Court of International Trade Decisions during 2010 under 28 U.S.C. (Section) 1581(i) Residual Jurisdiction

Article excerpt

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.

II. 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. …