International Labor Rights Educ. and Research Fund v. Bush, No. 90-5390

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before MIKVA, Chief Judge, SENTELLE and HENDERSON; PER CURIAM; KAREN LeCRAFT HENDERSON; SENTELLE; MIKVA
• Citation: 954 F.2d 745
• Parties: , 293 U.S.App.D.C. 314 INTERNATIONAL LABOR RIGHTS EDUCATION AND RESEARCH FUND, et al., Appellants, v. George BUSH, in his Official Capacity as President, et al., Appellees.
• Docket Number: No. 90-5390
• Decision Date: 31 January 1992

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954 F.2d 745 14 ITRD 1049, 293 U.S.App.D.C. 314 INTERNATIONAL LABOR RIGHTS EDUCATION AND RESEARCH FUND, et
al., Appellants,
v.
George BUSH, in his Official Capacity as President, et al., Appellees. No. 90-5390. United States Court of Appeals,
District of Columbia Circuit. Argued Oct. 3, 1991.
Decided Jan. 31, 1992.

Appeal from the United States District Court for the District of Columbia.

Terry Collinsworth, with whom Robert M. Weinberg and Deborah C. Malamud, were on the brief, for appellants.

Lowell V. Sturgill, Jr., Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Douglas N. Letter, Atty., Dept. of Justice, were on the brief, for appellees. Irene M. Solet, Atty., Dept. of Justice, also entered an appearance, for appellees.

Before MIKVA, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.

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ORDER

PER CURIAM.

This case was heard on an appeal from the United States District Court for the District of Columbia.

IT IS ORDERED that the judgment of the district court dismissing this action be affirmed for the separate reasons expressed in the accompanying concurring statements by Judge Sentelle and Judge Henderson. Chief Judge Mikva has filed a dissenting opinion.

KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:

The appellants brought this action seeking to compel enforcement of the "worker rights" provisions of the Generalized System of Preferences, 19 U.S.C. §§ 2461-66, (GSP). The district court dismissed the complaint, holding the appellants' claims were nonjusticiable. International Labor Rights Educ. & Research Fund v. Bush, 752 F.Supp. 495 (D.D.C.1990). I would affirm the district court's dismissal on the ground that the district court lacked subject matter jurisdiction. Before the final order of dismissal, the district court denied a motion by the appellees to dismiss for want of jurisdiction. International Labor Rights Educ. & Research Fund v. Bush, 752 F.Supp. 490 (D.D.C.1990). Although the appellees did not appeal that decision and neither party has raised the jurisdictional issue here, this court is bound to consider it sua sponte. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) ("every federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it") (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)); Citizens for the Abatement of Aircraft Noise, Inc. v. Metropolitan Wash. Airports Auth., 917 F.2d 48, 53 (D.C.Cir.1990) ("it is well established that a court of appeals must first satisfy itself of its own jurisdiction, sua sponte if necessary, before proceeding to the merits"), aff'd, --- U.S. ----, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991). For the following reasons I conclude that the subject matter of this action is within the exclusive jurisdiction of the Court of International Trade and that therefore neither the district court nor this court may properly exercise jurisdiction. ¹

The GSP authorizes the President to "provide duty-free treatment for any eligible article from any beneficiary developing country." 19 U.S.C. § 2461. The GSP further identifies beneficiary developing countries as those which the President has so designated pursuant to various statutory criteria. 19 U.S.C. § 2462. In 1985, Congress amended the GSP to add the worker rights provisions which require the President to deny beneficiary developing country status to any country which has not made some effort to extend employment rights to workers. See 19 U.S.C. § 2462(b)(7) ("the President shall not designate any country a beneficiary developing country under this section ... if such country has not taken or is not taking steps to afford internationally recognized worker rights to workers in the country (including any designated zone in that country)"); 19 U.S.C. § 2462(c)(7) (directing the President, "[i]n determining whether to designate any country a beneficiary developing country," to "take into account ... whether or not such country has taken or is taking steps to afford to workers in that country (including any designated zone in that country) internationally recognized worker rights"); 19 U.S.C. § 2464(c)(2)(A) (requiring the President to "conduct a general review of eligible articles based on the considerations described in section 2461 or 2462(c) of this title" no later than January 4, 1987); 19 U.S.C. § 2464(b) ("[t]he President shall, after complying with the requirements of section 2462(a)(2) of this title, withdraw or suspend the designation of

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any country as a beneficiary developing country if, after such designation, he determines that as the result of changed circumstances such country would be barred from designation as a beneficiary developing country under section 2462(b) of this title").

The appellants' complaint charged the appellees with failing to enforce the worker rights provisions and sought to compel enforcement. The appellees moved to dismiss the complaint for lack of jurisdiction based on 28 U.S.C. § 1581(i)(2), which grants the Court of International Trade "exclusive jurisdiction of 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 ... (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." The district court rejected the appellees' argument, reasoning:

[T]his action does not appear to arise out of a law of the United States "providing for ... tariffs, duties, fees or other taxes on the importation of merchandise" within the meaning of 28 U.S.C. § 1581(i)(2). The GSP authorizes the President to grant duty-free status to goods from "beneficiary developing countries," 19 U.S.C. § 2461, and to withdraw, suspend or limit that status. 19 U.S.C. § 2464. These provisions do not constitute a law "providing for" tariffs, duties, fees or other taxes; they create conditions under which duties can be lifted or re-imposed, but these duties are "provided for," i.e. furnished or supplied, see The American Heritage Dictionary of the English Language 1053 (1981), not by the GSP but by other statutes. Indeed, the GSP provision governing withdrawal, suspension or limitation from the program specifically states that "no rate of duty may be established in respect of any article pursuant to this section other than the rate that would apply but for this subchapter." 19 U.S.C. § 2464(a)(1).

752 F.Supp. at 491-92. I disagree with the district court's analysis for the following reasons.

First, even under the district court's narrow construction of the statutory language, I believe section 1581 is one "providing for" duties insofar as it permits the President to deny, suspend or revoke beneficiary developing country status and thereby impose, at least indirectly, import duties. Moreover, the GSP was enacted as part of the Trade Act of 1974, 19 U.S.C. §§ 2101-2487, which expressly provides for adjustment of duty rates by the President. In any event, I find the district court's construction overly restrictive. The phrase "providing for" has a broader meaning than the simple verb "provide" and can be construed to mean "relating to," as the Supreme Court has done in considering this very provision. See K Mart Corp v. Cartier, Inc., 485 U.S. 176, 188, 108 S.Ct. 950, 959, 99 L.Ed.2d 151 (1988) ("Congress granted the Court of International Trade exclusive jurisdiction over suits relating to 'tariffs, duties, fees, or other taxes on the importation of merchandise,' but not if they are for 'the raising of revenue.' 28 U.S.C. § 1581(i)(2).") (emphasis added); cf. In re Gregory, 705 F.2d 1118, 1122 (9th Cir.1983) (construing "provide for" to mean "make a provision for," "deal with" or "refer to"). Under this more expansive definition, the subject matter here falls squarely within the exclusive jurisdiction of the Court of International Trade, under subsection 1581(i)(2), because the claims raised here "relate to" duties. Further, to the extent the appellants seek revocation of duty-free status, and consequently enforcement of import duties imposed under other statutes, jurisdiction also lies with the Court of International Trade under subsection (i)(4) of section 1581 which grants that court exclusive jurisdiction over "administration and enforcement with respect to the matters referred to in [§ 1581(i) ]." 28 U.S.C. § 1581(i)(4).

My determination that the Court of International Trade has exclusive jurisdiction over this action is supported not only by the language of subsection 1581(i) but also by its legislative history and by the views of other courts. It is consistent with Congress's characterization of the subsection as a "broad jurisdictional grant" enacted

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"to eliminate the confusion which currently exists as to the demarcation between the jurisdiction of the district courts and the Court of International Trade" and thereby "to eliminate much of the difficulty experienced by international trade litigants who in the past commenced suits in the district courts only to have those suits dismissed for want of subject matter jurisdiction." H.R.Rep. No. 1235, 96th Cong., 2d Sess. 47 (1980), U.S.Code Cong. & Admin.News 1980, pp. 3729, 3758. Moreover, because this action arises under the Trade Act of 1974, of which the GSP is a part, my interpretation also promotes Congress's expressed intent that "the expertise and national jurisdiction of the Court of International Trade and the Court of Appeals for International Trade, Patents and Trademarks be exclusively utilized in the resolution of conflicts and disputes arising out of the tariff and international trade laws, thereby eliminating the present jurisdictional...