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HENRY POLLAK, INC. v. BLUMENTHAL

November 23, 1977

HENRY POLLAK, INC., Plaintiff,
v.
W. Michael BLUMENTHAL, Secretary of the Treasury, et al., Defendants*



The opinion of the court was delivered by: GREEN

 JUNE L. GREEN, District Judge.

 Plaintiffs in these actions sue for the return of funds collected from them by defendants, who acted in accord with Presidential Proclamation No. 4074, issued August 15, 1971. Proclamation No. 4074 imposed a surcharge upon articles imported into the United States and subjected to customs duties. Defendants have moved the Court under F.R.Civ.P. 12(b)(1) to dismiss the complaints on the ground that the Court lacks jurisdiction over the subject matter. The Court grants defendants' motion for the reasons given below.

 I.

 During the summer of 1971, the United States was faced with an economic crisis. *fn1" The nation suffered under an exceptionally severe and worsening balance of payments deficit. The gold reserve backing of the U.S. dollar had dropped from $17.8 billion in 1960 to less than $10.4 billion in June of 1971, reflecting a growing lack of confidence in the U.S. dollar abroad. Foreign exchange rates were being controlled by some of our major trading partners in such a way as to overvalue the U.S. dollar. That action, by stimulating U.S. imports and restraining U.S. exports, contributed substantially to the balance of payments deficit. As one step in a program designed to meet the economic crisis, the President issued Proclamation 4074, which was entitled Imposition of Supplemental Duty for Balance of Payment Purposes and stated in relevant part:

 
WHEREAS, there has been a prolonged decline in the international monetary reserves of the United States, and our trade and international competitive position is seriously threatened and, as a result, our continued ability to assure our security could be impaired;
 
WHEREAS, the balance of payments position of the United States requires the imposition of a surcharge on dutiable imports;
 
. . .
 
NOW, THEREFORE, I, RICHARD NIXON, President of the United States of America, acting under the authority vested in me by the Constitution and the statutes, including, but not limited to, the Tariff Act [of 1930], and the TEA [Trade Expansion Act of 1972], respectively, do proclaim as follows:
 
A. I hereby declare a national emergency during which I call upon the public and private sector to make the efforts necessary to strengthen the international economic position of the United States.
 
B. (1) I hereby terminate in part for such period as may be necessary and modify prior Presidential Proclamations which carry out trade agreements insofar as such proclamations are inconsistent with, or proclaim duties different from, those made effective pursuant to the terms of this Proclamation.
 
(2) Such proclamations are suspended only insofar as is required to assess a surcharge in the form of a supplemental duty amounting to 10 percent ad valorem. Such supplemental duty shall be imposed on all dutiable articles imported into the customs territory of the United States . . . .

 On December 20, 1971, a little over four months after the surcharges went into effect, President Nixon issued Proclamation No. 4098 terminating the program. The reason given was the formulation of a multilateral agreement among the major ...


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