Rack Room Shoes v. United States , 718 F.3d 1370 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
RACK ROOM SHOES,
Plaintiff-Appellant,
AND
SKIZ IMPORTS LLC,
Plaintiff-Appellant,
AND
FOREVER 21, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-1391, -1392, -1439
______________________
Appeals from the United States Court of International
Trade in No. 07-CV-0404, Chief Judge Donald C. Pogue.
______________________
Decided: June 12, 2013
______________________
JOHN M. PETERSON, Neville Peterson, LLP, of New
York, New York, argued for plaintiff-appellant, Rack
2 RACK ROOM SHOES v. US
Room Shoes. With him on the brief were GEORGE W.
THOMPSON, RUSSELL A. SEMMEL and RICHARD F. O’NEILL.
DAMON V. PIKE, The Pike Law Firm, P.C., of Decatur,
Georgia, argued for plaintiff appellant, Forever 21, Inc.
and MICHAEL T. CONE, FisherBroyles, LLP, of New York,
New York, argued for plaintiff appellant, Skiz Imports
LLC.
JEANNE E. DAVIDSON, Director, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, REGINALD
T. BLADES, JR., Assistant Director, BARBARA S. WILLIAMS,
Attorney in Charge, International Trade Field Office, and
AIMEE LEE, Senior Trial Counsel. Of counsel on the brief
were YELENA SLEPAK, Attorney, Office of Assistant Chief
Counsel, International Trade Litigation, United States
Customs and Border Protection, of New York, New York
and LEIGH BACON, Attorney, Office of the General Coun-
sel, United States Trade Representative, of Washington,
DC.
______________________
Before MOORE, CLEVENGER, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
In this case, we once again are faced with the question
of what facts an importer must plead to state a claim that
a tariff rate in the Harmonized Tariff Schedule of the
United States (“HTSUS”) violates equal protection.
Importers Rack Room Shoes (“Rack Room”), Skiz Imports
LLC (“Skiz”), and Forever 21, Inc. (“Forever 21”) (collec-
tively, “Importers”) brought suit in the Court of Interna-
tional Trade (“Trade Court”) alleging that various
classifications in the HTSUS discriminated on the basis of
age or gender in violation of the equal protection compo-
RACK ROOM SHOES v. US 3
nent of the Due Process Clause of the Fifth Amendment.
The Trade Court dismissed these complaints for failure to
state a claim. For the reasons that follow, we dismiss
Skiz’s complaint for lack of standing and we affirm the
Trade Court’s dismissal of Rack Room’s and Forever 21’s
complaints for failure to state a claim.
BACKGROUND
This case has its genesis in Totes-Isotoner Corp. v.
United States, 594 F.3d 1346 (Fed. Cir. 2010), and it is
there that we begin. In Totes, an importer challenged a
tariff classification on men’s gloves. The Totes complaint
alleged that the HTSUS assigned a rate of 14% ad val-
orem to men’s gloves and 12.6% ad valorem for all other
gloves, including women’s and children’s gloves. Com-
plaint ¶¶ 9-11, Totes-Isotoner Corp. v. United States, 569
F. Supp. 2d 1315 (Ct. Int’l Trade 2008) (No. 1:07-CV-
00001), ECF No. 4 (“Totes Complaint”). Count I of the
complaint alleged a claim of gender discrimination under
the equal protection component of the Due Process Clause
of the Fifth Amendment, stating that there was no ex-
ceedingly persuasive justification for assessing a higher
tariff rate for men than for women. Id. ¶¶ 15-16. Count
II alleged a similar claim for age discrimination, stating
that there was no rational basis for charging a higher rate
for men’s gloves than for children’s gloves. Id. ¶¶ 18-19.
The Trade Court dismissed the Totes complaint for
failure to state a claim, and this court affirmed. See
Totes, 594 F.3d at 1349. In so doing, we held that “be-
cause the challenged provisions of the HTSUS are not
facially discriminatory, Totes [was] required to allege
facts sufficient to establish a governmental purpose to
discriminate.” Id. at 1358. We recognized that the Totes
complaint alleged that men had been disparately impact-
ed, but observed that “[i]t is well established that dispar-
ate impact standing alone does not establish a violation of
equal protection.” Id. at 1356. In particular, the com-
4 RACK ROOM SHOES v. US
plaint needed “to allege facts sufficient to establish a
governmental purpose to discriminate between male and
female users.” Id. at 1358.
After certiorari was denied in Totes, the Trade Court
allowed other importers, whose complaints had been
suspended pending the outcome in Totes, to amend their
claims to assert disparate impact and purposeful discrim-
ination. Rack Room, Skiz, and Forever 21 each added
additional allegations to their complaints in an effort to
show discriminatory purpose.
In its complaint, Rack Room alleges that it imports
footwear that is classified into various subheadings of
HTSUS headings 6403 and 6406. Like the classifications
at issue in Totes, the subheadings for these categories
break down into footwear for “men, youth, and boys” and
footwear for “other persons.” For six of these subhead-
ings, men’s footwear is assessed at a rate of 1.5% less
than women’s footwear. For one subheading, women’s
footwear is assessed at a rate of 1.5% less then men’s. In
a final subheading, women’s footwear is assessed at a rate
of 4.3% more than men’s. Based on these tariffs, Rack
Room argues that the HTSUS discriminates on the basis
of gender, charging higher tariffs to women’s entries, and
on age, charging higher tariffs to other persons (which
includes only adult women) than to youths (which in-
cludes girls).
Rack Room’s complaint is more detailed than the
Totes complaint. For example, Rack Room specifically
alleged that “[f]ootwear for men are generally worn by
men; footwear for women are generally worn by women,”
and that the resulting higher duty assessments based on
gender or age burdened importers, sellers, and purchasers
of the goods. In a section entitled “Congressional Intent,”
Rack Room asserts that the HTSUS “allows for the differ-
entiation of goods on the basis of standards that do not
involve protected classes of persons, such as differentia-
RACK ROOM SHOES v. US 5
tion of goods based on differences in composition of mate-
rials, weight of materials, size of the article, or function of
the article.” It claims that “Congress intended to discrim-
inate by directing and implementing classifications based
on gender when it could have used other non-gender
factors to distinguish or to separate merchandise for duty
assessment purposes . . . .” Complaint ¶ 31, Rack Room
Shoes v. United States, 821 F. Supp. 2d 1341 (Ct. Int’l
Trade 2012) (No. 1:07-CV-404), ECF No. 2 (“Rack Room
Complaint”).
Forever 21 is an importer and retailer of men’s and
women’s apparel and footwear. It imported and paid
duties on goods classified in several dozen HTSUS head-
ings. Roughly half of these classifications assess higher
rates on men’s goods; the remaining classifications assess
higher rates on women’s goods. Forever 21 alleged that
“[u]pon information and belief, the additional duties on
merchandise imported for men or women, as the case may
be, are imposed by the government with the intention and
result that the people primarily wearing such merchan-
dise are discriminatorily burdened because of their gen-
der.” Forever 21 made a similar representation “upon
information and belief” regarding classifications that
discriminated based on age. In addition, Forever 21
attached two pages from the explanatory notes to the
Tariff Classification Study (1960) (“TCS”) observing that
the economic justification of age- and gender-based classi-
fications of McKay-sewed leather footwear was question-
able.
Skiz was incorporated for the purpose of mounting an
equal protection challenge against the HTSUS. Skiz
imported and paid duties on gloves, apparel and footwear
falling within several classifications. It did not, however,
sell these goods to customers. In its complaint, Skiz used
the same “information and belief” language employed by
Forever 21 and cited the same two pages of the TCS.
6 RACK ROOM SHOES v. US
The Trade Court consolidated the Skiz and Forever 21
cases into the instant case. Consolidation, Test Case
Designation & Scheduling Order at 1, Rack Room, 821 F.
Supp. 2d 1341 (No. 1:07-404). In the same order, it stayed
124 additional suits resting on the same legal basis, as
well as “all subsequently filed cases that challenge the
constitutionality of Customs’ assessment of different duty
rates on same or similar products based on age or gen-
der.” 1 See id. at 2, 4-7. The Trade Court then granted the
government’s motion to dismiss for failure to state a claim
and denied the subsequent motion for reconsideration.
We have jurisdiction under 28 U.S.C. § 1295(a)(5).
DISCUSSION
Rack Room argues that the Trade Court erred in con-
cluding that Rack Room failed to allege facts sufficient to
state a claim because the HTSUS is facially discriminato-
ry and because Congress’s failure to choose non-
discriminatory alternatives is evidence of discriminatory
intent. Forever 21 and Skiz argue that the Trade Court
erred in concluding that certain historical evidence relied
upon by both parties did not give rise to a plausible infer-
ence of discriminatory intent.
The government responds that the HTSUS is not fa-
cially discriminatory, that Importers have not adequately
pleaded disparate impact, and that Importers have not
shown that the HTSUS does not withstand rational basis
scrutiny. The government also argues that Importers are
without standing to challenge the HTSUS.
1 After oral argument in this case, the government
submitted a letter under Fed. R. App. P. 28(j) in which it
represented that 47 new cases have been filed. Including
the original 124, there are now 171 pending cases await-
ing the outcome of this appeal.
RACK ROOM SHOES v. US 7
“We apply a de novo standard of review to . . . a trial
court’s dismissal for failure to state a claim for which
relief can be granted.” Sioux Honey Ass’n v. Hartford Fire
Ins. Co., 672 F.3d 1041, 1049 (Fed. Cir. 2012), cert. de-
nied, 133 S. Ct. 126 (2012). Standing is a question of law
which we review de novo. Totes, 594 F.3d at 1350.
I
We begin with the government’s argument that Im-
porters lack third party standing. Importers each respond
that this case is identical to Totes, in which this court
found that third party standing was proper because the
importers’ standing was “by its nature, derivative.” Totes,
594 F.3d at 1352 n.2. Skiz additionally contends that it
has third party standing “even though it does not sell its
imported merchandise.”
We explained the requirements for third party stand-
ing in Totes: “A third party . . . can claim jus tertii stand-
ing only when (1) the jus tertii plaintiff and the party
whose rights it is asserting have a close relationship; (2)
the jus tertii plaintiff has suffered an injury in fact; and
(3) there is some hindrance to the first party filing its own
claim.” 594 F.3d at 1352 (citing Powers v. Ohio, 499 U.S.
400, 410-11 (1991)). Applying these factors to almost
identical facts, we noted that “[t]here is a close relation-
ship between importers and purchasers” and that the
requirement to pay higher tariffs injured the importers.
Id. Additionally, we observed that “purchasers have no
remedy to challenge the tariff classification.” Id. Accord-
ingly, we concluded that the importers in Totes had third
party standing.
With respect to Rack Room and Forever 21, the facts
are indistinguishable from those in Totes, and we con-
clude that those parties have third party standing here.
But the facts are different with respect to Skiz. Skiz was
incorporated for the purpose of setting up a test case. It
imported and paid duties on goods, but it has never sold
8 RACK ROOM SHOES v. US
those goods to consumers. We therefore cannot say that
Skiz has a close relationship, or indeed any relationship,
with a third party consumer whose rights it can now
assert. See Kowalski v. Tesmer, 543 U.S. 125, 130-31
(2004) (holding that attorneys lacked third party standing
to assert the rights of future, as yet unascertained clients
with whom “they ha[d] no relationship at all”).
Skiz also contends that it has “first party standing to
bring [its] equal protection claims.” 2 “[A]t an irreducible
minimum, Art. III requires a party who invokes the
court’s authority to show that he personally has suffered
some actual or threatened injury as a result of the puta-
tive illegal conduct of the defendant . . . and that the
injury fairly can be traced to the challenged action and is
likely to be redressed by a favorable decision.” Valley
Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464 (1982). With respect
to the first element, actual injury, “the plaintiff must have
suffered an injury in fact-an invasion of a legally protect-
ed interest which is (a) concrete and particularized . . .
and (b) actual or imminent, not conjectural or hypothet-
ical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (citations omitted) (internal quotation marks
omitted). The burden of establishing these elements falls
upon the party invoking federal jurisdiction. Id. at 561.
Here, with respect to its age and gender discrimina-
tion claims, Skiz has failed to allege that it has suffered a
concrete injury. Skiz contends that the payment of cus-
toms duties itself constitutes an injury in fact. But Skiz
does not have a legally protected interest in not paying
tariffs. Of course, Skiz has a legally protected interest in
2 On appeal, the issue of first party standing was
first raised by Skiz in its reply brief. In order to fully
consider this issue, the panel requested and received
additional briefing from both Skiz and the government.
RACK ROOM SHOES v. US 9
not being treated differently than other, similarly situat-
ed importers on the basis of its age or gender, but that is
not what happened in this case. Finally, to the extent
that Skiz argues that the HTSUS discriminates by as-
sessing different rates on items of property within the
same class of goods, Skiz has waived this argument by
failing to make it in its appeal. SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir.
2006). Ultimately, Skiz’s complaint depends entirely on
the rights of third parties who, by virtue of Skiz’s decision
not to sell the imported goods, simply do not exist.
II
Rack Room and Forever 21 each argue that the Trade
Court erred in dismissing their complaint for failure to
state a claim. To state a claim, a pleading must contain a
“short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule
8 does not require “detailed factual allegations,” but
demands more than a “naked assertion”: “a complaint
must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“In reviewing a motion to dismiss based on the plead-
ings, this court must accept all well-pleaded facts as true
and view them in the light most favorable to the non-
moving party.” United States v. Ford Motor Co., 497 F.3d
1331, 1336 (Fed. Cir. 2007). This rule does not apply,
however, to legal conclusions. Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). Accordingly,
a court considering a motion to dismiss can choose
to begin by identifying pleadings that, because
they are no more than conclusions, are not enti-
tled to the assumption of truth. While legal con-
10 RACK ROOM SHOES v. US
clusions can provide the framework of a com-
plaint, they must be supported by factual allega-
tions. When there are well-pleaded factual
allegations, a court should assume their veracity
and then determine whether they plausibly give
rise to an entitlement to relief.
Id.Where, as here, a law is facially neutral, a party
pleading discrimination under equal protection must
show that the law has a disparate impact on natural
persons resulting from a discriminatory purpose. Vill. of
Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.
252, 264-65 (1977). Disparate impact, standing alone,
does not establish a violation of equal protection. Totes,
594 F.3d at 1356. “Proof of . . . discriminatory intent or
purpose is required to show a violation of the Equal
Protection Clause.” Arlington Heights, 429 U.S. at 265.
Discriminatory intent implies more than mere awareness
of consequences—it implies that Congress enacted the
contested classifications of the HTSUS “because of, not
merely in spite of, [their] adverse effects upon an identifi-
able group.” Personnel Adm’r of Mass. v. Feeney, 442 U.S.
256, 279 (1979) (internal quotation marks omitted).
A
With this background in mind, we turn to whether
Rack Room has pleaded sufficient facts to raise a plausi-
ble claim that the government, in enacting the HTSUS,
has purposely discriminated. Rack Room argues that
“[t]he Supreme Court’s Commerce Clause jurisprudence
aptly shows that a legislature’s disregard for legitimate,
available alternatives that avoid disparately impacting a
protected class is circumstantial evidence that . . . can
satisfy the requirement that a plaintiff plead invidious
discriminatory intent.” Essentially, Rack Room asks us to
infer from the availability of nondiscriminatory alterna-
tives the discriminatory intent necessary plead an equal
RACK ROOM SHOES v. US 11
protection violation. We decline to do so because the
Commerce Clause embodies a different standard than the
standard for evaluating the equal protection challenge in
this case.
Under the Dormant Commerce Clause, a law will be
found discriminatory either if it facially discriminates
against out-of-staters or if it is facially neutral and is
deemed to have a discriminatory purpose or impact. See
Hughes v. Oklahoma, 441 U.S. 322, 336 (1979). When
discrimination is demonstrated, the burden falls on the
government to show that the statute “‘advances a legiti-
mate local purpose that cannot be adequately served by
reasonable nondiscriminatory alternatives.’” Dep’t of
Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008) (quoting
Oregon Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S.
93, 101 (1994)); see also Hunt v. Wash. State Apple Adver-
tising Comm’n, 432 U.S. 333, 353 (1977).
The standard is different in equal protection cases.
“[E]ven if a neutral law has a disproportionately adverse
effect upon a [protected class], it is unconstitutional under
the Equal Protection Clause only if that impact can be
traced to a discriminatory purpose.” Feeney, 442 U.S. at
272.
The additional pleadings in Rack Room’s complaint do
not state a plausible claim that the unequal tariffs Rack
Room complains of are the result of a discriminatory
purpose. Rather, they present a legal argument that
Rack Room need not show a discriminatory purpose
because nondiscriminatory alternatives are available.
This argument confuses the government’s defense under
the Dormant Commerce Clause with a claimant’s burden
under equal protection. Permitting an inference of dis-
criminatory intent merely on the basis of the govern-
ment’s decision to forgo an alternative that does not
mention age or gender would eviscerate the requirement
that claimants must plead intent to state an equal protec-
12 RACK ROOM SHOES v. US
tion claim. We therefore decline Rack Room’s request
that we apply the Commerce Clause standard to its equal
protection claims.
B
Rack Room’s second argument is that the Trade Court
either failed to address or incorrectly addressed its argu-
ment that the HTSUS classifications it challenged were
facially discriminatory. In essence, Rack Room’s argu-
ment is that since Totes dealt with a different section of
the HTSUS, the court could not rely on it or its reasoning
in determining that similar HTSUS classifications do not
discriminate on their face.
Although the Totes majority states that “the chal-
lenged provisions of the HTSUS are not facially discrimi-
natory,” 594 F.3d at 1358, its reasoning for this statement
is not perfectly clear. The court appears to have taken the
view that the HTSUS did not discriminate against users
based on their gender, but instead discriminated between
products based on the intended gender of their users. See
id. at 1355. In her concurrence, Judge Prost addressed
the issue directly, stating that the HTSUS “distinguishes
on the basis of products, not natural people.” Id. at 1359(Prost, J., concurring).
With respect to whether the HTSUS provisions are fa-
cially discriminatory, we see no conflict between the
majority opinion and the concurrence in Totes. As Judge
Prost correctly observed, “[t]he happenstance that the
English language does not have separate names for these
particular products, thus requiring reference to the gen-
der of the intended wearer, does not transform the dis-
tinction into facial discrimination.” Id. at 1360. Instead,
as the majority noted, the HTSUS is “designed to promote
particular trade policy objectives negotiated with other
countries.” Id. at 1356. Its rates are “the result of multi-
lateral international trade negotiations and reflect recip-
rocal trade concessions and particularized trade
RACK ROOM SHOES v. US 13
preferences.” Id. at 1357. Classifications based on the
intended gender of a product’s users “likely . . . reflect the
fact that such [items] are in fact different products, manu-
factured by different entities in different countries with
differing impacts on domestic industry [, and] may be the
result of trade concessions made by the United States in
return for unrelated trade advantages.” Id. Because
neither the majority nor the concurrence found the
HTSUS to be facially discriminatory, both concluded that
equal protection claims against HTSUS classifications
were required to satisfy the disparate impact test, includ-
ing pleading facts to plausibly show that Congress acted
with the intention of discriminating.
As to Rack Room’s argument that the Trade Court
failed to make a determination that the contested head-
ings were not facially discriminatory, we do not agree.
The Trade Court specifically addressed this argument
when it denied Rack Room’s motion for reconsideration.
It examined the language of 157 challenged headings and
concluded that none were significantly different from the
heading that was held to be facially neutral in Totes. We
have reviewed these headings and can find no error in the
Trade Court’s decision.
C
We turn next to Forever 21. Forever 21 points to
three allegations it claims meet its pleading obligations
under Totes. First, it argues that it amended its com-
plaint to allege that the classified merchandise is of the
same class. Although this is, as Totes discussed, neces-
sary in order to establish an equal protection claim, it
alone is not sufficient. In particular, the fact that mer-
chandise is in the same class says nothing about whether
a plausible inference exists that the classifications were
adopted with discriminatory intent.
Second, Forever 21 attached to its complaint an ex-
cerpt from the TCS discussing McKay-sewn leather
14 RACK ROOM SHOES v. US
footwear. It is unclear how the TCS bears on the current
HTSUS, if at all. Even assuming that it is proper legisla-
tive history of the headings at issue in Forever 21’s com-
plaint, the study reveals only that its author considered
age and gender classifications to be questionable in
McKay-sewn leather footwear. It says nothing to suggest
that such classifications were made with discriminatory
intent. It also says nothing about categories other than
McKay-sewed leather footwear. Nor is it clear that, as in
Nissho Iwai Am. Corp. v. United States, 143 F.3d 1470,
1473 (Fed. Cir. 1998), this part of the TCS interpreted a
term used in the Tariff Schedules of the United States
(“TSUS”) 3 that carried over into the HTSUS. See JVC Co.
of Am., Div. of US JVC Corp. v. United States, 234 F.3d
1348, 1355 (Fed. Cir. 2000) (discussing the significant
number and nature of changes between the TSUS and the
HTSUS). Forever 21 has pleaded no additional facts
which would render those inferences plausible.
Forever 21’s third and final argument is that its in-
troduction of a portion of an 1892 treatise 4 supports an
inference that the tariffs here were adopted with discrim-
inatory intent. According to Forever 21, the treatise
discusses how slave states influenced tariffs on cheap
wool goods in 1824, obtaining lower tariffs to reduce their
expenses on clothing for slaves. We fail to see how the
discussion of slavery-related tariffs on wool clothing in
this treatise, if it were of record, makes plausible the
inference that in enacting the HTSUS some 150 years
3 The TSUS was the predecessor to the HTSUS.
See Nissho Iwai, 143 F.3d at 1473. The HTSUS became
effective and replaced the TSUS on January 1, 1989.
Marubeni Am. Corp. v. United States, 35 F.3d 530, 532
(Fed. Cir. 1994).
4 This treatise appears in neither the complaint nor
the joint appendix.
RACK ROOM SHOES v. US 15
later, Congress was motivated to discriminate on the
basis of age or gender.
CONCLUSION
Neither Rack Room nor Forever 21 has pleaded facts
sufficient to make plausible their claim that Congress
enacted the relevant provisions of the HTSUS with dis-
criminatory intent, and we therefore affirm the dismissal
of their claims. Skiz’s appeal is dismissed for lack of
standing.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
Each party shall bear its own costs.