Rack Room Files Brief in Appeal of HTS Gender Discrimination Case
Congress’ choice to base some apparel tariff provisions on gender, rather than avail itself of other alternatives, means it intended to discriminate based on gender, said Rack Room Shoes in its brief filed with the Court of Appeals for the Federal Circuit. Therefore, it said, gender-based tariff provisions for apparel are facially discriminatory and violate the equal protection provisions of the Constitution.
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Rack Room is appealing a February 2012 CIT dismissal of its challenge of Harmonized Tariff Schedule subheadings with different duty rates for men’s and children’s apparel on one hand, and women’s apparel on the other, which it argued discriminate based on gender and age. CIT dismissed the action because it found Rack Room did not adequately plead the case that Congress intended to discriminate, and later denied Rack Room’s motion for reconsideration. The case followed an earlier challenge by Totes-Isotoner of gender-based tariff provisions for gloves, which CIT also dismissed. CAFC affirmed the dismissal of the Totes-Isotoner case, but Rack Room said this case is different, because it is challenging a broad range of gender- and age-based HTS provisions, rather than a single provision. CAFC did not say whether these other HTS provisions are discriminatory in its Totes-Isotoner decision, Rack Room said.
In its brief to CAFC, Rack Room said it adequately pleaded both elements of an equal protection claim -- legislative intent and disparate impact -- to satisfy the plausibility standard. Because the case is so straightforward, “CIT erred in holding that additional unspecified facts were required to be pleaded” to make the discrimination case plausible, it said. Rack Room pleaded every known fact relevant to the case -- there are no other facts that could be pleaded, it said. If CAFC vacates CIT’s ruling, CAFC should direct CIT to specifically decide whether the challenged HTS provisions facially discriminate on the basis of gender or age, Rack Room said, because CIT never made that determination.
See ITT’s Online Archives 12022102 for summary of CIT’s dismissal of the Rack Room Case, and 12060409 for summary of CIT’s denial of Rack Room’s motion for reconsideration. See also ITT’s Online Archives 11083118 for summary of the Rack Room case’s implications for other pending actions.)
Email ITTNews@warren-news.com for a copy of Rack Room's brief.