                            SLIP OP. 08-73
              UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE:   THE HONORABLE JANE A. RESTANI, CHIEF JUDGE
          THE HONORABLE DONALD C. POGUE, JUDGE
          THE HONORABLE JUDITH M. BARZILAY, JUDGE
------------------------------x
TOTES-ISOTONER CORPORATION,   :
                              :
               Plaintiff,     :
                              :
          v.                  :    Court No. 07-00001
                              :
                              :
UNITED STATES                 :
                              :
               Defendant.     :
------------------------------x


                                      OPINION

[Defendant’s motion to dismiss for lack of jurisdiction denied;
Defendant’s motion to dismiss for failure to state a claim
granted.]

                                                   Dated: July 3, 2008

Neville Peterson, LLP (John M. Peterson, Curtis W. Knauss, Matthew
G. Shaw, and Michael T. Cone)for the Plaintiff.

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


     Pogue,    Judge:    In    this    action,    Plaintiff,    Totes-Isotoner
Corporation (“Totes”), a U.S. importer of men’s gloves, challenges
the constitutionality of the tariff rate imposed on its imports.
Totes claims that by setting out different tariff rates for certain
“Men’s” gloves and other gloves, the Tariff Schedule violates
Totes’    right   to   equal    protection       under   the   law   because   it
discriminates on the basis of gender and/or age.
Court No. 07-00001                                                             Page 2

       The Defendant United States asks the Court to dismiss Totes’
complaint, claiming that the Court does not have jurisdiction over
this matter for two reasons: (1)the Complaint presents a non-
justiciable political question; and (2)the Plaintiff does not have
a sufficient stake in the matter so as to possess standing to bring
this     equal    protection      claim.    USCIT    Rule    12(b)(1).        In   the
alternative, the government also seeks dismissal under USCIT Rule
12(b)(5), asserting that Totes’ pleadings fail to state a claim
upon which relief can be granted.
       Because the Court concludes that Totes’ equal protection
claims    properly       invoke    the   Court’s    traditional     role      of-–and
standards for-–constitutional review, and that Totes has standing
to bring its claims, the Court denies Defendant’s motion to dismiss
for lack of jurisdiction.           However, because Plaintiff’s Complaint
does     not     plead    sufficient       facts    to     state    a    claim      of
unconstitutional discrimination, the Court dismisses this matter,
without prejudice, pursuant to Rule 12(b)(5).
       The     Court   exercises    jurisdiction,        pursuant   to   28    U.S.C.
§ 1581(i)(1), which grants to the court exclusive jurisdiction over
actions arising out of a law of the United States which provides
for “revenue from imports.”


                                    Discussion


       The Court will discuss, in turn, each of the stated bases for
the government’s motion to dismiss: 1. The Political Question
Doctrine; 2. The Alleged Lack of Constitutional and Prudential
Standing; and 3. Totes’ Failure to State a Claim.


       I. The Political Question Doctrine


       In its Complaint, which the government would have us dismiss,
Court No. 07-00001                                                        Page 3

Totes pleads that the government classifies “Men’s” leather gloves
in subheading 4203.2930, of the Harmonized Tariff Schedule of the
United States (“HTSUS”),1 at a duty rate of 14 percent ad valorem,
whereas        gloves    “[f]or   other    persons”   are    classified    under
                                      2
subheading 4203.2940, HTSUS,              at the lower duty rate of 12.6
percent ad valorem.3           Totes alleges that these provisions of the
HTSUS “discriminate on the basis of gender or age,” Complaint at 1,
in violation of the Constitution’s Equal Protection guarantee. U.S.
CONST. amend. XIV, § 1, cl. 2(“[N]o State shall . . . deny to any
person    within        its   jurisdiction   the   equal    protection    of   the
           4
laws.”).         Accordingly, the Complaint challenges the extent to


     1
      4203.2930, HTSUS includes subheadings for both lined and
unlined gloves. 4203.29.3010, HTSUS includes “Articles of
apparel and clothing accessories, of leather or of composition
leather: Gloves, mittens and mitts: Other: Other: Other: Men’s
. . . Not lined.” 4203.29.3020, HTSUS includes “Articles of
apparel and clothing accessories, of leather or of composition
leather: Gloves, mittens and mitts: Other: Other: Other: Men’s
. . . Lined.”
     2
      4203.2950, HTSUS includes “Articles of apparel and clothing
accessories, of leather or of composition leather: Gloves,
mittens and mitts: Other: Other: Other: For other persons . . .
Lined.”
     3
       For purposes of the Court’s standing determination, the
government does not contest the factual allegations in Totes’
Complaint.
     4
       Although Totes bases its claim on an alleged violation of
the Fifth Amendment, which provides that no person shall be
deprived of life, liberty, or property, without due process of
law, the analysis is the same as that for claims brought under
the equal protection clause of the Fourteenth Amendment. Bolling
v. Sharpe, 347 U.S. 497, 500 (1954) (“In view of our decision
that the Constitution prohibits the states from maintaining
racially segregated public schools, it would be unthinkable that
the same Constitution would impose a lesser duty on the Federal
Government. We hold that racial segregation in the public
schools of the District of Columbia is a denial of the due
                                                   (continued...)
Court No. 07-00001                                                   Page 4

which the government may use gender in the classification of goods
for importation.
     Nonetheless, the government argues that this Complaint raises
a non-justiciable political question.       As noted above, however, in
the Court’s view, the Complaint seeks review of specific statutory
provisions    using    traditional    constitutional   equal   protection
standards that have long been interpreted and applied by the
judicial branch.      As such, Totes’ claim does not intrude into the
non-judicial domain.
     The      political    question      doctrine,     recognizing      our
constitutional separation of powers principle, does exclude some
disputes from judicial determination.          Under this doctrine, a
subject matter is not appropriate for judicial resolution where it
is exclusively assigned to the political branches or where such
branches are better-suited than the judicial branch to determine
the matter.    See Baker v. Carr, 369 U.S. 186, 211 (1962);5 Japan

     4
      (...continued)
process of law guaranteed by the Fifth Amendment to the
Constitution.” (footnote omitted)); Washington v. Davis, 426 U.S.
229, 239 (1976)(“[T]he Due Process Clause of the Fifth Amendment
contains an equal protection component prohibiting the United
States from invidiously discriminating between individuals or
groups.” (citation omitted)). Therefore, the Court applies cases
relating to the two amendments in its analysis.
     5
       Baker identified six characteristics of cases found
inappropriate for judicial consideration under the political
question doctrine.
     Prominent on the surface of any case held to involve a
     political question is found [1] a textually
     demonstrable constitutional commitment of the issue to
     a coordinate political department; or [2] a lack of
     judicially discoverable and manageable standards for
     resolving it; or [3] the impossibility of deciding
     without an initial policy determination of a kind
     clearly for nonjudicial discretion; or [4] the
     impossibility of a court's undertaking independent
     resolution without expressing lack of the respect due
                                                    (continued...)
Court No. 07-00001                                                             Page 5

Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986) (“The
political question doctrine excludes from judicial review those
controversies       which    revolve    around   policy     choices      and    value
determinations constitutionally committed for resolution to the
halls of Congress or the confines of the Executive Branch. The
Judiciary is particularly ill suited to make such decisions, as
‘courts are fundamentally underequipped to formulate national
policies or develop standards for matters not legal in nature.’”
(quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373,
1379 (1981)(footnote omitted), cert. denied, 455 U.S. 999 (1982))).
       Invoking     this    doctrine,    the   government      asserts    that      the
subject matter of Plaintiff’s Complaint–-the use of gender in
tariff classifications--is not appropriate for judicial resolution
because      it   involves    issues    of   trade    policy   reserved        to   the
political branches.          Specifically, the government argues that the
formation and adoption of the tariff provisions at issue here
involve the negotiation of agreements with foreign governments and
that       Plaintiff’s     claim   challenges        the   substance     of     those
international trade agreements. The government argues that there
are no judicially manageable standards for reviewing the results of
these international trade agreements. To the government, “[w]hether
the rates provided in the Harmonized Tariff Schedule should be
equalized with regard to products classified based upon gender or
age related characteristics is a political question that the Court
should decline to adjudicate.” Def.’s Mot. to Dismiss, at 14.
       Plaintiff properly replies that the specific provisions of the

       5
      (...continued)
     coordinate branches of government; or [5] an unusual
     need for unquestioning adherence to a political
     decision already made; or [6] the potentiality of
     embarrassment from multifarious pronouncements by
     various departments on one question.
Baker, 369 U.S. at 217. The government relies primarily on the
first two characteristics.
Court No. 07-00001                                                           Page 6

HTSUS constitute statutes enacted by Congress pursuant to Section
1204(c) of the Omnibus Trade and Competitiveness Act of 1988.6 19
U.S.C.      §    3004(c).     Citing   this   statutory   structure,    Plaintiff
reasons that its Complaint is a garden-variety equal protection
claim challenging the statute imposing tariffs and in no way
implicates the negotiation of international agreements that may
precede         statutory   enactment.        Rather   than   intrude   in    areas
delegated to the executive or legislative branch, Plaintiff claims
that       its    Complaint    invokes    traditional     constitutional      equal
protection standards readily subject to judicial administration.
       In support of its argument, Plaintiff invokes the Supreme
Court’s analysis in Japan Whaling, which explains that:
       [N]ot every matter touching on politics is a political
       question . . . and more specifically, that it is “error
       to suppose that every case or controversy which touches
       foreign relations lies beyond judicial cognizance.” . . .
            As Baker plainly held, [] the courts have the
       authority to construe treaties and executive agreements,
       and   it   goes   without   saying   that    interpreting
       congressional legislation is a recurring and accepted
       task for the federal courts. . . . We are cognizant of
       the interplay between these Amendments and the conduct of
       this Nation's foreign relations, and we recognize the
       premier role which both Congress and the Executive play
       in this field. But under the Constitution, one of the
       Judiciary's characteristic roles is to interpret
       statutes, and we cannot shirk this responsibility merely
       because our decision may have significant political
       overtones.

Japan Whaling, 478 U.S. at 229-30 (quoting Baker, 369 U.S. at 211).7




       6
       Further citations to the 1988 Act are to relevant
provisions in Title 19 of the U.S. Code, 2000 edition.
       7
       For a more extensive discussion of Japan Whaling’s holding
with regard to the political question doctrine, see Canadian
Lumber Trade Alliance v. United States, 425 F. Supp. 2d 1321,
1355-56 (2006).
Court No. 07-00001                                                          Page 7

        The Supreme Court’s admonition in Japan Whaling is directly
applicable here.            In the case before us, even if the challenged
statutory provisions originated in international negotiations,
those provisions have since been enacted into law as the HTSUS.
Thus,       this   Complaint    does    not   challenge    the   actions   of   the
President or Congress in their respective spheres of responsibility
for foreign commerce or foreign relations.                 Rather, it involves
constitutional review of a domestic statute.               It has long been the
role of the court to adjudicate legislative classifications in view
of the importance of the governmental interests involved.                       See
United       States    v.    Carolene   Products    Co.,   304   U.S.   144,    153
(1938)(“Where the existence of a rational basis for legislation
whose constitutionality is attacked depends upon facts beyond the
sphere of judicial notice, such facts may properly be made the
subject of judicial inquiry, . . . and the constitutionality of a
statute predicated upon the existence of a particular state of
facts may be challenged by showing to the court that those facts
have ceased to exist.”(citations omitted)).                In the light of this
history and precedent, it is clear that review of statutory
provisions, using constitutional standards, is manifestly within
the judicial realm.          Such review is, if anything, more appropriate
here than in Japan Whaling, which involved evaluation of the
Japanese whaling industry, a matter even more removed from the
domestic realm than that at issue here.
        Thus, Totes’ challenge to the discriminatory operation of the
HTSUS       properly   invokes    the    Court’s   traditional     role    of-–and
standards for-–constitutional review.              Therefore, the Court denies
the government’s request that Totes’ Complaint be dismissed under
the political question doctrine.8


        8
       Although the government also argues that Totes’ Complaint
should be viewed as raising a political question because the
                                                   (continued...)
Court No. 07-00001                                                  Page 8

     II. Standing


     A. Constitutional Standing
     Because    federal   judicial    jurisdiction     arises    from   the
Constitution,   in   order   to   bring   its   case   here,    Totes   must
demonstrate that its claim qualifies as a “case” or “controversy”
for purposes of Article III of the Constitution, and specifically
that it has a sufficient stake in the matter to establish its
“standing” to bring its claim.       Canadian Lumber Trade Alliance v.
United States, 517 F.3d 1319, 1331 (Fed. Cir. 2008)(“There is no
case or controversy within the meaning of the Constitution unless
the plaintiff has standing.”).
     To establish a sufficient stake for purposes of Article III
standing, plaintiffs must demonstrate: (1)that they have suffered
some injury-in-fact; (2)that there is a causal connection between
the defendant’s conduct and this injury-in-fact; and (3) that this
injury is redressable by the court. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)(“Defenders of Wildlife”)(citations
omitted).9


     8
      (...continued)
relief Totes’ seeks would raise the “potential for embarrassment
from multifarious pronouncements and [contrary to the] need for
adherence to [a] political decision,” the judiciary’s application
of the constitutional parameters for gender and age
discrimination to tariff classifications should produce no more
than one clear determination. Nor would the remedy Totes seeks
require the government to raise duties on gloves for other
persons in violation of any international trade agreement; just
the contrary. Totes seeks a reduction not an increase in the
allegedly discriminatory rates. Accordingly, this litigation
does not raise the alternative concern advanced by the
government.
     9
       Because Totes claims a violation of the Constitution’s
Equal Protection guarantee, we need not be diverted by the
government’s citation of the absence of a substantive Due Process
                                                   (continued...)
Court No. 07-00001                                                           Page 9


        We consider, in order, each prong of the Defenders of Wildlife
test.       First, as noted above, Totes’ Complaint alleges that the
government has assessed and Totes has paid customs duties at the 14
percent rate. Complaint at 2.             Thus, Totes alleges that it has
suffered an injury in fact-–the loss of money. Second, Totes also
alleges      that   this   injury    is   a   result    of–-or   caused   by--the
government’s allegedly discriminatory tariff rates.                   Finally, to
the extent this rate is unconstitutionally discriminatory, Totes
seeks       restoration,   with     interest,   of     any   excess   duty    paid.
Complaint at 7.       Thus, Totes seeks redress in the form of a return
of the excess tariffs imposed. Grant of this redress is manifestly
within the historic power of this Court, see, e.g., United States
v. U.S. Shoe Corp., 523 U.S. 360, 365-66 (1998)(affirming the CIT’s
conclusion that the Harbor Maintenance Tax is unconstitutional and
that duties collected pursuant to the tax must be refunded), and is
the requested and likely outcome of this action were Totes to
prevail. See Litecubes, LLC v. Northern Light Products, Inc., 523
F.3d 1353, 1360 (Fed. Cir. 2008)(“Subject matter jurisdiction does
not fail simply because the plaintiff might be unable to ultimately


        9
      (...continued)
right of importation, see Arjay Associates, Inc. v. Bush, 891
F.2d 894, 896 (Fed. Cir. 1989)(“[N]o one has a constitutional
right to conduct foreign commerce in products excluded by
Congress”), as compared to recognition of a procedural Due
Process right. See NEC Corp. v. United States, 151 F.3d 1361,
1370-71 (Fed. Cir. 1998). “[E]ven though a person has no ‘right’
to a valuable governmental benefit,” the government “may not deny
a benefit to a person on a basis that infringes his
constitutionally protected interests.” Perry v. Sindermann, 408
U.S. 593, 597 (1972). Because Totes has alleged that the
challenged tariff rates infringe upon its interests by
unconstitutionally discriminating on the basis of gender, the
government’s assertion that Totes has no vested right to import
is irrelevant to the analysis of Totes’ standing and to the
claims upon which that standing is based.
Court No. 07-00001                                                            Page 10

succeed on the merits.” (citation omitted)).                Accordingly, Totes’
allegations     provide     a    sufficient   basis       to   establish       Totes’
constitutional standing to bring its claim.
      Despite    the      fact    that    Totes    has     paid     the     allegedly
discriminatory tariff rates, the government argues that Totes’
injury is too indirect to permit standing here. To the government,
because the tax imposed by the tariff provision must be paid by all
importers of men’s leather gloves, Totes pays the same tariff as
other similarly situated importers, and is therefore not subject to
discriminatory treatment. But there is no obligation requiring a
plaintiff challenging an allegedly express suspect governmental
classification to plead and prove the existence of a similarly-
situated non-protected class.            Brown v. City of Oneonta, 221 F.3d
329, 337 (2d Cir. 2000)(“Plaintiffs are correct, however, that it
is not necessary to plead the existence of a similarly situated
non-minority group when challenging a law or policy that contains
an express, racial classification.”), overruled in part on other
grounds by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
      The government also argues that the tariff rates challenged
here tax products, not people, and that therefore Totes is not
itself the object of any prohibited discrimination.                       This issue,
however, was addressed in Craig v. Boren, where a beer vendor was
allowed by the Supreme Court to pursue the equal protection claims
of   18-21   year   old    males    against   the    relevant       statute     which
permitted beer purchases by 18-21 year old females.                         Craig v.
Boren,   429    U.S.   190,      194-7   (1976).         “[W]here    a     person   is
effectively used by the government to implement a discriminatory
scheme,” he may invoke the rights of the infringed to challenge
that scheme.    Fraternal Order of Police v. United States, 152 F.3d
998, 1002 (D.C. Cir. 1998).          If anything, Totes’ role as payor of
the allegedly discriminatory tax makes its standing here more
directly connected to that scheme than the interest of the beer
Court No. 07-00001                                          Page 11

vendor found sufficient in Craig.10


     B. Prudential Standing
     In addition to challenging Totes’ constitutional standing to
bring this case, the government also argues that Totes lacks
standing for “prudential” reasons. See Clarke v. Sec. Indus. Ass'n,
479 U.S. 388, 396 (1986)(“‘[T]he interest sought to be protected by
the complainant [must be] arguably within the zone of interests to
be protected or regulated by the statute or constitutional guarantee
in question.’” (quoting Ass’n of Data Processing Serv. Org., Inc.
v. Camp, 397 U.S. 150, 153 (1970))).      This “zone of interest”
requirement “denies a right of review if the plaintiff’s interests
are [] marginally related to or inconsistent with the purposes
implicit” in the constitutional guarantee invoked. Clarke, 479 U.S.
at 399.
      The Supreme Court has further maintained that the “zone of
interest” test operates under the presumption that agency actions
are subject to judicial review, and therefore, the test “is not
meant to be especially demanding; in particular, there need be no


     10
      Although Totes’ claim that the Constitution “prohibits the
defendant from discriminating in the assessment of taxes or
duties on the basis of gender or age,” (Complaint at 5), could
give rise to further analysis of Totes’ possible third-party
standing on behalf of adult male purchasers of gloves, Totes
expressly indicated at oral argument that it does not seek
derivative or third-party standing such as that recognized by
Craig or Powers v. Ohio, 499 U.S. 400 (1991). It is therefore
unnecessary to determine whether Totes’ allegations would
indicate that “enforcement of the challenged [provision] . . .
would result indirectly in the violation of third parties’
rights.” Craig, 429 U.S. at 195 (quoting Warth v. Seldin, 422
U.S. 490, 510 (1975)); see also Craig, 429 U.S. at 196
("[C]rucial to the decision to permit jus tertii standing [is]
the recognition of ‘the impact of the litigation on the third-
party interests.’” (quoting Eisenstadt v. Baird, 405 U.S. 438,
445 (1972))).
Court No. 07-00001                                                         Page 12

indication    of    congressional      purpose    to   benefit      the    would-be
plaintiff.” Clarke, 479 U.S. at 399-400 (citation and footnote
omitted); see also Nat’l Credit Union Admin. v. First Nat’l Bank &
Trust Co., 522 U.S. 479, 488-9 (1998)(“Although our prior cases have
not stated a clear rule for determining when a plaintiff's interest
is ‘arguably within the zone of interests’ to be protected by a
statute, they nonetheless establish that we should not inquire
whether there has been a congressional intent to benefit the would-
be plaintiff.”).      Rather, the zone of interest test only “denies a
right of review if the plaintiff's interests are [] marginally
related to or inconsistent with the purposes implicit in the statute
. . . .” Clarke, 479 U.S. at 399; see also Kemet Elecs. Corp. v.
Barshefsky,    21    CIT     912,   927-28,      976   F.   Supp.       1012,   1026
(1997)(citing Clarke).
     The constitutional equal protection guarantee at issue in this
case clearly protects against discrimination on the basis of sex.
Craig v. Boren, 429 U.S. at 197.           Because Totes alleges that its
injury is the direct result of prohibited discrimination, which is
both facial and express, Totes’ claim is not “marginally related to
or inconsistent with the purposes” of the equal protection clause.
     Accordingly, because Totes’ claim, as alleged, is within the
zone of interests protected by the Constitution’s Equal Protection
guarantee, there is no prudential reason to deny Totes standing to
litigate its claim.


     III. Failure to State a Claim


     We turn now to the adequacy of Totes’ factual pleadings,
explaining why Totes’ Complaint, as presently drafted, fails to
“show” the necessary entitlement to relief.
     As   noted     above,    Totes’    Complaint      alleges      a    prohibited
governmental classification “based on sex.” The applicable pleading
Court No. 07-00001                                                  Page 13

requirements, however, as set out in Fed. R. Civ. P. 8(a), and
recently explained by the Supreme Court in              Bell Atl. Corp. v.
Twombly,___ U.S. ___, 127 S. Ct. 1955, 1964 (2007)(“Bell Atlantic”),
mandate   “more    than   labels    and   conclusions,   and   a   formulaic
recitation of the elements of a cause of action will not do.” Bell
Atlantic, 127 S. Ct. at 1964-65 (citation omitted). While it is not
necessary for a plaintiff to provide detailed factual allegations,
the factual allegations asserted must still be “enough to raise a
right to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if doubtful
in fact).”    Id. at 1965 (citation omitted).11            In so doing, a
plaintiff must still provide “‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to
give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Id. at 1964 (citing Conley v. Gibson,
355 U.S. 41, 47 (1957)).12
     While the contours of this requirement have not yet been
broadly addressed by the Federal Circuit, other circuits have
considered   the   issue.     The   Second   Circuit,    for   example,   has
interpreted Bell Atlantic as “requiring a flexible ‘plausibility
standard,’ which obliges a pleader to amplify a claim with some
allegations in those contexts where such amplification is needed to
render the claim plausible.”        Iqbal v. Hasty, 490 F.3d 143, 157-58


     11
      In Bell Atlantic, the Court disavowed the oft-cited
standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957), that “a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Bell Atlantic, supra, 127 S. Ct. at 1959-
60.
     12
       The Federal Circuit has indicated that Bell Atlantic does
not alter notice pleading as a requirement or practice. McZeal v.
Sprint Nextel Corp., 501 F.3d 1354, 1357-8 (Fed. Cir.
2007)(discussing the “low bar” for pro se plaintiffs).
Court No. 07-00001                                                             Page 14

(2d    Cir.   2007)(emphasis     omitted).              As   the   Third   Circuit    has
explained, “there must be some showing sufficient to justify moving
the case beyond the pleadings to the next stage of litigation.”
Phillips v. County of Allegheny, 515 F.3d 224, 234-5 (3d Cir. 2008).
       Here, we must apply Bell Atlantic’s pleading requirement to
Totes’ equal protection claim.          In order to state such a claim for
violation of the equal protection clause based on gender, Totes must
allege      that     the   government     has           engaged     in     gender-based
discrimination without an exceedingly persuasive justification, or
in other words, that the government has used discriminatory means
that    are   not    substantially     related          to   important     governmental
objectives. United States v. Virginia, 518 U.S. 515, 532-33 (1996);
Craig v. Boren, 429 U.S. at 197 (1971)(“To withstand constitutional
challenge . . . classifications by gender must serve important
governmental        objectives   and   must        be    substantially      related    to
                                              13
achievement of those objectives.”).                 In so doing, Totes’ complaint
must include a factual allegation that demonstrates a governmental
purpose to discriminate.          Washington v. Davis, 426 U.S. 229, 242
(1976)(noting that “an invidious discriminatory purpose may often
be inferred from the totality of the relevant facts . . .”).
Whether the prohibited discrimination is overt or covert, Personnel
Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979), Totes’ Complaint
must allege facts sufficient to “show” some purpose or intent to
disfavor individuals because of their sex, though such purpose or
intent need not be malicious.           Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 270-1 (1993).                     In Bray, the Court stated:


       13
       Because the pleading requirements for invidious
discrimination based on age are not less than for such
discrimination based on sex, Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 83 (2000)(“States may discriminate on the basis of age
without offending the Fourteenth Amendment if the age
classification in question is rationally related to a legitimate
state interest.”), we need not discuss them separately.
Court No. 07-00001                                                       Page 15

     We do not think that the “animus” requirement can be met
     only by maliciously motivated, as opposed to assertedly
     benign (though objectively invidious), discrimination
     against women. It does demand, however, at least a
     purpose that focuses upon women by reason of their sex-
     for example (to use an illustration of assertedly benign
     discrimination), the purpose of “saving” women because
     they are women from a combative, aggressive profession
     such as the practice of law. . . .
          . . . Some activities may be such an irrational
     object of disfavor that, if they are targeted, and if
     they also happen to be engaged in exclusively or
     predominantly by a particular class of people, an intent
     to disfavor that class can readily be presumed. A tax on
     wearing yarmulkes is a tax on Jews.

Id. at 269-70 (emphasis omitted).
     A facial or express gender-based classification may, of course,
indicate a discriminatory purpose, see, e.g., Cmtys. for Equity v.
Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 694 (6th Cir.
2006)(“Disparate     treatment    based    upon     facially      gender-based
classifications    evidences     an   intent   to   treat   the    two    groups
differently”), and Totes’ Complaint does allege the express use of
gender in the tariff classification scheme. The Complaint, however,
does not allege discrimination “based on” gender, i.e., that the
duty or tax imposed by the tariff classification, or any burden
resulting from that tax, is imposed because of or based on gender
or otherwise disfavors individuals because of their gender.                Thus,
the Complaint does not allege sufficient facts to establish that the
government has engaged in gender-based discrimination.                   This is
because the tariff provisions that Totes challenges are not “actual
use” provisions, i.e., the tariff provisions at issue do not require
that the imported goods be actually sold to or used by people of one
sex or of some age category.14


     14
       Rather, the challenged classifications indicate “chief”
or “principal” use, and it is well established that where
                                                    (continued...)
Court No. 07-00001                                                    Page 16

     To classify imports as men’s gloves, or gloves “for other
persons” does not establish that they will be bought by or used by
men, or that men will necessarily pay the allegedly discriminatory
tax. “For” is used to indicate objective. Thus the mere allegation
that the HTSUS classifies or labels goods as imported “for” persons
of one sex does not establish that those classifications are “on the
basis of” or “by” gender.        “On the basis of” indicates foundation
or fundamental element rather than objective.           As the Supreme Court
explained in Allegheny Pittsburgh Coal Co. v. County Comm’n of
Webster Country, W. Va., 488 U.S. 336, 343 (1989), “[t]he Equal
Protection Clause applies only to taxation which in fact bears
unequally on persons or property of the same class.” (internal
quotations omitted)(emphasis added).15
     According to Totes’ Complaint, by distinguishing between men’s
gloves    and   gloves   for   women,   the   HTSUS   distinguishes   between
property of the same class (leather gloves), and this discrimination
is made on the basis of the gender and/or age of the intended user.
Pl.’s Resp. to Def.’s Mot. to Dismiss 38 (“Pl.’s Br.”).               But the
facts alleged–-merely “distinguishing” between gloves for men and
gloves for other persons–-are not sufficient to show discrimination

     14
      (...continued)
classification is proper under the doctrine of chief (now
principal) use, there must be proof of such use. Advance
Solvents & Chemical Corp. v. United States, 34 CCPA 148, 151
(1947).
     15
       Allegheny Pittsburgh Coal involved the implementation of
state law, and the different methods used to assess property
values for recently-purchased properties as opposed to property
held for a longer time. Recognizing that a State “may divide
different kinds of property into classes and assign to each class
a different tax burden,” the Court applied a low level of
scrutiny, explaining that the state’s ability to assign these
different tax burdens existed “so long as those divisions and
burdens are reasonable.” Allegheny Pittsburgh Coal, 488 U.S. at
344 (citing Allied Stores of Ohio v. Bowers, 358 U.S. 522, 526-27
(1959)(“Bowers”)).
Court No. 07-00001                                                    Page 17

“on the basis of” sex.16          Moreover, the discrimination alleged in
Totes’s Complaint, results from the imposition of the duty, or tax,
imposed by the tariff classifications. Complaint at 6. But, as
alleged in the Complaint, that duty or tax falls on importers, and
there     is    no    factual    indication   in   the   Complaint   that    the
classification results in a discriminatory application of the tax.17
Therefore, Totes’ additional allegation of discrimination “on the
basis of sex” is simply conclusory, in violation of the Bell
Atlantic requirement.           See also Judge v. City of Lowell, 160 F.3d
67, 75 (1st Cir. 1998) (requiring “specific, nonconclusory factual
allegations giving rise to a reasonable inference of racially
discriminatory intent”).          After Bell Atlantic, it appears that the
Plaintiff is required to allege facts that could provide a showing
that Totes is entitled to relief.
     To    be    clear,    were    this   a   facially   discriminatory     tax,
Plaintiff’s pleadings could be sufficient; in addition, we do not
ignore the fact that the tariff schedule makes an express reference
to gender.           Nor do we assume that this express reference is
necessarily benign.         Nonetheless, because the challenged tariff
classifications are, at worst, “in between” classifications that
impose a facially discriminatory tax and classifications that are
not facially discriminatory, Plaintiff must at least include an

     16
       Totes agrees, for example, that it would not be gender-
based discrimination for the government to “classify” goods for
statistical purposes on the basis of the gender of the intended
wearer of those goods.
     17
        Cf. Engquist v. Oregon Dept. of Agriculture, ___U.S.___,
2008 WL 2329768 at *6 (June 9, 2008)(“Our equal protection
jurisprudence has typically been concerned with governmental
classifications that ‘affect some groups of citizens differently
than others.’” (quoting McGowan v. Maryland, 366 U.S. 420, 425
(1961))). Nor can Plaintiff claim that the alleged
discrimination affects importers differently based on gender.
Rather, the tariff classifications affect importers based on the
goods they import.
Court No. 07-00001                                               Page 18

allegation that the challenged tariff classifications distribute the
burdens of the tax rate imposed in a way that disadvantages one sex
as a whole, or has a disproportionate impact based on sex.         To the
extent that the challenged tariff provisions do not impose a
facially discriminatory tax, Plaintiff must include an allegation
of   some   intent   that   renders   plausible   the   claim   that   the
discrimination at issue is invidious, arbitrary or unreasonable.18
In the absence of such allegations, the Complaint does not provide
“plausible grounds to infer” a violation of equal protection or
allege “enough fact to raise a reasonable expectation that discovery
[or further proceedings on the merits] will reveal evidence of
illegal” conduct.      Bell Atlantic, 127 S. Ct. at 1965. While
classification of goods as “for” men–-or for other persons-–may
suggest discrimination, it does not “show” it.           As pleaded, we
simply are not informed of a discriminatory purpose or intent or of
the character of the discrimination that Totes seeks to remedy.        We
are left to hypothesize: Is the challenged discrimination based on
the baggage of sexual stereotypes?         Does it unconstitutionally
distribute the benefits and burdens of taxation?        Is it prohibited
intentional discrimination?      Because the Complaint, as presently
stated, does not “show” what the basis of Totes’ entitlement is, it
must be dismissed, without prejudice, for failure to state a claim.


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

Dated: July 3, 2008
       New York, N.Y.


     18
       Cf. Mfrs. Hanover Trust Co. v. United States, 775 F.2d
459, 465 (2d Cir. 1985) (examining whether gender-based mortality
tables used in calculating an estate’s tax obligations were
“invidious” by examining their “(1) aggregate impact on [the]
class; (2) demeaning generalizations; (3)stereotyped assumptions;
and (4)flawed use of statistics”).
                             ERRATA


               Slip Op. 08-73, issued July 3, 2008

              Totes-Isotoner Corp. v. United States


Please replace the preliminary paragraph identifying the counsel
for the Defendant with:

Gregory G. Katsas, Assistant Attorney General; Jeanne E.
Davidson, Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (Reginald T. Blades, Jr., Aimee Lee,
David S. Silverbrand and Gardner B. Miller)and, of counsel,
Yelena Slepak, Office of Assistant Chief Counsel, U.S. Customs
and Border Protection and Elizabeth Baltzan, Office of General
Counsel, United States Trade Representative, for Defendant United
States.
