
    (C.R.D. 79-1)
    James A. Cole Co., Inc. v. United States
    Court No. 75-7-01724
    (Dated January 2, 1979)
    
      Barnes, Richardson & Colburn (Peter J. Fitch of counsel) for the plaintiff.
    
      Barbara Allen Babcock, Assistant Attorney General (Sidney H. Kufiik, trial attorney), for the defendant.
   MEMORANDUM OPINION AND ORDER

Landis, Judge:

This case raises the question of under what circumstances an action may be suspended under a test case.

The relevant Customs Court rule is 14.7(a): “An action may be suspended pending the final determination of another action (hereinafter referred to as a test case) if it involves an issue of fact or a question of law which is the same as the issue of fact or question of law involved in such test case.”

In the proposed test case here, Pier I Imports, Inc. v. United States, court No. 75-1-00100, the merchandise, fish netting, was classified under TSUS item 386.04: “Articles not specially provided for, of textile materials: Lace or net articles, whether or not ornamented, and other articles ornamented: Of cotton.” In said case plaintiff had claimed the proper classification is under TSUS item 355.35: “Fish netting and fishing nets (including sections thereof), of textile materials: Of cotton.” In the proposed suspended case, James A. Cole Co., Inc. v. United States, 75-7-01724, the merchandise was classified under the same item number as'the test case, viz 386.04 TSUS. Plaintiff urges alternatively TSUS item 352.80, “Netting, in the piece, made on a lace, net, or knitting machine, whether or not ornamented: * * * Not ornamented: * * * Other” or TSUS item 359.10, “Textile fabrics, including laminated fabrics, not specially provided for: Of cotton,” as the correct classification.

According to the plaintiff, the issue of fact or question of law’which is alleged to be the same is: “Whether the merchandise is properly classifiable under TSUS item 355.35.” This argument is obviously fallacious. TSUS item 355.35 is only the claimed provision in the proposed test case, whereas, in the proposed suspended case, TSUS item 355.35 does not appear. Therefore under plaintiff’s theory, there is no common question of law or fact between the two cases.

The motion of plaintiff to suspend is denied.  