Decision means importers may challenge tariffs on age, sex
A July 3 decision by the Court of International Trade establishes that importers can legally challenge the constitutionality of gender- and age-based import tariffs, said a memo by Arthur K. Purcell and Gilbert Lee Sandler of the customs and international trade law firm Sandler, Travis & Rosenberg P.A.
The two write that while the court “dismissed the lead case on this issue on technical grounds, it offered important guidance on how importers may proceed in seeking refunds of excess duties paid on a wide range of textile, apparel, footwear and other articles.”
The decision, Totes-Isotoner Corp. v. United States, can be found at www.cit.uscourts.gov/slip_op/Slip_op08/08-73%20corrected.pdf.
Totes-Isotoner, a U.S. importer of men’s gloves, challenged the constitutionality of the tariff rate imposed on its imports, claiming that by setting out different tariff rates for certain gloves, the tariff schedule violated its right to equal protection under the law because it discriminated on the basis of gender and/or age.
The government asked the court to dismiss Totes’ complaint, claiming that the court did not have jurisdiction because the complaint presents a “nonjusticiable political question,” and because Totes did not have a sufficient stake in the matter so as to possess standing to bring this equal protection claim.
But the court rejected that argument and found Totes had standing to bring its claims.
However it said the Totes-Isotoner complaint did not plead sufficient facts to state a claim of unconstitutional discrimination, and dismissed the matter.
But the ruling allows the claim to be revived if Totes can show “Congress intentionally created tariff provisions that impose different duty rates based on age or gender,” and gave it 60 days to amend the complaint. The decision could also be appealed.
Purcell and Sandler characterized the decision as a “victory for importers.” They say more than 50 lawsuits are now pending before the New York-based court that claim imported products cannot lawfully be subject to different rates of duty based on whether they are for men or women or adults or children.
They said the decision would allow importers to move their cases forward, but noted “they will likely need to amend their complaints to conform with the requirements articulated” in the decision.
