1 Slip Op. 02-43 UNITED STATES COURT OF INTERNATIONAL TRADE

: AMMEX, INC., : : Plaintiff, : : Before: WALLACH, Judge v. : Court No.: 99-01-00013 : : UNITED STATES OF AMERICA, : : Defend ant. :

: : [Motion for Reconsideration: Denied.] Decided: May 1, 2002

St ept oe & Jo hns on LLP ( Herbert C. Shelley , Alice A. Kipel ) , for Plaintiff. Robert D. McCallum, Jr. , Assistan t Attorne y G eneral ; John J. Mahon , Acting Attorney in Charge, Inte

rnational Trade Field Office, Commercia l Litigation Branch, Civil Division, United States Department of Justice ( Amy M. Rubin ), for Def

endant. WALLACH, Judge.

MEMORAN DUM OP INION ANDORDER I INTRODUC TION Purusant t

o USCI T Rule 59, Pl aintiff A mmex, I nc. (“A mmex”) move s the cour

t to reconsider its decision in Slip Opinion 02-20 and accompany ing order, dated Februar

y 22, 20021 Familiarity with the cour t’s earlier opinion is assumed.

2 (“Slip Op.”), 1 in which the court denied Ammex’s Motion for Order to Show Cause Why Defend ant Should N ot be Held

in Contempt

(“Ammex’ s Contempt M otion”). Ammex claim s the February

22, 2002 opinion should be reconsidered because, it say s: (1) the court reviewed Ammex’s res judic ata

argume nt under i ssue pre clusion in stead of claim pre clusion pr

inciples, and (2) the opinion misconstrues Ammex’s October 23, 2000 letter to Customs as a forfeiture of Ammex’s ability to challenge the revocation decision on res judic ata grounds. Ammex’s Motion for Reconsideration is denied.

II DISCUSSION The gr ant of a motion for

reconsi deratio n is within the sound dis cretion of the co urt. Union Camp Corp. v. United States , 21 CI T 371, 963 F . Supp. 1212 , 1213 (19 97). “Th e purpose of a rehearing is not to relitigate the case but, rather, to rectify a fundamental or significant flaw in the original proceeding.” Asociacion Colombiana de Exportadores de Flores v. United States , 22 CIT 724, 19 F. Supp.2d 1116, 1118 (1998). I t is well established that the court will not disturb its decision unless it is “manifestly erroneous.” Precision Speciality Metals v. United States , 182 F. Supp.2d 1314, 1321 (CIT 2001). The circ umstances in which a “significant flaw” or “mani festly

errone ous” dec ision is pre sent are as follow s: (1) an error or irregul arity in the t rial; (2) a serious evidentiary flaw; (3) a discovery

of importantnew evid

ence wh ich was not availa

ble even to the diligent party at the time of tr

ial; or (4) an occurrence at trial in a na ture of an accident or unpredi ctable surpri se or unavoidable mistake which impaired a party ’s ability to adequately present its case.3

USEC, Inc. v. United States , 138 F. Supp.2d 1335, 1337 (CIT 2001). Ammex has not established that reconsideration of the court’s ear lier decision is warranted. Contrary to Ammex’s arg ument, the court’s February 22, 2002 opinion rested on the court’s lack of jurisdiction to hear Ammex’s contempt motion. See Sl ip Op. at 6 -10 . In address ing the n

umerous a

rgumen ts raised by A mmex, the co

urt found Ammex’s res judic ata argument unpersuasive and stated that “[i]ssue preclusion should thus not operate to bar e ither party from r

aising [the] issue in the correct procedural posture.” Id. at 11. Ammex now argues that the f ocus of it s res judic ata

argument was on claim preclusion gr ounds and that the court erred by focusing instead on issue preclusion. “Under the doctrine of res judicata [claim prec lusion], a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based upon the sa me claim or cause of action.” Golden Pac. Bancorp v. United States , 15 F.3d 1066, 1071 (Fed. Cir. 1994) (citing 1B James W. Moore et al., Moore’s Federa l Practice ¶ 0.401[1] (2d ed. 1993)). The court is not persuaded that the claim or cause of action in Ammex, Inc. v. United States , 116 F. Supp.2d 1269 (CIT 2000) (“ Amme x I ”) , is the same claim at the basis of Customs’ revocation of the September 5, 2000 letter. In deny ing Ammex’s Contempt Motion, the court recognized the distinction between Ammex’s initial claim raised in Amme x I(that the specific decisions and rationale contained in the challenged Customs Headqua rter rulings were arbitrar

y, capric ious, or contrar y to law) and the sepa rate an d distinct c laim with w

hich Ammex challeng ed Customs’ revocation of the September 5, 2000 letter (that the fuel sold at Ammex’s duty -free store satisfies the statutory definition of “duty -free merchandise” and that suc h fuel is not subject to federal tax). See Slip Op. at 7 . Beca use clai m preclu sion oper

ates to “ bar a se cond suit r

aising c laims4

based on the same set of transactional facts,” Jet, In c. v. Sewa

ge Aer ation Sy s. , 223 F.3d 1360, 1362 (Fed. Cir. 2000), and Ammex has failed to establish that the “transactional fac ts”underlying the claim in Amme x Iare the same as those underly ing Customs’ revocation decision, Ammex’s claim preclusion argument failed then, and still fails. Ammex also argues in its Motion for Reconsideration that a mistake of fact underlies the court’s conclusions regarding A mmex’s October 23, 2000 letter of Ammex to Customs. “Contrary to the Court’s unde rstanding,” Ammex argues, “Ammex did not write the October 23, 2000 letter because Ammex believed the excise tax question was left unresolved after Ammex I .” Memorandum of Law in Support of Ammex, I nc.’s Motion for Reconsideration (“Ammex’s Memo”) at 7 (footnotes omitted). As previously noted, the court’s opinion was grounded on the basis that the court lacked jurisdiction to hear Ammex’s contempt motion because such motion raised an issue separate and distinct from the issues raised in the or iginal proceeding. The opinion simply did not rest on any conclusions the court drew from the October 23, 2002 letter. The decision to grant or deny a civil contempt motion is discretionary. MAC Corp. of Am. v. Williams Patent Crusher & Pulverizer Co. , 767 F.2d 882, 885 (Fed. Cir. 1985). Ammex has not established the existence of a fundamental, significant, or r elevant flaw in the original proceeding, nor brought to light a ny evidence

that the court’s decision is manifestly e rroneous. Instead, Ammex has merely reiterated its original position and again mischara cterized the court’s holding in Amme x I . Given Ammex’s failure to establish the requisites for reconsideration and the discretionary

nature of a decision on a contempt motion, Ammex’s motion is unpersuasive.5 III CONCLUSION For the foregoing r

easons, Ammex’s Motion for Reconsideration is denied.

__________________________ Evan J . Wal lach, Judge

Dated: May 1, 2002

New York, New York