DEVELOPMENTS DURING 2006 CONCERNING 28 U.S.C. § 1581(i)

Georgetown Journal of International Law, Fall 2007 by Davidson, Jeanne E, Hale, Zachary D

I. INTRODUCTION

Two thousand and six was an active year for the Court of International Trade ("CIT") and the Court of Appeals for the Federal Circuit ("Federal Circuit") with regard to the CITs jurisdiction pursuant to 28 U.S.C. � 1581 (i). The year gave rise to several interesting holdings concerning the scope of that jurisdiction. The courts also began to illuminate a set of previously cloudy procedural questions-what causes of action, may be asserted within the jurisdictional boundaries of � 1581 (i), and how central is the Administrative Procedure Act ("APA") in that regard? Finally, a number of substantive issues arose in cases invoking the CIT's � 1581 (i) jurisdiction. The Continued Dumping and Subsidies Offset Act ("CDSOA") was the subject of several decisions. Two of those decisions declared one of the CDSOA's provisions to be unconstitutional, and another held the same provision to be inapplicable to duties collected upon imports from NAFTA countries. Additionally, the Federal Circuit had the opportunity to interpret for the first time several provisions of the statute that permit the United States Trade Representative ("USTR") to take retaliatory action in response to the violation of United States trade rights by other countries. A number of cases addressed liquidation of entries by the Bureau of Customs and Border Protection ("Customs"), liquidation instructions issued by the Department of Commerce ("Commerce"), and the various forms of administrative review available with regard to duty orders.

II. BASIC JURISDICTIONAL PRINCIPLES OF � 1581 (i)

The jurisdiction of the Court of International Trade is governed by 28 U.S.C. � 1581. Subsections 1581 (a) through (h) grant jurisdiction to the CIT to hear civil actions seeking review of specific sorts of decisions by Customs, Commerce, the Department of Labor ("Labor"), the Department of the Treasury ("Treasury"), and the International Trade Commission ("ITC").1 Subsection 1581 (i), by contrast, grants jurisdiction to the CIT in more general terms:

In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for

(1) revenue from imports or tonnage;

(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;

(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or

(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.2

Courts have described � 1581 (i) as a "residual" jurisdiction provision, but that description has been qualified in two ways.3

First, � 1581 (i) 's grant of exclusive jurisdiction does not extend to all claims involving international trade and customs, but rather is limited to the particular matters described in � 1581 (i) (I)-(S) and claims regarding the administration and enforcement of the matters described in �� 1581 (a) through (h).4 Congress adopted � 1581 (i) primarily to avoid jurisdictional confusion and overlap between the district courts and the CIT's predecessor (the Customs Court), and to "ensure . .. uniformity in the judicial decision making process."5 It did so by enumerating the particular matters over which the CIT would have jurisdiction.6 Consequently, courts have been keen to limit the CIT's jurisdiction to those particular matters,7 and to maintain a clean division between the jurisdiction of the CIT and that of the district courts.

In 1988, the Supreme Court decided in K-Mart that the CIT did not possess � 1581 (i) jurisdiction to review a challenge to a Customs Service regulation implementing 19 U.S.C. � 1526(a), which permits seizure of counterfeit goods by Customs.8 The Court reasoned that seizure under � 1526(a) was not an "embargo" under � 1581 (i) (3) because � 1526(a) only led to seizure if a private party requested it.9 The Court remarked that, if it were to "depart from the words Congress chose" (here, "embargoes") to permit CIT jurisdiction over the import restriction in � 1526(a), that would reinstate the jurisdictional confusion with the district courts that Congress sought to avoid.10

In 2006, the CIT in H & H Wholesale Services, Inc. v. United States decided on related grounds that the CIT did not possess � 1581 (i) (4) jurisdiction to review challenges to the administration and enforcement of Customs seizures under 19 U.S.C. � 1526(e).u The plaintiff alleged that Customs had not provided proper notice of detention of merchandise, as required by 19 U.S.C. � 1499 (c) (2) and implemented by 19 C.F.R. � 151.16(b) (2006), but it also challenged Customs's determination that plaintiff's imports were counterfeit.12 In this instance, the CIT based its denial of jurisdiction entirely on the division-ofjurisdiction rationale. First, it cited precedent that the CIT will not assert jurisdiction over a plaintiff's claim to the extent that it "seeks a ruling on a substantive matter of trademark law in connection with an alleged unlawful seizure of the merchandise," since trademark law is purely domestic.13 second, it noted that both � 1581 and 28 U.S.C. � 1356-which gives district courts original jurisdiction over seizureswere enacted as part of the same legislation, for the express purpose of clarifying the boundaries between CIT jurisdiction and the jurisdiction of the district courts.14 If the CIT exercised "exclusive jurisdiction" under � 1581 (i) over the plaintiff s claim that Customs did not provide proper notice under 19 U.S.C. � 1499(c), that would require the district courts to habitually send portions of their seizure cases to the CIT.15 That would result in the "piecemeal resolution of challenges to seizures" that "would provide neither comprehensive review nor a clear boundary between this Court and the district court."16 Therefore, the CIT concluded that it lacks such jurisdiction.17