 United States Court of Appeals for the Federal Circuit

                                    04-1268,-1416



                               SAAB CARS USA, INC.,

                                                      Plaintiff-Appellant,

                                           v.


                                  UNITED STATES,

                                                      Defendant-Cross Appellant.



        Judith A. Lee, Gibson, Dunn, & Crutcher LLP, of Washington, DC, argued for
plaintiff-appellant. Of counsel was Michael K. Stransky.

        Barbara S. Williams, Attorney in Charge, International Field Office, Commercial
Litigation Branch, Civil Division, United States Department of Justice, of New York, New
York, argued for defendant-cross appellant. With her on the brief were Peter D. Keisler,
Assistant Attorney General and David M. Cohen, Director, Commercial Litigation
Branch, Civil Division, of Washington, DC. Of counsel was Yelena Slepak, Attorney,
Office of Assistant Chief Counsel, United States Customs Service, of New York, New
York.

      Thomas J. Kovarcik, of New York, New York, for amicus curiae Volkswagen of
America, Inc.

Appealed from: United States Court of International Trade

Senior Judge Richard W. Goldberg
 United States Court of Appeals for the Federal Circuit


                                       04-1268, -1416


                                  SAAB CARS USA, INC.,

                                                          Plaintiff-Appellant,

                                              v.


                                     UNITED STATES,

                                                          Defendant-Cross Appellant.

                               ________________________

                                DECIDED: January 17, 2006
                               ________________________


Before SCHALL, GAJARSA, and PROST, Circuit Judges.

GAJARSA, Circuit Judge.

       Saab Cars USA, Inc. ("Saab" or "appellant") appeals from two judgments of the

Court of International Trade ("CIT") affirming, in part, decisions of the United States

Customs Service ("Customs") denying Saab's protest of decisions denying duty

allowances for defective imported automobiles. The first, issued July 14, 2003, denied

both parties' summary judgment motions. Saab Cars USA, Inc. v. United States, 276 F.

Supp. 2d 1322 (Ct. Int'l Trade 2003) ("Saab I"). The second, issued January 6, 2004,

following a hearing held in lieu of trial, granted Saab partial relief but rejected most of its

claims. Saab Cars USA, Inc. v. United States, 306 F. Supp. 2d 1279 (Ct. Int'l Trade

2004) ("Saab II"). The CIT entered final judgment on April 30, 2004, and Saab filed its
notice of appeal the same day.          We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(5). For the reasons set forth below, we affirm.

                                     BACKGROUND

      Saab imports and distributes automobiles from its Swedish parent company,

Saab Automobile AB ("Saab Sweden"). This action arises from Customs' treatment of

automobiles imported by Saab that allegedly contained "latent defects."         Saab filed

protests with Customs seeking an allowance against import duties for the value of those

automobiles pursuant to 19 C.F.R. § 158.12, which permits importers to receive such an

allowance for "merchandise . . . found by the port director to be partially damaged at the

time of importation." 19 C.F.R. § 158.12 (2005). Customs denied the protests on

August 9, 1999, after which Saab filed this action.

      Saab purchased the vehicles at issue from Saab Sweden in 1996 and 1997.

Upon their importation, the company believed that the cars were "free of defects," and

therefore "declared as the transaction value of the automobiles the price it paid" to Saab

Sweden. Some defects were identified at the place of importation, and were repaired

while still in port. Those repairs are referred to as "port repair expenses." Other defects

were allegedly discovered only later, after the cars had been shipped to Saab dealers

but before the expiration of the warranty agreement that applied between Saab and

Saab Sweden. These defects were repaired at the dealer level, and the costs of those

repairs are referred to as "warranty expenses."

      At the heart of this matter are Saab's protests, which Saab filed with Customs on

June 30, 1998, September 14, 1998, January 12, 1999, and March 26, 1999. The




04-1268, -1416                           2
protests involved both port repair expenses and warranty expenses.                Each protest

included the following text:

       We protest the appraised value of automobiles contained in the
       entries set forth in Attachment A.

       The automobiles listed in these entries were purchased by [Saab]
       from Saab Automobile AB. [Saab] ordered perfect merchandise
       from Saab Automobile AB. Despite this order, some of the vehicles
       delivered contained latent manufacturing defects at the time of
       importation. Section 158.12 of the Customs Regulations, 19 C.F.R.
       158.12, provides that 'merchandise which is subject to ad valorum
       or compound duties and found by the port director to be partially
       damaged at the time of importation shall be appraised in its
       condition as imported, with an allowance made in the value to the
       extent of the damage.' See Samsung Electronics America, Inc. v.
       United States, 106 F.3d 376 (Fed. Cir. 1997).

       Therefore, pursuant to 19 C.F.R. § 158.12, an allowance in the
       value of the imported vehicles set forth in the protested entries
       should have been made to the [sic] reflect the extent of the defects.
       We hereby request that the protested entries be reliquidated and
       that the vehicles set forth therein be appraised in the condition as
       imported.    In addition, we request that Customs delay its
       consideration of this protest until the Court of International Trade . .
       . has issued its decision on remand in the Samsung case. Based
       on instructions from the Court of Appeals, the anticipated CIT
       decision will clarify how the § 158.12 allowance will be
       implemented.

Saab I, 276 F. Supp. 2d at 1325-26.

       Each protest attached a list of the entry numbers that were being protested and

identified the decision with respect to which the protest was made. Id. at 1328. Each

attachment listed entry numbers "for entries of both defective and non-defective

vehicles." Id. The attachments listed the following information for each vehicle: protest

number, entry number, ship number, Vehicle Identification Number ("VIN"), dealer,

claim number, repair date, object code, description of the repair, and total amount paid.

Each entry took the following form:



04-1268, -1416                            3
Protest #     Entry #     VIN        Dealer   Claim #   Repair   Object   Description   Total
                                                        Date     Code                   Paid
0502-989-     9801057-7   T1028095   7997     5199072   960613   35183    Door light,   11
100041                                                                    front door



        Customs denied Saab's protests on August 9, 1999, upon which Saab appealed

to the CIT.

        In the CIT, Saab moved for summary judgment on its claim for a partial refund of

duties on the allegedly defective automobiles. The United States filed a cross-motion

for summary judgment seeking dismissal of the action for lack of jurisdiction, on the

ground that Saab's protests were insufficiently detailed and therefore invalid. Id. at

1324. In an opinion dated July 14, 2003, the trial court denied both motions, concluding

that (a) Saab's protests provided sufficient details about its claim to render the protests

valid under 19 U.S.C. § 1514(c) (2000), thereby vesting the CIT with jurisdiction, and (b)

Saab had not provided adequate evidence to overcome Customs' denials of its protests,

such that "factual questions remain[ed] regarding whether the defects existed at the

time of importation." Id. at 1326-30.          With respect to Saab's claims, the trial court

indicated that "[w]hat remains for trial is to develop the factual record to independently

confirm the validity of the repair records in order to establish that the defects did indeed

exist at the time of importation." Id. at 1333 (internal quotations omitted). The court

also ruled that it lacked jurisdiction over any cars "that were repaired after the date

[Saab] filed its protest with Customs." Id. at 1329.

        Following the CIT's summary judgment ruling, "[t]he parties agreed, in lieu of trial,

to submit a factual stipulation to the Court." Saab II, 306 F. Supp. 2d at 1280. The trial

court then held a hearing at which both parties presented arguments based upon the

stipulated facts. Id. On January 6, 2004, the CIT issued an opinion rejecting all of


04-1268, -1416                                4
Saab's claims except the claims for an allowance for port repair expenses and a single

claim for an allowance for warranty expenses. Id.

       In rejecting all but a fraction of Saab's allowance claims, the CIT applied the

analysis used by this court and by the CIT in a series of cases involving Samsung

Electronics. See Samsung Elecs. Am. v. United States, 106 F.3d 376 (Fed. Cir. 1997)

("Samsung II"); Samsung Elecs. Am. v. United States, 35 F. Supp. 2d 942 (Ct. Int'l

Trade 1999) ("Samsung III"); and Samsung Elecs. Am. v. United States, 195 F.3d 1367

(Fed. Cir. 1999) ("Samsung IV").      Those cases set forth three requirements for an

importer successfully to claim an allowance under 19 C.F.R. § 158.12.            Such an

importer must: (1) show that it contracted for "defect-free" merchandise; (2) link the

defective merchandise to specific entries; and (3) prove the amount of the allowance for

each entry.1 Samsung II, 106 F.3d at 379-80; Samsung IV, 195 F.3d at 1368-69.

       In its summary judgment opinion, the CIT found that Saab easily satisfied the first

requirement and raised questions of material fact with respect to the latter two. Saab I,

276 F. Supp. 2d at 1332-33. In its opinion following the hearing in lieu of trial, the CIT

characterized the remaining question before it as "[w]hat type of evidence is sufficient to

satisfy Samsung's instruction that, to prevail on a § 158.12 claim, an importer must

proffer 'objective and verifiable evidence with some semblance of specificity?'" Saab II,

306 F. Supp. 2d at 1283 (quoting Samsung III, 35 F. Supp. 2d at 947).




       1
              In some cases, of course, one or more of these factors may be readily
inferred from the relevant facts and circumstances, and not require affirmative proof.
See, e.g., Fabil Mfg. v. United States, 237 F.3d 1335, 1339 (Fed. Cir. 2001) (holding
that an importer need not affirmatively demonstrate linkage between specific entries and
defective merchandise where the importer alleged that all merchandise in the covered
entries was defective.).


04-1268, -1416                           5
        In addressing that question, the CIT reviewed in detail the evidence proffered by

Saab, which included: (1) the attachments described above, which included entry

numbers, claim numbers, repair descriptions, and VINs; (2) documentation of the

warranty agreement between Saab and Saab Sweden, which allegedly specified that

Saab Sweden would pay Saab only for vehicles that were defective at importation; and

(3) sample "computer claim forms" for ten vehicles that included additional information,

such as vehicle mileage as of the date of repair, the repair date, and additional details

about the nature of the defect.     See Saab II, 306 F. Supp. 2d at 1283-84.       Saab

declined to provide similar forms for all vehicles because of the "prohibitive cost" of

doing so. Id. at 1284.

        Based upon the evidence presented, the CIT concluded that, with respect to the

claim for warranty expenses, Saab had failed to satisfy its burden on factors two and

three of the Samsung analysis. With respect to factor two—the requirement that the

importer be able to link the defective merchandise to specific entries—the court found

that Saab failed to "describe[] its defective merchandise with sufficient specificity,"

because the computer printout it provided did not "indicate[] how the component was

defective, or what type of repair was performed."        Id.   The court ruled that the

descriptions provided by Saab with respect to most of its claims were "not detailed

enough for anyone to ascertain whether the alleged defects existed at the time of

importation." Id. at 1285. The court did allow Saab's warranty expense claims with

respect to three vehicles for which sample computer claim forms were filed.        Id. at

1286.




04-1268, -1416                           6
       Evaluating essentially the same evidence, however, the court allowed Saab's

claim for allowances for its port repair expenses.       Because the repairs were made

"almost immediately after importation," the court declared that it was "not concerned, as

it was with regard to . . . warranty expenses, that the repairs might have been made to

remedy damage resulting from intervening circumstances." Id. at 1287. Although the

evidence supplied by Saab with respect to the port repairs was substantially identical to

the evidence it supplied with respect to the warranty expenses, the court found that the

immediacy of the repairs after importation reduced the level of detail required in the

defect descriptions to satisfy, by preponderance, the Samsung test. Id. Accordingly,

the CIT awarded Saab allowances in the amount of all the claimed expenses for port

repairs, less those over which it lacked jurisdiction.

       The CIT entered final judgment on April 30, 2004, and Saab filed its notice of

appeal the same day. The government cross-appealed those portions of the CIT's

decisions that favored Saab.

                                       DISCUSSION

                                       A. Jurisdiction

       The United States argues that the CIT lacked subject-matter jurisdiction over

Saab's claims. As the CIT itself pointed out, "a prerequisite to [CIT] jurisdiction . . . is

the denial of a valid protest."    Saab I, 276 F. Supp. 2d at 1326.        See also Koike

Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed. Cir. 1999). The government

argues that Saab's protests were invalid because they were not "filed in compliance with

all statutes and regulations." Specifically, the government alleges that Saab's protests

fail to satisfy the requirements of 19 C.F.R. § 174.13(a)(5) and (6), which provide that a




04-1268, -1416                            7
protest shall contain a "specific description of the merchandise affected," and the

"nature of, and justification for the objection set forth distinctly and specifically with

respect to each category, payment, claim, decision, or refusal." The government points

to what it regards as two critical deficiencies in Saab's protests: (1) their failure to

specify the damage suffered by the vehicles at issue beyond the general description

"latent defects"; and (2) their inclusion, in the attachments identifying the vehicles

governed by each protest, of entries for "both defective and non-defective vehicles."

The government cites a series of cases supporting its view that these deficiencies are

fatal to the validity of Saab's protests. See, e.g., Davies v. Arthur, 96 U.S. 148, 151

(1877) (stating that although "[t]echnical precision is not required . . . the objections

must be so distinct and specific, as, when fairly construed, to show that the objection

taken at the trial was at the time in the mind of the importer, and . . . sufficient to notify

the collector of its true nature and character").

       Saab responds that its protests were sufficiently detailed to vest the CIT with

jurisdiction, citing for its position a series of cases in this court and its predecessors

stating that to vest jurisdiction, a protest need only "be sufficiently distinct and specific to

enable the Customs Service to know what is in the mind of the protestant." Computime,

Inc. v. United States, 772 F.2d 874, 879 (Fed. Cir. 1985) (quotations omitted); see also

Mattel, Inc. v. United States, 377 F. Supp. 955, 960 (Cust. Ct. 1974) ("However cryptic,

inartistic, or poorly drawn a communication may be, it is sufficient as a protest . . . if it

conveys enough information to apprise knowledgeable officials of the importer's intent

and the relief sought."). Applying this standard, Saab argues that its protests "clearly,

distinctly, and specifically conveyed to Customs what Saab' [sic] claim was—an




04-1268, -1416                             8
allowance in the appraised value of the subject merchandise under § 158.12—and

ground therefore—latent defects therein."

       Saab, in short, claims that the appropriate standard in determining validity of

protests for CIT jurisdictional purposes is something akin to enhanced notice pleading.

The United States argues that significantly more detail is required to satisfy the

requirements of 19 U.S.C. § 1514(c) and 19 C.F.R. § 174.13. The trial court, faced with

essentially identical arguments, concluded that Saab had met its burden of establishing

CIT jurisdiction, because its protests identified (1) the decision protested, (2) the

category of merchandise at issue, and (3) the nature of each objection. Saab I, 276 F.

Supp. 2d at 1328-29.

       We agree with the trial court. The authorities cited by both parties establish the

general rule that customs protests are to be construed "generously in favor of finding

them valid," but that "a protest is defective if it 'gives no indication of the reasons why

the collector's action is alleged to be erroneous, and . . . does not set forth the

paragraphs which allegedly properly govern the disposition of the merchandise.'" Koike

Aronson, 165 F.3d at 908 (quoting Washington Int'l Ins. Co. v. United States, 16 Ct. Int'l

Trade 599, 602 (1992)).

       The courts have generally denied the validity of protests on two broad grounds:

overbreadth and indefiniteness. It is clear, for example, that a "blanket protest" raising

every conceivable ground for protest is overbroad and therefore invalid, because it fails

to "apprise[] the collector and the court of real claims as distinguished from possible

claims." Lichtenstein v. United States, 1 Ct. Cust. 79, 82 (1910); see also XL Specialty

Ins. Co. v. United States, 341 F. Supp. 2d 1251, 1255-56 (Ct. Int'l Trade 2004) (holding




04-1268, -1416                           9
a protest invalid because, inter alia, it "merely listed every possible objection to

Customs' liquidation and did not include any reasons to support those objections"). On

the other end of the spectrum, a protest is also invalid if it simply alleges, without

explanation, that a particular Customs decision is erroneous. See, e.g., United States v.

E.H. Bailey & Co., 32 C.C.P.A. 89, 98 (1944) (ruling that "[a] protest is not sufficient . . .

which alleges merely that the amount of the duties assessed by the collector is

erroneous," because "[s]uch a blanket form, if sufficient, could be used in every case").

A protest is insufficiently definite, too, if it fails to identify a basis for protest on which it

later relies in the trial court. See, e.g., Davies v. Arthur, 96 U.S. at 152-53 (affirming

lower court's ruling that, at trial, a protester "could only be heard to allege the objections

distinctly and specifically stated in their protest").

       Here, Saab's protests identified each decision protested by entry number and

clearly stated the regulatory basis for its protest—§ 158.12.           It was clear from the

protests that Saab sought an allowance based upon damage to merchandise that

existed at the time of importation; that the protest involved the classification

"automobiles"; and that the automobiles in question belonged to identified entry

numbers. The only real question is whether Saab's failure to specifically identify the

individual vehicles or tie them to individual defects is fatal to the validity of its protest.

The trial court concluded that it was not, and we agree. The standard proposed by the

United States would, it seems, require Saab to identify, specifically, the alleged defect

and its value for each of over 100,000 individual repairs covered by the protests simply

to vest the CIT with jurisdiction over the claim. Such a standard conflates the merits of

the importer's claim with the court's jurisdiction. The government cites no case, and we




04-1268, -1416                             10
are aware of none, that requires a protest to contain such exhaustive detail and

specificity merely to vest the CIT with jurisdiction. We affirm the trial court's denial of

the government's summary judgment motion on the issue of its jurisdiction over Saab's

protests.

       Saab, in turn, appeals the CIT's conclusion, rendered in the course of denying

both parties' summary judgment motions, that the court lacked jurisdiction over any

"automobiles that were repaired after the date [Saab] filed its protests with Customs."

Saab I, 276 F. Supp. 2d at 1329.           The trial court, in rendering this portion of its

jurisdictional decision, stated that a valid protest "'must show fairly that the objection

afterwards made at the trial was in the mind of the party at the time the protest was

made.'" Id. (quoting Mattel, 377 F. Supp. at 959). The court reasoned that at the time

its protests were filed, Saab "could not have had in mind defects to automobiles that

had not [yet] been repaired." Id. The court therefore concluded that it lacked jurisdiction

over any automobile listed in any of the protests that had not yet been repaired as of the

date the relevant protest was filed. Id.

       Appealing that judgment, Saab argues that the trial court, by tying its jurisdiction

to evidence of repairs, misapplied the law. The repairs, Saab reasons, are merely

evidence of the facts underlying the claimed allowances—namely, the existence of

latent defects at the time of importation. As such, they may be relevant to the merits of

Saab's claim, but not to the threshold question of jurisdiction; after all, Saab argues, "the

nature and amount of supporting evidence available when a protest is filed is irrelevant

to whether the protest was filed timely . . . .   Even if Saab had submitted no evidence

on this issue, the lower court would still have had 'jurisdiction' to hear the claim,




04-1268, -1416                             11
because there was a denial of a timely protest" vesting jurisdiction in the CIT under 28

U.S.C. § 1581(a) (2000).

       In a different context, Saab's argument would have considerable force: in

general, a mere non-frivolous allegation is sufficient to vest a reviewing court with

jurisdiction. But this court has stated expressly that "protests are not 'akin to notice

pleadings [that] merely have to set forth factual allegations without providing any

underlying reasoning.'" Koike Aronson, 165 F.3d at 909 (quoting Computime, Inc. v.

United States, 772 F.2d at 878) (emphasis added)). Instead, a protest "must contain a

distinct and clear specification of each substantive ground of objection" so as to "show

that the objection taken at the trial was at the time in the mind of the importer." Davies

v. Arthur, 96 U.S. at 151, quoted in Koike Aronson, 165 F.3d at 908. The requirement

of specificity exists so that the protest is "sufficient to notify the collector of its true

nature and character, to the end that he might ascertain the precise facts, and have an

opportunity to correct the mistake and cure the defect." Id.

       The circumstances presented by the case at bar differ, we admit, from the

existing precedents. We are aware of no case addressing the central issue, namely,

whether an importer may file a valid protest seeking an allowance under § 158.12 based

upon merchandise defects the existence of which he is unaware at the time of protest.

We conclude, however, that the construction of § 158.12 proposed by Saab is

inconsistent with the spirit of our precedent. We do not understand, for example, how

Customs could be in a position "to correct the mistake" when it is uncertain that any

mistake has been made. Davies v. Arthur, 96 U.S. at 151.




04-1268, -1416                           12
       Were we to adopt Saab's construction of the regulatory scheme, an importer

would be able to file blanket protests of the appraisal of all its entries based solely on

the probability that some portion of those entries will, in the future, turn out to be

defective. The regulation and statute, with their requirement that protests be set forth

"distinctly and specifically," do not permit protests to proceed on such nebulous

grounds. 19 U.S.C. § 514(c)(1); 19 C.F.R. § 174.13(a)(6). Our requirement that a

protest "contain a distinct and clear specification of each substantive ground of

objection," so as to "show that the objection taken at the trial was at the time in the mind

of the importer," would be wholly ineffective if the specified ground of objection were

unmoored to any factual basis for raising it. Thus, Saab's claims regarding cars to

which no repairs had been made at the time of protest differ materially from its claims

regarding cars with existing repair records: the repairs provide the court with some basis

for concluding that Saab in fact had "in mind" the defects repaired when it filed the

protest. Without establishing some nexus between its ground for objection and the

existence of actual defects, Saab is merely making generic protests of probabilistic

damages. We think that the statute and the authorities require more.

       We therefore affirm the decision of the CIT dismissing those claims relating to

cars as to which no repair existed at the time of protest, because Saab provided no

evidence that it was aware of those defects at that time.

                                 B. Summary Judgment

       Saab argues that it was entitled to prevail on its motion for summary judgment as

a matter of law, because the government failed to submit any evidence in opposition to

that motion. Rule 56(e) of the Rules of the Court of International Trade provides:




04-1268, -1416                           13
       When a motion for summary judgment is made and supported as
       provided in this rule, an adverse party may not rest upon the mere
       allegations or denial of the adverse party's pleading, but the
       adverse party's response, by affidavits or as otherwise provided in
       this rule, must set forth specific facts showing that there is a
       genuine issue for trial. If the adverse party does not so respond,
       summary judgment, if appropriate, shall be entered against the
       adverse party.

Saab cites a series of cases in this court stating the general rule that in responding to a

motion for summary judgment, the "non-movant may not rest on its conclusory

pleadings but, under Rule 56, must set out . . . what specific evidence could be offered

at trial." Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1562 (Fed.

Cir. 1987); see also Crown Operations Int'l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1377

(Fed. Cir. 2002) (stating that the "non-moving party must affirmatively demonstrate by

specific factual allegations that a genuine issue of material fact exists for trial"). Based

on Rule 56 and these and other authorities, Saab argues that "[b]ecause the

Government failed to offer any evidence to rebut the mountain of evidence submitted

with Saab's Motion for Summary Judgment, the lower court erred in not granting

summary judgment to Saab."

       In reply, the United States raises two basic arguments.         First, it claims that

"Saab's position is frankly inaccurate," because the government "did introduce

evidence" to rebut Saab's motion, in the form of a declaration by its expert witness. We

reject this argument.     The government did not produce the declaration of Mr.

Meinschein until September 25, 2003—more than two months after the trial court

denied Saab's summary judgment motion.

       Second, the government argues that it was not required to produce evidence

because "Saab failed to meet its burden of contradicting Customs' presumed correct



04-1268, -1416                           14
factual finding that Saab's merchandise was not damaged at importation." This is an

accurate statement of the relevant principles of summary judgment.            A non-movant

need not always provide affidavits or other evidence to defeat a summary judgment

motion. If, for example, the movant bears the burden and its motion fails to satisfy that

burden, the non-movant is "not required to come forward" with opposing evidence.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970) (citing the advisory committee's

note to Fed. R. Civ. P. 56(e)). As the leading commentator on federal procedure puts it,

"[i]f the motion is brought by a party with the ultimate burden of proof, the movant must

still satisfy its burden by showing that it is entitled to judgment as a matter of law even in

the absence of an adequate response by the nonmovant." 11 James Wm. Moore et al.,

Moore's Federal Practice ¶ 56.13[1] (3d ed. 2005).

       This principle is consistent with the text of Rule 56(e), which states that "[i]f the

adverse party does not respond" with specific evidence, "summary judgment, if

appropriate, shall be entered against the adverse party."          R. Ct. Int'l Trade 56(e)

(emphasis added). Although it appears that this court has never reached this issue

directly, its decisions support the principle that a non-movant is required to provide

opposing evidence under Rule 56(e) only if the moving party has provided evidence

sufficient, if unopposed, to prevail as a matter of law. See, e.g., Sweats Fashions, 833

F.2d at 1562 ("[w]here a movant has supported its motions with affidavits or other

evidence which, unopposed, would establish its right to judgment, the non-movant . . .

must proffer countering evidence") (emphasis added); Chem. Eng'g Corp. v. Essef

Indus., 795 F.2d 1565, 1571 (Fed. Cir. 1990) ("where the movant has also supported its

motion with affidavits establishing it is entitled to judgment . . . the non-movant bears a




04-1268, -1416                            15
burden of coming forward with specific facts to show that there is a genuine issue for

trial") (emphasis added).

       In the summary judgment proceeding, the trial court determined that the

evidence provided by Saab left material issues of fact regarding two issues: whether

Saab could (1) "establish by a preponderance of the evidence which entries had defects

at the time of importation," and (2) make "a showing by a preponderance of the

evidence of the amount of the allowances for each entry of the defective vehicles," in

each case as required by Samsung III. Saab I, 276 F. Supp. 2d at 1333. The trial

court, in other words, concluded that Saab's evidentiary showing was inadequate to

demonstrate that Saab should prevail as a matter of law. In such circumstances, the

cases are clear that the government was not required to submit opposing evidence.

                            C. Allowances For "Latent Defects"

       The United States argues that 19 C.F.R. § 158.12 does not provide relief for

latent defects, because the regulation permits allowances only for such merchandise

damage as is "discovered or readily discoverable at importation."             Because the

allowances claimed by Saab relate to defects that were, in Saab's terms, "latent," the

government asserts that they were inherently not "readily discoverable" at the time of

importation and therefore not eligible for allowances under § 158.12.

       The government's argument derives from the language of the regulation itself,

which provides that "[m]erchandise . . . which is found by the port director to be partially

damaged at the time of importation shall be appraised in its condition as imported." 19

C.F.R. § 158.12(a).    The government reads this language to require "that the port

director must be able to identify the damage 'at the time of importation.'"




04-1268, -1416                           16
       The trial court found the government's argument in this regard to be "anemic"

and "advanced purely for litigation," and therefore declined to give any deference to

"Customs' purported interpretation" of § 152.12. Saab I, 276 F. Supp. 2d at 1331. It

then reviewed the language of the regulation itself, concluding that the plain language of

the provision limits allowances not to damage "ascertainable to the port director at the

time of importation," but to "goods partially damaged when imported, whenever that

damage is discovered." Id. at 1331-32.

       We agree.     The government's interpretation is unduly restrictive.    The better

reading is that the words "at the time of importation" modify the phrase "partially

damaged," not the verb "found."       Read thus, the regulation permits allowances for

merchandise that the port director finds, at any time, to have been partially damaged at

the time of importation.     The government's interpretation would lead to absurdity:

because "importation" occurs in a "moment," United States v. Arnold Pickle & Olive Co.,

659 F.2d 1049, 1053 (C.C.P.A. 1981), a requirement that defects be identified at the

"time of importation" would preclude recovery for any defects not identifiable at a single

glance. The government disclaims that literalist interpretation, as it must, and attempts

to substitute a standard in which damage "at the time of importation" means damage

"which is not readily apparent at importation, but discoverable through minimal

inspection within a brief period after importation."

       The government's interpretation of the regulation finds support neither in its plain

language nor in our cases. The sole authority cited to support the interpretation, G.

Cuccio Di G. & Co. v. United States, 172 F. 304 (C.C.S.D.N.Y. 1909), is less than

persuasive. G. Cuccio involved a protest over the appraisal of lemons. The fruit arrived




04-1268, -1416                            17
at the port of entry but was not examined for six days thereafter, by which time "[m]uch

loss by rotting" had occurred. 172 F. at 304. The court recited the general principle that

"the duty attaches to the goods immediately upon their arrival within the limits of our

ports," and affirmed the assessment of duty as of the date of entry, concluding that "it

would be a dangerous precedent to say that the loss discovered at the examination

should serve as the basis of determining the condition of the fruit a week earlier." Id.

G. Cuccio stands for no proposition broader than the obvious one that in the absence of

evidence that the merchandise in question was defective at the time of entry, it will be

assessed as if it were not. It does not support the government's argument here.

      The rulemaking history of § 158.12 also undermines the government's argument.

It states that "[s]ection 158.12 . . . has been added to show the treatment given to

merchandise which is partially damaged . . . at the time of importation." Proposed Rule

Making, 37 Fed. Reg. 7797 (April 20, 1972) (emphasis added).              The proposed

rulemaking describes the purposes of § 158.12 in terms of damage at the time of entry;

it makes no reference to when the damage is actually discovered.

      The United States also argues that its interpretation of § 158.12 is supported by

19 U.S.C. § 1313(c), which provides for refunds of duties paid on merchandise "not

conforming to sample or specifications" or "determined to be defective as of the time of

importation," which, "within 3 years after the date of importation . . . has been exported

or destroyed under the supervision of the Customs Service." 19 U.S.C. § 1313(c)(1).

The government argues that Congress intended this section to deal with latent defects

like those at issue here, quoting legislative history to the effect that the purpose of §

1313(c) "was to extend the time for return to customs custody to a period reasonably




04-1268, -1416                          18
adequate for discovery of latent defects or those which can only be ascertained by test

or use" (internal quotations omitted).

        Saab failed to respond to this argument in its reply brief. Nevertheless, we find it

unconvincing.    By its terms, § 1313(c) applies only to nonconforming or defective

merchandise that, following importation, is re-exported or destroyed by the Customs

Service. The drawback amount in each case is 99% of the duty originally paid. Section

1514(c) and its implementing regulations, by contrast, address a different circumstance,

one that does not require the subsequent exportation or destruction of the defective

merchandise and does not necessarily provide complete recovery of the duties paid.

We agree with the trial court that "[t]he plain language of §1313(c) does not include

under its purview all instances of defects discovered after importation, and thus does

not preclude §158.12 from applying in the present case." Saab I, 276 F. Supp. 2d at

1332.

        In short, the government's interpretation of § 158.12 finds support neither in the

plain text of the regulation, nor in precedent, nor in the rulemaking history of the

provision, nor in the structure of the Tariff Act itself. We therefore affirm the trial court's

conclusion that § 158.12, by its terms, permits allowances for "goods partially damaged

when imported, whenever that damage is discovered." Id. at 1331-32.

                                    D. Sufficiency Of Evidence

        In rendering its second judgment, the trial court followed a procedure, used "in

lieu of trial," in which the court conducted a hearing based upon a factual stipulation

submitted by the parties.      Saab II, 306 F. Supp. 2d at 1280.          The United States

apparently believes that we review such a decision as if it were a summary judgment,




04-1268, -1416                            19
"de novo . . . for correctness as a matter of law." Saab suggests the standard of review

applicable to a judgment following trial on the merits, in which we review question of law

de novo and questions of fact for clear error.

       The correct standard of review for a judgment issued on stipulated facts in lieu of

trial appears to be a question of first impression in this circuit.2 Our sister circuits have

addressed the issue on several occasions.         Some courts have simply applied the

standard for summary judgment review. See, e.g., More v. Intelcom Support Servs.,

960 F.2d 466, 469 (5th Cir. 1992) ("As this was a trial on stipulated facts, we review it as

we would a summary judgment."). Others, however, have concluded that a trial based

on stipulated facts "is more akin to a bench trial than to a summary judgment ruling,"

such that the appellate court should "review the district court's legal conclusions de

novo and review any factual inferences the district court made from the stipulated

record as well as its application of the law to the facts for clear error." Hess v. Hartford

Life & Accident Ins. Co., 274 F.3d 456, 461 (1st Cir. 2001) (citations omitted); see also

Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6-7 (1st Cir. 1997) (holding that, where

parties submitted case to trial court on stipulated facts, the appeal "involves both factual

and legal determinations," such that the appellate court "will apply the more deferential

clear-error standard when reviewing the factual inferences drawn by the court below . . .

while the lower court's ultimate application of the law to the facts, both those stated and

inferred, remains subject to de novo review"); Garcia-Ayala v. Lederle Parenterals, Inc.,



       2
              Although this court has used de novo review to resolve cases involving a
summary judgment on stipulated facts, see, e.g., Air Pegasus of D.C., Inc., v. United
States, 424 F.3d 1206, 1210 (Fed. Cir. 2005), it has never directly addressed the
substance of this issue. In addition, we note that the trial court here did not characterize
its decision as a summary judgment, but as a proceeding "in lieu of trial."


04-1268, -1416                           20
212 F.3d 638, 643-44 (1st Cir. 2000) (applying clear-error review to judgment rendered

on cross-motions for summary judgment on stipulated facts); Starsky v. Williams, 512

F.2d 109, 111 (9th Cir. 1975) (applying clear-error review to trial court's findings in case

where "the parties had in effect submitted [the] case to the court for trial on an agreed

statement of facts"); Vetter v. Frosch, 599 F.2d 630, 632 (9th Cir. 1979) (citing Starsky

v. Williams).

       We believe that the First and Ninth Circuits have stated the correct rule.

Summary judgment and judgment on stipulated facts are not identical; they differ, in

particular, in the role that presumptions and burden-shifting play in the court's

decisionmaking. In rendering judgment based upon stipulated facts, the trial judge of

necessity draws—and bases legal conclusions on—factual inferences that would be

impermissible in the summary judgment context under Rule 56. A trial court's decision

based upon stipulated facts resembles, in significant respects, a decision on the

administrative record, which we have recently concluded is not akin to summary

judgment.       See Bannum, Inc. v. United States, 404 F.3d 1346, 1353-57 (Fed. Cir.

2005).3 We conclude, therefore, that we review the trial court's legal conclusions de

novo. We review inferences it drew from the stipulated facts, and its application of the

law to those facts, for clear error.

       The trial court ruled that Saab provided evidence insufficient to demonstrate its

entitlement to allowances for over-appraisals of damaged merchandise with respect to

some portions of its claims. Saab II, 306 F. Supp. 2d at 1288. Both parties appeal that



       3
              Bannum involved the Rule 56.1 of the Rules of the Court of Federal
Claims, which we have described as a "counterpart" to Rule 56.1 of the Rules of the
Court of International Trade. See Bannum, 404 F.3d at 1355 n.6.


04-1268, -1416                           21
ruling on multiple grounds.     Saab claims that, in so ruling, the trial court failed to

consider all the evidence. This is a question of applying law to the facts, which we may

reverse only if the trial court's decision was "clearly erroneous." See, e.g., Shockley v.

Arcan, Inc., 248 F.3d 1349, 1357 (Fed. Cir. 2001). That is, we may overturn the trial

court only if we have a "definite and firm conviction that a mistake has been committed."

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

       No error occurred here. In its brief, Saab lists seven types of evidence submitted

to the trial court.   Of those seven, four deal entirely with the warranty agreement

between Saab and Saab Sweden. Contrary to Saab's assertions, the trial court clearly

considered the significance of that agreement in finding that Saab had met the first

element of the Samsung three-part test.         See Saab I, 276 F. Supp. 2d at 1324

(describing the terms of the warranty and citing to the relevant trial exhibit); id. at 1332-

33 (concluding that Saab contracted for "defect-free" merchandise); Saab II, 306 F.

Supp. 2d at 1280 (citing to the trial exhibit containing the warranty agreement). The trial

court also expressly considered the computer printouts of warranty repairs and the

sample "computer claim forms." Saab II, 306 F. Supp. 2d at 1282. Even a cursory

examination of the trial court's opinion establishes that the trial court properly

considered the evidence before it. Saab's argument in this regard is without merit.

       The United States argues that the trial court erred in determining that Saab met

its burden of proof with respect to its claims for allowances based upon port repair

expenses. The government asserts that the trial court erroneously applied a "lesser

standard of proof" for claims based upon port repair records, and that the evidence

relied upon by the trial court in making its determination—the warranty agreements and




04-1268, -1416                           22
the computer printouts of repair expenses—were insufficient to meet Saab's burden of

proof under the Samsung cases. The government also claims that the trial court's

"assumptions that the port repairs occurred shortly after importation," and that this

"alleged proximity in time suggests that port repair expenses reflect damage existing at

the time of importation," are unsupported by the evidence.

       We agree that the correct standard of proof for both warranty-based claims and

port repair-based claims is the same: preponderance of the evidence. Fabil Mfg. v.

United States, 237 F.3d 1335, 1339 (Fed. Cir. 2001) (holding that the standard of proof

in duty allowance cases is preponderance of the evidence).           The government's

assertion that the trial court applied a lesser standard of proof for Saab's port repair

expense claims is not well founded.     The trial court's statement that Saab "is not

required to provide defect descriptions with the same degree of specificity as those

required for its warranty expenses," Saab II, 306 F. Supp. 2d at 1287, merely expresses

the trial court's conclusion that because the port repairs were undertaken during or

shortly after the time of importation, they are highly probative of the condition of the

merchandise at the relevant time. It is not an expression of a reduced standard of proof

in support of the damages. The trial court correctly applied the preponderance standard

to all Saab's claims.

       The trial court concluded that the warranty repair evidence, plus the additional

evidence provided by the temporal proximity of the port repairs to the time of

importation, was sufficient to demonstrate by preponderance that the damages

evidenced by port repair expenses existed at the time of importation. Saab II, 306 F.

Supp. 2d at 1287. The government claims that the combination of those two pieces of




04-1268, -1416                         23
evidence was still inadequate; Saab claims that warranty repair evidence alone should

have been sufficient. The question before us is who, if anyone, is correct.

       In Samsung III, the CIT specifically rejected Samsung's claim that its warranty

claim records were sufficient to meet its burden of proof:

       In lieu of specific descriptions or samples to illustrate damage at the
       time of importation, Samsung presents the consumer warranty for
       the subject merchandise as its principle [sic] evidence that entries
       contained defective merchandise at the time of importation. . . .

       The Court is unpersuaded that Samsung's evidence establishes . . .
       which subject entries had latent defects at the time of importation.

Samsung III, 35 F. Supp. 2d at 947.

       Saab has presented stronger evidence than did Samsung. Its two extensive

spreadsheets—one documenting port repair expenses, the other warranty expenses—

accomplish one critical task that Samsung could not, namely, linking the allegedly

defective merchandise to specific entries. The spreadsheets also speak to another

element of the Samsung analysis, by assigning a value to each repair, which in turn is

linked to an individual entry. The trial court concluded that Saab's evidence with respect

to the warranty expenses was nevertheless insufficient because it failed to "describe its

defective merchandise with sufficient specificity." Saab II, 306 F. Supp. 2d at 1284.

The defect descriptions on the repair spreadsheets—which generally included a one- to

four-word description of the part that was repaired, but not the nature of the repair—

were "not detailed enough for anyone to ascertain whether the alleged defects existed

at the time of importation." Id. at 1285 (emphasis added). Regarding the port repair

expense claims, the court concluded that the proximity of the repairs to the time of

importation provided critically probative evidence that the defects in question actually




04-1268, -1416                           24
existed at importation. Id. at 1287. In the absence of such additional evidence, it

denied Saab's warranty expense claims.

       We agree with the trial court's analysis of Saab's claims for allowances based

upon evidence of port repair expenses. As the CIT stated in Samsung III, "[e]vidence

provided in reappraisal cases, such as a 19 C.F.R. §158.12 claim, is of greater weight

when gathered contemporaneous [sic] with importation, and less so when time has

passed between importation and protest." Samsung III, 35 F. Supp. 2d at 947; see

also Parmentier's Roses v. United States, 39 Cust. Ct. 170, 173 (1957) (stating that, in

appraising the value of merchandise as of the time of importation, remoteness of

evidence goes to the weight of the evidence). The trial court correctly concluded that

the proximity of the port repairs to the time of importation, together with the other

evidence provided by Saab, was sufficient to establish that the defects in question

existed at the time of importation.

       We must next decide whether, in the absence of that additional evidence of

temporal proximity, Saab's proffered evidence—in essence, various evidence about the

warranty and the warranty repair spreadsheet—was sufficient to sustain its burden by

the preponderance standard. We admit that this is a close question. The warranty

agreement between Saab and Saab Sweden comprises five separate warranties: a

"pre-warranty," a "new car warranty," an "emissions warranty," a "perforation warranty,"

and a "parts warranty."      Each provides warranty protection for a different set of

circumstances. Saab characterizes these individual warranties as making it "clear that

Saab would be reimbursed by Saab [Sweden] only for actual manufacturing or design

defects in the imported automobiles." This is not entirely accurate; and even if it were




04-1268, -1416                         25
entirely accurate, it is not clear that all warranty repairs necessarily indicate damage

that existed "at the time of importation," as required for an allowance under § 158.12.

       We note, for example, that the perforation warranty applies to body rust that

occurs "during the course of normal usage." We take this to mean that the warranty

would apply to a car that developed rust, say, a year after importation, despite being

imported in pristine condition. The new car warranty covers "all genuine parts and

accessories approved by Saab [Sweden] that are ordered by a customer . . . and fitted

to the car upon the first delivery to the customer." It thus would seem to apply to

optional equipment installed at the dealer to a car that was undamaged at the time of

importation.   Not all warranty repairs, therefore, necessarily indicate damage that

existed at the time of importation.

       In addition, there is the difficult question of whether Saab's conclusion that a

particular repair derived from "faulty materials or manufacture" necessarily requires that

the car needing repair was "damaged" at the time of importation. If the brakes on a new

Saab fail during the warranty period—say, in the second year after sale to a customer—

that failure would presumably be covered by the new car warranty. But as of the time of

the car's importation, the brakes functioned as designed. Does the subsequent but

premature failure of a part retroactively render the car "damaged," for § 158.12

purposes, as of the time of entry?

       For purposes of resolving this appeal, we need not decide that issue.          We

conclude that although some repairs authorized under the various warranties may relate

to damage that existed at the time of importation, they do not necessarily so relate.

Saab's rigorous system for tracking and auditing warranty repair claims does not alter




04-1268, -1416                          26
this result. That system, which involves specialized databases that allow Saab to track

all vehicle repairs by VIN and uses three levels of audits to ensure that dealers are

making only appropriate warranty claims, certainly increases one's confidence that

Saab's warranty claims in the aggregate are generally reliable. Operating as it does,

however, by auditing a limited number of claims from a limited number of dealers, it

provides somewhat less assurance that any particular warranty claim is valid.            We

acknowledge, of course, the probative value of the kind of statistical assurance that the

auditing system provides, but conclude that our cases' emphasis on the need for

specificity in allowance claims requires more than this kind of probabilistic evidence.

The trial court's ruling regarding Saab's warranty expenses is entirely justified in light of

this court's continuing emphasis on the principle that the importer "bears the burden of

proving . . . that the costs to repair defects under consumer warranties were incurred to

repair defects in existence at importation." Samsung II, 106 F.3d at 380 n.4. Saab has

not met its burden here.

       There remains the question of value. The trial court appears to have assumed

that the value of Saab's port repairs was identical to the diminishment in value of the

damaged merchandise. See Saab II, 306 F. Supp. 2d at 1287 (stating that Saab "is

able to prove the amount of the allowance value for each entry" because the

spreadsheet it provided "lists the total amount paid for each port repair expense"). The

government makes a cursory argument, buried in a footnote, that Saab's repair

evidence is not equivalent to "evidence demonstrating . . . the diminution in value of its

merchandise." It is not clear that appellee raised this argument at trial, and its effort in

this court is half-hearted; in any case, evidence of repair costs is a standard measure of




04-1268, -1416                           27
diminution in value in commercial law, and we see no reason to challenge that principle

here. See, e.g., Roy Ryden Andersen, 1 Damages Under the Uniform Commercial

Code § 10:6 (2005) (Westlaw) (stating that "the overwhelming judicial consensus is that

repair costs are presumtive [sic] evidence of the difference between the value of goods

as accepted and their value as warranted") (citing numerous cases). We affirm the trial

court's holding that Saab satisfied its burden of proof with respect to the value of the

allowances to which it was entitled.

                                       CONCLUSION

      For the reasons set forth in this opinion, we affirm the judgment of the Court of

International Trade.

                                       AFFIRMED.

      No costs.




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