Flint Hills Resources, LP v. United States

Slip Op. 11-42
UNITED STATES COURT OF INTERNATIONAL TRADE
FLINT HILLS RESOURCES, LP, Formerly
Known as KOCH PETROLEUM GROUP, LP
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Pogue, Chief Judge
Court No. 06-00065
OPINION AND ORDER
[Plaintiff’s motion to assign action to three-judge panel denied.]
Dated: April 19,2011
Phelan & Mitri (Michael F. Mitri), Galvin & Mlawski (John J.
Galvin) for the Plaintiff.
Tony 	West, 	Assistant 	Attorney 	General; 	Jeanne 	E. 	Davidson,
Director; 	Todd 	M. 	Hughes, 	Deputy 	Director; 	(Tara 	K. 	Hogan),
Attorney-in-Charge, Commercial Litigation Branch, Civil Division,
United States Department of Justice for the Defendant.
Pogue, 	Chief 	Judge: 	This 	action 	puts 	at 	issue 	the
interpretation and retroactivity of an amended statute regarding a
drawback 	claim 	for 	taxes 	paid 	on 	the 	importation 	of 	Plaintiff’s
goods. 1 	Currently, the action is assigned to a single judge, but
Plaintiff now moves for re-assignment to a three-judge panel.
1 Drawback is the refund of import duties where the importer
re-exports the imported products. See 19 U.S.C. § 1313 (2006).
Case 1:06-cv-00065-RKE Document 22 Filed 04/19/11 Page 1 of 3

Court No. 06-00065 	Page 2
DISCUSSION
A case may be assigned to a three-judge panel if it “(1)
raises an issue of the constitutionality of an Act of Congress, a
proclamation of the President or an Executive order; or (2) has
broad or significant implications in the administration or
interpretation of the customs laws.” 28 U.S.C. § 255(a); see also
USCIT R. 77(e). 	This authority, however, “for reasons of
judicial economy and efficiency, . . . should be used sparingly,”
Nat’l Corn Growers Ass'n v. Baker, 10 CIT 517, 522, 643 F. Supp.
626, 631 (1986), and specifically where the benefits of using
such a panel outweigh the disadvantages of doing so. 	Sony Elecs.
Inc. v. United States, 25 CIT 336, 143 F. Supp. 2d 970, 973-74
(2001).
Here, two considerations weigh against such an assignment.
First, the case has been assigned to its present judge for almost
three years. 	In general, “motions for reassignment to a
three-judge panel, made after the case has been assigned to a
single judge, will be viewed with disfavor.” Nat’l Corn Growers
Ass’n, 643 F. Supp. at 631. 	Here, the judge currently assigned
to the case is familiar with the litigation not only from her
three-year assignment but because she is also presiding over a
related test case, Shell Oil Co. v. United States, Court. No. 08-
00109.
Case 1:06-cv-00065-RKE Document 22 Filed 04/19/11 Page 2 of 3

Court No. 06-00065 	Page 3
In addition, Plaintiff’s reason for requesting assignment to
a three-judge panel is that Plaintiff disagrees with the decision
of the Federal Circuit in Aectra Refining and Marketing, Inc. v.
United State, 533 F. Supp. 2d 1318 (2007), aff’d. 565 F. 3d 1364
(Fed. Cir. 2009), reh’g. and reh’g. en banc den’d. (Fed Cir.
2009). 	But a three-judge panel is not intended to serve as an
appellate body, see, e.g., Seattle Marine Fishing Supply Co. v.
United States, 13 CIT 227, 709 F. Supp. 226 (1989), and certainly
not to review the decision of a higher court.
Therefore, upon consideration of Plaintiff’s motion for
assignment to a three-judge panel, Plaintiff’s motion is hereby
DENIED.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: 	April 19, 2011
New York, N.Y.
Case 1:06-cv-00065-RKE Document 22 Filed 04/19/11 Page 3 of 3