Gilda Industries, Inc. v. U.S.

• Decision Date: 01 December 2004
• Docket Number: Court No. 03-00203.,Slip Op. 04-150.
• Parties: GILDA INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

353 F.Supp.2d 1364

GILDA INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 04-150.

Court No. 03-00203.

United States Court of International Trade.

December 1, 2004.

(Peter S. Herrick), Miami, FL, for Plaintiff.

Peter D. Keisler, Assistant Attorney General; (David M. Cohen), Director; (Jeanne E. Davidson), Deputy Director, (David S. Silverbrand), Trial Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; William Busis, Office of General Counsel, Executive Office of the President, Office of the United States Trade Representative, Yelena Slepak, International Trade Litigation, Bureau of Customs and Border Protection, for Defendant, of counsel.

OPINION

BARZILAY, Judge.

Plaintiff Gilda Industries Incorporated ("Gilda") has filed several motions that are at issue in this proceeding. They include a motion for class certification, motion for writ of mandamus and declaratory relief, motion to join the United States Trade Representative and Commissioner of Customs and Border Protection as defendants, motion to supplement its Response to Defendant's Motion to Dismiss, and finally, motion to amend its amended complaint.¹ Also before the court are Defendant United States' ("Government" or "United States Trade Representative" or "USTR") motions to dismiss both of Plaintiff's complaints (original and amended) for failure to state a claim upon which relief can be granted. Plaintiff has subsequently abandoned its motion for Writ of Mandamus with respect to all liquidated entries, but seeks mandamus with respect to prospective entries on the basis that the retaliation list has terminated by operation of law. See Pl.'s Opp. to Deft.'s Mot. to Dismiss, at 15; Oral Argument Tr., 20 — 21. Because the court finds that the retaliation list has not terminated by operation of law, as discussed infra, Plaintiff's arguments seeking Writ of Mandamus need not be addressed.

Gilda, an importer of toasted breads from Spain, filed suit to challenge the USTR's compilation and administration of a "retaliatory list," created pursuant to both section 301 of the Trade Act of 1974, (19 U.S.C. § 2411 (2004)), and a WTO Appellate Body decision authorizing retaliatory action against the European Community. Gilda claims that toasted breads — a product it imports — should not have been included on the retaliation list and that the USTR failed to rotate products off the list as required by the relevant statute. Thus, Gilda seeks to have its products removed from the retaliatory list and also to have those entries reliquidated that were made after the date it claims its products should have been rotated off the list. Gilda also seeks a refund of the 100% duties it has already paid, with interest.

In its amended complaint, Gilda adds the Administrative Procedure Act, 5 U.S.C. § 702 ("APA") as a basis for its claim and argues that the USTR's failure to hold public hearings on modification of the retaliation list constitutes a violation of its procedural due process rights under the Fifth Amendment to the Constitution. As discussed below, the court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i) (2000). For the following reasons, the Government's motion to dismiss is granted and Gilda's motions for writ of mandamus and declaratory relief, class certification, and joinder are all denied.

I. Background

This case stems from a dispute between the European Community ("EC") and the United States resulting from the former's ban on the importation of hormone treated animals and meat. A World Trade Organization ("WTO") Dispute Settlement Body ("DSB") panel determined that the EC hormone ban is not based upon scientific evidence, a risk assessment, or relevant international standards and is therefore contrary to the EC's obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"). This determination was affirmed by the WTO Appellate Body. Pursuant to the EC's failure to subsequently implement the DSB recommendations by the May 13, 1999 deadline, the USTR published Implementation of WTO Recommendations Concerning EC Measures Concerning Meat and Meat Products (Hormones) ("Hormones Implementation") in the Federal Register. 64 Fed.Reg. 14,486 (Mar. 25, 1999).

The March 25th Federal Register notice published a preliminary list of specified EC products, announced that the United States would suspend tariff concessions on these products, and asked for public comment.² Gilda did not submit comments or take part in these proceedings. On April 19, 1999, the USTR conducted a public hearing to receive testimony on the preliminary list. Again, although the preliminary list included the HTSUS subheading classifying toasted breads, Gilda did not take part in this hearing or otherwise challenge the inclusion of this HTSUS subheading on the retaliatory list. See Pl.'s Opp. to Deft.'s Mot. to Dismiss, at 15.

On July 27, 1999, the USTR published Implementation of WTO Recommendations Concerning EC Measures Concerning Meat and Meat Products (Hormones) in the Federal Register and raised duties on EC products pursuant to section 301 of the Trade Act of 1974.³ Included in the Annex described in the Hormones list was HTSUS subheading 9903.02.35 which includes "[r]usks, toasted bread and similar products (provided for in subheading 1905.40)." Therefore, in accordance with the Hormones Implementation, Gilda's products were subjected to 100% duties. To this date, the USTR has not modified the retaliation list and continues to negotiate with the EC in an effort to resolve the Hormones dispute. Deft.'s Mot. to Dismiss, at 13.

II. Jurisdiction

Plaintiff originally brought its complaint and claim for class certification under 28 U.S.C. § 1581(a), its protests having been denied by Customs. During a conference call with the parties, the court noted that its jurisdiction under section 1581(a) is limited to those entries for which all statutory requirements have been satisfied. The court also discussed the particular difficulties with maintaining a class action under the unique jurisdictional structure of section 1581(a). Subsequently, Plaintiff moved to amend its complaint, invoking the Court's residual jurisdiction, 28 U.S.C. § 1581(i) in the alternative. Because jurisdiction under section 1581(a) is limited to only those entries that have been validly protested, denied and duties paid, it does not allow the court to address the forward-looking relief that Plaintiff seeks. Thus, the court will examine its jurisdiction under section 1581(i).

Section 1581(i) confers upon this court exclusive jurisdiction over any civil action commenced against the United States, its agencies, or its officers that arises out of any law of the United States providing for duties on the importation of merchandise for reasons other than the raising of revenue. 28 U.S.C. § 1581(i)(2). This court, however, may exercise its jurisdiction pursuant to section 1581(i) only when the case directly relates to the proper administration and enforcement of an international trade law and no other basis for jurisdiction is available or the basis that is available will yield a remedy which is manifestly inadequate. Nat'l Corn Growers Ass'n v. Baker, 840 F.2d 1547, 1555 (Fed.Cir.1988) (emphasis added); see also Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988). Therefore, the court must determine whether a basis for (i) jurisdiction exists. That is, whether relief under any other jurisdictional provision would be manifestly inadequate. In the case at hand, Gilda seeks to challenge the USTR's inclusion of the HTSUS subheading providing for toasted breads on the retaliation list. It also seeks to compel the USTR to remove this subheading from the list, and to have its duties refunded — all of which are unrelated to the liquidation of its entries by the Bureau of Customs and Border Protection and the denied protests. Thus, because Plaintiff seeks to challenge the USTR's imposition of duties pursuant to section 301 of the Trade Act for reasons related to fostering a change in EC policy, section 1581(i)(2) applies. Furthermore, because any remedy available under section 1581(a) would be directed at Customs and not the USTR, the relief plaintiff is seeking — that it be removed from the retaliation list and be reimbursed 100% duties — cannot be obtained under this section. Because any remedy under section 1581(a) would therefore be manifestly inadequate in obtaining the relief sought, and because no other jurisdictional provision is applicable, this court has jurisdiction to hear Plaintiff's case pursuant to 28 U.S.C. § 1581(i).

Plaintiff has also moved for class certification, purporting to represent "others similarly situated."⁴ USCIT Rule 23(c) provides that as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. Rule 23(a) sets out four prerequisites to class action. First, the class must be so numerous that joinder of all members is impracticable. Second, there must be questions of law or fact common to the class. Third, the claims or defenses of the representative parties must be typical of the claims or defenses of the class, and finally, the representative parties must fairly and adequately protect the interests of the class. Because no other class members can be identified the court cannot determine whether joinder is practicable; there are no identifiable common questions of law or fact; and it is unclear whether Plaintiff's claims and defenses are typical of a putative class. It is therefore impossible to determine whether the requirements of class certification can be met. Even assuming that Plaintiff's claims to the contrary are true and a class of plaintiffs does exist, as a discretionary matter a class action should not be...