                         Slip Op. 06- 111

           UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
                                        :
RICHARD L. JONES CALEXICO, INC.,        :
d/b/a R.L. JONES CUSTOMS HOUSE BROKERS, :
                                        :
     Plaintiff,                         :
                                        :                Court No.
     v.                                 :                04-00315
                                        :
UNITED STATES,                          :
                                        :
     Defendant.                         :
________________________________________:

[Held:    Plaintiff’s Motion for          Summary     Judgment granted.
Judgment for the Plaintiff entered.]

     Betts, Patterson & Mines, P.S. (Steven W. Block) for Richard
L. Jones Calexico, Inc., d/b/a R.L. Jones Customs House Brokers,
Plaintiff.

     Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney-in-Charge; International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Mikki Graves Walser); of counsel: Sheryl A.
French, Office of the Assistant Chief Counsel for International
Trade Litigation, Bureau of Customs and Border Protection, for
United States, Defendant.

                                                    Dated: July 25, 2006


                                OPINION


     Tsoucalas, Senior Judge:    Plaintiff, Richard L. Jones Calexico,

Inc., d/b/a R.L. Jones Customs House Brokers (“Calexico”) moves

pursuant to USCIT R. 56 for summary judgment on the ground that

there is no genuine issue as to any material facts.            Calexico

argues that its claims for direct identification unused merchandise
Court No.   04-00315                                                  Page   2


drawback with respect to certain asparagus from various origins

should be granted.      The Bureau of Customs and Border Protection

(“Customs”) argues that Calexico’s drawback claims were properly

denied and seeks an order dismissing the case.



                              JURISDICTION


     The Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1581 (2000) and 19 U.S.C. § 1514(a)(6) (2000).



                           STANDARD OF REVIEW


     On a motion for summary judgment, the Court must determine

whether there are any genuine issues of fact that are material to

the resolution of the action. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).     A factual dispute is genuine if it might

affect the outcome of the suit under the governing law.               See id.

Accordingly, the Court may not decide or try factual issues upon a

motion for summary judgment.          See Phone-Mate, Inc. v. United

States, 12 CIT 575, 577, 690 F. Supp. 1048, 1050 (1988).                 When

genuine   issues   of   material   fact   are   not   in   dispute,   summary

judgment is appropriate if a moving party is entitled to judgment

as a matter of law.      See USCIT R. 56; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).
Court No.   04-00315                                                Page    3


                                DISCUSSION

I.   Factual Background


     Calexico is a licensed customs broker for Spencer Fruit

Company (“Spencer Fruit”), an importer-exporter of asparagus.             See

Pl.’s    Statement   Material    Facts   Supp.   Pl.’s    Mot.    Summ.    J.

(“Calexico’s Facts”) ¶ 1.       In late 1995, Customs approved Spencer

Fruit’s application for use of summary procedure and accelerated

payment for unused drawback.       See Decl. Earl Roberts Supp. Pl.’s

Mot. Summ. J. (“Roberts Decl.”), Ex. 1 at 6-7.           Customs’ approval

included both substitution and direct identification drawback. See

Roberts Decl., Ex. 1 at 6-8.       Accelerated payment allows for the

payment of estimated drawback before liquidation of the drawback

entry.    See 19 C.F.R. § 191.92(a) (1998).         The use of summary

procedure waives the “prior notice of intent to export” requirement

to claim drawback.     See 19 C.F.R. § 191.91(a); Roberts Decl., Ex.

1 at 8 (“It is the opinion of [Customs] that ‘prior notice of

intent to export’ is not necessary with the approval of Exporter

Summary Procedure.”).


     Spencer Fruit timely filed to renew its existing privileges

for direct identification and substitution drawback by April 5,

1999.    See Roberts Decl., Ex. 2 at 10-15; Def.’s Mem. Supp. Its

Opp’n Pl.’s Mot. Summ. J. (“Customs’ Mem.”) at 11.               On May 26,

2000, Customs initially denied Spencer Fruit’s application stating
Court No.     04-00315                                                   Page   4


it      had   not     receive       evidence    of      product     commercial

interchangeability or sample export documentation.                 See Roberts

Decl., Ex. 3 at 17; Def.’s Resp. Pl.’s R.56(I) Statement Material

Facts Not Dispute (“Customs’ Facts”) ¶ 5.              Customs later approved

Spencer Fruit’s modified application for substitution drawback on

May 15, 2001.       See Roberts Decl., Ex. 4 at 19.


      On January 10, September 14 and May 30, 2000, Calexico, on

behalf of Spencer Fruit, submitted the three direct identification

unused merchandise drawback claims at issue to Customs.1                     See

Roberts Decl., Ex. 6 at 25-27.              The drawback claims involved

merchandise exported between January 4, 1999, and March 23, 2000.

See Roberts Decl., Ex. 6.             Spencer Fruit’s original drawback

application,    filed    by    Calexico,    requested     $222,676.79,    which

Calexico reduced to $166,713.89 in its complaint.             See Calexico’s

Facts ¶ 9.     Customs denied all three drawback claims on July 31,

2002.     See Roberts Decl., Ex. 9 at 247-49; Customs’ Facts ¶ 23.

Customs stated that the reason for denial of drawback was because

the   “[c]laimant     does    not   have   privilege    approval   for   direct

identification unused drawback merchandise exported under 19 U.S.C.

1313(j)(1) – (entry type 42).”              Roberts Decl., Ex. 9 at 247.



      1
          Drawback claim entry # 218-2027705-7 was filed on January
10, 2000; claim entry # 218-2038702-1 was filed on May 30, 2000;
and claim entry # 218-2041845-3 was filed on September 14, 2000.
See Roberts Decl., Ex. 6.
Court No.     04-00315                                                      Page    5


Customs’ internal computer records dated July 31, 2002, also

indicates     that    entry   #    218-2038702-1     was    denied    because    the

“claimant     does      not    have     privilege        approval     for   direct

identification unused drawback merchandise.” Decl. Steven W. Block

Supp. Pl.’s Mot. Summ. J. (“Block Decl.”), Ex. 1 at 3.                       In an

informal correspondence by fax thereafter dated August 21, 2002,

Customs further stated that drawback entries 218-2027705-7 and 218-

2041845-3 were denied, among other reasons, because “[n]o Waiver of

Prior Notice provided for exports after 4/6/99, when old privileges

for entry type 42/j(1) expired.”              Roberts Decl., Ex. 10 at 252.

Customs liquidated the entries without the benefit of drawback on

August 16, 2002.        See Calexico’s Facts ¶ 31; Customs’ Facts ¶ 31.

Calexico filed a protest ninety-one days later, which Customs

denied as untimely.           See id. ¶ 32; Customs’ Facts ¶ 32.                 This

action followed.


II.   Statutory Background


      Under section 1313(j) of Title 19 of the Unites States Code,

Customs will fully repay, less one percent, the amount of duties

paid upon goods previously imported into the United States and

either   1)   was     not   used   within    the   United    States    or   2)    was

“commercially        interchangeable”       with   the   imported     merchandise,

before being subsequently exported or destroyed.                See 19 U.S.C. §

1313(j) (2000).        Known as unused merchandise drawback, or simply
Court No.     04-00315                                                    Page   6


drawback, it can be obtained as “direct identification” drawback

when sought under 19 U.S.C. § 1313(j)(1) because the same imported

merchandise is exported or destroyed or as “substitution” drawback

under 19 U.S.C. § 1313(j)(2) because the exported merchandise is

commercially interchangeable with the imported merchandise. See 19

U.S.C.   §    1313(j).         The   exportation   date   of    the   underlying

merchandise governs the drawback claim because it is the operative

date upon which the claim accrues.                 See, e.g., 19 U.S.C. §

1313(r)(1) (three year window following the date of exportation to

file a drawback claim); 19 C.F.R. § 191.31(b) (drawback allowed if

exportation occurs within three years after importation).


      On April 6, 1998, new regulations formalizing waiver of prior

notice   to   export     and    accelerated   payment     of   drawback   claims

(collectively, “drawback privileges” or “privileges”) came into

effect. See 19 C.F.R. §§ 191.91-191.93 (1998).             Under the new 1998

regulations, companies seeking to continue their waiver privileges

had one year to apply for continued privileges.                See 19 C.F.R. §§

191.91(a)(2) & 191.92(a)(2).           Companies that filed within the one

year deadline “may continue to operate under its existing waiver of

prior notice until Customs approves or denies the application . .

.”.   19 C.F.R. §§ 191.91(a)(2) & 191.92(a)(2).                  If the waiver

application is denied, Customs will give the company “written

notice, specifying the grounds” of denial “together with what
Court No.   04-00315                                           Page   7


corrective action may be taken . . .”.    19 C.F.R. §§ 191.91(c)(3)

& 191.92(e)(4).


     If Customs refuses to pay a claim for drawback, a company may

protest the decision within ninety days before the liquidated entry

without the benefit of drawback becomes final and conclusive upon

all parties. See 19 U.S.C. § 1514(a)(6). “Notwithstanding a valid

protest was not filed,” however, Customs may correct a

         (1) clerical error, mistake of fact, or other
         inadvertence, whether or not resulting from or
         contained in electronic transmission, not amounting
         to an error in the construction of a law, adverse
         to the importer and manifest from the record or
         established by documentary evidence, in any entry,
         liquidation, or other customs transaction, when the
         error, mistake, or inadvertence is brought to the
         attention of the Customs Service within one year
         after the date of liquidation or exaction . . .


19 U.S.C. § 1520(c)(1).2   Customs’ regulations “essentially [do] no

more than paraphrase 19 U.S.C. § 1520(c)(1),” Chrysler Corp. v.

United States, 24 CIT 75, 80 n.4, 87 F. Supp. 2d 1339, 1345 n.4

(2000), and reiterates that correction pursuant to 19 U.S.C. §

1520(c) may be made in “any entry, liquidation, or other Customs

transaction . . .”.    19 C.F.R. § 173.4(b) (1998).




     2
          19 U.S.C. § 1520(c) was repealed in 2004, see 108 P.L.
429 § 2105, 118 Stat. 2434, 2598 (Dec. 3, 2004), but is in effect
for all times relevant to this case.
Court No.     04-00315                                                 Page   8


III. Contentions of the Parties

      A.    Calexico’s Contentions

      Calexico argues that summary judgment is proper because the

testimony and record evidence demonstrates that Customs’ denial of

Spencer Fruit’s drawback claims was due to a mistake of fact

regarding Spencer Fruit’s privileges.          See Mem. Supp. Pl.’s Mot.

Summ. J. (“Calexico’s Mem.”) at 19.         Calexico asserts that Customs

denied Spencer Fruit’s drawback claims solely because Customs

understood that the “claimant does not have privilege approval for

direct identification.”       See Calexico’s Mem. at 20.              Calexico

argues, however, that Spencer Fruit had an effective waiver of

prior notice for direct identification at the time the underlying

merchandise of the drawback claims were exported.             See id. at 20-

21.        Furthermore,   Spencer   Fruit    continued   to    have    direct

identification privileges until May 26, 2000, when the renewal

application was denied.      See id.    Calexico reasons that Customs’

denial “could not have been made based upon complete knowledge of

the facts because the Customs computer record was incorrect” and

the Customs official handling the claims did not have a prior

relationship with Spencer Fruit and was not familiar with Spencer

Fruit’s privilege application file.         See id. at 21.     Accordingly,

Calexico reasons that Customs’ decision was based on a mistaken

belief of Spencer Fruit’s privileges and thus relief under 19

U.S.C. § 1520(c) is appropriate.       See id.
Court No.   04-00315                                                    Page   9



     Calexico also argues that Customs’ contention that other

issues existed with Spencer Fruit’s denied claims is without merit.

See Calexico’s Mem. at 21.          Calexico asserts that during the

relevant period, Customs’ only reason for denying Spencer Fruit’s

claims    was   the    purported    lack    of     privileges    for     direct

identification drawback.      See id.       Moreover, the other reasons

Customs cites in support of its denial are not applicable to the

majority of Spencer Fruit’s claims.              See id. at 22.        At most,

Calexico argues that the other reasons are also mistakes of fact or

clerical errors committed by Customs and thus, also correctable

under 19 U.S.C. § 1520(c).         See Customs’ Mem. at 22.            Finally,

Calexico asserts that the language in 19 U.S.C. § 1520(c) speaks

broadly, encompassing both drawback claims and non-importers.               See

Reply Mem. Further Supp. Pl.’s Mot. Summ. J. (“Calexico’s Reply”)

at 10-12.


     B.   Customs’ Contentions

     Customs    responds   that    its   denial    of   Calexico’s     “section

1520(c) claim was proper.”         Customs’ Mem. at 3.       Customs argues

that Calexico does not satisfy the statutory requirements to seek

relief under 19 U.S.C. § 1520(c).          See id. at 7.        Specifically,

Customs asserts that Calexico has not demonstrated how the denied

drawback claims are adverse to the importer, Spencer Fruit.                 See

id. Furthermore, Customs argues that the “adverse to the importer”
Court No.    04-00315                                             Page    10


language in 19 U.S.C. § 1520(c) is unambiguous because in drawback

claims, “any error would be adverse to the drawback claimant or

exporter, not an ‘importer.’”          Id.   Customs contends, however,

that if the Court determines the phrase is ambiguous, then its

interpretation of “adverse to the importer” should be entitled to

deference.      See   id.   at   7.    Customs   also   asserts   that   the

legislative history indicates that 19 U.S.C. § 1520(c) was only

intended to benefit importers and not apply to drawback entries.

See id. at 8.


     Customs argues, alternatively, that even if 19 U.S.C. §

1520(c) applies to drawback claims, Calexico has not demonstrated

here that the drawback claims were denied because of a mistake of

fact.   See Customs’ Mem. at 9.       Customs also states that Calexico

failed to make any mistake of fact known to Customs within the one

year time frame allotted by the statute.         See id.   Customs asserts

that Calexico claims that the December, 1995, and April, 1996,

letters from Customs’ Houston office represent a waiver of prior

notice.     See id. at 10.       Therefore, Customs’ Los Angeles office

handling the drawback claims would have honored the waiver of prior

notice had it been aware of the Houston office’s actions.          See id.

Customs argues that Calexico’s evidence fails to establish that

Customs’ Los Angeles office “was not aware of the Houston Port’s

extension of privileges at the time it denied the drawback claims
Court No.          04-00315                                                Page    11


here.”        See id.         Customs claims that Calexico never directly

confronted it with the Houston privileges letters before the

pending motion.         See id. at 10-11.        Rather, Customs argues that its

Los Angeles office was aware of and honoring Spencer Fruit’s

Houston privileges to exportations occurring before April 6, 1999.

See id. at 11.          Customs agrees that it initially denied Spencer

Fruit’s application for substitution and direct identification

drawback privileges in May, 2000.                 See id.     Customs also agrees

that       after    resubmissions    by   Spencer       Fruit,   it   approved    the

application for substitution drawback privileges only.                   See id. at

12.         Customs     states    that    when     it   denied   Spencer   Fruit’s

reapplication in May 2000, it “considered that the waiver of prior

notice of intent to export privilege expired as of April 6, 1999.”

Id.        Thus, Customs argues that whether or not the privileges

expired on April 6 is legally correct, there was no factual mistake

made by Customs in denying Spencer Fruit’s drawback claims.3                      Id.

Customs asserts that its Los Angeles office did not err regarding

its knowledge of Spencer Fruit’s drawback claim, or that if it did

err, the error was one of law, not fact.                    See id.   Furthermore,


       3
          Customs acknowledges that of the three drawback claims at
issue, entry claim # 218-2038702-1 did not involve any exportations
after April 6, 1999 and entry claim # 218-2027705-7 involved one
post-April 6, 1999 exportation. See Customs’ Mem. at 12. Thus,
Customs’ rationale that the direct identification privileges does
not apply to exports made after April 6, 1999, only applies to
drawback entry claim # 218-2041845-3 and a small fraction of the #
218-2027705-7 entry. See id.
Court No.      04-00315                                                 Page   12


Customs      argues   that   Calexico    has    failed   to   demonstrate   that

“Spencer would have been allowed drawback but for the failure to

accord the Houston privileges” to the drawback claims filed in Los

Angeles.      Id. at 13.


      Finally, Customs argues that even if Calexico can demonstrate

a mistake of fact correctable under 19 U.S.C. § 1520(c), it is

still not entitled to drawback.          See Customs’ Mem. at 14.       Customs

contends that it denied Spencer Fruit’s drawback claims because

multiple errors existed with the claims and not only due to the

lack of waiver of prior notice as Calexico suggests.                See id. at

18-20.     Among the errors, Customs argues that Calexico failed to

produce the proper documentation to prove exportation, which is

reason enough for denying a drawback claim irregardless of whether

or not Spencer Fruit had a valid waiver of prior notice.                See id.

at 17-19.      Customs stresses that drawback privileges do not grant

a   “carte    blanche     guaranteeing   that    a   drawback   claim   will   be

allowed.      In particular, a claimant must still prove exportation.

In this regard, [Calexico’s] proof continues to be deficient.” Id.

at 20.    Finally, Customs asserts that 19 U.S.C. § 1313(r)(2) does

not apply here because the claims were insufficient to satisfy the

requirements for substitution.           See id. at 17.
Court No.    04-00315                                                        Page    13


IV.     Customs   Improperly   Denied   Spencer   Fruit’s                        Direct
Identification Unused Merchandise Drawback Claims

     The Court finds that Spencer Fruit’s direct identification

unused    merchandise      drawback     claims    filed        by     Calexico    were

improperly denied by Customs.



     A. Drawback Claims Are Entries Within the Scope of 19 U.S.C.
§ 1520(c)

     Customs raises the initial argument that 19 U.S.C. § 1520(c)

does not apply to drawback.           See Customs’ Mem. at 4.               The Court

finds that Customs has misinterpreted the statute and that 19

U.S.C. § 1520(c) does apply to drawback claims.


     19     U.S.C.    §   1520(c)     clearly    states        that     Customs     may

reliquidate “any entry, liquidation, or other customs transaction”

to   correct    “a    clerical      error,   mistake      of        fact,   or    other

inadvertence.”       19 U.S.C. § 1520(c)(1) (emphasis added); see also

Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp.

1083, 1084 (1985) (The statute “is designed to permit Customs to

correct mistakes of fact or inadvertence which have caused an error

in liquidation.”).        When the “language of a statute is clear, its

plain meaning governs interpretation of the statute.”                            United

States v. Hanover Ins. Co., 18 CIT 991, 993, 869 F. Supp. 950, 952

(1994). The plain language of 19 U.S.C. § 1520(c) does not exclude

drawback claims from the entries, liquidations or other customs
Court No.   04-00315                                         Page   14


transactions able to be corrected.      Rather, the plain language is

very expansive in its scope with the use of the word “any” as a

modifier.   Furthermore, the purpose of 19 U.S.C. § 1520(c) is to be

a means “for refunding money erroneously collected suggest[ing]

that it should be interpreted liberally.”      G & R Produce Co., v.

United States, 381 F.3d 1328, 1332 (Fed. Cir. 2004) (emphasis

added).   Therefore, drawback claims are included within the scope

of 19 U.S.C. § 1520(c)(1) because it is “any entry, liquidation, or

other customs transaction.”    19 U.S.C. § 1520(c)(1); see also C.

Itoh & Co. (America), Inc. v. United States, 5 CIT 45 (1983)

(holding importer untimely sought reliquidation under 19 U.S.C. §

1520(c) in a drawback action).


     Furthermore, 19 U.S.C. § 1520(c)(1) does not specify by whom

reliquidation may be sought.     The statute merely states that the

clerical error, mistake of fact or other inadvertence, among other

things, must be “adverse to the importer.” 19 U.S.C. § 1520(c)(1).

Customs argues that Calexico cannot seek remedy under 19 U.S.C. §

1520(c) because Calexico is a customs broker and not the importer,

Spencer Fruit.   See Customs’ Mem. at 7.    Customs also argues that

Calexico has not demonstrated how the denied drawback claims are

adverse to Spencer Fruit.     See id.   Again, the plain language of

the statute does not state that only importers can seek remedy

under 19 U.S.C. § 1520(c)(1), but that the error must be adverse to
Court No.     04-00315                                       Page   15


the importer.      See 19 U.S.C. § 1520(c)(1).      Licensed customs

brokers are agents of their importer-exporter customer. See United

States v. Fed. Ins. Co., 805 F.2d 1012, 1013 (Fed. Cir. 1986).      As

such, customs brokers are permitted to file an action involving the

refusal to pay a claim for drawback on behalf of their customer and

be properly heard before the Court.          See 28 U.S.C. §§ 1581 &

2631(a).    Therefore, Calexico need not be the actual importer when

it is acting as an agent of the importer in the present action.

Moreover, here, Spencer Fruit is the importer for all and the

exporter for much of the underlying merchandise.       See Calexico’s

Facts ¶¶ 1 & 12; Customs’ Facts ¶ 1; Roberts Decl., Ex. 6.

Therefore, even under the narrowest interpretations of 19 U.S.C. §

1520(c)(1), Spencer Fruit as the importer and drawback claimant

here is adversely affected by Customs’ denial of its three drawback

claims.


     While Calexico, as Spencer Fruit’s customs broker, can seek

recourse under 19 U.S.C. § 1520(c) here, Calexico urges the Court

to hold an expansive definition of “importer” as used in 19 U.S.C.

§ 1520(c).     See Calexico’s Reply at 10.    The Court notes that in

construing an act of Congress, it is “fundamental that a section of

a statute should not be read in isolation from the context of the

whole Act.”    NTN Bearing Corp. of Am. v. United States, 26 CIT 53,

102-03, 186 F. Supp. 2d 1257, 1303 (2002) (citations omitted).
Court No.    04-00315                                                    Page    16


Rather, “each part or section of a statute should be construed in

connection with every other part or section so as to produce a

harmonious whole . . ..”           Id. (citing In re Nantucket, Inc., 677

F.2d 95, 98 (C.C.P.A. 1982)).            The Tariff Act of 1930, read as a

whole, supports the ability of drawback claimants, whether they are

also the importer, exporter, destroyer or any intermediate party,

see 19 U.S.C. § 1313(j), to seek reliquidation under 19 U.S.C. §

1520(c).    Under 19 U.S.C. § 1313(j), the exporter has the right to

claim drawback but can assign that right to other parties.                   See 19

U.S.C. § 1313(j).     With that assignment comes all the rights that

were available to the exporter.             See, e.g.,       Sicom Sys. Ltd. v.

Agilent    Techs.,    Inc.,    427      F.3d   971,    976   (Fed.   Cir.    2005)

(interpreting statutorily permissible assignment in a patent case).

Drawback claimants protesting Customs’ refusal to pay drawback can

file a protest under 19 U.S.C. § 1514.                See 19 U.S.C. § 1514(a).

19 U.S.C. § 1520(c), then, clearly states that “[n]otwithstanding

a valid protest was not filed,” indicating that it is a separate

but   related   recourse      to    a   negative      Customs    decision.      See

generally, Chrysler Corp., 24 CIT at 84-86 87 F. Supp. 2d at 1348-

49. Accordingly, a valid protest recognized under 19 U.S.C. § 1514

includes     denied     drawback         claims,      also      indicating    that

notwithstanding whether a valid protest was filed, an error in the

denied claim could be correctable under 19 U.S.C. § 1520(c).
Court No.        04-00315                                                    Page      17


     B. Customs Denied Spencer Fruit’s Drawback Claims Relying On
a Mistake of Fact

     Again, 19 U.S.C. § 1520(c) allows for reliquidation of an

entry to correct either “a clerical error, mistake of fact, or

other inadvertence.”          19 U.S.C. § 1520(c)(1).           “[T]he purpose of

section 1520(c)(1) as a means for refunding money erroneously

collected suggests that it should be interpreted liberally.”                        G &

R Produce Co., 381 F.3d at 1332-33.               To obtain reliquidation under

19 U.S.C. § 1520(c)(1), Calexico is required to prove that the

error   is   a     clerical    error,      a    mistake   of   fact    or   an   other

inadvertence.        See 19 U.S.C. § 1520(c)(1).               A mistake of fact

occurs when either “(1) the facts exist, but are unknown, or (2)

the facts do not exist as they are believed to.”                      G & R Produce

Co., 381 F.3d at 1331 (citing Hambro Auto. Corp. v. United States,

66 C.C.P.A. 113, 119, 603 F.2d 850, 855 (C.C.P.A. 1979)).                        Also,

Calexico     must     show    that   the       error   does    not    “amount    to    a

misconstruction of the law.”                   Id. at 1332.      An error in the

construction of the law occurs when “the facts are known, but the

legal significance of those facts” are not appreciated.                               Id.

Finally,     a    correctable   error      can    be   committed      by   either     the

drawback claimant or Customs.           See id.


     Here, the Court finds that Customs improperly denied Spencer

Fruit’s direct identification unused merchandise drawback claims

under the mistaken belief that Spencer Fruit did not have direct
Court No.   04-00315                                                 Page    18


identification privileges. Customs approved Spencer Fruit for both

direct identification and substitution privileges in late 1995.

See Roberts Decl., Ex. 1.      Spencer Fruit continued to have both

privileges until they ceased on May 26, 2000, when Customs denied

Spencer Fruit’s renewal application.       See 19 C.F.R. § 191.91(a)(2)

(A   claimant   “may    continue   to    operate   under      its    existing

[privileges] until Customs approves or denies the application” for

continued privileges.); Roberts Decl., Ex. 3.        Therefore, when the

underlying merchandise of the subject drawback claims was exported,

between January 4, 1999, and March 23, 2000, Spencer Fruit had

privileges for direct identification drawback in place.                     See

Roberts Decl., Ex. 6.


     Customs has stated multiple times that it denied the drawback

claims because “[c]laimant does not have privilege approval for

direct identification unused drawback merchandise exported under 19

U.S.C. 1313(j)(1) – (entry type 42).”        Roberts Declaration, Ex. 9

at 247; see also Block Decl., Ex. 1; Roberts Decl., Ex. 10.

Moreover,   Customs    employee,   Ms.   Marilyn   Sokolow,    who    handled

Spencer Fruit’s drawback claims, stated that she believed that

Spencer Fruit only had privileges for substitution and not direct

identification drawback.     See Sokolow Dep., Block Decl., Ex. 3 at

19-20.   The fact that Customs was operating under the belief that

Spencer Fruit did not have direct identification privileges when
Court No.    04-00315                                              Page    19


the underlying merchandise was exported simply did not exist as

Customs believed.         Since this mistaken belief is the singular

reason given for denying Spencer Fruit’s drawback claims, Customs

was operating under a mistake of fact.           See G & R Produce Co., 381

F.3d at 1331.   Customs argues that the Los Angeles port, where the

drawback claims were filed, “was not aware of the Houston Port’s

extension of privileges at the time it denied the drawback claims

here.”   Customs’ Mem. at 10.       The Houston Port granted the original

privileges in 1995.        See Roberts Decl., Ex. 1.        Then under the

facts as Customs has argued, it was operating without knowing all

the facts when it denied the drawback claims, which is also a

mistake of fact.     See G & R Produce Co., 381 F.3d at 1331.       Customs

also asserts that the absence of direct identification privileges

is not the only reason for denying the drawback claims.                   See

Customs’ Mem. at 18.       Customs’ decision, communicated in a formal

notice of denial letter dated July 31, 2002, however, states as the

singular    reason   of    denial   that   the   claimant   does   not   have

privileges.   See Roberts Decl., Ex. 9 at 247.         The issue before the

Court is not to determine whether other lapses with Spencer Fruit’s

drawback claims existed that may also have merited denial. Rather,

the Court is to determine whether Customs, based on the evidence

before it at the time, made its decision relying on mistaken facts.

Customs had listed multiple reasons for denying drawback claims in

other previous communications to Calexico, whether minor or not.
Court No.      04-00315                                                Page   20


See, e.g., Roberts Decl., Ex. 7 at 220.               Therefore, the Court is

unpersuaded by attempts to now claim that other reasons were

included when denying the drawback claims at issue when only one

reason was stated.         Based on the record evidence, Customs denied

Spencer Fruit’s drawback claims either without complete knowledge

of   Spencer     Fruit’s    privileges   or   understood     Spencer    Fruit’s

privileges to be other than what they were, both qualifying as

mistakes    of    fact    correctable    under   19    U.S.C.   §   1520(c)(1).

Furthermore, Customs’ error is not a mistake of law.                A mistake of

law “occurs when the facts are known, but the legal significance of

those facts is not appreciated.”          G & R Produce Co., 381 F.3d at

1332.   As aforementioned, Customs denied Spencer Fruit’s drawback

claims believing Spencer Fruit’s privileges to be other than what

they were or without complete knowledge of the facts.                Therefore,

Customs’ mistake is one of fact, not of law.



                                  CONCLUSION


      The Court finds that clerical errors, mistakes of fact or

other inadvertencies in drawback claims are correctable under 19

U.S.C. § 1520(c)(1).         The Court also finds that Customs denied

Spencer Fruit’s direct identification unused merchandise drawback

claims under a mistaken belief of Spencer Fruit’s privileges.

Accordingly, the Court concludes that Spencer Fruit’s drawback
Court No.    04-00315                                            Page    21


claims should have been granted.      The Court is unpersuaded by all

other   arguments.      Calexico’s   motion   for   summary   judgment   is

granted.    Judgement will be entered accordingly.




                                              /s/ Nicholas Tsoucalas
                                                NICHOLAS TSOUCALAS
                                                   SENIOR JUDGE


Dated: July 25, 2006
       New York, New York
