                                            Slip Op. 18-58

                  UNITED STATES COURT OF INTERNATIONAL TRADE



 UNITED STATES,

                          Plaintiff,
                                                       Before: Timothy C. Stanceu, Chief Judge
                  v.
                                                       Court No. 11-00167
 ACTIVE FRONTIER
 INTERNATIONAL, INC.,

                          Defendant.


                                              OPINION

[Granting plaintiff’s application for judgment by default in penalty action]

                                                                       Dated:May 24, 2018

       Joshua A. Mandelbaum, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for plaintiff. With him on the application were
Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia
M. McCarthy, Assistant Director. Of counsel on the application was Mary McGarvey-Depuy,
Senior Attorney, Office of the Associate Chief Counsel, U.S. Customs and Border Protection, of
New York, NY.

       Stanceu, Chief Judge: Plaintiff United States brought this action to recover a civil penalty

under section 592 of the Tariff Act of 1930 (the “Tariff Act”), as amended, 19 U.S.C. § 1592

(2006) 1, from Active Frontier International, Inc. (“Active Frontier”), for alleged false

declarations of country of origin on seven entries of wearing apparel made during 2006 and

2007. Before the court is plaintiff’s application for a judgment by default seeking a civil penalty

of $80,596.40, an amount calculated at the statutory maximum of 20% of the aggregate dutiable




       1
           All citations to the United States Code herein are to the 2006 edition.
Court No. 11-00167                                                                            Page 2


value of the merchandise on the seven entries. Mot. for Default J. (Oct. 4, 2017), ECF No. 36

(“Pl.’s Mot.”); see also 19 U.S.C. § 1592(c)(3)(B). The court imposes a civil penalty in the

amount plaintiff seeks and will enter judgment accordingly.

                                         I. BACKGROUND

       The background of this action is presented in the court’s three previous opinions and is

supplemented, as necessary, herein. See United States v. Active Frontier Int’l, Inc., 36 CIT __,

867 F. Supp. 2d 1312 (2012) (denying without prejudice plaintiff’s first application for default

judgment); United States v. Active Frontier Int’l, Inc., 36 CIT __, Slip Op. 12-127 (Oct. 3, 2012)

(denying without prejudice plaintiff’s motion to amend complaint); United States v. Active

Frontier Int’l, Inc., 37 CIT __, Slip Op. 13-8 (Jan. 16, 2013) (granting plaintiff’s motion to

amend complaint).

       Before the court are plaintiff’s complaint, Second Amended Compl. (July 21, 2016), ECF

No. 33 (“Compl.”), and its application for default judgment, Pl.’s Mot.

                                          II. DISCUSSION

                      A. Subject Matter Jurisdiction and Standard of Review

       Section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1582(1), grants the court

jurisdiction over an action to recover a civil penalty under section 592 of the Tariff Act. Under

section 592, the court determines all issues, including the amount of any penalty, de novo.

19 U.S.C. § 1592(e)(1).

    B. Plaintiff is Entitled to a Default Judgment Imposing a Penalty in the Amount It Seeks

       In evaluating an application for judgment by default, the court accepts as true all

well-pled facts in the complaint but must reach its own legal conclusions. 10A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688.1
Court No. 11-00167                                                                           Page 3


(4th ed. 2016). For the reasons discussed below, the court rules that plaintiff’s Second Amended

Complaint sets forth well-pled facts which, if accepted as true, support the imposition of a civil

penalty against defendant in the maximum statutory amount.

       Section 592(a)(1) provides, in pertinent part, that “no person, by fraud, gross negligence,

or negligence . . . may enter, introduce, or attempt to enter or introduce any merchandise into the

commerce of the United States by means of . . . any document or electronically transmitted data

or information, written or oral statement, or act which is material and false.” 19 U.S.C.

§ 1592(a)(1)(A).

       The allegations in the Second Amended Complaint describe the merchandise imported by

Active Frontier as consisting of women’s capri pants (on Entry No. EH3-07587053) or ladies’

jackets and pants (on the remaining six entries, Entry Nos. EH3-06550979, EH3-06556166,

EH3-06550730, DQ7-70089166, DQ7-70088549, and DQ7-70088556). 2 Compl.

¶¶ 11, 17, 21, 29, 36, 43, 49. The complaint alleges that “Active Frontier entered and/or

introduced, or caused to be entered and/or introduced, articles of wearing apparel manufactured

in the People’s Republic of China into the commerce of the United States, by means of entry

documents filed with the U.S. Customs and Border Protection (CBP).” Id. ¶ 6. The government

further alleges that this merchandise was “entered and/or introduced . . . by means of materially

false documents, written statements, acts, and/or omissions.” Id. ¶ 7. For each of the seven

entries, the complaint alleges that Active Frontier declared falsely on entry documentation that

the country of origin of the goods was a country other than China, id. ¶ 8, and, specifically, that

“Active Frontier submitted to CBP bills of lading, entry summaries, and/or other entry


       2
      The seven entries were made between June 5, 2006 and March 2, 2007. Second
Amended Complaint ¶ 6 (July 21, 2016), ECF No. 33.
Court No. 11-00167                                                                              Page 4


documents incorrectly stating that such articles of wearing apparel were . . . manufactured in

Indonesia, Korea, and/or the Philippines,” id. ¶ 8(a). 3 It also alleges that Active Frontier

submitted “Manufacturer’s Identification Codes” that incorrectly indicated that the goods were

manufactured in either Korea or the Philippines. 4 Id. ¶ 8(b).

       With respect to the statutory requirement that the false statements be “material,” plaintiff

alleges that all of the merchandise on Entry No. EH3-07587053 and some of the merchandise on

each of the other six entries were subject to a quota (i.e., a quantitative limitation) that applied to

certain apparel products of China. Compl. ¶¶ 61-63. Specifically, this merchandise consisted of

the pants in each entry, which as entered under subheading 6204.63.3090, HTSUS were within

quota category 648 at the time of entry. Id. ¶¶ 56-59. Because the allegedly false declarations of

origin on this quota-subject merchandise interfered with the administration of the quantitative

limitation (whether or not the quota had been filled at the time of entry), it was material for

purposes of section 592. In the case of a filled quota, the merchandise would have been

inadmissible; in the case of an open quota, the merchandise, by not being counted against the

quota, defeated the purpose of the quota.




       3
         An exhibit to the Second Amended Complaint specifies that the country of origin on
Entry Nos. EH3-06550979, DQ7-70089166, DQ7-70088549, and DQ7-70088556 was falsely
declared to be Korea, that the country of origin on Entry Nos. EH3-07587053 and
EH3-06550730 was falsely declared to be the Philippines, and that the country of origin on
Entry No. EH3-06556166 was falsely declared to be Indonesia and/or Korea. Compl. Ex. 16.
       4
          According to an affidavit and attached exhibits, the Manufacturer’s Identification Codes
for Entries EH3-07587053 and EH3-06550730 indicated the Philippines as the country of origin
and those for the remaining five entries indicated the country of origin as Korea. Decl. of
Raymond Irizarry ¶¶ 7-13 (Nov. 28, 2011) (“First Irizarry Decl.”); see also Compl. Ex. 16. For
all seven entries, according to the affidavit, the true bills of lading stated that China was the
origin of the merchandise. First Irizarry Decl. ¶¶ 7-13; see also Compl. Ex. 16.
Court No. 11-00167                                                                             Page 5


       Plaintiff acknowledges that the jackets, which were entered on five of the six entries (all

except for Entry No. EH3-07587053, which contained only pants), were not subject to a

quantitative limitation at the time of entry but argues that the false origin declarations on the

jackets were also material because they “helped mask the false statements about the pants.” Pl.’s

Mot. 13. Plaintiff points out that the complaint alleges that the entries contained jackets and

pants that featured matching designs and were intended to be advertised and sold as single units.

Id. at 13-14; see also Compl. ¶ 64. The complaint ties this alleged fact to an allegation that the

false origin declarations for the jackets made the quota violation as to the pants more difficult to

detect: “Had Active Frontier provided different country-of-origin statements for two parts of a

single outfit shipped together, the error would have been easier to detect because an official who

inspected the entry documents and the goods would expect the two parts of the outfits—

matching jackets and pants—to originate from the same country.” Compl. ¶ 64. The court

considers the allegations that jackets and pants were in matching styles, and that both were

falsely declared as to origin, to be sufficient to allow the court to conclude that the allegedly false

declarations of origin as to the jackets were material. Had a Customs official been alerted to the

different origins and subjected the merchandise to further inspection and inquiry, it is reasonably

possible that the quota merchandise, i.e., the pants, which were on the same entries as the jackets,

would not have entered the commerce of the United States and therefore would not have

defeated the purpose of the quota. Instead, as the Second Amended Complaint indicates, the

merchandise was released by the time the violation was discovered, with no samples collected.

       Regarding the amount of a penalty, the original complaint filed in this action states that

the violations alleged therein did not affect the assessment of duties. Compl. ¶ 13

(May 31, 2011), ECF No. 2. For a negligent violation that did not result in a loss of revenue to
Court No. 11-00167                                                                           Page 6


the United States, the statute prescribes a maximum penalty of 20% of the dutiable value, not to

exceed the domestic value of the merchandise. 19 U.S.C. § 1592(c)(3)(B). Plaintiff alleges that

the aggregate entered value of the merchandise on the six entries was $402,982. Compl. ¶ 73.

Twenty percent of that amount is $80,596.40, the penalty amount plaintiff seeks. Id. ¶ 77.

       Because the amount of penalty is to be determined de novo by the court, 19 U.S.C.

§ 1592(e)(1), the court is not required to impose a penalty in the maximum amount authorized by

section 592(c). Plaintiff argues that a penalty in the maximum amount is appropriate because

Active Frontier, having failed to respond to CBP’s pre-penalty notice and penalty claim, did not

put forth any information from which it could be concluded that Active Frontier qualifies for

mitigation. Pl.’s Mot. 15. The court agrees that it has no information as to mitigating factors,

but the court does not consider this fact alone to be sufficient for imposition of a maximum

penalty in the amount of 20% of the dutiable value of the merchandise. The court notes that the

Customs penalty guidelines for section 592 violations (which are not binding on the court but

may serve as guidance), provide that a penalty for a negligent, non-duty-loss violation normally

will be disposed of with a penalty in the range of 5% to 20% of the dutiable value, depending on

mitigating and aggravating factors. 19 C.F.R part 171, App. B(F)(2)(c)(ii). Nevertheless, the

court, in exercising its discretion, has determined that a penalty in the maximum amount is

appropriate for another reason.

       Where, as here, the United States seeks a penalty under section 592 based on a culpability

level of negligence, “the United States shall have the burden of proof to establish the act or

omission constituting the violation, and the alleged violator shall have the burden of proof that

the act or omission did not occur as a result of negligence.” 19 U.S.C. § 1592(e)(4). Because

defendant has defaulted, plaintiff need not plead facts from which the court could conclude that
Court No. 11-00167                                                                              Page 7


the origin statements alleged to be material and false occurred as a result of the importer’s

negligence; here, the allegation of negligence will suffice for purposes of seeking a default

judgment.

       In this instance, plaintiff’s factual allegations, if presumed true, clearly would support a

conclusion that Active Frontier was negligent. An importer is required to use reasonable care in

importing merchandise. See 19 U.S.C. § 1484(a)(1). Meeting that standard requires review of

information on the characteristics and source of the merchandise and information on the

underlying transaction, including review of available documentation, to ensure that origin will be

correctly declared upon entry. As noted in an affidavit submitted by plaintiff, the true bills of

lading for each of the six entries “clearly stated” that the origin of the merchandise was China.

Decl. of Raymond Irizarry ¶¶ 7-13 (Nov. 28, 2011); see also Exs. 2, 4, 6, 8, 10, 12, 14 to Compl.

If that fact is true, even a minimum effort on the part of defendant likely would have uncovered

the origin-related discrepancy in the entry documentation. Therefore, a penalty in the highest

amount allowed by statute for a negligent violation is appropriate.

                                         III. CONCLUSION

       Plaintiff has established that it is entitled to a judgment by default in which a civil penalty

is imposed on defendant based on a non-revenue-loss violation of section 592, a culpability level

of negligence, and merchandise with a dutiable value of $402,982. In exercising its authority to

determine the amount of penalty de novo, the court will enter judgment for a civil penalty in the

amount of $80,596.40, the maximum amount allowed by section 592(c)(3)(B), with
Court No. 11-00167                                                                      Page 8


post-judgment interest as provided by law, and costs according to 28 U.S.C. § 1920 and USCIT

Rule 54(d).


                                                      /s/ Timothy C. Stanceu
                                                      Timothy C. Stanceu, Chief Judge

Dated: May 24, 2018
       New York, New York
