Supreme Court Takes No Action on Customs Cases

A couple interesting customs matters were presented to the Supreme Court this term. Unfortunately, the Court declined to hear either.

The first was the Deckers case about the meaning of the tariff term "slip on" as applied to footwear. The reason this was potential Supreme Court fodder was that the Court of International Trade and the Court of Appeals for the Federal Circuit gave weight to a definition of the term set out in a Customs and Border Protection document. That document was not a regulation and had not been vetted by public notice and comment. Deckers argued that the courts gave too much deference to this document and opened up the possibility that all CBP internal documentation will be subject to excessive judicial deference.


 


The second was a pair of cases involving the question of whether Congress violates the Equal Protection Clause of the U.S. Constitution when it assigns rates of duty to merchandise based on the gender or age of the intended user. The Court of International Trade and the Federal Circuit both held that despite clear gender-specific and age-specific language in the HTSUS, the possible discrimination was not "facial." As a result, the plaintiffs were required to show discriminatory intent, which they were unable to do. This effectively puts an end to the valiant effort of some customs lawyers to eliminate apparently discriminatory tariff rates.

The details of these cases are in prior posts, to which I have linked above.

If you doubt my journalistic ability to report these events, the Supreme Court order is here.

Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance topic. So, let's
Read more

Precious Tritium

Image
One thing I have learned as a customs lawyer who does a lot of classification work is that there are millions of odd items moving in international trade the existence of which I am completely ignorant. Such is the case of the gaseous tritium light sources used in, among other things, firearm sights. These things use tritium sealed in a glass that has been coated in phosphor. The radioactive tritium decays, releasing beta particles, which interact with the phosphor causing it to emit light. In other words, it creates light with no external power source. Pretty cool.  Tritium is, of course, a real thing. It is an isotope of hydrogen. We know this from the excellent documentary "Spider-Man." This comes up in relation to the Court of International Trade decision in Trijicon, Inc. v. United States  in which the importer challenged the tariff classification of several versions of the gaseous tritium light sources ("GTLS"). The plaintiff uses them to make gun sights. The
Read more