Court of International Trade decisions during 2010 under 28 U.S.C. s. 1581(i) residual jurisdiction.

AuthorReed, Patrick C.
PositionSection - I

TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW OF [section] 1581(i) III. AVAILABILITY OF JUDICIAL REVIEW A. Allocation of Jurisdiction between the CIT and District Courts B. The Choice Between Residual Jurisdiction and Other Subsections of [section] 1581 1. Customs Litigation 2. Antidumping and Countervailing Duty Litigation. C. Timing of Judicial Review: The Issues of Ripeness and Mootness IV. CIT RESIDUAL JURISDICTION CASES REACHING THE MERITS IN 2010 A. Whether Customs Bonds Have Third-Party Beneficiaries: Sioux Honey B. Modification of Importers' Bonding Requirements: National Fisheries Institute C. Liquidation Issues in Antidumping and Countervailing Duty Cases V. CONCLUSION: A VISIT TO THE OLD CURIOSITY SHOP I. INTRODUCTION

The residual jurisdiction of the United States Court of International Trade (CIT) under [section] 1581(i) of title 28, U.S. Code, is "one of those receptacles for old and curious things which seem to crouch in odd corners of this town and to hide their musty treasures from the public in jealousy and mistrust." (1) What calls to mind the old curiosity shop is that CIT decisions under [section] 1581(i) jurisdiction during 2010, as in past years, are noteworthy for presenting particularly arcane legal issues. (2) Some cases address the threshold issue of whether or when residual jurisdiction is available, encountering new factual patterns and requiring probing analysis of complex statutory frameworks and procedural settings. Other cases under the court's residual jurisdiction reach the merits, but remain arcane because they inevitably arise in obscure corners of customs and international trade law, whereas other CIT jurisdictional grants cover the core of the practice area. Still, the analogy to the old curiosity shop may be imprecise, for CIT decisions under its residual jurisdiction are more likely to be treasures and curiosities of the avant-garde than antiques.

Part I of this article provides an overview of [section] 1581(i) subject-matter jurisdiction and its purposes. Part II discusses CIT decisions during 2010 on the availability of judicial review in residual jurisdiction cases. One such case considered the allocation of jurisdiction between the CIT and district courts to review an international agreement resolving a dispute with a U.S. trading partner. A number of decisions on availability of review apply the established principle that a plaintiff may not invoke residual jurisdiction where one of the CIT's other jurisdictional grants is also available, unless the administrative remedy leading to the other jurisdictional grant is manifestly inadequate. Other prerequisites to judicial review appear as well, such as the existence of a non-moot case or controversy. Part III of the article addresses decisions in which the CIT finds that it possesses jurisdiction and reaches the merits. In 2010, the two substantive areas addressed in decisions under [section] 1581(i) jurisdiction were customs bond law and liquidation of entries subject to antidumping and countervailing duties. The decisions include, notably, a case of first impression in which the CIT held that it possesses supplemental jurisdiction to hear a plaintiff's claims against non-government defendants based on a theory of third-party beneficiary contracts. This case represents a fascinating exception to the CIT's usual role as a forum for litigation between the government and private parties.

  1. OVERVIEW OF [section] 1581(i)

    Section 1581(i) provides that, in addition to the jurisdictional grants set out in subsections (a) through (h), the CIT has

    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) through (h) of this section. (3)

    In [section] 1581(i) cases, the CIT conducts general statutory review, applying the scope and standard of review set out in [section] 706 of the Administrative Procedure Act (APA). (4) In contrast, subsections (a) through (h) provide the jurisdiction to conduct specific statutory review under particular statutory rights of action. (5) Section 1581(i) cases are subject to a two-year statute of limitations, (6) and the court "shall, where appropriate, require the exhaustion of administrative remedies." (7)

    Section 1581(i) residual jurisdiction "serves three distinct purposes." (8) First, it gives the CIT jurisdiction to hear customs and international trade cases that are not within any of the court's specific statutory rights of action corresponding to its jurisdictional grants in subsections (a)-(h) of [section] 1581. (9) Second, it allocates jurisdiction between the CIT and federal district courts. (10) "Third, in certain cases, [section] 1581(i) ... allows the CIT to assume jurisdiction in cases which are also potentially within one of its jurisdictional grants [in subsections (a) through (h)] corresponding to specific statutory rights of action." (11)

    The intersection of these three purposes leads to two limitations on subject-matter jurisdiction under [section] 1581(i). First, to give effect to congressional intention on allocating jurisdiction between the CIT and district courts, courts have ruled that [section] 1581(i) is strictly limited to cases that are within the four categories set out in paragraphs (1) through (4) of [section] 1581(i). (12) For example, in K Mart Corp. v. Cartier, Inc., (13) the Supreme Court held that district courts and not the CIT had jurisdiction in a lawsuit arising under a statutory prohibition on importation of articles infringing U.S. trademarks. (14) According to the Supreme Court, the import prohibition was neither an "embargo" nor a "quantitative restriction" within the meaning of [section] 1581(i)(3). (15)

    Second, in cases that are potentially within one of the CIT's other jurisdictional grants, case law since 1980 establishes the principle that [section] 1581(i) residual jurisdiction "may not be invoked when jurisdiction under another subsection of 1581 is or could be available, unless the remedy provided under that other subsection would be manifestly inadequate." (16) In many cases, therefore, whether the CIT has jurisdiction under [section] 1581(i) is intertwined with whether the administrative remedy leading to judicial review based on another jurisdictional grant in [section] 1581 is manifestly inadequate. (17) For example, the Court of Appeals for the Federal Circuit ruled in one case that [section] 1581(i) jurisdiction is available where the relevant administrative agency, U.S. Customs and Border Protection, lacked the power to grant the relief being sought and, therefore, the administrative remedy of filing a protest leading to jurisdiction under [section] 1581 (a) "would have been an utter futility. (18)


    The preceding overview of [section] 1581(i) reflected two general limitations on subject-matter jurisdiction under the CIT's residual jurisdiction. First, the case must be properly in the CIT instead of a district court, because it arises under a federal law described in paragraphs (1) through (4) of subsection (i). The CIT's one decision in 2010 on this issue is discussed in part A below. Second, if the case is also potentially within one of the CIT's specific jurisdictional grants, the administrative remedy potentially leading to the specific jurisdictional grant must be manifestly inadequate. This topic is discussed in part B below.

    Besides these two limitations on [section] 1581(i) subject-matter jurisdiction, the usual prerequisites to the availability of judicial review of administrative actions remain applicable in cases brought under the CIT's residual jurisdiction: no preclusion of review, standing by the plaintiff, no defendant immunity, and proper timing (although as noted above timing often merges with subject-matter jurisdiction in [section] 1581(i) litigation). (19) Part C below discusses two 2010 cases that illustrate contrasting approaches to the proper timing of judicial review under residual jurisdiction, one turning on whether the dispute was ripe for review and the other turning on whether the dispute was moot.

    1. Allocation of Jurisdiction between the CIT and District Courts

      The only CIT decision in 2010 that considered whether the matter was within the CIT's residual jurisdiction rather than a district court's jurisdiction was Almond Brothers Lumber Co. v. United States. (20) That decision was not a new case, but a reconsideration of the court's 2009 decision in the case. (21) The court nevertheless adhered to its ruling that an action by U.S. lumber companies to contest provisions of the 2006 U.S.-Canada Softwood Lumber Agreement (SLA) was not within the CIT's residual jurisdiction because the statute authorizing the SLA was not within any of the categories set out in the four paragraphs of [section] 1581(i). (22)

      In 2011, however, the Federal Circuit reversed the CIT's decision and remanded the case for further proceedings, holding that the case was within [section] 1581(i) subject-matter jurisdiction because the CIT had misinterpreted the statutory authority underlying the SLA. (23) Although this article is intended to be a survey of CIT decisions during the year 2010, the Federal Circuit's reversal of the CIT's decision and the likelihood of further proceedings in the CIT on remand make it appropriate for the article to include developments in 2011.

      The SLA settled a long dispute between the United States and...

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