Totes-Isotoner Corp. v. United States

SLIP OP. 08-119

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: THE HONORABLE JANE A. RESTANI, CHIEF JUDGE
THE HONORABLE DONALD C. POGUE, JUDGE
THE HONORABLE JUDITH M. BARZILAY, JUDGE

------------------------------x
TOTES-ISOTONER CORPORATION, :
:
Plaintiff, :
:
v. : Court No. 07-00001
:
:
UNITED STATES, :
:
Defendant. :
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MEMORANDUM and ORDER

[Parties’ cross-motions for reconsideration denied.]

Dated: November 4, 2008

Neville Peterson, LLP (John M. Peterson, Maria E. Celis,
Matthew G. Shaw, and Michael T. Cone) for the Plaintiff.

Gregory G. Katsas, Acting Assistant Attorney General; Jeanne
E. Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Reginald T. Blades, Jr.); Aimee Lee and Gardner B. Miller,
Attorneys, International Trade Field Office, U.S. Department of
Justice, for the Defendant.

Pogue, Judge: Totes-Isotoner Corporation (“Totes”) alleged in

its complaint in this action that the Harmonized Tariff Schedule of

the United States (“HTSUS”) illegally discriminates on the basis of

gender and/or age by setting out different tariff rates for certain

“Men’s” gloves as opposed to “other” gloves. The court dismissed

Totes’s complaint in Totes-Isotoner Corp. v. United States, __ CIT

__, 569 F. Supp. 2d 1315 (2008) (holding that Totes had standing to
Court No. 07-00001 Page 2

bring, and the court had jurisdiction to hear, Totes’s claim, but

dismissing for failure to state a claim because the complaint, as

pled, did not “show” or allege facts sufficient to ground an

inference of discrimination) (hereinafter “the court’s July 3

opinion”).1

Both parties seek reconsideration of the court’s July 3

opinion pursuant to USCIT R. 59.2 Defendant United States again

asks that the court dismiss the matter for lack of jurisdiction,

rather than for failure to state a claim. The government alleges

that Totes, prior to instituting its action, failed to exhaust its

administrative remedies when it failed to file a protest with the

United States Customs Service3 (“Customs”) as necessary to invoke

the Court’s jurisdiction under 28 U.S.C. § 1581(a). At the same

time, Totes seeks reconsideration of the court’s holding that its

complaint failed to state a claim. Citing Berkley v. United

States, 287 F.3d 1076 (Fed. Cir. 2002), Totes alleges that the

challenged tariff provision is facially discriminatory, and thus

1
Familiarity with the court’s July 3 opinion is presumed.
2
USCIT Rule 59 provides that a “rehearing may be granted .
. . for any of the reasons for which rehearings have heretofore
been granted in suits in equity in the courts of the United
States.”
3
Effective March 1, 2003, the United States Customs Service
was renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
Court No. 07-00001 Page 3

the court should infer or presume the government’s discriminatory

intent. Alternatively, Totes asks the court to certify for

interlocutory appeal the question of whether the tariff provision

at issue is facially discriminatory.

Because neither motion identifies legal error in the court’s

July 3 opinion, as explained below, the court denies both motions.

Standard of Review

The court will grant a rehearing “only in limited

circumstances, including [where there has been] 1) an error or

irregularity, 2) a serious evidentiary flaw, 3) the discovery of

new evidence which even a diligent party could not have discovered

in time, or 4) an accident, unpredictable surprise or unavoidable

mistake which impaired a party’s ability to adequately present its

case.” Target Stores v. United States, __ CIT __, 471 F. Supp. 2d

1344, 1347 (2007) (citing Kerr-McGee Chem. Corp. v. United States,

14 CIT 582, 583 (1990)); Salmon Spawning & Recovery Alliance v.

Basham, Slip Op. 07-69, 2007 WL 1362434, at *1 (CIT May 9, 2007),

rev’d in part on other grounds, 532 F.3d 1338 (Fed. Cir. 2008).

The court will not grant such a motion “merely to give a losing

party another chance to re-litigate the case or present arguments

it previously raised.” Basham, 2007 WL 1362434, at *1.

Both motions, by alleging “error” in the court’s July 3

opinion, invoke only the first ground for rehearing. Applying this

standard, the court will address each motion in turn.
Court No. 07-00001 Page 4

United States’ Motion for Reconsideration

The court begins with the government’s motion. Although Totes

based its claims on the alleged unconstitutionality of the HTSUS,

the government, relying on United States v. Clintwood Elkhorn

Mining Co., 553 U.S. __, 128 S. Ct. 1511 (2008), argues that Totes

was required to exhaust its administrative remedies by filing a

protest with Customs pursuant to 19 U.S.C. § 1514(a) prior to

filing its complaint. The government claims that Clintwood

dictates that Totes’s failure to file such a protest divests the

court of jurisdiction, and that, as a result, the court erred in

its July 3 opinion by exercising jurisdiction and must instead

dismiss Totes’s claim for lack of jurisdiction.

Clintwood, however, is a tax case, and thus was controlled by

the applicable provisions of the United States Tax Code. United

States v. Clintwood Elkhorn Mining Co., 553 U.S. __, 128 S. Ct.

1511, 1516 (2008). Title 26 U.S.C. § 7422(a), the Tax Code’s

jurisdictional provision, states that “[no] suit . . . shall be

maintained in any court for the recovery . . . of any sum alleged

to have been excessive or in any manner wrongfully collected, until

a claim for refund . . . has been duly filed with [the Internal

Revenue Service (‘IRS’)].” Clintwood held that section 7422(a)’s

plain language required the plaintiffs to file a refund claim with

the IRS, even though the plaintiff’s cause of action was based on

a purported constitutional violation. Clintwood 128 S. Ct. at 1516
Court No. 07-00001 Page 5

(“Five ‘any’s’ in one sentence and it begins to seem that Congress

meant the statute to have expansive reach.”).

Although the United States attempts to analogize the Tax

Code’s section 7422(a) to this Court’s jurisdictional statutes, the

statutes are clearly distinguishable. Section 7422(a)’s language

explicitly and plainly requires administrative exhaustion in all

circumstances. In contrast, the statutory provisions which the

government invokes here do not affirmatively deny the Court

jurisdiction when a plaintiff, that cannot effectively protest its

action under 19 U.S.C. § 1514(a) and 28 U.S.C. § 1581(a), fails to

exhaust administrative remedies.

Indeed, neither section 1514(a) nor section 1581(a) prevent

Totes from proceeding in this case. To begin with, section 1514(a)

only applies to “decisions of the Customs Service.” Although

section 1514(a) states that Customs’ “decisions” regarding the

“classification and rate and amount of duties chargeable” are

“final,” unless a protest is filed in accordance with the

provisions of other sections of 19 U.S.C. § 1514, there is no

Customs “decision” at issue here. Totes challenges the

constitutionality of the provisions of the HTSUS itself, and

Customs makes no decision in this respect other than to routinely

apply the HTSUS categories to imported goods. See Forest Labs.,

Inc. v. United States, 476 F.3d 877, 883 (Fed. Cir. 2007) (citing

Jewelpak Corp. v. United States, 20 CIT 1402, 1409-10, 950 F. Supp.
Court No. 07-00001 Page 6

343, 350 (1996), aff’d, 297 F.3d 1326 (Fed. Cir. 2002)) (“Customs

has no authority to alter or amend the duty rates of the tariff

schedule because the duty rates are part of the tariff statute

enacted by Congress”); Mitsubishi Elec. Am., Inc. v. United States,

44 F.3d 973, 977 (Fed. Cir. 1994) (holding that Customs does not

make antidumping “decisions” for section 1514(a) to apply, as

Customs simply follows the Department of Commerce’s instructions in

assessing and collecting certain duties, and thus the court held it

lacked section 1581(a) jurisdiction).

This circuit’s section 1514(a) case law generally exempts,

from otherwise required administrative exhaustion, constitutional

challenges to statutory provisions from which Customs has no

discretion to deviate. See, e.g., Thomson Consumer Elecs., Inc. v.

United States, 247 F.3d 1210, 1215 (Fed. Cir. 2001) (holding

constitutional challenges to the Harbor Maintenance Tax (“HMT”)

exempt from administrative exhaustion requirements); U.S. Shoe

Corp. v. United States, 114 F.3d 1564, 1569-71 (Fed. Cir. 1997),

aff’d, 523 U.S. 360 (1998) (same). When seeking to challenge a

provision over which Customs has no authority or discretion, a

plaintiff need not file a protest and then invoke jurisdiction

under section 1581(a); such a plaintiff may instead rely upon

section 1581(i). Orleans Int’l, Inc. v. United States, 334 F.3d

1375, 1380 (Fed. Cir. 2003) (holding that the Court of

International Trade had section 1581(i) jurisdiction over Orleans’
Court No. 07-00001 Page 7

constitutional challenge of import assessments mandated by the Beef

Promotion and Research Act); Pat Huval Rest. & Oyster Bar, Inc. v.

United States, __ CIT __, 547 F. Supp. 2d 1352, 1362-63 (2008) (per

curiam) (constitutional challenge to “Byrd Amendment” allowed under

1581(i)). This follows from the recognition that, in applying a

statute over which Customs has no authority or discretion, Customs

does not make a “decision” that a plaintiff such as Totes can

protest. See U.S. Shoe, 114 F.3d at 1569 (“Typically, ‘decisions’

of Customs are substantive determinations involving the application

of pertinent law and precedent to a set of facts, such as tariff

classification and applicable rate of duty. Indeed, prior case law

indicates that Customs must engage in some sort of decision-making

process in order for there to be a protestable decision.”). When

there is no Customs “decision” subject to protest, sections 1514(a)

and 1581(a) do not apply, and the Court has jurisdiction under

section 1581(i).4 See id. at 1569-71.

4
28 U.S.C. § 1581(i) reads: “In addition to the
jurisdiction conferred upon the Court of International Trade by
subsections (a)–(h) of this section and subject to the exception
set forth in subsection (j) of this section, the Court of
International Trade shall have 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—

(1) revenue from imports or tonnage;

(2) tariffs, duties, fees, or other taxes on the importation
of merchandise for reasons other than the raising of
revenue;
(continued...)
Court No. 07-00001 Page 8

While 28 U.S.C. § 1581(a) vests the Court with exclusive

jurisdiction in “any civil action commenced to contest [Customs’]

denial of a protest,” at the same time, 28 U.S.C. § 1581(i) vests

the Court with “residual jurisdiction.” See Thomson Consumer

Elecs., 247 F.3d at 1213 (Section 1581(i) is “the court’s residual

jurisdiction provision”). Generally, the residual jurisdictional

provision “may not be invoked when jurisdiction under another

subsection of § 1581 is or could have been available, unless the

remedy provided under that other subsection would be manifestly

inadequate.” Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.

Cir. 1987); see also Nufarm America’s, Inc. v. United States, 29

CIT 1317, 1319, 1325, 398 F. Supp. 2d 1338, 1341 (2005). Because

there is no protest remedy for an unconstitutional statute,

however, section 1581(a) does not provide the jurisdictional

mechanism. Where a plaintiff wishes to challenge the tariff

provision itself, and section 1581(a) does not apply, the plaintiff

can and must invoke section 1581(i) residual jurisdiction to obtain

relief in this Court.

Following this statutory scheme, Totes’s section 1514(a)

4
(...continued)
(3) embargoes or other quantitative restrictions on the
importation of merchandise for reasons other than the
protection of the public health or safety; or

(4) administration and enforcement with respect to the
matters referred to in paragraphs (1)–(3) of this subsection
and subsections (a)–(h) of this section....”
Court No. 07-00001 Page 9

protest of Customs’ assessments in this case would have been an

exercise in futility. Thus, in Thomson Consumer Electronics, the

Federal Circuit held that jurisdiction under 28 U.S.C. § 1581(a)

“was not an appropriate vehicle” for Thomson’s constitutional

challenge of the HMT, and the only appropriate jurisdictional

provision for this constitutional challenge was 28 U.S.C. §

1581(i). Thomson Consumer Elecs., 247 F.3d at 1213. Filing a

protest with Customs, a prerequisite to jurisdiction under section

1581(a), “would have been an utter futility” because “collection of

the HMT is a purely ministerial task over which Customs exercises

no discretion.” Id. at 1213, 1215 (citing United States v. U.S.

Shoe Corp., 523 U.S. 360, 365 (1998) (noting that Customs, as to

its application of the HMT, “‘performs no active role,’ []

undertakes ‘no analysis [or adjudication],’ ‘issues no directives,’

‘imposes no liabilities’; [and,] instead, Customs ‘merely passively

collects’ HMT payments”)). Hence, the Federal Circuit did not

require Thomson to protest, under section 1514(a), the

constitutionality of the HMT. Jurisdiction did not lie under 28

U.S.C. § 1581(a), because that provision only provides jurisdiction

over a denial of a protest, and residual jurisdiction under 28

U.S.C. § 1581(i) applied. Id. at 1215. Here, for Totes to file a

protest with Customs would have been similarly futile.

Moreover, given the futility of a protest in a case such as

this, general principles of administrative law do not tip the scale
Court No. 07-00001 Page 10

in favor of administrative exhaustion. In Thomson Consumer

Electronics, Federal Circuit noted that “[e]xhaustion requirements

ensure that an agency and the interested parties fully develop the

facts to aid judicial review.” Id. at 1214 (citing McKart v United

States, 395 U.S. 185, 194 (1969) (“judicial review may be hindered

by the failure of the litigant to allow the agency to make a

factual record, or to exercise its discretion or apply its

expertise.”)). The court noted other justifications for requiring

exhaustion: practical notions of judicial efficiency,

administrative autonomy, and administrative effectiveness. Id.

However, the court held that it was “unsuitable to apply the

exhaustion doctrine,” as “[t]here are no facts that Customs could

have developed regarding whether or not the HMT was constitutional,

nor did it have discretion in applying the HMT to Thomson’s

imports.” Id. at 1215. Customs was “powerless to perform any

active role in the determination of the constitutionality of the

assessment since it cannot rule on the validity of an Act of

Congress.” Id. Thus, requiring Thomson to exhaust its

administrative remedies by filing a protest “would be an insistence

of a useless formality and inequitable.” Id. (citing U.S. Cane

Sugar Refiners’ Ass’n v. Block, 3 CIT 196, 201, 544 F. Supp. 883,

887 (1982)).

Similar principles prevail here because the constitutional

issue that Totes raises is not amenable to administrative
Court No. 07-00001 Page 11

determination. Totes’s complaint raises only a constitutional

challenge to the HTSUS. Customs, however, has no authority to make

any decision regarding HTSUS constitutionality and can only “simply

passively assess [the HTSUS] and collect” the required tariff. Id.

(citing U.S. Shoe Corp., 523 U.S. at 365); see Forest Labs., Inc.

v. United States, 476 F.3d 877, 883 (Fed. Cir. 2007). As in

Thomson Consumer Electronics, Totes can only challenge Subheading

4203.29.30's constitutionality in an action before this Court.

Hence, it was not necessary for Totes to protest, under 19 U.S.C.

§ 1514(a), the constitutionality of HTSUS Subheading 4203.29.30.

Although the government has not specifically articulated its

reading of the interaction of the court’s jurisdictional statutes

in this case, the government appears to re-espouse its previously-

held position that has already been rejected by the case law of

this circuit. Specifically, the government contends that, because

28 U.S.C. § 1581(a) is the appropriate basis for jurisdiction,

Totes cannot enjoy section 1581(i) residual jurisdiction.

As previously mentioned, however, the law of this circuit is

to the contrary. Furthermore, with regard to administrative

exhaustion, cases for which jurisdiction lies pursuant to section

1581(i) proceed under a statutory provision, 28 U.S.C. § 2637(d),

which is very different from the Tax Code’s jurisdictional

provision applied in Clintwood. Rather, in section 1581(i) cases,

while the Court still “shall” require administrative exhaustion, it
Court No. 07-00001 Page 12

does so only “where appropriate,” as provided by section 2637(d).

It hardly could be deemed “appropriate” to require Totes to protest

an assessment over which Customs has no discretion.

In essence, the government now attempts to use Clintwood to

have the court overturn Federal Circuit and its own precedent. We

do not read Clintwood to require such a result. Accordingly, in

its July 3 opinion, the court correctly exercised jurisdiction

according to 28 U.S.C. § 1581(i). Totes-Isotoner Corp. v. United

States, __ CIT __, 569 F. Supp. 2d 1315, 1319 (2008). Therefore,

as the government does not identify error in the court’s July 3

opinion, its motion must be denied.

Totes’s Motion for Reconsideration

Totes’s motion is also unpersuasive. Totes insists that the

court’s July 3 opinion conflicts with the law of this circuit, as

the opinion improperly imposed a pleading requirement that Totes

“show” gender-based discrimination by demonstrating how the alleged

gender-based classification was interpreted or applied. According

to Totes, the complaint’s pleading of the existence of a gender-

based classification suffices to establish an inference of

unconstitutional discrimination. However, the court will only

excuse the plaintiff’s requirement to demonstrate either

discriminatory intent or that the law at issue actually caused

unconstitutional discrimination after the plaintiff has shown that

the provision is facially discriminatory. See Berkley v. United
Court No. 07-00001 Page 13

States, 287 F.3d 1076 (Fed. Cir. 2002) (“if the Instruction

established a [impermissible] classification on its face, no

further evidence or inquiry would be required as to how it may have

been interpreted or applied”); Lutheran Church-Missouri Synod v.

Fed. Commc’n Comm’n, 154 F.3d 487, 492-93 (D.C. Cir. 1998) (“[o]nce

a government program is shown to call for [a classification

violative of equal protection], the heavy burden to justify it

shifts to the government [and the] challenger does not have to show

that the program actually caused [discrimination] in the actual

case”). Totes has failed to demonstrate an impermissible

classification, and thus cannot expect the court to waive the

requirement of a demonstration of discriminatory intent.

Despite this well-established equal protection jurisprudence,

Totes argues that the Federal Circuit’s Berkley decision requires

a different result. See Berkley, 287 F.3d 1076. Berkley involved

a military pay class action in which individuals, terminated

pursuant to the 1993 Reduction in Force, claimed that the formal

instructions governing the selection of those subject to

termination violated the equal protection guarantee of the Fifth

Amendment. Id. at 1081. The challenged instruction mandated a

specific process exclusively for the evaluation of female and

minority officers:

Your evaluation of minority and women officers must
clearly afford them fair and equitable consideration.
Equal opportunity for all officers is an essential
element of our selection system. In your evaluation of
Court No. 07-00001 Page 14

the records of minority and women officers, you should be
particularly sensitive to the possibility that past
individual and societal attitudes, and in some instances
utilization of policies or practices, may have placed
these officers at a disadvantage from a total career
perspective. The Board shall prepare for review by the
Secretary and the Chief of Staff, a report of minority
and female officer selections as compared to the
selection rates for all officers considered by the Board.

Id.

Significantly, the Berkley court specifically acknowledged

that “[t]o state a claim for an equal protection violation,

appellants must allege that a government actor intentionally

discriminated against them on the basis of race, national origin or

gender.” Id. at 1084 (quoting Hayden v. County of Nassau, 180 F.3d

42, 48 (2d Cir. 1999)). The Berkley court considered the

challenged instruction there to constitute an example of a facially

discriminatory law or policy, from which the court could imply

discriminatory intent. Id. In coming to this conclusion, the court

held that the instruction explicitly required different treatment

on the basis of ethnicity or sex:

The Instruction at issue . . . provided explicit orders
that when the Board members reviewed the records of
minority and women officers, “[they] should be
particularly sensitive to the possibility that past
individual and societal attitudes, and in some instances
utilization of policies or practices, may have placed
these officers at a disadvantage from a total career
perspective.”

Id. at 1084-85 (citation omitted). The court concluded that, due

to its language, the instruction was facially discriminatory

because it “clearly required, on its face, that female and minority
Court No. 07-00001 Page 15

officers were to be evaluated under a different standard than white

male officers.” Id. at 1088. In other words, the classification at

issue in Berkley applied different standards to different officers

based on their sex or ethnicity.

The court also found persuasive “the Instruction’s dictate of

special consideration for minorities and women [which] was

immediately followed by the requirement that the Board prepare a

report for review by its superiors.” Id. at 1085. The records of

the female and minority officers were to be reviewed with

“particular sensitivity” and, while neither formal quotas nor

actual numerical goals were set forth in the instruction, persons

charged with applying this “sensitivity” were advised that their

actions would be reviewed by their superiors. Id at 1088. The

court thus inferred intentional discrimination in the creation of

the classification, and the court did not require the officers to

make a threshold showing of how the facially discriminatory

provisions were interpreted or applied. Id. at 1086-87.

In contrast, the HTSUS is not facially discriminatory; the

HTSUS instead merely distinguishes between two similar products

based upon the tariff provisions’ descriptions of “Men’s” or

“other” gloves. Unlike the classification at issue in Berkley, the

tariff schedule does not, for example, explicitly order Customs to

collect a lower rate of duty when that duty is to be paid by women.

While Subheading 4203.29.30 requires Customs to differentiate
Court No. 07-00001 Page 16

between gloves because they are targeted for use by specific

genders, this is not sufficient to show facial discrimination. The

Berkley court held the instruction in that case to be facially

discriminatory because the instruction clearly required people to

be treated differently on the basis of gender and race. Totes only

alleges that Subheading 4203.29.30 distinguishes between products

labeled for consumption by different genders. A product’s mere

classification based on the anticipated principal use of the good

does not inherently mandate that the articles actually be so used,

making the classification’s effect on purchasers of different

genders questionable at best. Notably, any importer of such good,

whether male or female, pays the same tariff.

Thus, Totes’s allegation is insufficient to show

discrimination “on the basis of” sex, as its complaint provides an

insufficient basis for the court to make an inference of

unconstitutional discrimination. Nothing in the Federal Circuit’s

opinion in Berkley requires a different result. Accordingly, the

court denies Totes’s motion.
Court No. 07-00001 Page 17

Totes’s Motion for Certification for Interlocutory Appeal

In the alternative, Totes asks that the court certify the

facial discrimination issue for interlocutory appeal to the Federal

Circuit pursuant to 28 U.S.C. § 1292(d)(1). However, before the

court certifies an issue for interlocutory appeal: (1) there must

be a controlling question of law on which there is substantial

difference of opinion; and (2) immediate appeal must materially

advance the ultimate termination of the litigation. Volkswagen of

Am., Inc. v. United States, 22 CIT 280, 284, 4 F. Supp. 2d 1259,

1263 (1998). Neither condition is met here.

First, disagreement with the court’s grant of a motion to

dismiss does not establish a “substantial ground for difference of

opinion” as required by 28 U.S.C. § 1292(d)(1). See First Am. Corp

v. Al-Nahyan, 948 F. Supp. 1107, 1116 (D.D.C. 1996) (“Mere

disagreement, even if vehement, with a court’s ruling on a motion

to dismiss does not establish a ‘substantial ground for difference

of opinion’ sufficient to satisfy the statutory requirements for an

interlocutory appeal.”). While the precise contours of the

pleading standard imposed by Bell Atl. Corp. v. Twombly, __ U.S.

___, 127 S. Ct. 1955, 1964-65 (2007), and applied in the court’s

July 3 opinion, may not yet be clear, it is clear that Totes’s

complaint must provide some showing of a purpose or intent to

disfavor individuals because of their sex. Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 270 (1993) (pleading
Court No. 07-00001 Page 18

requirements to show gender discrimination “do[] demand, however,

at least a purpose that focuses upon women by reason of their sex”

(emphasis in original)). Totes’s complaint makes no such showing.

Second, Totes cannot meet the second requirement for an

interlocutory appeal, i.e., that such an appeal would materially

advance the ultimate termination of the litigation. Here, the

court must consider the extent to which an interlocutory appeal

will save “time and expense . . . if the order appealed is found to

be in error.” United States v. Kingshead Corp., 13 CIT 961, 962

(1989). In the case at hand, an interlocutory appeal is

unnecessary because the court’s July 3 opinion can expeditiously

lead to a final judgment. See Retamal v. U.S. Customs & Border

Prot., Slip Op. 06-70, 2006 Ct. Intl. Trade LEXIS 66, at *1 (CIT

May 11, 2006) (“Pursuant to this court's slip opinion. . .final

judgment was entered, dismissing this action” (citations omitted)),

and an interlocutory appeal would neither materially advance the

ultimate termination of the litigation nor save time or expense.

The court’s July 3 opinion permitted Totes to either amend its

complaint or accept judgment of dismissal. If Totes chooses not to

amend its pleadings, the litigation is terminated at that point.

Totes is then free to appeal to the Federal Circuit on the issues

that it asks this Court to certify. On the other hand, if Totes

chooses to amend its complaint, the matter can proceed to

expeditious determination here.
Court No. 07-00001 Page 19

Thus, as Totes has failed to demonstrate either a “substantial

ground for difference of opinion” or that an immediate

interlocutory appeal materially advances the ultimate termination

of the litigation, its motion for certification must be denied.

CONCLUSION

Accordingly, because the court finds no error or irregularity

in its July 3 opinion, both motions for rehearing and

reconsideration are denied. The court’s order of August 29, 2008,

staying this action, is lifted. In accordance with that order,

Totes may have thirty (30) days within which to file an amended

complaint. If no amended complaint is filed by December 4, 2008,

the matter is DISMISSED with prejudice.

/s/ Donald C. Pogue
Donald C. Pogue, Judge

Dated: November 4, 2008
New York, New York