement of the 180-day limitation period after two years of administrative inaction on a protest by customs, it, indeed, would have expressly so provided. The intent of Congress is clearly evidenced by the contrasting statutory provisions relating to a protest subject to accelerated disposition. 19 U.S.C., section 1515(b) provides that a protest, which has not been allowed or denied within 30 days following the date of mailing of a request for an accelerated disposition is deemed denied. With respect to the protest subject to accelerated disposition, the Congress has placed the affirmative burden on the plaintiff to commence an action by the filing of a summons within 180 days after the date of the constructive denial. No notice of denial is required to be mailed by customs. Accordingly, in the same manner that section 2631(a)(1)