United States
Court of Appeals for the Federal Circuit
00-1122
AMOCO OIL COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Lawrence
M. Friedman, Barnes, Richardson & Colburn, of Chicago, Illinois,
argued for plaintiff-appellant. With him on the brief were Robert
E. Burke, and Robert
F. Seely.
Todd
M. Hughes, Assistant Director, Commercial Litigation Branch, Civil
Division, Department of Justice, of Washington, DC, argued for defendant-appellee.
With him on the brief were David
W. Ogden, Assistant Attorney General, and David
M. Cohen, Director. Of counsel on the brief was Richard
McManus, Attorney, Office of the Chief Counsel, U.S.
Customs Service, of Washington, DC. Of counsel were Lara
Levinson, Attorney, and Jeanne
E. Davidson, Deputy Director, Commercial Litigation Branch, of Washington,
DC.
Robert
B. Silverman, Grunfeld, Desiderio, Lebowitz & Silverman, LLP,
of New York, New York for amicus curiae. Of counsel was Michael
T. Cone.
Appealed from: United States Court of International
Trade
Judge Jane A. Restani
United
States Court of Appeals for the Federal Circuit
00-1122
AMOCO OIL COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: December 14, 2000
__________________________
Before MAYER, Chief
Judge, NEWMAN and LOURIE, Circuit
Judges.
LOURIE, Circuit
Judge.
Amoco Oil Company appeals from the decision
of the United States Court of International Trade granting the government's
motion to dismiss for failure to state a claim upon which relief can be
granted. Amoco Oil Co. v.
United States, 63 F. Supp. 2d 1332 (Ct. Int'l Trade 1999). Because
the Court of International Trade did not err in concluding that the unconstitutional
export provision of the Harbor Maintenance Tax ("the HMT"), codified at
26 U.S.C. § 4461 (1994), is severable from the remainder of the HMT,
we affirm.
BACKGROUND
The HMT, contained in Title XIV of the Water
Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082 (1986)
("WRDA"), is an advalorem
tax on commercial cargo involved in "any port use," including imports.
26 U.S.C. § 4461(a). The HMT was intended to help finance the general
maintenance and improvement of U.S. ports. S. Rep. No. 99-126, at 9-10
(1985), reprinted in
1986 U.S.C.C.A.N. 6639, 6640-47. The relevant portions of the HMT provide
as follows:
§ 4461. Imposition of tax
(a) General rule.--There is hereby imposed
a tax on any port use.
(b) Amount of tax.--The amount of the tax
imposed by subsection (a) on any port use shall be an amount equal to 0.125
percent of the value of the commercial cargo involved.
(c) Liability and time of imposition of tax.--
(1) Liability.--The tax imposed by subsection
(a) shall be paid by--
(A) in the case of cargo entering the United
States, the importer,
(B) in the case of cargo to be exported from
the United States, the exporter . . .
26 U.S.C. § 4461.
As an importer, Amoco was subject to the HMT
under 26 U.S.C. § 4461(c)(1)(A). After allegedly making payments in
excess of $1,000,000, Amoco filed a complaint in the Court of International
Trade, challenging the constitutionality of the import provision of the
HMT, 26 U.S.C. § 4461(c)(1)(A), in light of the Supreme Court's decision
inUnited States v. U.S. Shoe Corp.,
523 U.S. 360 (1998). Amoco,
63 F. Supp. 2d at 1335. In U.S.
Shoe, the Supreme Court held that the export provision of the HMT,
26 U.S.C. § 4461(c)(1)(B), violated the Export Clause of the Constitution.
U.S. Const. art. I, § 10, cl. 2.
The government filed a motion to dismiss for
failure to state a claim upon which relief can be granted, which the Court
of International Trade granted. The court concluded that: (1) the export
provision of the HMT is severable from the remainder of the HMT; (2) the
HMT does not violate the Uniformity Clause, U.S. Const. art. I, §
8, cl. 1; and (3) the HMT does not violate the Port Preference Clause,
U.S. Const. art. I, § 9, cl. 6. Amoco,
63 F. Supp. 2d at 1339-41. With respect to the severability issue, the
court based its conclusion on the existence of a general severability provision
within the WRDA, codified at 33 U.S.C. § 2304, and on its duty to
interpret statutes "so as to maintain, rather than destroy, their constitutionality"
when possible. Amoco,
63 F. Supp. 2d at 1335-39. As for the remaining constitutional issues,
the court concluded that the HMT did not violate either the Uniformity
Clause or the Port Preference Clause because the "geographically-specific"
provisions did not result in a discriminatory preference and Amoco had
failed to demonstrate that Congress explicitly discriminated against any
particular state. Id.
at 1340-41.
Amoco timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994).
DISCUSSION
The decision of the Court of International
Trade to grant a motion to dismiss for failure to state a claim upon which
relief can be granted is a question of law, which we review denovo. SeePonder
v. United States, 117 F.3d 549, 552 (Fed. Cir. 1997). On a motion
to dismiss for failure to state a claim, any factual allegations in the
complaint are assumed to be true and all inferences are drawn in favor
of the plaintiff. Id.
Dismissal for failure to state a claim is proper only when it is beyond
doubt that the plaintiff can prove no set of facts that would entitle it
to relief. Id. (citing Conley
v. Gibson, 355 U.S. 41, 45-46 (1957)).
Amoco argues that the issue of severability
is a question of fact, and that it was therefore improper for the court
to dismiss Amoco's complaint without giving Amoco a reasonable opportunity
to conduct discovery and present additional evidence. Amoco further contends
that the severability clause in Title IX of the WRDA does not apply to
the HMT, and that Congress did not intend the export provision of the HMT
to be severable from the import provision because a tax on imports alone
would violate the General Agreement on Tariffs and Trade ("GATT").
The government responds that the Court of
International Trade did not err in denying Amoco's request for discovery
because the issue of severability is a question of law, not fact. The government
further asserts that this court has previously held that the severability
clause in Title IX of the WRDA applies to the HMT, and that the export
provision of the HMT is severable from the remainder of the HMT. Finally,
the government argues that the HMT does not violate the Uniformity Clause
or the Port Preference Clause, and that Amoco has waived any arguments
to the contrary by failing to raise them in its opening brief.
With respect to Amoco's procedural argument,
we agree with the government that the issue of severability is a question
of law. As we have previously indicated, the issue of severability is a
matter of statutory interpretation. SeePrincess
Cruises, Inc. v. United States, 201 F.3d 1352 (Fed. Cir. 2000) (citing Alaska
Airlines v. Donovan, 766 F.2d 1550, 1555 (D.C. Cir. 1985), for the
proposition that the question of severability "reduces to a matter of statutory
interpretation"). Moreover, we have repeatedly stated that issues of statutory
interpretation are questions of law. See, e.g., IBM
Corp. v. United States, 201 F.3d 1367, 1370 (Fed. Cir. 2000); Rheem
Metalurgica S/A v. United States, 160 F.3d 1357, 1358 (Fed. Cir.
1998). Accordingly, Amoco's argument that severability is a question of
fact, and that it was therefore improper for the court to dismiss Amoco's
complaint without giving Amoco a reasonable opportunity to conduct discovery,
is without merit.
With respect to Amoco's remaining arguments,
the government correctly points out that this court has previously addressed
the severability issue raised in this appeal. In two recent opinions, we
have specifically held that the unconstitutional export provision in the
HMT is severable from the remainder of the statute. Princess
Cruises, 201 F.3d at 1358; Carnival
Cruise Lines, Inc. v. United States, 200 F.3d 1361 (Fed. Cir. 2000).
In Carnival, we expressly
rejected the argument that the severability clause in the WRDA, 33 U.S.C.
§ 2304, does not apply to the HMT. Carnival,
200 F.3d at 1368. Furthermore, we also rejected the argument that Congress
did not intend to make the export provision of the HMT severable from the
import provision because a tax on imports alone would violate the GATT. Id.
at 1369. Accordingly, Amoco's argument that Congress did not intend the
export provision of the HMT to be severable from the import provision is
beyond the power of this panel to accept, and Amoco makes no request that
this court hear the issue enbanc.
In its reply brief, Amoco raises the argument
that the HMT is invalid because it violates the Uniformity Clause and the
Port Preference Clause of the Constitution. Because these constitutional
arguments were not raised in Amoco's opening brief, we decline to address
them. Although the Court of International Trade had decided three issues
(relating to severability, the Uniformity Clause, and the Port Preference
Clause), Amoco's counsel chose to argue only the severability issue in
its opening brief to this court. As a result, under well-established appellate
practice, the other two issues were effectively waived. Carbino
v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999) (explaining that under
the Federal Rules of Appellate Procedure, a reply brief should "reply to
the brief of the appellee" and "is not the appropriate place to raise,
for the first time, an issue for appellate review"). Nevertheless, out
of an excess of caution, the government briefed all three issues. In its
reply brief, then, counsel for Amoco presented argument concerning the
two issues that were not raised, asserting that, because the government
had raised them, the issues were not waived. However, a party must raise
in its opening brief all issues it wishes to challenge, and should not
rely on an opponent to raise them.
The fact that amicus,
Fentax International Corporation, raised the Uniformity Clause and Port
Preference Clause issues is also of no benefit to Amoco in this respect.
An amicuscuriae,
by definition, is a friend of the court, not of the appellant. An amicus
may support the appellant, preferably by providing a broader perspective
than the appellant, who may be solely interested in winning its case. But
an appellant and anamicus
may not split up the issues and expect the court to consider that they
have all been raised on appeal. It is the appellant's case, not a joint
appeal by the appellant andamicus.
Appellant must raise in its opening brief all the issues it wishes the
court to address.
This appeal is deficient in another respect.
In its opening brief, appellant's counsel failed to cite, much less distinguish,
clearly governing case law (viz., Carnival
and Princess), with
which counsel was intimately acquainted. Counsel for Amoco had in fact
submitted an amicus
brief in both the Carnival
and Princess cases.
In addition, the opinion in Carnival
was issued forty days before the appellant's opening brief in this case
was filed. By failing to cite controlling adverse authority, the conduct
of appellant's counsel was inappropriate and potentially a violation of
counsel's duty of candor toward the court. See
Model Rules of Prof'l Conduct R. 3.3(a)(3) ("A lawyer shall not knowingly
. . . fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position
of the client and not disclosed by opposing counsel."). The appeal should
wisely have been abandoned after this court'sCarnival
decision was handed down. At the very least, recognizing that an enbanc
rehearing or Supreme Court review was theoretically possible, although
not likely, appellant's counsel could have either submitted a motion to
stay the appeal, or included in its opening brief a frank citation of the Carnival
decision along with plausible grounds for distinguishing the case. But
ignoring such precedent and raising new issues in a reply brief are not
acceptable.
CONCLUSION
Accordingly, the Court of International Trade
did not err in granting the government's motion to dismiss for failure
to state a claim upon which relief can be granted, and we therefore
AFFIRM. |