CASES UNDER 28 U.S.C. § 1581(a)*

Georgetown Journal of International Law, Fall 2006 by Cumins, Gail T, Baron, Allison M, Nordin, Sara

I. INTRODUCTION

In the calendar year of 2005, the United States Court of International Trade ("CIT") rendered twenty-eight substantive decisions invoking the court's jurisdiction under 28 U.S.C. � 1581 (a), which gives the CIT exclusive subject matter jurisdiction over all civil actions contesting the denial of a protest made under the relevant guidelines for agency review of protests.1

Of these cases, three cases reflected decisions following remand from the United States Court of Appeals for the Federal Circuit ("Federal Circuit"),2 three cases involved bench trials,3 and fifteen sought relief pursuant to motions for summary judgment, three of which were denied in whole or in part.4 The remaining eight cases involved a variety of other motions, including: a Motion for Rehearing and Reconsideration pursuant to USCIT R. 59(a);5 Motions for a Temporary Restraining Order under USCIT R. 65(b);6 a Motion for Relief from Judgment under USCIT R. 60(a) and (b)(1);7 a Motion to Set Aside the Judgment under USCIT R. 60 (b)(2);8 Motions to Dismiss under USCIT R. 12(b), raising the jurisdiction issue of 28 U.S.C. � 1581(a) versus 28 U.S.C � 1581(i);9 a Motion for Judgment on the Pleadings under USCIT R. 12(c);10 and a Motion to Intervene under USCI R.24(b).11

At the same time, the Federal Circuit rendered fifteen decisions on appeal of judgments invoking 28 U.S.C. � 1581(a), all but four of which affirmed the decisions of the CIT.12

This Article examines the significant principles that these court cases establish with respect to a variety of issues ranging from jurisdiction and protestable decisions to summary judgment, drawback, and other issues. Additionally, the cases include classification disputes involving a diverse and interesting group of products. As the case analysis will reveal, the courts construe 28 U.S.C. � 1581(a) jurisdiction broadly, and the provision is widely used to resolve disputes involving actions by the government with respect to imported merchandise.

II. CASE ANALYSIS

A. Jurisdiction

Title 28 U.S.C. � 1581(a) (2000) ("� 1581(a)") gives the CIT exclusive subject matter jurisdiction over all civil actions contesting the denial of a protest made under 19 U.S.C. � 1515.13 Considering that 19 U.S.C. � 1515 (a) authorizes United States Customs and Border Protection ("Customs") "to review or deny or allow a protest as long as it is filed in accordance with 19 U.S.C. � 1514," a suit attempting to invoke jurisdiction under � 1581 (a) must be based on a denied protest that complies with the requirements of 19 U.S.C. � 1514. In particular, a protest must be timely filed after final liquidation and challenge a "decision" made by Customs.14

1. Protestable Decision

In Xerox Corporation v. United States, the Federal Circuit upheld the CIT's determination that it did not have jurisdiction pursuant to � 1581 (a) over the subject action because the suit did not involve a protestable decision by Customs.15 Having failed to obtain the required certification for a North American Free Trade Agreement ("NAFTA")16 post-importation claim within a year of entry,1 the importer, Xerox, filed a protest along with the requisite NAFTA documentation after liquidation took place (i.e., more than one year after the date of importation). Xerox's protest challenged Customs' decision to liquidate the entries without providing duty-free treatment under NAFTA.18 The CIT concluded that Xerox had abandoned its NAFTA claim by not filing it within one year of entry because the history behind the enactment of NAFTA implementing legislation "overwhelmingly reiterates the one-year time period for claiming entitlement to a refund premised on NAFTA eligibility."19

In Tak Yuen Corporation v. United States, the CIT also denied subject matter jurisdiction under � 1581 (a).20 The case involved a challenge to a Customs determination that certain mushrooms were excludible because the merchandise was subject to an anti-dumping order and the importer had failed to pay antidumping duties. The CIT dismissed the suit as premature because the protest was filed prior to notice of liquidation and an actionable exclusion had not taken place, given that Customs gave the importer the option to correct the entry paperwork and pay the required antidumping duties.21

2. Section 1581 (a) versus section 1581 (i)

It is well established that 28 U.S.C. � 1581 (i) (2000) ("� 1581 (i)") jurisdiction may only be invoked when the party asserting the provision successfully establishes that either no other basis for jurisdiction is available or that the available basis cannot yield an adequate remedy.22 It is equally clear that � 1581 (a) jurisdiction is broad, and that residual jurisdiction under � 1581 (i) is difficult to obtain. For instance, the Tak Yuen court held that jurisdiction under � 1581 (i) was improper because jurisdiction under � 1581 (a) was technically available once an actionable exclusion occurred.23

In Autoalliance International, Inc. v. United States, the CIT denied jurisdiction under � 1581 (i) to the plaintiff importer challenging Customs' "administrative actions and failure to follow its procedures and regulations when assessing a duty and thereafter handling [the plaintiffs] protest." The court reached its decision in part because the plaintiff had not shown that the remedy provided under � 1581 (a) was manifestly inadequate.24 The court affirmed the broad scope of � 1581 (a) jurisdiction, concluding that the court may not only consider Customs' legal conclusion at denial of a protest but also "the procedures Customs followed in administering its protest decision."25