Best Key Textiles Co. v. United States

• Decision Date: 04 November 2013
• Docket Number: Slip Op. 13–135.,Court No. 13–00268.
• Citation: 942 F.Supp.2d 1367
• Parties: BEST KEY TEXTILES CO. LTD., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

942 F.Supp.2d 1367

BEST KEY TEXTILES CO. LTD., Plaintiff,

v.The UNITED STATES, Defendant.

Slip Op. 13–135. Court No. 13–00268.

United States Court of International Trade.

Nov. 4, 2013.

John M. Peterson, Maria E. Celis, Richard F. O'Neill, Neville Peterson LLP of New York, NY, for plaintiff Best Key Textiles Co. Ltd.

Marcella Powell, Beverly A. Farrell, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With them on the brief were Stuart F. Delery, Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief were Claudia Burke, and Tara K. Hogan, Department of Justice, and Paula S. Smith, Office of the Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection of New York, NY.

OPINION

KELLY, Judge:

Plaintiff filed this action on August 1, 2013 seeking “to compel agency action unlawfully withheld or unreasonably delayed.” Pl.'s Compl. ¶ 1, Aug. 1, 2013, ECF No. 2. In particular, plaintiff sought to compel United States Customs and Border Protection (“CBP” or “Customs”) “to complete consideration of a proposal to revoke a Customs ruling pursuant to Section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1625.” Pl.'s Compl. ¶ 1. The defendant sought to dismiss this case for failure to state a cause of action and lack of jurisdiction under 28 U.S.C. § 1581(h).¹ Def.'s Mot. Dismiss for Lack of Jurisd. and for Failure to State a Claim upon which Relief Can Be Granted, Aug. 21, 2013, ECF No. 26 (“Defendant's Motion to Dismiss”). Upon the completion of the revocation of New York Customs Ruling N187601, entitled HQ H202560 (“Revocation Letter”), the defendant argued for the dismissal of this action as moot. Def.'s Resp. to Pl.'s Mot. for Decl. J., Oct. 25, 2013, ECF No.'s 49–50 (“Defendant's Response”). Plaintiff asks this court to enter a judgment deeming the § 1625(c) sixty-day notice period for the Revocation Letter as running from October 17, 2013. Pl.'s Mot. Entry J. Order. 1, Oct. 18, 2013, ECF No. 45 (“Plaintiff's Motion”). For the reasons set forth below, Plaintiff's Motion is granted, defendant's motion to dismiss for lack of jurisdiction is denied, and the defendant's motion to dismiss for failure to state a claim is denied as moot.

Background

Plaintiff sought to compel CBP to complete consideration of a proposal to revoke New York Customs Ruling N187601 pursuant to 19 U.S.C. § 1625.

Section 1625 provides:

(c) Modification and revocation

A proposed interpretive ruling or decision which would—

(1) modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or

(2) have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;

shall be published in the Customs Bulletin. The Secretary shall give interested parties an opportunity to submit, during not less than the 30–day period after the date of such publication, comments on the correctness of the proposed ruling or decision. After consideration of any comments received, the Secretary shall publish a final ruling or decision in the Customs Bulletin within 30 days after the closing of the comment period. The final ruling or decision shall become effective 60 days after the date of its publication.

Tariff Act of 1930, § 625, 19 U.S.C. § 1625(c)(2006).²

Seventy days after the close of the comment period, plaintiff brought this action and sought expedited review. On August 7, 2013, the court ordered an expedited briefing schedule. Order, Aug. 7, 2013, ECF No. 20.³ On September 20, 2013, the defendant informed the court that CBP had completed its consideration of the ruling request and that the Revocation Letter would appear in either the October 2, 2013 or October 9, 2013 Customs Bulletin. Def.'s Notice to Ct. and Req. for Status Conf. 1, Sept. 20, 2013, ECF No. 34 (“Defendant's Req. for Status Conf.”). Plaintiff asked for an advance copy of the Revocation Letter and the defendant declined to provide one. Plaintiff then moved for an order directing the defendant to file a copy with the court. Pl.'s Mot. in Limine for an Order Dir. Def. to File Agency Det. with Ct. 1, Sept. 24, 2013, ECF No. 37 (“Pl.'s Mot. in Limine”). On October 1, 2013, the court ordered the defendant to file an advance copy of the ruling. Order, Oct. 1, 2013, ECF No. 39 (“Order to File”).

However, on September 30, 2013, the Department of Justice (“Justice”) requested a stay in the event of a lapse in appropriations. Dep't Justice Req. for Stay in Event of Lapse in Appropriations, Sept. 30, 2013 (“Request for Stay”). In its Request for Stay, Justice sought “a stay of all cases with deadlines between October 1, 2013, and the end of any lapse in appropriations to the Department of Justice.” Id. at 2. On October 1, 2013, there was a lapse in Federal appropriations and parts of the Federal government shut down and did not reopen until October 17, 2013. Many government employees were prohibited from working, with limited exceptions for certain essential functions. See Anti–Deficiency Act, 31 U.S.C. § 1342 (2006). In response to Justice's Request for Stay, the Chief Judge of this Court entered consecutive Orders, each applicable to all actions in which the government was a party, each tolling the period for responses to Court orders during the shutdown. See Order re Ext. of Filing Due Dates Occurring during Lapse in Federal Appropriation, Oct. 1, 2013; Order re Ext. of Filing Due Dates Occurring during Lapse in Federal Appropriation, Oct. 11, 2013.

The government shutdown ended on October 17, 2013. Subsequently, the Revocation Letter became available through the Government Printing Office (“GPO”) website and on October 18, 2013, pursuant to the Order to File, the defendant filed under seal an advance copy of the Revocation Letter. That same day plaintiff filed Plaintiff's Motion.⁴

On October 21, 2013, the court held a telephone conference in which it asked the parties to consult with their clients and each other and to report back to the court on whether a joint application for judgment could be made. After consultation, the parties informed the court that they could not reach an agreement as to when the sixty-day notice period should begin to run. On October 23, 2013, the court issued a scheduling order for the parties to submit briefs on Plaintiff's Motion.

Discussion

Jurisdiction

This court had uncontested § 1581(i) jurisdiction⁵ over the plaintiff's claim that CBP had unlawfully withheld or unreasonably delayed agency action. 28 U.S.C. § 1581(i) (2006).⁶ However, in order to address the court's jurisdiction over Plaintiff's Motion it is necessary to construe the plaintiff's complaint. The plaintiff sought a “final determination regarding the proposed revocation of the Yarn Ruling, New York Customs Ruling N187601.” Pl.'s Compl. ¶ 32. Plaintiff claimed that CBP had unlawfully withheld or unreasonably delayed agency action in violation of section 706(1) of the Administrative Procedure Act (“APA”). Pl.'s Compl. ¶ 1.

Plaintiff's prayer for relief adds,

Wherefore, plaintiff Best Key Textiles Ltd. respectfully prays that this Court enter judgment in its favor, and enter an order setting a reasonable deadline for Customs to issue its final action under 19 U.S.C. § 1625 determination regarding the proposed revocation of the Yarn Ruling, New York Customs Ruling N187601 of October 25, 2011; and providing plaintiff with such further and additional relief as the Court may deem just.

Pl.'s Compl. 12. Defendant argues that as CBP has published its ruling there is no longer any live case or controversy and thus the court is required to deny the motion and dismiss the case as moot. Defendant's Response 1.

The court has an obligation to construe the pleadings so as to do justice. See USCIT Rs. 1 and 8(f). One could take a narrow view of the plaintiff's complaint and find that all the plaintiff asked for was “a ruling” and not a ruling that provided the notice guaranteed by the statute and this Court. See Am. Bayridge Corp. v. United States, 22 CIT 1129, 1152, 35 F.Supp.2d 922, 941 (1998) (finding that § 1625(c) notice requirements were mandatory), vacated in part on other grounds Am. Bayridge Corp. v. United States, 217 F.3d 857 (Fed.Cir.1999). Plaintiff would then be forced to bring a new case before this Court seeking injunctive and declaratory relief as to when the statutorily required sixty-day notice period began to run. Doing so would be an injustice given the facts of this case and extraordinary events of the government shutdown. Alternatively, the court can, and will, construe the plaintiff's complaint broadly as including a challenge to CBP's administration of the ruling revocation process of 19 U.S.C. § 1625(c) in so far as it is inconsistent with the APA.

This court has all the powers in law and equity. See28 U.S.C. § 1585. As an equitable matter, no prejudice accrues to the defendant from construing the plaintiff's claim broadly. See Foman v. Davis, 371 U.S. 178, 181–82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). It is reasonable to expect that the defendant understood the plaintiff to have been asking not only for a § 1625 ruling within the time frame set by Congress, but one that also complied with congressionally-mandated period for notice. See Am. Bayridge Corp., 22 CIT at 1152, 35 F.Supp.2d at 941.See also Former Emp. of Quality Fabricating, Inc. v. United States Dep't of Labor, 28 CIT 679, 343 F.Supp.2d 1272, 1285–86 (2004) (stating that “[w]hen the court sits in equity it is not limited solely to the language of the pleadings, especially when the pleadings contain prayers in the alternative.”). More importantly, the defendant has made no claim that the sixty-day notice is not required, only that it has been met. In fact, the defendant in its papers referenced and relied upon these very requirements....