Totes-Isotoner Asks Supreme Court to Review Gender/Age Duty Rates

Totes-Isotoner Corporation has petitioned the U.S. Supreme Court to review whether differences in customs duty rates, based on gender or age, violate the Equal Protection Clause of the Constitution.

Both the Court of International Trade and the Court of Appeals for the Federal Circuit have ruled against Totes on this issue. According to the petition, 100 similar cases have been filed at the CIT, representing more than $1 billion in potential claims for recovery of excess duty assessments.

Totes, an importer of men’s seamed leather gloves, filed a complaint in the CIT contending that certain provisions of the Harmonized Tariff Schedule unconstitutionally deny it equal protection of the laws by imposing, without justification, a 14% ad valorem rate of duty on men’s seamed leather gloves, while assessing only a 12.6% ad valorem rate of duty on seamed leather gloves of the same class for other persons.

The CIT ruled that the HTS provisions cited did not discriminate by gender or age, and that Totes failed to show that the duty rate imposed a disadvantage of one sex as a whole, or had a disproportionate impact based on sex.

The CAFC in denying reconsideration of the decision by the CIT, ruled that a dissimilar treatment in the tariff does not, by itself, establish a violation of equal protection. The rates of duty applicable to different classifications are the result of multilateral international trade negotiations and reflect reciprocal trade concessions and special trade preferences. Absent a showing that Congress intended to discriminate against one gender in the tariff schedule, the mere existence of dissimilar treatment is not enough to demonstrate a violation of equal protection.

In its Petition for a hearing by the Supreme Court, Totes requested a review to determine whether the challenged tariff provisions violate the Constitution by discriminating on the basis of gender or age in violation of the equal protection guarantees.

Totes further argued that the gender and age-based classification and duty differentials promulgated under the glove provision at issue are purely domestic sub-classifications which cannot be explained away by referring to international agreements. Totes stated that the discriminatory duty rates are purely an act of Congress, independent of any international agreement or arrangement.

(See ITT’s Online Archives or 02/10/10 news: [Ref 10021020] for BP summary of CAFC ruling (CAFC 09-1113), which affirmed CIT dismissal of Totes-Isotoner Gender/Age Discrimination Claim on Glove Duty Rates.)

(See ITT’s Online Archives or 07/09/08 news, 08070905, for BP summary of CIT ruling (Slip Op. 08-73), which dismissed Totes-Isotoner gender/age discrimination claim on glove duty rates.)

Totes-Isotoner Corporation v. United States No. 09-1360 Supreme Court petition, dated 05/06/10, available by emailing documents@brokerpower.com