Three lessons for admin lawyers

Lawrence Friedman (Barnes/Richardson, Chicago) describes a case with three good lessons for all admin lawyers on his Customs Law blog in "The Oracle Says: Confirm it in Writing":

Delphi, however, had an additional argument that the three-year period to amend the claims was extended far enough to make the protest an adequate means of perfection. The question is what caused the extension. ... Rather, it was the fact that Delphi seems to have received advice from a drawback supervisor, who suggested that Delphi wait and perfect its claim via the protest process.

A couple important points about this: First, the Court is very clear that it might not have reached this conclusion had Delphi relied upon advice from “a low-level employee in some far-flung outpost . . . .” Instead, Delphi sought advice from the very official responsible for making the decision ... . Second, this has to be distinguished from estoppel and equitable tolling. Those principles allow private parties to change the nature of their relationship by relying upon clear statements. ... The important point is that these principles don’t apply to the United States government. If an import specialist tells you that Thursdays are Duty-Free Day at Port Huron, you don’t get to skip paying duties.

This, however, is not an estoppel case. Rather, it is based on the drawback statute, which specifically provides for an extension of time to complete the claim when Customs is responsible for the late filing. 19 USC 1313(r)(1). The advice from Customs caused Delphi not to file a claim for HMT and MPF drawback until the protest after the liquidation of the claim. Because Customs caused the delay, 1313(r)(1) applies.

And how do we know Delphi received that advice? Because of the confirming letter it wrote to the very person who provided that advice. The letter asked the drawback supervisor to respond if he disagreed. He did not respond. In the Court of International Trade, that is as good as an agreement.

So, Grasshopper, what have we learned:

1. Estoppel does not apply to the United States government.

2. If you ask the government for guidance, ask a person with the authority to make a decision.

3. Get it in writing or at least create a contemporaneous written record.

EMM