International Custom Products, Inc. v. United States

30 Ct. Int'l Trade 21
CourtUnited States Court of International Trade
DecidedJanuary 11, 2006
DocketCourt No. 05-00615
StatusPublished

This text of 30 Ct. Int'l Trade 21 (International Custom Products, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Custom Products, Inc. v. United States, 30 Ct. Int'l Trade 21 (cit 2006).

Opinion

MEMORANDUM OPINION

EATON, Judge:

This matter is before the court on the motion for a preliminary injunction of plaintiff International Custom Products, Inc. (“plaintiff” or “ICP”), and the opposition thereto of defendant the United States (“defendant” or the “Government”).1 For the reasons set forth below, the court denies plaintiff’s motion.

Background

Plaintiff is an importer and supplier of a milk-fat based white sauce product used as an ingredient in sauces, salad dressings, and other food products. On January 20, 1999, the United States Customs Service (now the Bureau of Customs and Border Protection) issued New York ruling letter D86228 (“Ruling Letter”), which classified the white sauce under the Harmonized Tariff Schedule of the United States (“HTSUS”) 2103.90.9060 (later numbered 2103.90.9091) as “[s]auces and preparations therefor.” Pl.’s Conf. Mem. of Points and Authorities in Supp. of Pl.’s App. for a Temporary Restraining Order and Mot. for a Prelim. Injunction (“Pl.’s Mem.”) at 4. The current duty rate under HTSUS 2103.90.9091 is 6.4% ad va-lorem. Id.

On August 24, 2005, Customs published a Proposed Revocation of Ruling Letter [D86228] and Revocation of Treatment Relating to the Tariff Classification of White Sauce (“Proposed Revocation”). See 39 [22]*22Cust. Bull. & Dec. 35 (Aug. 24, 2005).2 By publication of the Proposed Revocation, Customs gave notice that it was commencing an administrative procedure to reclassify ICP’s merchandise. ICP timely submitted comments disputing Customs’ proposed classification on both technical and legal grounds. See Comments of ICP on Proposed Revocation (Sept. 23, 2005), Conf. R. Annex B.

On November 2, 2005, following completion of its administrative procedure, Customs issued [¶] 967780 (the “Revocation”), which revoked ICP’s Ruling Letter. The Revocation reclassified ICP’s white sauce as a “dairy spread” under HTSUS 0405.20.3000, which is subject to a duty of $1,996 per kilogram, plus safeguard duties of $0,149 per kilogram. Customs’ new classification has the effect of greatly increasing the duty on plaintiff’s merchandise.3 Upon publication of the Revocation, plaintiff filed the complaint in this action, in which, among other things, it asks the court to “enjoin[ ] [the Revocation] from taking effect during the pendency of this action and further enjoin! ] Customs from classifying or liquidating ICP’s white sauce in a manner inconsistent with [the Ruling Letter] during the pendency of this action.” Compl. of 11/14/05 at 21. Should an injunction be issued, plaintiff’s merchandise entered prior to a final judicial determination would be liquidated4 at the duty determined by the ultimate outcome. Should the injunction not issue, during the pendency of this action plaintiff could be required to pay or deposit the increased duty on its entries. Should plaintiff ultimately prevail, by protesting the liquidation it would receive a refund of the duties paid or deposited, plus interest. See 19 C.F.R. § 159.51 (2005) (“Liquidation of entries shall not be suspended simply because issues involved therein may be before the Customs Court5 in pending litigation, since the importer may seek relief by protesting the entries after liquida[23]*23tion.”)- With respect to the relief requested in the underlying action, plaintiff asks that the Revocation be declared unlawful.6 Plaintiff claims 28 U.S.C. § 1581(i)(4) as the basis of jurisdiction. Pl.’s Conf. Mem. of Points and Authorities in Supp. of Pl.’s Mot. for a Prelim. Injunction (“Pl.’s Mot.”) at 6. While the validity of this jurisdictional claim is not without doubt, see infra Part IV (relating to likelihood of success on the merits), “it is not imperative that this court conclusively determine jurisdiction over an action as a predicate to ruling on the merits of such threshold equitable relief.” Ugine & Alz Belg., N.V. v. United States, 29 CIT _, _, slip op. 05-113 at 5-6 (Aug. 29, 2005) (not published in the Federal Supplement). For the reasons set forth below, the court denies plaintiff’s motion.

Discussion .

To obtain the extraordinary relief7 of an injunction prior to trial, the movant bears the burden of establishing that: (1) it will suffer irreparable harm if preliminary relief is not granted; (2) the public interest would be better served by the relief requested; (3) the balance of the hardships tips in the movant’s favor; and (4) the movant is likely to succeed on the merits at trial. See FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citing Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)). In its analysis, the Court need not assign equal weight to each factor. Rather, the “cru[24]*24cial factor [in granting a preliminary injunction] is irreparable injury.” Corus Group PLC v. Bush, 26 CIT 937, 942, 217 F. Supp. 2d 1347, 1354 (2002) (citing Elkem Metals Co. v. United States, 25 CIT 186, 190, 135 F. Supp. 2d 1324, 1329 (2001)). The court will address each part of the test in turn.

I. Irreparable Harm

In support of its motion, plaintiff has submitted the affidavits of (1) Dennis V. Raybuck, president and founder of ICP of DuBois, Pennsylvania (“Raybuck Declaration” or “Raybuck Decl.”); (2) the president and chief operating officer8 of what ICP refers to as “Supplier A” for purposes of confidentiality; and (3) Gregory L. Wade, the global Chief Technical Officer of MolsonCoors Brewing Company in Montreal, Quebec and Denver, Colorado (“Wade Decl.”). See Conf. R. Annex A, Exs. 2,9 5; Conf. R. Annex B, Ex. 6.10 Plaintiff relies primarily on the Raybuck Declaration to establish that, in the absence of a preliminary injunction, ICP will suffer irreparable harm. Irreparable injury or harm is harm “which cannot receive reasonable redress in a court of law.” Connor II v. United States, 24 CIT 195, 197 (2000) (not reported in the Federal Supplement) (internal quotation marks omitted) (internal citations omitted); see also Zenith Radio, 710 F.2d at 809.

■ ICP’s primary claim11 is that its importation business cannot survive if Customs is permitted to revoke its Ruling Letter and reclassify the white sauce as a dairy spread. See Pl.’s Mot. at 13. As ICP explains, “[t]he new classification would subject ICP’s imports to prohibitively high tariffs, increasing the applicable duty rates by over [25]*252400 percent. ICP cannot afford to remain in business with such exorbitant costs.” Id;12 see also Conf. R. Annex A, Ex. 10.

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Bluebook (online)
30 Ct. Int'l Trade 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-custom-products-inc-v-united-states-cit-2006.