963 F.2d 356 (Fed. Cir. 1992), 91-1295, Norcal/Crosetti Foods, Inc. v. United States

Docket Nº:91-1295.
Citation:963 F.2d 356
Party Name:NORCAL/CROSETTI FOODS, INC., Patterson Frozen Foods, Inc., and Richard A. Shaw, Inc., Plaintiffs-Appellees, v. The UNITED STATES, U.S. Customs Service, U.S. Department of Treasury, Nicholas Brady, John Durant and Howard B. Fox, Defendants-Appellants.
Case Date:May 04, 1992
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 356

963 F.2d 356 (Fed. Cir. 1992)

NORCAL/CROSETTI FOODS, INC., Patterson Frozen Foods, Inc.,

and Richard A. Shaw, Inc., Plaintiffs-Appellees,

v.

The UNITED STATES, U.S. Customs Service, U.S. Department of

Treasury, Nicholas Brady, John Durant and Howard

B. Fox, Defendants-Appellants.

No. 91-1295.

United States Court of Appeals, Federal Circuit

May 4, 1992

Robert Ted Parker, Titchell, Maltzman, Mark, Bass, Ohleyer & Mishel, San Francisco, Cal., argued, for plaintiffs-appellees. With him on the brief was Richard D. Maltzman.

Barbara Epstein, Commercial Litigation Branch, Dept. of Justice, New York City, argued, for defendants-appellants. With her on the brief were Stuart M. Gerson,

Page 357

Asst. Atty. Gen., David M. Cohen, Director and Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office. Also on the brief was Claib L. Cook, Offices of General Counsel, U.S. Customs Service, of counsel.

Irwin P. Altschuler, Donald S. Stein and Claudia G. Pasche, Brownstein, Zeidman & Schomer, Washington, D.C., were on the brief for amicus curiae, Covemex, S.A. De C.V.

Paul C. Rosenthal and Michael R. Kershow, Collier, Shannon & Scott, Washington, D.C., were on the brief for amicus curiae, Nat. Juice Products Ass'n. Also on the brief were David C.G. Kerr and Ansley Watson, Jr., MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla.

Gary Jay Kushner, Timothy C. Stanceu and David W. Phillips, Hogan & Hartson, Washington, D.C., were on the brief for amicus curiae, Grocery Mfrs. of America, Inc.

Before NIES, Chief Judge, NEWMAN and MAYER, Circuit Judges.

MAYER, Circuit Judge.

The government appeals the judgment of the United States Court of International Trade, 758 F.Supp. 729 (Ct. Int'l Trade 1991), finding subject matter jurisdiction and compelling the United States Customs Service to withdraw a ruling letter approving certain practices of marking imported frozen produce. We reverse and remand with instructions to dismiss.

Background

Appellees, Norcal/Crosetti Foods, Inc., Patterson Frozen Foods, Inc., and Richard A. Shaw, Inc. (collectively Norcal), are California-based frozen produce packaging companies. On May 9, 1988, Norcal filed a request with the United States Customs Service (Customs) seeking a determination that certain competitors' packages of imported frozen produce do not comply with the "conspicuous" marking requirements of 19 U.S.C. § 1304 1 and its implementing regulation 19 C.F.R. § 134 2. More specifically, Norcal requested a ruling requiring that

packages of imported frozen produce intended for sale to the consumer bear the name of the country of origin on the front panel of the package.... [and] that the lettering of such markings should be at least as large as the lettering of the product description and/or that the marking appear in a type or color vividly contrasting with the rest of the front panel.

Accompanying the request were samples of imported frozen produce packages with country of origin markings on the rear, side, or front panel of the package.

Customs responded by issuing a ruling letter stating that the country of origin marking on the submitted samples was "conspicuous" within the meaning of section 1304 and 19 C.F.R. § 134.41(b), and that country of origin markings need not appear in the manner suggested by Norcal. Dissatisfied with this determination, Norcal filed suit against Customs in the Northern District of California alleging that by misinterpreting section 1304, Customs failed to ensure proper marking. By stipulation, the case was transferred to the Court of International Trade on August 30, 1989, pursuant to 28 U.S.C. § 1631 (1988). The

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government expressly reserved its jurisdictional defenses.

On November 8, 1989, the government moved to dismiss the case for lack of jurisdiction, which motion the court denied. 731 F.Supp. 510 (Ct. Int'l Trade 1990). The parties subsequently cross-moved for summary judgment on the merits. The court granted summary judgment for Norcal, repeating...

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