Slip Op. 05-31

                   UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Judge Judith M. Barzilay
____________________________________

Gilda Industries, Inc.,                         :

                  Plaintiff,                    :
                                                               Consol. Court. No. 03-00203
                  v.                            :

United States,                                  :

            Defendant.              :
____________________________________:

[Plaintiff’s motion to set aside judgment denied.]

                                                               Decided: March 10, 2005

(Peter S. Herrick) for Plaintiff.

Peter D. Keisler, Assistant Attorney General; (David M. Cohen), Director; (Jeanne E. Davidson),
Deputy Director, (David S. Silverbrand), Trial Attorney, U.S. Department of Justice, Civil
Division, Commercial Litigation Branch; William Busis, Office of General Counsel, Executive
Office of the President, Office of the United States Trade Representative, of counsel; Yelena
Slepak, International Trade Litigation, Bureau of Customs and Border Protection, of counsel, for
Defendant.

                                     MEMORANDUM ORDER

BARZILAY, JUDGE:

        On December 1, 2004, this court entered a Judgment Order denying Plaintiff Gilda

Industries, Inc.’s (“Gilda”) Motion for Writ of Mandamus and Declaratory Relief, and granting

the United States’ (“Defendant”) Motion to Dismiss. Gilda Industries, Inc. v. United States, Slip

Op. 2004-150.1 In the present motion, Gilda seeks to set aside the above-mentioned Judgment



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            Familiarity with this prior opinion is presumed.
Order and to reinstate its cause of action pursuant to USCIT Rule 60(b)(2). Because Gilda’s

motion fails to meet the requirements of USCIT R. 60(b)(2), this motion is denied.

       USCIT Rule 60 provides for relief from a judgment or order of this Court where certain

requirements have been met. Rule 60(b)(2) provides that “the court may relieve a party from a

final judgment where new evidence has been discovered, which could not have been discovered

by due diligence in time to move for a rehearing under USCIT R. 59(b).” In its motion, Gilda

claims that through Freedom of Information Act (“FOIA”) litigation and requests, the United

States Trade Representative (“USTR”) has produced new records, and that this new evidence

warrants reinstatement of its action.

I. Class Certification

       Regarding the court’s decision to deny its motion for class certification, Gilda now

identifies one pending case, Café Rico, Inc. v. United States, USCIT Case No. 04-00127, and

indicates that Café Rico is an importer of toasted breads from Spain paying 100% duties. Gilda

also states that there is a FOIA lawsuit pending in the U.S. District Court for the District of

Columbia for the names and addresses of importers who are paying the 100% duties.

       In its December 1, 2004 Slip Opinion, the court stated that because no other potential

class members could be identified by either of the parties or the court, the court found that it

could not determine whether certain requirements of USCIT Rule 23(c) had been met. The court

went on to state, however, that “even assuming that Plaintiff’s claims to the contrary are true and

a class of plaintiffs does exist, as a discretionary matter a class action should not be maintained.”

Although Plaintiff’s counsel indicated at oral argument that Café Rico concerned toasted breads

subjected to 100% duties, neither was any information regarding the claim or issues in that case


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offered, nor was any argument made that USCIT Rule 23 had been satisfied. Moreover, the court

indicated during oral argument that although “we know that even when there are hundreds and

perhaps thousands of potential plaintiffs such as in the Harbor Maintenance Tax cases, this Court

has been very reluctant to certify a class for predominance,” and explained the reasons for this

reluctance. Because the court found that regardless of whether there existed other litigation

concerning the same subject matter pending, as a discretionary matter, a class action should not

be maintained, Gilda’s citation to Café Rico is unavailing. Additionally, the fact that Gilda’s

current FOIA litigation, pending in the District of Columbia District Court, “could lead to

additional litigation” is speculative at best, and provides this court with no new information to

satisfy the requirements of Rule 60(b).

II. Inclusion On the Retaliatory List

       With respect to the court’s rejection of Gilda’s claim that its products should not have

been included on the retaliatory list, Gilda has submitted an index to 830 pages of comments

received by the USTR from the domestic industry, many of which Gilda characterizes as

supporting the notion that the bulk, if not all, of the products included on retaliatory list should

be reciprocal products. Based on these comments from various domestic producers, Gilda argues

that the court wrongly concluded that the law does not limit the retaliatory list to only reciprocal

products.

       Contrary to Gilda’s contentions, the comments of various companies are not relevant to

the issue of whether the USTR acted in contravention of 19 U.S.C. § 2416. Rather, the statute

itself is controlling. The comments that Gilda presents have no bearing on the court’s

interpretation and application of clear statutory language – that the Trade Representative shall


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include reciprocal goods on the retaliation list. Thus, the new information offered by Gilda has

no relevance to the court’s decision and does not justify disturbing its Judgment Order. See

USCIT R. 60(b).

III. Removal From the Retaliatory List

       Challenging the court’s determination that the USTR is not required to publish or revise

the Hormones list, Gilda takes issue with the court’s decision that the exception provided for in

19 U.S.C. 2416(b)(2)(B)(ii)(I) has been satisfied. Specifically, Gilda challenges the USTR’s

determination, which the court accepted, that it (the USTR) believes a solution with the European

Community (“EC”) is imminent. Gilda then defines for the court the meaning of imminence and

argues that because a number of months have passed since the USTR’s initiation of talks with the

EC, a resolution is neither imminent nor impending. Gilda goes on to cite to an EC press release,

which was publicly available before Slip Op. 04-150 was issued, indicating that the EC opposes

the United States’ maintenance of sanctions in the context of the beef hormone dispute.

       USCIT Rule 60 does not provide a forum for parties to relitigate decided issues before the

Court. Merely stating that “the new evidence here is that as of the date of the filing of this

motion, it has now been approximately 55 months since the USTR has refused to implement the

Carousel provision” does not satisfy the requirement that a movant proffer “newly discovered

evidence which by due diligence could not have been discovered in time to move for a

rehearing.” USCIT R. 60(b)(2). Similarly, citing to a press release that provides no new

information and that was available nearly one month before the court’s opinion was issued, does

not fulfil even the minimum requirements of Rule 60. 

evidence

which by due diligence could not have been discovered in time to move for a rehearing)


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(emphasis added). Moreover, the court stated in its Slip Opinion that because neither money

damages nor refunds are available, Gilda’s arguments both for removal from the Hormones list

as well as for a refund of the 100% duties it has paid must fail. Any “new” information now

provided by Gilda is not relevant to this holding.

IV. Due Process

       Finally, regarding the court’s rejection of its due process claim, Gilda cites to new

evidence that putative members of the class did request removal of toasted breads from the Beef

Hormone Retaliation List, availing themselves of the notice and comment opportunity provided

in the May 31, 2000 Federal Register Notice. Because this court denied Gilda’s motion for class

certification, the fact that other companies took advantage of the process made available by the

USTR is not relevant to this court’s holding that Gilda was afforded sufficient due process, but

did not take advantage of these opportunities.

       In conclusion, upon consideration of Plaintiff’s Motion to Set Aside the Judgment Order,

Defendant’s response in opposition, and all other pertinent documents, it is hereby

       ORDERED that the motion is DENIED.




             March 10, 2005                                 /s/ Judith M. Barilzay
Dated: _____________________________                 ________________________________
       New York, NY                                  Judith M. Barzilay, Judge




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