Pagoda Trading Co. v. United States
| Decision Date | 15 December 1983 |
| Docket Number | Court No. 83-11-01682. |
| Citation | 6 CIT 296,577 F. Supp. 22 |
| Parties | PAGODA TRADING CO., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, John J. Mahon, Dept. of Justice, New York City, for defendant.
Rode & Qualey, New York City (Michael S. O'Rourke and Patrick D. Gill, New York City, of counsel), for plaintiff.
Defendant moved to dismiss plaintiff's action for declaratory judgment on the ground of lack of jurisdiction. The motion was interposed following plaintiff's attempt to obtain expedited treatment for the action and following the Court's setting of a hearing on preliminary matters in Slip Opinion 82-129 (December 7, 1983). The short, but active, history of this action is set out in that opinion.
The Court considered all the papers filed, including plaintiff's opposition to the motion to dismiss, and oral argument was held on December 14, 1983. At the conclusion of oral argument the Court granted defendant's motion to dismiss. This opinion is issued to explain the dismissal in detail.
Defendant's first, and dispositive argument against jurisdiction, was that the administrative action challenged by plaintiff was not the "ruling" for the review of which prior to importation, 28 U.S.C. § 1581(h)1 was designed.
The pronouncement in question, contained in T.D. 83-116 (48 Fed.Reg. 22,904) was published by the Secretary of the Treasury on May 23, 1983. It expressed guidelines for the classification of footwear. In particular, it contained a section devoted to guidelines "set forth as an aid to Customs officers in classifying specific footwear constructed with foxing." (48 Fed.Reg. 22,910)
The administrative decision complained of did not rule specifically on the merchandise which plaintiff intends to import. It is the opinion of the Court that judicial review in advance of importation was not intended for an instance when the merchandise in question and its classification still remain in an indefinite state. The expectation that a general administrative ruling will be applied in a particular case is not sufficient to create a ripe dispute in this area. The law envisions a classification dispute moved back in time prior to importation. But this is not possible if the classification decision and the identity of the affected merchandise are not fully materialized.
The defect in this action can be characterized in a number of ways — as a lack of ripeness, as a failure to exhaust administrative remedies or, most specifically, as the absence of the sort of ruling for which § 1581(h) was intended.
The cause of action under § 1581(h) was not created to allow judicial review of general interpretive rulings issued by the Secretary of the Treasury whenever there is a likelihood of an effect on importations. The Court reads the language of the law as speaking to rulings which determine the fate of specific importations of specific goods. The Court also reads the legislative history as speaking to specific contemplated import transactions which contain identifiable merchandise and which will feel the impact of the ruling with virtual certainty. H.Rep. No. 96-1235, 96th Cong., 2d Sess. 46, 47 (1980), U.S.Code Cong. & Admin. News 1980, pp. 3729, 3758.2
The presence of additional issues in this action regarding whether the ruling will actually be applied and what exactly the affected articles will be, is a good indication that what plaintiff is attempting is not simply an action in which a judgment on the correctness of classification is being moved back in time.
Here the Court cannot presume that this ruling will apply to particular merchandise even though importers may, in good faith, believe that to be inevitable. The Court cannot engage in a preliminary determination that merchandise will be classified in accordance with the ruling. That remains a function of the Customs Service. The necessity for the Court to consider these possibilities demonstrates the immaturity of the dispute from a judicial standpoint.
In dealing with the substance of a classification dispute, the Court should have to reach only the correctness of the classification, whether it is hearing the case before or after importation. A challenge to an...
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...contain identifiable merchandise and which will feel the impact of the ruling with virtual certainty." Pagoda Trading Co. v. United States, 6 CIT 296, 298, 577 F.Supp. 22, 24 (1983). In the decision at issue, Customs notified the public that it "granted ‘Lever–Rule’ protection for battery p......
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