Developments during 2009 concerning 28 U.S.C. (Section) 1581(d) and (G) and 28 U.S.C. (Section) 1582(1)

Article excerpt


I. CASES DECIDED PURSUANT To 28 U.S.C. [section] 1581(D)
   A. Cases Involving The Department Of Labor
      1. United Steel, Paper & Forestry, Rubber,
        Manufacturing, Energy, Allied Industrial & Service
        Workers International Union, Local 2911 v. United
        States Secretary of Labor
      2. Former Employees of Invista, S.A.R.L. v. United States
        Secretary of Labor
      3. Former Employees of Warp Processing Co. v. United
        States Department Of Labor
      4. Chen v. Solis
      5. Former Employees of Hutchinson Technology, Inc. v.
        United States
      6. Former Employees of Honeywell International, Inc. v.
        United States Department of Labor
   B. Cases Involving The Department Of Agriculture
      1. Dorsey v. United States Secretary of Agriculture
      2. Hacker v. United States Secretary of Agriculture
II. CASES DECIDED PURSUANT TO 28 U.S.C. [section] 1581(G)
   A. Depersia v. United States
III. CASES DECIDED PURSUANT To 28 U.S.C. [section] 1582
   A. United States v. Scotia Pharmaceuticals, Ltd
   B. United States v. T.J. Manalo, Inc
   C. United States v. Rodrigue


In 2009, the United States Court of International Trade ("CIT") decided eight cases brought pursuant to 28 U.S.C. [section] 1581 (d), relating to the respective trade adjustment assistance ("TAA") programs administered by the Department of Labor ("Labor") and the Department of Agriculture ("USDA"). With one exception, none of the cases addressed disputed jurisdictional issues relating to the scope of [section] 1581 (d). Instead, in these cases, the court addressed substantive factual and legal issues in resolving the cases upon the merits. Taken as a whole, there was an interesting distinction between the court's focus in deciding the cases involving the Department of Labor and its focus in deciding cases involving the Department of Agriculture. Regarding the six cases involving Labor's TAA decisions, the cases largely turned upon questions of substantial evidence and Labor's procedures as applied to the unique facts of individual cases. Legal holdings of broad applicability were rare. Many of the cases reviewed involved multiple remands and, in many instances, the thoroughness of Labor's investigations were criticized by the court--even in cases that were ultimately decided in favor of the Government. In contrast, both of the USDA TAA cases turned not upon the facts, but upon the resolution of a discrete legal issue regarding the determination of "net farm income" for the purposes of establishing the statutory eligibility requirements for agricultural TAA. The way this issue was resolved in these cases appeared to create a conflict (although only one of the CIT decisions was published), however, in a very recent precedential decision that affirmed the CIT's decision in one of the two cases, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") largely resolved that conflict.

Historically, the CIT has decided a relatively small number of cases brought pursuant to 28 U.S.C. [section] 1581 (g). In the single 2009 case that involved that jurisdictional provision, the court, in dismissing an aggrieved applicant's challenge to a question on the customs broker license examination, reaffirmed prior precedent regarding the limited and highly deferential review of examination questions, while at the same time demonstrating that this standard of review will nonetheless still involve a careful consideration of asserted ambiguities and other deficiencies in the exam.

Finally, the court's decisions in three customs enforcement cases filed by the United States, pursuant to 28 U.S.C. [section] 1582, were notable in that the decisions did not turn upon jurisdictional issues or issues of substantive customs law, but rather upon basic issues of civil procedure, such as extensions of time for making service of process under Rule 4(1) of the Rules of the United States Court of International Trade ("USCIT R. …


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