Wear Me Apparel Corp. v. United States, Court No. 80-11-00057.
| Decision Date | 10 March 1981 |
| Docket Number | Court No. 80-11-00057. |
| Citation | 1 CIT 194,511 F. Supp. 814 |
| Parties | WEAR ME APPAREL CORPORATION, Plaintiff, v. UNITED STATES of America, United States Customs Service, Robert E. Chasen, Dennis Snyder, Benjamin Jefferson, Roy Dewing, John Martuge, Defendants. |
| Court | U.S. Court of International Trade |
Rivkin, Sherman & Levy, New York City (Joseph S. Kaplan, Charles H. Bayar, and Dennis A. Adelson, of counsel), for plaintiff.
Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, New York City (Jerry P. Wiskin, West Orange, N. J., on brief), for defendants.
On Defendants' Motion to Dismiss
Plaintiff, an importer of children's clothing, brought this action under the Customs Courts Act of 1980 (94 Stat. 1727) contesting Customs' refusal to permit the entry for consumption of merchandise that plaintiff purchased in Taiwan.
The merchandise consists of (1) children's "short sets" which are two-piece top and bottom combinations; and (2) children's trunks. The merchandise is subject to a quantitative textile import quota restriction and must be classifiable under an unfilled quota category in order to be entered for consumption into the United States. In this connection, it appears that quota categories 359 and 659 covering "swimwear" or "other wearing apparel" are unfilled and plaintiff claims that the merchandise is classifiable under those categories. Customs, on the other hand, has indicated that the merchandise is properly classifiable under a filled quota category and thus may not be entered for consumption into the United States.
Some of the merchandise has been imported and entered for consumption, but Customs has demanded its redelivery; some has been imported and entered in a bonded warehouse, but Customs has informally advised plaintiff that none of that merchandise may be withdrawn for consumption; and some of the merchandise has been imported, but on August 22, 1980 was refused entry by Customs for consumption. The remainder of the merchandise is in transit to the United States or is still in Taiwan.
With respect to the merchandise excluded from entry, plaintiff filed a protest on November 19, 1980 and on November 21, 1980 filed the present action. Subsequently, the protest was denied on December 19, 1980.
With respect to the merchandise which Customs has demanded be redelivered, plaintiff has taken no steps to exhaust its administrative remedies. The remainder of the merchandise has not yet been subject to any official action by Customs.
Against this background, plaintiff seeks an order from the court (1) holding that the merchandise is subject to classification under category 359 or 659 as swimwear or other wearing apparel; (2) holding that even if some or all of the merchandise is subject to classification under a category other than 359 or 659, such a determination should be applied prospectively only and should not apply to entries of that merchandise which was ordered from the manufacturer on or before August 21, 1980; and (3) directing the immediate release of such merchandise.
In addition, plaintiff moved for a preliminary injunction to restrain defendants from preventing the entry for consumption, and from requiring redelivery, of the merchandise. The court per Judge Newman denied this motion 1 CIT ___, Slip Op. 80-13 (Dec. 15, 1980).
Defendants now move to dismiss the action for lack of jurisdiction arguing that since the present action was filed before the protest against the exclusion order of August 22, 1980 was denied, jurisdiction of that phase is lacking. Further, defendants argue that the court lacks jurisdiction of the remainder of the action on the ground that plaintiff has failed to exhaust its administrative remedies.
For the reasons set forth below, the court holds (1) that it has jurisdiction to entertain plaintiff's claims; (2) that it has the power to grant equitable relief; (3) that that portion of the action which contests Customs' exclusion order of August 22, 1980 should not be dismissed; and (4) that the remainder of the action should be dismissed as not ripe for adjudication.
We start by considering plaintiff's claims arising from the merchandise which was excluded from entry by Customs. As previously indicated, plaintiff protested this exclusion but then sued in this court before its protest was denied.
It is settled that prior to the enactment of the Customs Courts Act of 1980, this court lacked jurisdiction to entertain an action challenging a protest if the action was filed before the protest was denied. See, e. g., United States v. Reliable Chemical Co., 66 CCPA 123, C.A.D. 1232, 605 F.2d 1179 (1979). The passage of the Customs Courts Act of 1980 did not completely eliminate this requirement. Thus, prior denial of a protest is still needed if this court's jurisdiction is invoked under 28 U.S.C. § 1581(a). That section provides that this court "shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930." As the House Committee on the Judiciary stated (H.R. Rep. No. 96-1235, 96th Cong., 2d Sess. 44 (1980), U.S. Code Cong. & Admin. News 1980, 7088, 7114): "Under the Customs Courts Act of 1980, the filing and denial of a protest will continue as prerequisites to the commencement of a civil action brought pursuant to proposed section 1581(a)." Emphasis added.
However, section 1581(a) is not the only jurisdictional provision applicable here. Thus, 28 U.S.C. § 1581(i) provides:
Section 1581(i), as explained by the House Committee on the Judiciary (H.R. Rep. No. 96-1235, supra at 47, U.S. Code Cong. and Admin. News 1980, 7117), provides a broad "residual grant of jurisdictional authority * * * 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 makes it clear that all suits of the type specified are properly commenced only in the Court of International Trade."
Given the fact that the claims as to which a protest has been filed directly concern an import quota, these claims obviously arise "out of * * * a law * * * providing for * * * quantitative restrictions on the importation of merchandise." In that circumstance, section 1581(i)(3) specifically grants this court jurisdiction to entertain these claims.
Moreover, since these claims involve the "administration and enforcement" of quantitative restrictions, section 1581(i)(4) also provides jurisdiction.
It is important to add that section 1581(i) does not require the filing or denial of a protest as a prerequisite for the exercise of jurisdiction by this court. Therefore, the court has subject matter jurisdiction of plaintiff's claims challenging the exclusion order even though suit was brought prior to the denial of the protest.
This does not mean, however, that by invoking the jurisdiction of the court under section 1581(i) the mandate of section 1581(a) requiring the exhaustion of administrative remedies, i. e., the filing and denial of a protest, may thereby be dispensed with. Save in those circumstances where equity requires otherwise, the exhaustion of administrative remedies is necessary. See H.R. Rep. No. 96-1235, supra at 44; S. Rep. No. 96-466, 96th Cong., 1st Sess. 7 (1979). Since such circumstances are not present here, plaintiff's claims challenging the exclusion order would normally have been dismissed inasmuch as the action was filed before the protest was denied. But in view of the fact that plaintiff's protest has already been denied, its administrative remedies have already been exhausted. Consequently, dismissal of this portion of plaintiff's action would be an empty formalism because plaintiff could immediately after dismissal file a new action over which this court would unquestionably have jurisdiction under section 1581(a). However, in the interest of procedural clarity, plaintiff is directed to file within 30 days an amended complaint with respect to those of its claims as to which a protest has been denied.
We come next to plaintiff's claims regarding the balance of its merchandise, i. e., the imported merchandise...
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