Milecrest Corp. v. United States , 264 F. Supp. 3d 1353 ( 2017 )

Slip Op. 17-125
UNITED STATES COURT OF INTERNATIONAL TRADE
MILECREST CORPORATION,
Plaintiff,
v.
UNITED STATES and U.S. CUSTOMS &
Before: Jennifer Choe-Groves, Judge
BORDER PROTECTION,
Court No. 17-00125
Defendants,
and
DURACELL U.S. OPERATIONS, INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Denying Defendant-Intervenor’s motion to dismiss for lack of jurisdiction and for failure to
state a claim upon which relief may be granted.]
Dated: September 15, 2017
John M. Peterson, Russell A. Semmel, and Richard F. O’Neill, Neville Peterson LLP, of New
York, N.Y., for Plaintiff Milecrest Corporation.
Alexander J. Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, N.Y., for Defendants the United States and U.S. Customs
and Border Protection. With him on the brief were Chad A. Readler, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, and Tara K.
Hogan, Assistant Director. Of counsel on the brief was Beth C. Brotman, Office of the Assistant
Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, New York,
N.Y.
Frances P. Hadfield, Crowell & Moring LLP, of New York, N.Y., and Robert N. Phillips and
John Patrick Donohue, Reed Smith LLP, of San Francisco, CA and Philadelphia, PA, for
Defendant-Intervenor Duracell U.S. Operations, Inc.
Court No. 17-00125 Page 2
Choe-Groves, Judge: Milecrest Corporation (“Plaintiff”) is a company engaged in the
business of importing and distributing bulk-packaged gray market batteries bearing the
“DURACELL” mark, a United States trademark currently owned by Duracell U.S. Operations,
Inc. (“Duracell”). See First Amended Compl., July 25, 2017, ECF No. 78. Plaintiff brings this
action pursuant to 28 U.S.C. § 1581(h) (2012)1 seeking judicial review of the decision made by
U.S. Customs and Border Protection (“Customs”) to grant Lever-Rule protection to Duracell,
thereby restricting imports of certain gray market batteries bearing its trademark.2 See First
Amended Compl. ¶ 1; see also U.S. Customs and Border Protection Grant of “Lever-Rule”
Protection, 51 Cust. Bull. & Dec. No. 12 at 1 (Mar. 22, 2017).
Before the court is Duracell’s motion to dismiss Plaintiff’s amended complaint, which
was filed to amend jurisdictional allegations in the original complaint. See Def.-Intervenor
Duracell U.S. Operations, Inc.’s Mot. Dismiss, Aug. 8, 2017, ECF No. 92 (“Duracell Mot.
Dismiss”). Pursuant to USCIT Rule 12(b)(1), Duracell argues that 28 U.S.C. § 1581(h) does not
provide the court with jurisdiction in this action. See Duracell Mot. Dismiss 7–16, 28–31.
1
All further citations to Titles 5, 19, and 28 of the U.S. Code are to the 2012 edition.
2
Under the Lever-Rule, United States trademark owners have the ability to submit an application
to Customs requesting restrictions on imports of gray market goods bearing a genuine trademark
that are physically and materially different from the goods authorized by the United States
trademark owner for importation or sale in the United States. See 19 C.F.R. §§ 133.2(e)
(providing trademark owners with the ability to apply for Lever-Rule protection), 133.23(a)(3)
(describing the goods subject to Lever-Rule protections). The applicant claiming that gray
market goods possess physical and material differences “must state the basis for such a claim
with particularity, and must support such assertions by competent evidence and provide
summaries of physical and material differences for publication.” 19 C.F.R. § 133.2(e). If
Customs grants a trademark owner’s application for Lever-Rule protection, the restricted gray
market goods shall be denied entry into the United States, detained for a minimum period of
thirty days, and potentially subject to seizure and forfeiture proceedings. See 19 C.F.R.
§ 133.23(c)–(f).
Court No. 17-00125 Page 3
Duracell also argues that Plaintiff’s alternative basis for jurisdiction under 28 U.S.C. § 1581(i)(4)
is not proper. See id. at 13–14. Pursuant to USCIT Rule 12(b)(6), Duracell argues that each
count in Plaintiff’s amended complaint fails to state a claim upon which relief may be granted.
See id. at 16–28. The United States and Customs (collectively, “Government”) join Duracell’s
request to dismiss Plaintiff’s amended complaint. See Defs.’ Resp. Def.-Intervenor’s Mot.
Dismiss 1–5, Aug. 9, 2017, ECF No. 94 (“Gov’t’s Resp.”). Plaintiff filed a response in
opposition to Duracell’s motion arguing that the court has jurisdiction and that the claims for
relief in this action were pleaded adequately in the amended complaint. See Pl.’s Resp. Opp’n
Def.-Intervenor’s Mot. Dismiss 4–28, Aug. 9, 2017, ECF No. 96 (“Pl.’s Resp.”). Briefing on the
motion to dismiss concluded with the filing of Duracell’s reply. See Def.-Intervenor Duracell
U.S. Operations, Inc.’s Reply Pl.’s Resp. Opp’n Mot. Dismiss, Aug. 11, 2017, ECF No. 101
(“Duracell Reply”).
For the reasons explained below, the court denies Duracell’s motion to dismiss for lack of
jurisdiction and for failure to state a claim upon which relief can be granted.
BACKGROUND
The court presumes familiarity with the facts of this case as set forth in its previous
opinion and order issued on July 17, 2017. See XYZ Corporation v. United States, 41 CIT __,
Slip Op. 17-88, at *4–9 (July 17, 2017) (“Opinion and Order Denying Gov’t’s Mot. Dismiss”).3
3
Plaintiff filed this action under the fictitious name “XYZ Corporation” because Plaintiff feared
that it would be subject to commercial retaliation if its identity were revealed. See Compl. ¶ 1
n.1, May 19, 2017, ECF No. 2. Duracell notified counsel for Plaintiff on July 28, 2017 that it
objected to Plaintiff’s assumption of a fictitious name in this action and challenged Plaintiff’s
designation of its identity as confidential information under the amended judicial protective
(footnote continued)
Court No. 17-00125 Page 4
The court now recounts and supplements the facts that are relevant to decide Duracell’s motion
to dismiss.
A. Administrative Proceedings
Duracell is the United States trademark owner of the ‘DURACELL’ mark, which has
been registered with the U.S. Patent and Trademark Office, U.S. Trademark Reg. No. 3,144,722,
and recorded with Customs, CBP Recordation No. TMK 16-01135. Duracell filed an application
with Customs on October 13, 2016 requesting Lever-Rule protection against gray market OEM
bulk packaged batteries and foreign retail packaged batteries bearing Duracell’s trademark. See
Duracell Request for Lever-Rule Protection, Doc. 1, CBP000006–CBP000008 (Oct. 13, 2016)
(“Duracell Lever-Rule Request”).4 Duracell stated in its application that the OEM bulk
packaged batteries and foreign retail packaged batteries differ physically and materially from the
order. See Duracell Mot. Dismiss 1 n.1. Plaintiff refused to withdraw the designation of its
identity as confidential information and the court was required to intervene to resolve the
disagreement. On September 12, 2017, the court ordered that Plaintiff’s identity shall not be
treated as confidential information and that Plaintiff may not proceed anonymously in this action.
See XYZ Corporation v. United States, 41 CIT __, Slip Op. 17-124 (September 12, 2017).
Pursuant to the court’s order, Plaintiff refiled a revised public summons and amended complaint
without redactions of Plaintiff’s identity on September 13, 2017. See Revised Summons, Sept.
13, 2017, ECF No. 118; Revised First Amended Compl., Sept. 13, 2017, ECF No. 119. Any
reference to “XYZ Corporation” in this opinion refers to Plaintiff.
4
On August 18, 2017, the Government submitted the confidential and public administrative
record of all documents that were considered by Customs in its decision to grant Duracell’s
application for Lever-Rule protection. See Confidential Administrative Record, Aug. 18, 2017,
ECF No. 106; Public Administrative Record, Aug. 18, 2017, ECF No. 107. The Government
also submitted an index that provide document numbers and page numbers to identify the
documents from the confidential and public administrative record. For ease of reference, the
court will use the document numbers and page numbers assigned by Customs for all further
citations to the documents from the administrative record.
Court No. 17-00125 Page 5
battery products authorized by Duracell for sale or importation in the United States. See id.Duracell’s Lever-Rule application was not made publicly available.
On January 25, 2017, Customs issued a notice in the U.S. Customs Bulletin and
Decisions publication that it had received an application from Duracell seeking Lever-Rule
protection “against importations of OEM bulk packaged batteries and foreign retail packaged
batteries, intended for sale in countries outside the United States that bear the ‘DURACELL’
mark, U.S. Trademark Registration No. 3,144,722/CBP Recordation No. TMK 16-01135.” U.S.
Customs and Border Protection Receipt of Application for “Lever-Rule” Protection, 51 Cust.
Bull. & Dec. No. 4 at 1 (Jan. 25, 2017). Customs’ notice did not seek input from the public. See
id.By letter dated March 1, 2017, Customs informed Duracell that its application for Lever-
Rule protection had been granted. See E-mail From Customs to Duracell re Signed Decision
Granting Lever-Rule Protection, Doc. 9, CBP000033–CBP000035 (Mar. 1, 2017). Customs
issued a second notice in the U.S. Customs Bulletin and Decisions publication on March 22,
2017, notifying the public that it had granted Duracell’s application for Lever-Rule protection.
See U.S. Customs and Border Protection Grant of “Lever-Rule” Protection, 51 Cust. Bull. &
Dec. No. 12 at 1 (Mar. 22, 2017). The notice explained that “gray market Duracell battery
products differ physically and materially from the Duracell battery products authorized for sale
in the United States with respect to the following product characteristics: label warnings,
consumer assistance information, product guarantees, and warranty coverage.” Id. Customs
declared that the importation of such batteries was restricted and subject to seizure and forfeiture,
unless certain labeling requirements had been satisfied. See id. The Lever-Rule restrictions
Court No. 17-00125 Page 6
became effective when Customs published the Customs Bulletin notice indicating that Duracell’s
application had been granted. See 19 C.F.R. § 133.2(f) (providing that Lever-Rule restrictions
take effect once Customs has made and issued a determination on the application for Lever-Rule
protection).
Counsel for Plaintiff sent a letter to Customs on April 10, 2017 requesting that it
reconsider its grant of Lever-Rule protection to Duracell.5 See First Amended Compl. Ex. C,
July 25, 2017, ECF No. 78-1. The letter asserted that Customs’ decision to grant Duracell
Lever-Rule protection is the type of rule that is subject to the notice and comment rulemaking
procedures required by the Administrative Procedure Act (“APA”). See id. The letter also
claimed that Duracell was not entitled to Lever-Rule protection against bulk OEM batteries
because these gray market products are not physically and materially different from batteries that
are sold by Duracell. See id. Counsel for Plaintiff requested that Customs withdraw its
determination and solicit public comments regarding whether any Lever-Rule protection should
be granted with respect to these gray market battery products. See id. Plaintiff alleges that
Customs has declined to reconsider its decision to grant Lever-Rule protection to Duracell, see
First Amended Compl. ¶ 30, but Customs has not issued a written decision in response to
Plaintiff’s letter requesting for reconsideration.
5
The letter sent to Customs was dated May 17, 2017, see First Amended Compl. Ex. C, July 25,
2017, ECF No. 78-1, but the Government has clarified to the court that the letter was dated
incorrectly and that the letter was sent to Customs on April 10, 2017. See Gov’t’s Resp. 5.
Court No. 17-00125 Page 7
B. Proceedings Before the Court
Plaintiff commenced this action on May 19, 2017 to obtain judicial review of Customs’
decision to grant Duracell Lever-Rule protection. See Summons, May 19, 2017, ECF No. 1.
The complaint alleged that Customs’ decision to grant Duracell Lever-Rule protection was:
(1) null and void because Customs failed to observe notice and comment rulemaking
requirements of the APA; (2) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law because Customs restricted the importation of gray market merchandise
that is not materially and physically different from the batteries authorized by Duracell for
importation or sale in the United States; and (3) arbitrary and capricious because the grant of
Lever-Rule protection was impermissibly vague in describing the gray market goods subject to
import restrictions. See Compl. ¶¶ 31–54, May 19, 2017, ECF No. 2. Plaintiff’s complaint
invoked the court’s residual jurisdiction under 28 U.S.C. § 1581(i)(4), alleging that this action
relates to the administration and enforcement of the exclusion of merchandise. See Compl. ¶ 4.
The Government filed a motion to dismiss pursuant to USCIT Rule 12(b)(1) for lack of
jurisdiction on June 7, 2017. See Defs.’ Mem. Supp. Mot. Dismiss and Resp. Opp’n Pl.’s Appl.
Prelim. Inj., June 7, 2017, ECF No. 33. The Government contended that this action does not fall
within any of the specific grants of jurisdiction under 28 U.S.C. § 1581, Plaintiff does not have
standing to bring this action, and the issues are not ripe for judicial review. See id. at 17–21.
Plaintiff maintained that the court has jurisdiction pursuant to 28 U.S.C. § 1581(i) and refuted the
Government’s standing and ripeness arguments. See Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss 4–
13, June 12, 2017, ECF No. 36.
Court No. 17-00125 Page 8
In a letter dated June 27, 2017, the court requested the Parties to submit supplemental
briefs addressing whether 28 U.S.C. § 1581(h) provides the court with jurisdiction. See Request
from the Court, June 27, 2017, ECF No. 53. Plaintiff filed its supplemental brief on June 30,
2017, explaining that § 1581(h) would serve as a basis for jurisdiction if the court determines
that Customs’ decision to grant Duracell’s application for Lever-Rule protection is a ruling
reviewable under § 1581(h). See Pl.’s Suppl. Mem. Opp’n Defs.’ Mot. Dismiss 10, June 30,
2017, ECF No. 55. The Government responded to Plaintiff’s submission on July 6, 2017,
arguing that this action does not satisfy the requirements for jurisdiction under § 1581(h) and that
Plaintiff does not have standing to bring an action pursuant to § 1581(h). See Def.’s Suppl.
Resp. Br. Addressing 28 U.S.C. § 1581(h), July 6, 2017, ECF No. 58.
Duracell moved to intervene in this action. See Ex Parte Appl. Leave Intervene, July 11,
2017, ECF No. 61. The court granted Duracell permissive intervention and Duracell was entered
as a defendant-intervenor in this action.6 See Order, July 13, 2017, ECF No. 63. Duracell stated
previously that it did not wish to participate in the briefing on the Government’s motion to
dismiss for lack of jurisdiction because Duracell believed “that the jurisdictional issues [were]
appropriately briefed by the Parties.” See Ex Parte Appl. Leave Intervene.
After reviewing the Parties’ briefs and supplemental briefs concerning the court’s
jurisdiction in this matter, the court held that it possesses jurisdiction under 28 U.S.C. § 1581(h).
6
The Rules of the Court provide that a party may intervene as of right or with permission from
the court. See USCIT Rule 24(a)–(b). The court granted Duracell permissive intervention
because Duracell, as the applicant for the Lever-Rule grant at issue, “has a claim or defense that
shares with the main action a common question of law or fact.” USCIT Rule 24(b). Duracell did
not claim in its motion that it had any right to intervene in this action.
Court No. 17-00125 Page 9
See Opinion and Order Denying Gov’t’s Mot. Dismiss at *9–20. The court determined that
Plaintiff’s action satisfies the jurisdictional preconditions for § 1581(h) because: (1) Plaintiff
seeks judicial review prior to the importation of goods, (2) Customs’ decision to grant Duracell’s
application for Lever-Rule protection constitutes the type of ruling within the scope of review
under § 1581(h), (3) the Lever-Rule grant relates to a restriction on imports of certain gray
market battery products, and (4) Plaintiff would be irreparably harmed if it is unable to obtain
judicial review prior to the importation of the merchandise. See id. at *13–20. Because the court
found that it has jurisdiction under 28 U.S.C. § 1581(h), the court stated that it could not exercise
jurisdiction under § 1581(i)(4) as alleged in Plaintiffs complaint. See id. at *20. The court also
found that the issues raised in this action are ripe for review and that Plaintiff satisfies Article III
standing requirements as well as the standing requirements to bring an action under 28 U.S.C.
§ 1581(h). See id. at *20–24. The court denied, therefore, the Government’s motion to dismiss
for lack of jurisdiction. See id. at *25. The court instructed Plaintiff to amend the jurisdictional
allegations in its complaint to satisfy the pleading requirements under USCIT Rule 8(a)(1) and
directed the Parties to submit a joint proposed scheduling order for the remainder of this action.
See id. at *11 n.13, 25. Plaintiff filed its amended complaint on July 25, 2017. See First
Amended Compl.
The Parties were unable to come to an agreement regarding the schedule for the
remainder of this action and submitted separate proposed schedules. See Proposed Scheduling
Order, Aug. 1, 2017, ECF No. 81; Proposed Scheduling Order, Aug. 1, 2017, ECF No. 82.
Plaintiff and the Government proposed that the case proceed to the merits, whereas Duracell
proposed a schedule that allotted time for Duracell to file a motion to dismiss Plaintiff’s
Court No. 17-00125 Page 10
amended complaint pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction and USCIT Rule
12(b)(6) for failure to state a claim. The court held a teleconference with the Parties on
August 3, 2017 to discuss the schedule for the remainder of the action. See Teleconference,
Aug. 3, 2017, ECF No. 89. On the same date, the court entered a scheduling order providing
Duracell with an opportunity to file a motion to dismiss and ordering expedited briefing on the
motion. See Scheduling Order, Aug. 3, 2017, ECF No. 90. However, the court reminded
Duracell during the teleconference that the court has already determined that it has jurisdiction
under § 1581(h) and cautioned Duracell that the court will only consider new information and
arguments regarding jurisdiction. See Teleconference at 00:35:32–00:36:32.
On August 8, 2017, Duracell moved to dismiss Plaintiff’s amended complaint for lack of
jurisdiction and for failure to state a claim.7 See Duracell Mot. Dismiss. Duracell argues that 28
U.S.C. § 1581(h) does not provide the court with jurisdiction in this action because the Lever-
Rule grant is not the type of ruling that is reviewable under § 1581(h), Plaintiff has failed to
plead irreparable harm sufficiently, Plaintiff lacks prudential standing to bring this action, and
Plaintiff has failed to exhaust its administrative remedies prior to obtaining judicial review. See
id. at 7–16, 28–31. Duracell also contends that Plaintiff’s alternative basis for jurisdiction under
28 U.S.C. § 1581(i)(4) does not provide the court with jurisdiction in this action. See id. at 13–
14. Duracell asserts further that each of the counts in Plaintiff’s amended complaint fails to state
a claim upon which relief may be granted. See id. at 16–31. The Government filed its response
7
The court had ordered Duracell to file its motion to dismiss on or before August 7, 2017.
See Scheduling Order, Aug. 3, 2017, ECF No. 90. However, all filings due on August 7, 2017
became due on August 8, 2017 due to a technical failure in the Court’s case management and
electronic case filing system.
Court No. 17-00125 Page 11
to Duracell’s motion on August 9, 2017, joining Duracell’s request to dismiss Plaintiff’s
amended complaint and explaining the Government’s position on the issues raised in Duracell’s
motion. See Gov’t’s Resp. Plaintiff also filed its response to Duracell’s motion on August, 9,
2017, arguing that the court has jurisdiction and that the claims for relief were pleaded
adequately in the amended complaint. See Pl.’s Resp. Duracell filed its reply on August 11,
2017. See Duracell Reply.
DISCUSSION
When the court is presented with motions to dismiss under both USCIT Rule 12(b)(1)
and Rule 12(b)(6), the court generally decides the 12(b)(1) motion first because “[w]hether the
complaint states a cause of action on which relief could be granted is a question of law and just
as issues of fact it must be decided after and not before the court has assumed jurisdiction over
the controversy.” Bell v. Hood, 327 U.S. 678, 682 (1945).
A. Motion to Dismiss for Lack of Jurisdiction Pursuant to USCIT Rule 12(b)(1)
Duracell moves to dismiss this action for lack of jurisdiction pursuant to USCIT Rule
12(b)(1). See Duracell Mot. Dismiss 7–16. A court must have subject matter jurisdiction in
order for an action to proceed. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95
(1998). The U.S. Court of International Trade, like all federal courts, is one of limited
jurisdiction and is “presumed to be ‘without jurisdiction’ unless ‘the contrary appears
affirmatively from the record.’” DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318
(Fed. Cir. 2006) (quoting King Iron Bridge & Mfg. Co. v. Otoe Cty., 120 U.S. 225, 226 (1887)).
The party invoking jurisdiction must “allege sufficient facts to establish the court’s jurisdiction,”
id. (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936) and
Court No. 17-00125 Page 12
KVOS, Inc. v. Assoc. Press, 299 U.S. 269, 277–78 (1936)), and therefore “bears the burden of
establishing it.” Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006)
(citing Kokkenen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). The court must draw all
reasonable inferences in favor of the non-movant when deciding a motion to dismiss for lack of
jurisdiction. See Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
Plaintiff filed this action seeking declaratory and injunctive relief with respect to
Customs’ decision to grant Duracell’s application for Lever-Rule protection. Plaintiff’s amended
complaint includes APA claims challenging the validity of the Lever-Rule restrictions. See First
Amended Compl. ¶¶ 32–59. Plaintiff claims that Customs’ decision to grant Duracell’s
application for Lever-Rule protection was (1) unlawful and must be set aside because Customs
failed to follow notice and comment rulemaking requirements of the APA, see First Amended
Compl. ¶¶ 32–47; see also 5 U.S.C. §§ 553, 706(2)(D); (2) arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with the law because Duracell has authorized the sale
and importation of the gray market battery products covered by the Lever-Rule grant, see First
Amended Compl. ¶¶ 48–52; see also 5 U.S.C. § 706(2)(A); and (3) arbitrary and capricious
because Customs’ description of the gray market battery products subject to import restrictions
was impermissibly vague. See First Amended Compl. ¶¶ 53–59; see also 5 U.S.C. § 706(2)(A).
“[T]he APA is not to be interpreted as an implied grant of subject-matter jurisdiction to review
agency actions.” Califano v. Sanders, 430 U.S. 99, 105 (1977); see also Am. Air Parcel
Forwarding Co. v. United States, 718 F.2d 1546, 1552 (Fed. Cir. 1983) (providing that the APA
is not a jurisdictional statute and “does not give an independent basis for finding jurisdiction in
the Court of International Trade”). Rather, the court must have its own independent statutory
Court No. 17-00125 Page 13
basis for jurisdiction in order for Plaintiff’s action to proceed. See Shinyei Corp. of Am. v.
United States, 355 F.3d 1297, 1304 (Fed. Cir. 2004).
The Court is empowered to hear civil actions brought against the United States pursuant
to the specific grants of jurisdiction enumerated under 28 U.S.C. § 1581(a)–(i). Plaintiff’s
amended complaint alleges that the court has jurisdiction pursuant to 28 U.S.C. § 1581(h) and
§ 1581(i)(4). See First Amended Compl. ¶ 4. The court notes that § 1581(i) provides for the
Court’s residual jurisdiction and may not be invoked “‘when jurisdiction under another
subsection of § 1581 is or could have been available.’” Ford Motor Co. v. United States, 688
F.3d 1319, 1323 (Fed. Cir. 2012) (quoting Miller & Co. v. United States, 824 F.2d 961, 963
(Fed. Cir. 1987)). Thus, the court need only determine whether residual jurisdiction exists in this
action if jurisdiction does not exist under § 1581(h).
Under § 1581(h), an importer may seek review of a ruling prior to the importation of
goods. The statute reads as follows:
The Court of International Trade shall have exclusive jurisdiction over any civil
action commenced to review, prior to the importation of the goods involved, a
ruling issued by the Secretary of the Treasury . . . relating to . . . restricted
merchandise, . . . or similar matters, but only if the party commencing the civil
action demonstrates to the court that he would be irreparably harmed unless given
an opportunity to obtain judicial review prior to such importation.
28 U.S.C. § 1581(h). This provision has been interpreted to set out four requirements to
establish jurisdiction: (1) judicial review must be sought prior to importation; (2) judicial review
must be sought of a ruling, a refusal to issue a ruling, or a refusal to change such a ruling; (3) the
ruling must relate to certain subject matter; and (4) the importer must demonstrate that
irreparable harm will result unless judicial review prior to importation is obtained. See Best Key
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Textiles Co. v. United States, 777 F.3d 1356, 1360 (Fed. Cir. 2015) (citing Am. Air Parcel
Forwarding Co., 718 F.2d at 1551–52).
The court determined in its previous opinion that the aforementioned four requirements
have been met, to wit: (1) Plaintiff’s action seeks relief with respect to prospective imports; (2)
the Lever-Rule grant is a determination as to the manner in which Customs will treat a completed
transaction; (3) the ruling relates to the subject matter of the statute as it poses a restriction on
imports of gray market battery products bearing the Duracell trademark; and (4) the evidence on
the record indicated that, without judicial review at this juncture, Plaintiff would be irreparably
harmed through the loss of revenue, loss of business opportunities, harm to goodwill and
reputation with long-standing customers, and the inability to continue business operations.
See Opinion and Order Denying Gov’t’s Mot. Dismiss at *13–20. Thus, the court held that
28 U.S.C. § 1581(h) confers the court with jurisdiction over this action.
Plaintiff’s amended complaint has not raised any issues that would invalidate the court’s
previous opinion regarding jurisdiction. Duracell has moved, nonetheless, to dismiss Plaintiff’s
amended complaint for lack of jurisdiction. See Duracell Mot. Dismiss 7–16, 28–31. Duracell
does not argue that there has been an intervening change in the facts since the court issued its
opinion on July 17, 2017 that divests the court of § 1581(h) jurisdiction. Rather, Duracell
interposes a flurry of new legal arguments challenging the court’s jurisdiction under § 1581(h)
that the Government did not raise in its USCIT Rule 12(b)(1) motion to dismiss. See id. First,
Duracell argues that Lever-Rule decisions made pursuant to Part 133 of Customs’ regulations are
distinguishable from the rulings described under Part 177 of Customs’ regulations and are not,
therefore, the type of “rulings” susceptible to judicial review under § 1581(h). See id. at 7–11.
Court No. 17-00125 Page 15
Second, Duracell asserts that Plaintiff has failed to plead irreparable harm adequately in the
amended complaint and that the alleged irreparable harm was not caused by Customs’ decision
to grant Duracell’s application for Lever-Rule protection. See id. at 11–13. Third, Duracell
contends that Plaintiff does not have prudential standing and is not within the zone of interests
protected by the Lever-Rule. See id. at 14–16. Fourth, Duracell invokes the exhaustion doctrine
and claims that Plaintiff has failed to exhaust its administrative remedies before bringing this
action. See id. at 28–31. The court continues to find that it possesses jurisdiction under
§ 1581(h) for the reasons stated in the court’s previous opinion and, as explained below,
Duracell’s arguments fail to convince the court otherwise.8
1. Ruling
Duracell contends that the Lever-Rule decision that is the subject of this action is not a
ruling that is subject to judicial review under 28 U.S.C. § 1581(h). See Duracell Mot. Dismiss
7–11. The court addressed this issue in its previous opinion in determining that jurisdiction
under § 1581(h) is proper and provided the following explanation:
A ruling within the meaning of 28 U.S.C. § 1581(h) is defined as “a determination
by the Secretary of the Treasury as to the manner in which it will treat [a]
completed transaction.” H.R. Rep. 96-1235, at 52 (1980), reprinted in 1980
U.S.C.C.A.N. 3729, 3758. “Internal advice” or a “general interpretive ruling”
will not meet the requirements under the statute. See id. The decision that is the
subject of this case is Customs’ grant of Lever-Rule protection to Duracell U.S.
on March 22, 2017, which restricted the importation of gray market Duracell
8
As indicated above, Plaintiff also invokes the court’s residual jurisdiction under § 1581(i)(4) as
an alternative basis for jurisdiction in its amended complaint. See First Amended Compl. ¶ 6.
Duracell argues that jurisdiction under § 1581(i)(4) is not proper in this case. See Duracell Mot.
Dismiss 13–14. The court declines to opine on this issue because the court has jurisdiction under
§ 1581(h). See Ford Motor Co., 688 F.3d at 1323 (providing that the court’s residual jurisdiction
may not be invoked “when jurisdiction under another subsection of § 1581 is or could have been
available”) (quoting Miller & Co., 824 F.2d at 963).
Court No. 17-00125 Page 16
battery products. The decision is not an internal advice ruling, which are rulings
“available only for goods already imported and are not prospective.” See Am. Air
Parcel Forwarding Co. v. United States, 5 CIT 8, 11–12, 557 F. Supp. 605, 608,
aff’d, 718 F.2d 1546 (Fed. Cir. 1983), cert. denied, 466 U.S. 937 (1984). Nor is
the decision a general interpretive ruling because it “speak[s] to specific
contemplated import transactions which contain identifiable merchandise and
which will feel the impact of the ruling with virtual certainty.” Pagoda Trading
Co. v. United States, 6 CIT 296, 298, 577 F. Supp. 22, 24 (1983). In the decision
at issue, Customs notified the public that it “granted ‘Lever-Rule’ protection for
battery products bearing the ‘DURACELL’ mark, U.S. Trademark Registration
No. 3,144,722/CBP Recordation No. TMK 16-01135.” See U.S. Customs and
Border Protection Grant of “Lever-Rule” Protection, 51 Cust. Bull. & Dec. No. 12
at 1 (Mar. 22, 2017). The decision identifies the merchandise with specificity and
unequivocally directs Customs to restrict the importation of such merchandise,
unless certain labeling requirements have been satisfied. See id.Opinion and Order Denying Gov’t’s Mot. Dismiss at *14. This court concluded previously that
Customs’ decision to grant Duracell’s application for Lever-Rule protection is a ruling
reviewable under § 1581(h). This court explained that its conclusion was supported in part by
Customs’ regulatory definition of a ruling found in Part 177 of its regulations:
Customs has defined a ruling as “a written statement issued by the Headquarters
Office or the appropriate office of Customs as provided in this part that interprets
and applies the provisions of the Customs and related laws to a specific set of
facts.” 19 C.F.R. § 177.1(d)(1). The definition provides that a ruling can either
be “issued in response to a written request therefor . . . set forth in a letter
addressed to the person making the request,” or “published in the Customs
Bulletin.” 19 C.F.R. § 177.1(d)(1). The decision at issue in this case was (1) a
written statement, (2) issued by the Headquarters Office, (3) published in the
Customs Bulletin, and (4) interpreted 19 C.F.R. § 133.23(a)(3) as authorizing
import restrictions on gray market OEM bulk packaged batteries bearing the
“DURACELL” trademark. The court finds that Customs’ decision falls squarely
within the regulatory definition of a ruling and constitutes the type of ruling
within the scope of review under 28 U.S.C. § 1581(h).
Id. at *14–15.
Duracell takes issue with the court’s reliance on Customs’ regulatory definition of a
ruling in concluding that the Lever-Rule grant is a ruling reviewable under § 1581(h).
Court No. 17-00125 Page 17
See Duracell Mot. Dismiss 7–11. Duracell argues that the Lever-Rule grant is a decision under
Part 133, which is distinguishable and excluded from the rulings described in Part 177. See id.
The court finds Duracell’s argument to be without merit. The court did not conclude that the
Lever-Rule grant is a ruling within the scope of review under § 1581(h) based on the regulatory
definition of a ruling in Part 177 of Customs’ regulations. Rather, this court’s conclusion was
based on the legislative history of the jurisdictional statute, which offered insight into the types
of rulings that are reviewable under § 1581(h). The court found merely that Customs’ regulatory
definition of a ruling under Part 177 offered additional support for the court’s conclusion.
Further, even assuming, arguendo, that there is a direct correlation between rulings
reviewable under § 1581(h) and rulings described in Part 177 of Customs’ regulations,
Duracell’s argument is predicated on an erroneous reading of the regulations. The scope
provision under Part 177 reads as follows:
This part relates to the issuance of rulings to importers and other interested
parties by the CBP, other than advance rulings under Article 509 of the North
American Free Trade Agreement (see subpart I of part 181 of this chapter). It
describes the situations in which a ruling may be requested, the procedures to be
followed in requesting a ruling, the conditions under which a ruling will be
issued, the effect of a ruling when it is issued, and the publication of rulings in the
Customs Bulletin. The rulings issued under the provisions of this part will usually
be prospective in application and, consequently, will usually not relate to specific
matters or situations presently or previously under consideration by any CBP field
office. Accordingly, the rulings requested under the provisions of this part
should be distinguished from the administrative rulings, determinations, or
decisions which may be requested under procedures set forth elsewhere in
this chapter, including, but not limited to, those set forth in Part 12 (relating to
submissions of proof of admissibility of articles detained under section 307 of the
Tariff Act of 1930 (19 U.S.C. 1307)), Part 103 (relating to disclosure of
information in Customs files), Part 133 (relating to disputed claims of piratical
copying of copyrighted matter), Subpart C of Part 152 (relating to
determinations concerning the dutiable value of merchandise by Customs field
officers, Part 153 (relating to enforcement of the Antidumping Act, 1921, as
Court No. 17-00125 Page 18
amended), Part 159 (insofar as it relates to countervailing duties), Part 171
(relating to fines, penalties, and forfeitures), Part 172 (relating to liquidated
damages), Part 174 (relating to protests), and Part 175 (relating to petitions filed
by American manufacturers, producers, or wholesalers pursuant to section 516 of
the Tariff Act of 1930, as amended). Nor do the provisions of Part 177 apply to
requests for decisions of an operational, administrative, or investigative nature
which are properly within the cognizance of a CBP Headquarters Office other
than Regulations and Rulings, Office of International Trade.
19 C.F.R. § 177.0 (emphasis added). Duracell contends that, according to the language of the
scope provision under Part 177, Lever-Rule decisions under Part 133 are distinguishable and
specifically excluded from the rulings described in Part 177. See Duracell Mot. Dismiss 8–9.
Part 133 of Customs’ regulations contains provisions relating to trademarks, trade names, and
copyrights. The scope provision provides that the rulings under Part 177 should be
distinguishable from those rulings, determinations, or decisions in Part 133 “relating to disputed
claims of piratical copying of copyrighted matter.” Notably absent is any reference to the
regulatory provisions under Part 133 relating to trademarks and trade names. The logical
inference is that Customs did not intend to exclude rulings, determinations, or decisions relating
to trademarks, including Lever-Rule decisions, from the scope of the rulings described in Part
177.
Despite Duracell’s arguments to the contrary, the court continues to find that Customs’
decision to grant Duracell’s application for Lever-Rule protection is a ruling within the scope of
review under § 1581(h).
2. Irreparable Harm
Duracell argues that Plaintiff has failed to plead irreparable harm adequately in the
amended complaint and that the alleged irreparable harm was not caused by Customs’ decision
Court No. 17-00125 Page 19
to grant Duracell’s application for Lever-Rule protection. See Duracell Mot. Dismiss 11–13.
Duracell has presented arguments regarding irreparable harm that challenge both the sufficiency
of the pleadings (a “facial” challenge) and the factual basis for the court’s jurisdiction (a
“factual” challenge).9 The court addresses each of Duracell’s challenges in turn.
i. Duracell’s Facial Challenge
Duracell asserts that the unsupported allegations and legal conclusions regarding
irreparable harm in Plaintiff’s amended complaint do not satisfy a plaintiff’s obligation to plead
the court’s jurisdiction affirmatively. See id. at 11–12. The Rules of the Court provide that a
pleading must contain “a short and plain statement of the grounds for the court’s jurisdiction
. . . .”10 USCIT R. 8(a)(1). The pleading must “allege sufficient facts to establish the court’s
9
When deciding a motion to dismiss pursuant to USCIT Rule 12(b)(1), the court’s analysis
depends on whether the motion “challenges the sufficiency of the pleadings or controverts the
factual allegations made in the pleadings.” H&H Wholesale Servs., Inc. v. United States, 30 CIT
689, 691, 437 F. Supp. 2d 1335, 1339 (2006). If the motion challenges jurisdiction based on the
sufficiency of the pleadings, the pleadings are accepted as true and construed in a light most
favorable to the non-moving party. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583
(Fed. Cir. 1993), cert. denied, 512 U.S. 1235 (1994). If the motion denies or controverts
jurisdictional allegations, “the allegations in the complaint are not controlling” and “only
uncontroverted factual allegations are accepted as true.” Id. at 1583. The former is a “facial”
attack on the pleading and the latter is a “factual” attack on the existence of jurisdiction. See id.The distinction is significant because the court may consider evidence outside the pleadings only
on a motion that challenges the factual basis for the court’s jurisdiction. See id. at 1584 (“In
establishing the predicate jurisdictional facts, a court is not restricted to the face of the pleadings,
but may review evidence extrinsic to the pleadings, including affidavits and deposition
testimony.”).
10
In arguing that Plaintiff has failed to plead the court’s jurisdiction, Duracell relies on the
pleading requirement under USCIT Rule 8(a)(2) and cites to two Supreme Court cases
interpreting that pleading requirement. Duracell Mot. Dismiss 11–12 (citing Ashcroft v. Iqbal,
556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The court
notes, however, that USCIT Rule 8(a)(2) concerns the pleading requirements for claims. The
court addresses Duracell’s argument based on the pleading requirement for jurisdiction, which is
found in USCIT Rule 8(a)(1).
Court No. 17-00125 Page 20
jurisdiction.” See DaimlerChrysler Corp., 442 F.3d at 1318 (citing McNutt, 298 U.S. at 189 and
KVOS, Inc., 299 U.S. at 277–78). To state the basis for the court’s jurisdiction, Plaintiff alleges
the following:
This action is commenced to review a CBP ruling, relating to restricted
merchandise which, absent judicial review prior to importation of such
merchandise, would irreparably harm Plaintiff. The Court therefore has subject-
matter jurisdiction pursuant to 28 U.S.C. § 1581(h).
First Amended Compl. ¶ 4. All four predicates for § 1581(h) jurisdiction are alleged in this
paragraph of the amended complaint. To provide factual support for its allegation of irreparable
harm, Plaintiff alleges that: (1) it is a company that has been engaged in the business of
importing and distributing gray market batteries bearing the “DURACELL” mark for more than
twenty-seven years, see First Amended Compl. ¶¶ 5, 7, 9; (2) Customs received an application
from Duracell requesting Lever-Rule protection with respect to imports of OEM bulk packaged
batteries and foreign retail packaged batteries that bear the “DURACELL” mark, see id. ¶ 22;
(3) Customs granted Lever-Rule protection for gray market battery products bearing the
“DURACELL” mark in March 2017, see id. ¶ 24; and (4) Customs instructed its offices and
inspectors to enforce the Lever-Rule protection against imports of the gray market batteries
bearing the “DURACELL” mark. See id. ¶ 31; see also Rote v. Zel Custom Mfg. LLC, 816 F.3d
383, 397 (6th Cir. 2016) (providing that a complaint should be read “holistically” and not limited
to the portion dedicated to alleging jurisdiction), cert. denied, 137 S. Ct. 199 (2016). Accepting
the factual allegations in the amended complaint as true and construing the allegations in a light
most favorable to the non-movant, it is reasonable to infer that, absent pre-importation judicial
review, Customs’ decision to grant Duracell’s application for Lever-Rule protection will
Court No. 17-00125 Page 21
irreparably harm Plaintiff’s business by restricting its imports of gray market battery products.
The court finds that Plaintiff has satisfied the liberal pleading requirements of USCIT Rule
8(a)(1). See USCIT R. 8(f) (providing that “[p]leadings must be construed so as to do justice”).
ii. Duracell’s Factual Challenge
Duracell asserts that the alleged irreparable harm claimed by Plaintiff was not caused by
Customs’ decision to grant Duracell’s application for Lever-Rule protection, which calls into
question Plaintiff’s claim that it would be irreparably harmed by Customs’ Lever-Rule grant
absent pre-importation judicial review. See Duracell Mot. Dismiss 12–13. The court addressed
this issue in its previous opinion in determining that jurisdiction under § 1581(h) is proper. After
considering the evidence pertaining to the issue of irreparable harm, including information
gathered from briefs submitted by Plaintiff and the Government as well as two hearings, this
court concluded that Plaintiff will suffer irreparable harm if it is unable to obtain pre-importation
judicial review and provided the following explanation for its conclusion:
Through an affidavit from the president of XYZ Corporation, witness
testimony that was subject to cross-examination during the hearing held on June
14, 2017, and an exhibit indicating that Plaintiff’s shipments of batteries have
been held by Customs, Plaintiff has established that it would suffer irreparable
harm without pre-importation judicial review of Customs’ grant of Lever-Rule
protection. Plaintiff has shown that as a result of the Lever-Rule ruling at issue,
Plaintiff has lost approximately six customers (approximately 40% of its total
customers), has lost revenue, has had several contracts cancelled, has suffered
injury to his business reputation, has suffered injury to his goodwill with long-
standing customers, and has lost the confidence of his customers. Plaintiff’s
customers canceled their orders and were reluctant to make any future purchases
from Plaintiff because of concerns “that the batteries will be seized by [Customs],
or that they will be exposed to suit and harassed by the [trademark owner].”
Witness testimony indicated that, without judicial review at this juncture, Plaintiff
would lose additional business opportunities, suffer harm to his goodwill and
reputation, and be unable to continue business operations.
…
Court No. 17-00125 Page 22
The harms alleged by Plaintiff include significant non-monetary injuries to
goodwill, reputation, and customer confidence that occurred prior to importation
in anticipation of Customs’ application of the Lever-Rule for Duracell batteries.
Plaintiff’s entries may also be subject to seizure and forfeiture, absent the ability
to comply with any labeling requirements imposed by Customs. If Plaintiff is
unable to obtain judicial review before importation of the goods, Plaintiff will
experience harm that cannot be remedied by monetary relief. Therefore, Plaintiff
will suffer irreparable harm if it is unable to obtain judicial review prior to the
importation of the merchandise.
Opinion and Order Denying Gov’t’s Mot. Dismiss at *16–19 (internal citations and footnotes
omitted); see also Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012)
(explaining that harm such as “[p]rice erosion, loss of goodwill, damage to reputation, and loss
of business opportunities are all valid grounds for finding irreparable harm.”). Duracell argues
that any alleged irreparable harm to Plaintiff was not caused by Customs’ Lever-Rule grant, but
rather by Duracell’s efforts to protect its trademark rights against some of Plaintiff’s customers
through litigation. See Duracell Mot. Dismiss 12–13. The court finds that Duracell’s argument
as to the source of the irreparable harm is purely speculative and fails to rebut the evidence
presented by Plaintiff in this action showing that Customs’ Lever-Rule grant will cause Plaintiff
irreparable harm if it is unable to obtain pre-importation judicial review. Further, Duracell’s
argument fails to account for Plaintiff’s loss of business from its other customers. Thus, the
court continues to find that Plaintiff has satisfied the irreparable harm requirement for § 1581(h)
jurisdiction.
Court No. 17-00125 Page 23
3. Prudential Standing
Duracell argues that Plaintiff does not have prudential standing11 in this action because it
is not within the zone of interests protected by the Lever-Rule regulations. See Duracell Mot.
Dismiss 14–16.
The prudential limitations on the court’s jurisdiction are “judicially self-imposed limits
on the exercise of federal jurisdiction.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting
Allen v. Wright, 468 U.S. 737, 751 (1984)). Plaintiff’s cause of action arises out of the APA and
challenges the validity of Customs’ decision to grant Duracell’s application for Lever-Rule
protection, thereby restricting imports of gray market battery products bearing the
“DURACELL” mark. See First Amended Compl. ¶¶ 32–59. The APA gives standing to any
person “adversely affected or aggrieved by agency action within the meaning of a relevant
statute.” 5 U.S.C. § 702. For a plaintiff to have prudential standing to bring a cause of action
under the APA, the court must determine “‘whether the interest sought to be protected by the
complainant is arguably within the zone of interests to be protected or regulated by the statute
11
Standing poses both constitutional and prudential limitations on this court’s jurisdiction. See
Bennett v. Spears, 520 U.S. 154, 162 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498
(1975)). The constitutional limitations on the court’s jurisdiction are derived from the case or
controversy requirement of Article III. See Liner v. Jafco, Inc., 375 U.S. 301, 306 (1964); 3V,
Inc. v. United States, 23 CIT 1047, 1049, 83 F. Supp. 2d 1351, 1352–53 (1999). “Article III
standing requires plaintiffs to demonstrate: (1) that they have suffered some injury-in-fact; (2) a
causal connection between the defendant’s conduct and this injury-in-fact; and (3) that this injury
is redressable by the court.” Canadian Lumber Trade Alliance v. United States, 30 CIT __, __,
425 F. Supp. 2d 1321, 1335 (2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). The court previously addressed the constitutional limitations on the court’s jurisdiction
and determined that this action presents a case or controversy because Plaintiff satisfies the
standing requirements of Article III of the U.S. Constitution. See Opinion and Order Denying
Gov’t’s Mot. Dismiss at *20–21. Duracell’s standing argument focuses on prudential limitations
on the court’s jurisdiction. See Duracell Mot. Dismiss 14–16.
Court No. 17-00125 Page 24
. . . in question.’” Gilda Inds., Inc. v. United States, 446 F.3d 1271, 1279–80 (Fed. Cir. 2006);
see also Bennett, 520 U.S. at 162 (citing Allen, 468 U.S. at 751 and Valley Forge Christian
College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474–75
(1982)). This requirement is “‘not meant to be especially demanding.’”12 Match-E-Be-Nash-
She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quoting Clarke v.
Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)).
The statute in question here is 19 U.S.C. § 1526, which is the statutory authority for 19
C.F.R. § 133.23 and the Lever-Rule protections against imports of restricted gray market goods.
See Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 937–38 (Fed. Cir. 1991) (discussing the
meaning of “relevant statute” under § 702 of the APA for purposes of prudential standing).
These laws protect United States trademark owners from the importation of gray market goods
that are materially and physically different from those goods that are authorized by the trademark
owner to be sold and imported in the United States. Conversely, any protection afforded to
trademark owners under these laws regulate importers of gray market merchandise. As an
importer of gray market batteries bearing Duracell’s trademark, Plaintiff arguably falls within the
zone of interests regulated by 19 U.S.C. § 1526. The court cannot say that Plaintiff’s “‘interests
are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.’” Match-E-Be-Nash-She-Wish
12
The court notes that the Supreme Court has called into question the strict application of the
prudential standing doctrine, stating that a court “cannot limit a cause of action that Congress has
created merely because ‘prudence’ dictates.” Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1387–88 (2014).
Court No. 17-00125 Page 25
Band of Pottawatomi Indians, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399). Therefore,
Plaintiff has prudential standing to bring this action.
4. Exhaustion
Duracell argues that the court is without jurisdiction because Plaintiff has failed to
exhaust administrative remedies before filing this action.13 See Duracell Mot. Dismiss 28–31.
Although the court ordinarily requires the exhaustion of administrative remedies,14 litigants are
statutorily permitted to bring an action pursuant to 28 U.S.C. § 1581(h) in this court “prior to the
exhaustion of administrative remedies if the person commencing the action makes the
demonstration required by such section.” 28 U.S.C. § 2637(c). Congress has afforded litigants
the ability to obtain judicial review prior to the importation of merchandise in exceptional
13
Duracell asserts that, prior to bringing this action, Plaintiff was required to exhaust the remedy
available under 19 U.S.C. § 1625(b). See Duracell Mot. Dismiss 28–31. That statute provides
that “[a] person may appeal an adverse interpretive ruling and any interpretation of any
regulation prescribed to implement such ruling to a higher level of authority within Customs for
de novo review,” and “any such appeal shall be considered and decided no later than 60 days
following the date on which the appeal is filed.” 19 U.S.C. § 1625(b). Duracell claims that
Plaintiff’s April 10, 2017 letter requesting reconsideration of the Lever-Rule grant was an appeal
of an adverse interpretive ruling, but Plaintiff commenced this action before the expiration of the
60-day time period given to the agency to make a decision on such an appeal. The court notes
that the Government does not believe that the remedy provided under 19 U.S.C. § 1625(b)
applies in this case. See Gov’t’s Resp. 4–5.
14
The court “shall, where appropriate, require the exhaustion of administrative remedies.” 28
U.S.C. § 2637(d). The exhaustion requirement is based on the principle “that no one is entitled
to judicial relief for a supposed or threatened injury until the prescribed administrative remedy
has been exhausted.” Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir.
2003). The overall purpose of the exhaustion doctrine is to “allow the agency to apply its
expertise, rectify administrative mistakes, and compile a record adequate for judicial review–
advancing the twin purposes of protecting administrative agency authority and promoting
judicial efficiency.” Carpenter Tech. Corp. v. United States, 30 CIT 1373, 1374–75, 452 F.
Supp. 2d 1344, 1346 (2006) (citing Woodford v. Ngo, 548 U.S. 81, 88–90 (2006)). Put simply,
the exhaustion doctrine requires a litigant to avail itself of all available remedies at the
administrative level as a precondition to judicial review.
Court No. 17-00125 Page 26
circumstances “if the party commencing the action can demonstrate that he would be irreparably
harmed if forced to exhaust his administrative remedies in following the traditional route prior to
judicially challenging the Secretary’s ruling or lack thereof.” H.R. Rep. 96-1235, at 52 (1980),
reprinted in 1980 U.S.C.C.A.N. at 3769. As discussed in this opinion and in the court’s previous
opinion, Plaintiff has satisfied the four preconditions for jurisdiction under § 1581(h), including
irreparable harm. Requiring the exhaustion of administrative remedies prior to bringing such an
action “would frustrate the purpose of [§ 1581(h)], which was enacted to provide importers with
a means for obtaining pre-importation relief without having to” endure post-importation
consequences. Heartland By-Prods., Inc. v. United States, 424 F.3d 1244, 1252 (Fed. Cir. 2005).
The court declines, therefore, to require Plaintiff to exhaust its administrative remedies, if any,
before bringing this action. To impose such a requirement would render § 1581(h) meaningless
and would be inconsistent with the intent of Congress.
B. Motion to Dismiss for Failure to State a Claim Pursuant to USCIT Rule 12(b)(6)
Duracell moves to dismiss Plaintiff’s amended complaint for failure to state a claim upon
which relief may be granted pursuant to USCIT Rule 12(b)(6). See Duracell Mot. Dismiss 16–
28. Pleadings before the court are governed by Rule 8(a) of the Rules of the Court, which
provides that “[a] pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief . . . .” USCIT Rule 8(a)(2).
When deciding a motion to dismiss for failure to state a claim, the court accepts the well-pleaded
factual allegations in the complaint as true and draws all reasonable inferences from those factual
allegations in favor of the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Amoco Oil
Co. v. United States, 234 F.3d 1374, 1376 (Fed. Cir. 2000). The pleading requirement under
Court No. 17-00125 Page 27
USCIT Rule 8(a)(2) is satisfied if the complaint “state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Dismissal under USCIT Rule 12(b)(6) is
appropriate “only when it is ‘beyond doubt that the plaintiff can prove no set of facts in support
of his claim [that] would entitle him to relief.’” Ponder v. United States, 117 F.3d 549, 552 (Fed.
Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957) and citing Trauma Serv. Grp.
v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997)).
Plaintiff’s cause of action rests solely on APA challenges to Customs’ decision to grant
Duracell’s application for Lever-Rule protection. See First Amended Compl. ¶¶ 32–59. Thus, to
survive a motion to dismiss pursuant to USCIT Rule 12(b)(6), Plaintiff’s amended complaint
must contain a short and plain statement (1) identifying the final agency action, (2) showing that
there is no other adequate remedy in a court, and (3) showing that it is plausible that Plaintiff is
entitled to the relief sought for each of its claims.15 See Twombly, 550 U.S. at 570; Perry Capital
LLC v. Mnuchin, __ F.3d __, __–__, Appeal Nos. 14-5243–54, 14-5260, 14-5262, at *48–50
(D.C. Cir. July 17, 2017); Cohen v. United States, 650 F.3d 717, 731 (D.C. Cir. 2011); Ctr. for
Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805–06 (D.C. Cir. 2006);
Shinyei Corp. of Am., 355 F.3d at 1305–12.
15
Under the APA, “final agency action for which there is no other adequate remedy in a court
[is] subject to judicial review.” 5 U.S.C. § 704.
Court No. 17-00125 Page 28
The agency action16 challenged here is Customs’ decision to grant Duracell’s application
for Lever-Rule protection against imports of certain gray market battery products bearing the
Duracell trademark. See First Amended Compl. ¶ 8. Agency action is final if the act “mark[s]
the ‘consummation’ of the agency’s decisionmaking process” and “the action must be one by
which rights or obligations have been determined, or from which legal consequences will flow.”
United States Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016)
(quoting Bennett, 520 U.S. at 177–78). This court previously addressed this issue and concluded
that the Lever-Rule grant was final agency action:
Customs issued a notice on January 25, 2017 that it received an application from
Duracell U.S. for Lever-Rule protection for gray market batteries bearing the
“DURACELL” trademark. Customs published a second notice on March 22,
2017 announcing that it granted Duracell U.S.’s application for Lever-Rule
protection. Customs’ decision was final because it “mark[ed] the ‘consummation’
of the agency’s decision making process” and notified the public of the type of
conduct “from which ‘legal consequences will flow.’” See Bennett v. Spear, 520
U.S. 154, 177–78 (1997). Customs’ second notice declared definitively that the
importation of the subject gray market batteries is restricted and that its decision
was not subject to change or any conditions. Further, Customs’ regulations
provide that Lever-Rule restrictions take effect upon granting an application for
protection. See 19 C.F.R. § 133.2(f).
Opinion and Order Denying Gov’t’s Mot. Dismiss at *22–23. Congress has not provided
Plaintiff with another adequate remedy in a court to obtain judicial review of Customs’ Lever-
Rule grant. Thus, Plaintiff’s amended complaint has identified final agency action for which
16
Agency action is defined in the APA as including “the whole or part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure to act . . . .” 5 U.S.C.
§ 551(13).
Court No. 17-00125 Page 29
there is no other adequate remedy in a court.17
The final hurdle for Plaintiff’s action to survive Duracell’s motion requires the court to
determine whether Plaintiff is plausibly entitled to the relief sought for each of the counts in the
amended complaint. The first count in Plaintiff’s amended complaint claims that Customs’
decision to grant Duracell’s application for Lever-Rule protection was unlawful and must be set
aside because Customs failed to follow notice and comment rulemaking requirements of the
APA. See First Amended Compl. ¶¶ 32–47. Plaintiff alleges that Customs’ decision to grant
Lever-Rule protection against imports of gray market battery products bearing the Duracell
trademark constituted the type of rulemaking that required Customs to follow notice and
comment procedures.18 See First Amended Compl. ¶¶ 32–47. Plaintiff requests the court to
declare unlawful and set aside the Lever-Rule grant for failure to follow notice and comment
procedures. It is not apparent that Customs followed notice and comment procedures before
issuing the Lever-Rule grant. If the court determines that the Lever-Rule grant was subject to
17
Duracell argues that Customs’ Lever-Rule grant was not final agency action because Customs
has not issued a written response to Plaintiff’s letter requesting for reconsideration. See Duracell
Mot. Dismiss 28–31. As explained above, supra Discussion Section A.4., Plaintiff was not
required to exhaust its administrative remedies, if any, before bringing this action pursuant to 28
U.S.C. § 1581(h).
18
Generally, agencies are free to develop policy through either rulemaking or adjudication. See
SEC v. Chenery, 332 U.S. 194, 202 (1947); see also Vt. Yankee Nuclear Power Corp. v. Nat.
Res. Def. Council, Inc., 435 U.S. 519, 524–25 (1978) (providing that a court will not impose
more procedures than those imposed by Congress or the agency). According to the APA, an
agency is required to notify the public of proposed rulemaking and provide the public with an
opportunity to comment as part of the process for formulating a rule. See 5 U.S.C. § 553. A rule
is defined as “the whole or part of an agency statement of general or particular applicability and
future effect designed to implement, interpret or prescribe law or policy.” 5 U.S.C. § 551(4).
The APA’s notice and comment requirement applies to legislative rules, but not to “interpretive
rules, general statements of policy, or rules of agency organization, procedure, or practice.”
5 U.S.C. § 553(b)(A).
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notice and comment rulemaking requirements, then Plaintiff would be entitled to the relief
sought. See 5 U.S.C. § 553 (requiring agencies to notify the public and provide an opportunity
for comment prior to issuing a rule); 5 U.S.C. § 706(2)(D) (providing that a reviewing court shall
hold unlawful and set aside agency action performed “without observance of procedure required
by law”). Thus, it is plausible that Plaintiff is entitled to the relief sought for the first count in the
amended complaint.19
The second count in the amended complaint alleges that Customs’ decision to grant
Duracell’s application for Lever-Rule protection was arbitrary, capricious, an abuse of discretion,
and otherwise not in accordance with the law because Duracell has authorized the sale and
importation of the battery products covered by the Lever-Rule grant. See First Amended Compl.
¶¶ 48–52. The Lever-Rule regulations authorize the imposition of import restrictions only on
imports of gray market goods bearing a genuine trademark that are physically and materially
different from the goods authorized by the United States trademark owner for importation or sale
in the United States. See 19 C.F.R. § 133.23(a)(3) (describing the goods subject to Lever-Rule
protections). Plaintiff claims that the Lever-Rule grant imposes restrictions on goods that are not
physically and materially different from the goods authorized by Duracell for importation or sale
in the United States. Customs is not authorized to restrict imports of gray market goods if they
do not possess such physical and material differences. Assuming that Duracell has authorized
19
Duracell argues that Plaintiff has failed to state a claim because the Lever-Rule grant was not
subject to notice and comment requirements, but this argument would require addressing the
merits of the case. See Duracell Mot. Dismiss 16–19. Duracell’s arguments regarding the merits
of the case have no bearing on whether Plaintiff has adequately stated its claims in this action as
required by USCIT Rule 8(a). Therefore, the court declines to address Duracell’s argument on
the merits at this stage of the proceeding.
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the importation and sale of the merchandise covered by the Lever-Rule grant, Plaintiff has stated
a plausible claim for relief. See 5 U.S.C. § 706(2)(A) (providing that a reviewing court shall
hold unlawful and set aside agency action found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law”); see also Iqbal, 556 U.S. at 678; Amoco Oil
Co., 234 F.3d at 1376.
The third count in the amended complaint alleges that Customs’ decision to grant
Duracell’s application for Lever-Rule protection was arbitrary and capricious because Customs’
description of the gray market battery products subject to import restrictions was impermissibly
vague. See First Amended Compl. ¶¶ 53–59. A law that purports to define the lawfulness or
unlawfulness of conduct “‘is void for vagueness if its prohibitions are not clearly defined.’”
Nyeholt v. Sec’y of Veterans Affairs, 298 F.3d 1350, 1356 (Fed. Cir. 2002) (quoting Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972)). The void-for-vagueness doctrine explains that a
law that regulates conduct is arbitrary if it does not provide the public with “a reasonable
opportunity to know what is prohibited” and “provide explicit standards for those who apply
them.” Grayned, 408 U.S. at 108–09. Duracell’s application sought Lever-Rule protection
“against importations of OEM bulk packaged batteries and foreign retail packaged batteries,
intended for sale in countries outside the United States that bear the ‘DURACELL’ mark.” U.S.
Customs and Border Protection Receipt of Application for “Lever-Rule” Protection, 51 Cust.
Bull. & Dec. No. 4 (Jan. 25, 2017). Customs granted the application and explained that the
subject “gray market Duracell battery products differ physically and materially from the Duracell
battery products authorized for sale in the United States with respect to the following product
characteristics: label warnings, consumer assistance information, product guarantees, and
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warranty coverage.” U.S. Customs and Border Protection Grant of “Lever-Rule” Protection, 51
Cust. Bull. & Dec. No. 12 (Mar. 22, 2017). Plaintiff claims that the Lever-Rule grant is
impermissibly vague because “it does not describe the goods covered, nor the physical or
material differences in sufficient detail to permit compliance by affected persons.” First
Amended Compl. ¶ 58. The court can hold unlawful and set aside the Lever-Rule grant if it
determines that the grant fails to provide the public adequate notice of what conduct is restricted.
See 5 U.S.C. § 706(2)(A) (providing that a reviewing court shall hold unlawful and set aside
agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law”). Plaintiff has shown that it is plausibly entitled to relief and has satisfied
the liberal pleading requirements for each count in the amended complaint.
Duracell argues that Plaintiff’s claim that Customs failed to observe notice and comment
rulemaking requirements is barred by the statute of limitations for APA challenges because
Plaintiff’s action is actually a challenge to the Lever-Rule regulations promulgated in 1999. See
Duracell Mot. Dismiss 20–22. A civil action against the United States seeking judicial review of
agency action under the APA must be brought “within six years after the right of action first
accrues.” 28 U.S.C. § 2401. Actions brought pursuant to 28 U.S.C. § 1581(h) in this court are
subject to a two-year statute of limitations. See 28 U.S.C. § 2636(i). Duracell’s argument that
Plaintiff’s action is time barred by the statute of limitations fails even assuming, arguendo, that
the shorter two-year statute of limitations applies here. Generally, “a statute of limitations begins
to run . . . when the cause of action ‘accrues’––that is, when ‘the plaintiff can file suit and obtain
relief.’” Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 610 (2013) (quoting
Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192,
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201 (1997) (internal quotations omitted). In the context of judicial review of agency action, “the
cause of action accrues when all statutorily required or permitted agency review has been
exhausted.” Impro Prods., Inc. v. Block, 722 F.2d 845, 850–51 (D.C. Cir. 1983). As explained
above, Plaintiff was not required to exhaust administrative remedies prior to obtaining judicial
review of Customs’ decision to grant Duracell’s application for Lever-Rule protection. See 28
U.S.C. § 1581(h); H.R. Rep. 96-1235, at 52 (1980), reprinted in 1980 U.S.C.C.A.N. at 3769; see
also Heartland By-Prods., Inc., 424 F.3d at 1252. Where there is no prescribed administrative
remedy, the cause of action for an APA challenge accrues when the challenged final agency
action occurred, see Impro Prods., Inc. v. Block, 722 F.2d 845, 850–51 (D.C. Cir. 1983)
(concluding that a cause of action accrues when the agency action occurred where no
administrative review procedures exist), and the party has suffered a legal wrong, adversely
affected, or aggrieved by the final agency action. See Herr v. U.S. Forest Serv., 803 F.3d 809,
819–20 (6th Cir. 2015) (clarifying that a cause of action under the APA accrues when there is
final agency action and injury-in-fact). Duracell’s argument that Plaintiff’s action is barred by
the statute of limitations is predicated on the notion that Plaintiff’s action is a facial challenge to
the Lever-Rule application and decision process promulgated by Customs in 1999. See Duracell
Mot. Dismiss 20–22; see also Gray Market Imports and Other Trademarked Goods, 64 Fed. Reg.
9,058 (Dep’t Treasury Feb. 24, 1999) (final rule). Duracell mischaracterizes the nature of
Plaintiff’s action. Plaintiff does not seek to invalidate the 1999 Lever-Rule regulation, but rather
the specific Lever-Rule grant issued by Customs in 2017 that restricted the importation of gray
market battery products bearing the “DURACELL” mark. The Lever-Rule grant is the final
Court No. 17-00125 Page 34
agency action challenged in this case. Plaintiff’s action is neither barred by the six-year nor the
two-year statute of limitations because the Lever-Rule grant was issued in March 2017.
CONCLUSION
Therefore, upon consideration of Defendant-Intervenor Duracell U.S. Operations, Inc.’s
Motion to Dismiss, and all other papers and proceedings in this action, it is hereby
ORDERED that Duracell’s motion is denied; and it is further
ORDERED that this action shall proceed according to the Scheduling Order issued on
August 3, 2017, ECF No. 90.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: September 15, 2017
New York, New York