                            Slip Op. 07-112

             UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
                                        :
UNITED STATES,                          :
                                        :
     Plaintiff,                         :
                                        :              Court No. 02-00106
     v.                                 :
                                        :
FORD MOTOR COMPANY,                     :
                                        :
     Defendant.                         :
________________________________________:


Held: Plaintiff’s motion to clarify judgment and to collect pre-
judgment interest on unpaid duties granted.


     Peter D. Keisler, Assistant Attorney General, Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (David A. Levitt and David S. Silverbrand);
of counsel: Katherine F. Kramarich, Bureau of Customs and Border
Protection, for the United States, Plaintiff.

     Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP
(David M. Murphy, Steven P. Florsheim, Robert B. Silverman, and
Frances P. Hadfield); of counsel: Paulsen K. Vandevert, for Ford
Motor Company, Defendant.

                                                      Dated:   July 19, 2007


                                 OPINION

TSOUCALAS, Senior Judge: This matter comes before the Court on the

motion of the United States (“Plaintiff” or “Government”) to

clarify the judgment issued in United States v. Ford Motor Co.

(“Ford CIT”), 29 CIT __, 387 F. Supp. 2d 1305, 1334 (2005), in

favor   of   the   Government   and   against   the    Ford    Motor   Company
Court No. 02-00106                                            Page 2


(“Defendant” or “Ford”) awarding the Government unpaid duties in

the amount of $184,495 and civil penalties in the amount of

$3,000,000(“July 20, 2005 Judgment”).   See Ford CIT, 29 CIT at __,

387 F. Supp. 2d at 1334.    The July 20, 2005 Judgment was issued

contemporaneously and in accordance with the Court’s Opinion of

that date (“July 20, 2005 Opinion”), which “order[ed] Ford to

tender $184,495 for unpaid duties, and assesse[d] Ford a civil

penalty in the amount of $3,000,000, plus lawful interest.”    Ford

CIT, 29 CIT at __, 387 F. Supp. 2d at 1334.   The Court of Appeals

for the Federal Circuit (“CAFC”) reversed this Court’s decision in

part, and affirmed, inter alia, the amounts of duties and penalties

awarded by this Court.   See United States v. Ford Motor Co. (“Ford

CAFC”), 463 F.3d 1286, 1298-1299 (Fed. Cir. 2006).

     In the instant motion, the Government seeks to determine

whether the Court’s award of “lawful interest” in the July 20, 2005

Judgment encompasses pre-judgment interest on unpaid duties of

$184,495 accrued from July 19, 1995, the date of Custom’s demand.

Gov’t Mot. Clarify J. Collect Prejudgment Interest (“Gov’t Brief”)

at 1.

                         Statement of Facts

     The full factual and procedural background of this case has

been set forth in the prior decision of the CAFC and this Court.

See Ford CAFC, 463 F.3d 1286; Ford CIT, 29 CIT __, 387 F. Supp. 2d

1305.   The facts relevant to the instant inquiry are as follows.
Court No. 02-00106                                                       Page 3


During the period February 2, 1989 through March 12, 1989, Ford

imported automotive tooling and stamping dies to the United States

from Japan.          See Ford CIT, 29 CIT at    __, 387 F. Supp. 2d at 1310.

The Bureau of Customs and Border Protection (“Customs”)1 demanded

payment for unpaid duties as of July 19, 1995.               Gov’t Brief at Ex.

1; Def’s Opp’n Gov’t Mot. Clarify J. Collect Prejudgment Interest

(“Ford Brief”) at Ex. 2.              On January 24, 2002, the Government

commenced the instant action against Ford alleging that Ford

committed fraud, gross negligence or negligence by making false

statements on the price of such merchandise, in violation of 19

U.S.C. §§ 1592(a)-(d).            See Ford CIT, 29 CIT at     __, 387 F. Supp.

2d at 1308. In its Complaint, the Government sought unpaid duties,

pre-judgment interest and post-judgment interest associated with

such       duties,    a   civil   penalty,   post-judgment    interest   on   the

penalty, and attorney’s fees.           Complaint, at 5.      A bench trial was

held from February 28 through March 10, 2005.                On July 20, 2005,

this Court issued a decision finding that Ford had committed gross

negligence in violation of 19 U.S.C. §§ 1484 and 1485 and ordered

Ford to pay $3,000,000 in penalties, $184,495 in unpaid duties,


       1
          The Bureau of Customs and Border Protection was renamed
United States Customs and Border Protection, effective March 31,
2007. See Name Change From the Bureau of Immigration and Customs
Enforcement to U.S. Immigration and Customs Enforcement, and the
Bureau of Customs and Border Protection to U.S. Customs and Border
Protection, 72 Fed. Reg. 20,131 (April 23, 2007).
Court No. 02-00106                                                  Page 4


plus any “lawful interest.”     Ford CIT, 29 CIT at     __, 387 F. Supp.

2d at 1334.        As noted above, on November 22, 2006, the CAFC

reversed this Court’s decision in part, and affirmed, inter alia,

the amounts of duties and penalties awarded by this Court.              Ford

CAFC, 463 F.3d 1286, 1298-1299.

     By letter dated December 5, 2006,the Government sought payment

of unpaid duties in the amount of $184,495, pre-judgment interest

thereon in the amount of $196,956.23, penalties in the amount of

$3,000,000    and   post-judgment   interest    on   unpaid    duties   and

penalties accruing at the rate of $332.59 per day.        Gov’t Brief at

1; Ford Brief at 2.        Ford thereafter paid all unpaid duties,

penalties    and    post-judgment   interest    on   unpaid   duties     and

penalties, but declined to pay the pre-judgment interest sought by

the Government on the ground that the July 20, 2005 Judgment did

not award same.     Gov’t Brief at 2; Ford Brief at 3.        On March 14,

2007, the Government filed the instant motion seeking to clarify

the July 20, 2005 Judgment and to recover from Ford pre-judgment

interest on unpaid duties (“Motion”).     Id.    On March 28, 2007, Ford

submitted its opposition to the Motion.          Ford Brief at 12.       On

April 4, 2007, the Government filed a motion for leave to file its

reply papers on the ground that Ford’s opposition to the Motion

addressed issues not included in the Motion.          On April 10, 2007,

Ford opposed the Government’s motion for leave to file its reply

papers asserting that the Government failed to state the basis of
Court No. 02-00106                                                     Page 5


its motion with particularity.             On April 11, 2007, the Court

granted the Government leave to file its reply papers.                      The

Government filed its reply to the Motion that date.



                                 Discussion

      As a threshold matter, Ford opposes the Government’s motion on

the ground that it seeks to alter or amend this Court’s judgment.

Ford Brief at 3-4.         As such, Ford claims the Motion should have

been brought pursuant to USCIT Rule 59(e).              Id.   Motions brought

under Rule 59(e) must be filed within 30 days of the entry of the

judgment.     USCIT Rule 59(e).      Claiming that the Government failed

to bring the instant motion within 30 days of July 20, 2005, the

date of the entry of the judgment which the Government seeks to

clarify,     Ford   asserts   that   the   Motion   was   made   untimely    in

violation of Rule 59(e).        Ford Brief at 3-4; USCIT Rule 59(e).

      A motion to clarify and a Rule 59(e) motion to alter or amend

a judgment are distinct motions. See Osterneck v. Ernst & Whinney,

489   U.S.   169,    174   (1989);   White   v.   New   Hampshire   Dep’t    of

Employment Sec., 455 U.S. 445, 451 (1982) (citing Browder v.

Director, Illinois Dept. of Corr., 434 U.S. 257 (1978)); Britt v.

Whitmire, 956 F.2d 509, 512, (5th Cir. 1992) (quoting Harcon Barge

Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669-670 (5th

Cir. 1986)).        A Rule 59(e) motion involves “reconsideration of

matters properly encompassed in a decision on the merits.”             White,
Court No. 02-00106                                                         Page 6


455 U.S. at 451.       “No matter how it is labeled, a motion is treated

as one made under Rule 59(e) if it ‘calls into question the

correctness of a judgment’ and seeks to alter or amend it.”                Britt,

956 F.2d at 512.

      As such, the instant motion does not require this Court to

reconsider the correctness of the July 20, 2005 Judgment.                     The

Government is not belatedly seeking an award of pre-judgment

interest.       Rather, it seeks to clarify whether the July 20, 2005

Opinion awarding “lawful interest” encompassed an award of pre-

judgment interest on unpaid duties.             See Gov’t Reply Clarify J.

Collect Prejudgment Interest (“Gov’t Reply”) at 5.                 Accordingly,

the instant motion is not subject to the time limitation of Rule

59(e).2

      As   to    the   substance   of    the    instant    motion,   the    long-

established rule in the Federal Courts permits the United States to

recover interest on money due to the government even in the absence

of   any   statutory     authorization    for    an   award   of   pre-judgment

interest.    See United States v. Goodman, 6 CIT 132, 139-140, 572 F.

Supp. 1284, 1289 (1983)(citing Billings v. United States, 232 U.S.

261 (1914) and United States v. Abrams, 197 F.2d 803, 805 (6th Cir.

1952), cert. denied, 344 U.S. 855 (1952)).                Indeed, the CAFC has


      2
          Ford’s request for reconsideration of the undervaluation
and loss of revenue amounts does seek to alter or amend the July
20, 2005 Judgment and is therefore untimely pursuant to Rule 59(e).
Court No. 02-00106                                           Page 7


affirmed this Court’s authority to award pre-judgment interest in

other similar cases based on considerations of equity and fairness.

See, e.g., United States v. Imperial Food Imports, 834 F.2d 1013,

1016 (Fed. Cir. 1987); United States v. Monza Automobili, 12 CIT

239, 683 F. Supp. 818 (1988).

     The Government is entitled to pre-judgment interest on unpaid

duties in the absence of a delay in assessing and collecting

duties.   See United States v. Jac Natori, 22 CIT 1101, Slip Op.

1998-162 (holding that a judgment awarding unpaid duties recovered

pursuant to 19 U.S.C § 1592 and “interest as provided by law”

includes pre-judgment interest); Monza Automobili, 12 CIT at 242,

683 F. Supp. at 820.   The rationale behind this general rule is to

compensate the Government for lost use of the money due.        See

Imperial Food Imports, 834 F.2d at 1016 (noting that “[i]t would be

inequitable and unfair for the government to make an interest-free

loan of this sum from the date of final demand to the date of

judgment”).   In awarding “lawful interest” in the July 20, 2005

Opinion, which is incorporated by reference in the July 20, 2005

Judgment, the Court awarded both pre-judgment and post-judgment

interest on unpaid duties.

     The Government did not abandon its claim for pre-judgment

interest by failing to refer to it in the pre-trial order or in the

post-trial brief.    See, e.g., United States v. Nat’l Semiconductor

Corp., 30 CIT __, Slip Op. 2006-138; in Re Crescent Ship Serv.
Court No. 02-00106                                            Page 8


Inc., 2005 WL 1038652 (E.D. La. 2005) (noting that “a claim for

pre-judgment interest does not have to be referred to in proposed

findings of fact if it is included in the complaint”).

        Moreover, the Court’s award of pre-judgment interest in the

July 20, 2005 Judgment is not barred by Rule 37 of Fed. R. App. P.

(“FRAP”) as claimed by Ford.     FRAP Rule 37 provides, inter alia,

that:

            Unless otherwise provided by law, if a judgment for money
            in a civil case is affirmed, whatever interest is allowed
            by law shall be payable from the date the judgment was
            entered in the district court. (Emphasis added).

It specifically permits award of pre-judgment interest if it is

“otherwise provided by law[.]”       See New England Ins. Co. v.

Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599 (2d Cir. 2003);

Newburger, Loeb & Co., Inc. v. Gross, 611 F.2d 423 (2d Cir. 1979).

In the instant matter, the Court awarded pre-judgment interest on

unpaid duties pursuant to its discretionary authority as allowed by

law.3




        3
          The parties apparently do not dispute that pre-judgment
interest accrues from the date of Custom’s last demand. See Monza
Automobili, 12 CIT at 240; 683 F. Supp. at 820 (awarding pre-
judgment interest from the date of final demand for payment);
Imperial Food Imports, 834 F.2d at 1016 (award of pre-judgment
interest from the date of final demand was not an abuse of
discretion); United States v. Reul, 959 F.2d 1572, 1579-1581 (Fed.
Cir. 1992)(pre-judgment interest accrues while the government
pursues the claim).
Court No. 02-00106                                           Page 9


                            Conclusion

     Based on the foregoing, the Government’s motion to clarify and

to seek pre-judgment interest on unpaid duties is granted.




                                         /s/ Nicholas Tsoucalas
                                           NICHOLAS TSOUCALAS
                                              SENIOR JUDGE


Dated: July 19, 2007
       New York, New York
            UNITED STATES COURT OF INTERNATIONAL TRADE



BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________

                                                :

UNITED STATES,                                  :

                                                :

      Plaintiff,                                :

                                                :       Court No. 02-00106

      v.                                        :

                                                :

FORD MOTOR COMPANY,                             :

                                                :

      Defendant.                                :

________________________________________:



                                JUDGMENT



      Upon consideration of Plaintiff’s Motion To Clarify Judgment

And   To   Collect   Pre-Judgment   Interest,       Defendant’s     Opposition,

Plaintiff’s    Reply,   the   entire   record       herein,   and    after   due

deliberation, having rendered a decision herein; now, in accordance

with said decision, it is hereby



      ORDERED that Plaintiff’s Motion is granted; and it is further
     ORDERED that Plaintiff shall recover against Ford pre-judgment

interest in the amount of $196,956.23 in accordance with the

judgment entered in United States v. Ford Motor Co., 29 CIT __, 387

F. Supp. 2d 1305 (2005) and post-judgment interest thereon pursuant

to 28 U.S.C. § 1961.




                                          /s/ Nicholas Tsoucalas
                                         NICHOLAS TSOUCALAS
                                             SENIOR JUDGE




Dated:    July 19, 2007
          New York, New York
