Friedman v. Kantor, Slip Op. 97-112.

• Citation: 977 F.Supp. 1242
• Decision Date: 11 August 1997
• Docket Number: Court No. 96-07-01787.,Slip Op. 97-112.
• Parties: Abraham FRIEDMAN, Plaintiff, v. Mickey KANTOR, Department of Commerce, International Trade Administration, U.S. International Trade Commission, Department of State, U.S. Trade Representative, Defendants.
• Court: U.S. Court of International Trade

977 F.Supp. 1242

Abraham FRIEDMAN, Plaintiff, v. Mickey KANTOR, Department of Commerce, International Trade Administration, U.S. International Trade Commission, Department of State, U.S. Trade Representative, Defendants.

Slip Op. 97-112.

Court No. 96-07-01787.

United States Court of International Trade.

August 11, 1997.

COPYRIGHT MATERIAL OMITTED

Wasserman, Schneider & Babb (Patrick C. Reed), New York City, for plaintiff.

Frank W. Hunger, Assistant Attorney General, David W. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis, Assistant Director), and Lyn M. Schlitt, General Counsel, James A. Toupin, Assistant General Counsel, United States International Trade Commission (Gail Usher, Attorney); and Office of Chief Counsel for Import Administration, United States Department of Commerce (David W. Richardson, General Attorney), Office of the Assistant Legal Adviser for Economic, Business, and Communications Affairs, United States Department of State (Keith Loken, Attorney Adviser), and Office of the United States Trade Representative (Kenneth Freiberg, Deputy General Counsel), Washington, DC, of counsel, for defendant.

OPINION

WALLACH, Judge.

INTRODUCTION

Plaintiff Abraham Friedman brought this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (1994), to compel Defendant agencies to assist him with his business difficulties in Mexico. Defendants moved to dismiss the case for lack of subject matter jurisdiction, lack of standing and failure to state a claim upon which relief can be granted. Plaintiff claims jurisdiction is proper under 28 U.S.C. § 1581(i) (1994), but also requests that the case be transferred to a federal district court if this Court determines that it lacks jurisdiction.

Defendant's Motion To Dismiss for lack of jurisdiction is granted because this action does not arise from a law providing for an "embargo" within the meaning of section 1581(i), and, additionally, Plaintiff has failed to satisfy the standing requirement of 28 U.S.C. § 2631(i) (1994) with respect to two of his three claims under the APA. Since these claims are non-justiciable and the agency inaction alleged in the remaining claim appears to be unreviewable, transfer of the case would not be in the interest of justice, and is therefore denied.

BACKGROUND

Plaintiff commenced this action on May 8, 1996 as a pro se plaintiff by filing two Summons and a Complaint, challenging agency inaction.¹ One of the Summons and the Complaint named Mickey Kantor, the Department of Commerce ("Commerce"), the International Trade Administration, the U.S. International Trade Commission, the Department of State, and the U.S. Trade Representative ("USTR") as Defendants (hereinafter "Defendants" or "Defendant agencies"). Defendants responded to the Complaint by moving to dismiss for lack of jurisdiction, lack of standing and failure to state a claim upon which relief can be granted.

This Court appointed counsel to represent Plaintiff on a pro bono basis. Plaintiff, by his court-appointed attorney, clarified that the Complaint set forth the following claims: (1) that Commerce did not pursue Plaintiff's petition to impose antidumping duties against imports of shopping carts; (2) that Commerce did not provide trade adjustment assistance to Plaintiff; and (3) that officials of the Commerce and State Departments in Monterrey, Mexico City, and in Washington, D.C., as well as officials of the USTR, declined to help Plaintiff after his business in Mexico encountered difficulties. Plaintiff's Opposition To Defendants' Motion To Dismiss ("Plaintiff's Opposition") at 2.

Plaintiff effectively abandoned the first two claims (antidumping and trade assistance) raised in the Complaint.² Consequently, the only issue before the Court is Plaintiff's contention that he was denied assistance by Defendant agencies in violation of applicable statutes and regulations, which include 15 U.S.C. § 4721(b) (1994), 19 U.S.C. § 2171(c) (1994), and 22 C.F.R. §§ 101.1 and 101.3 (1995) (defining, respectively, functions of the United States and Foreign Commercial Service ("Commercial Service") within Commerce's International Trade Administration, the USTR, and Foreign Service Officers ("FSOs")). Since neither of these statutes or regulations creates a private right of action, Plaintiff relies on the Administrative Procedure Act (APA), which recognizes a private right of action to compel unlawfully withheld agency action.³ 5 U.S.C. §§ 702, 706. Finally, Plaintiff contends that this action is within the Court's jurisdiction under 28 U.S.C. § 1581(i), but requests that if the Court finds otherwise, it should transfer the case to a federal district court, rather than dismiss it. Plaintiff's Opposition at 4-6.

Mr. Friedman's Affidavit states that Plaintiff is a minority shareholder and corporate General Manager of a company in Monterrey, Mexico, established in the late 1980's to manufacture household steel articles, such as ironing boards, step ladders, and shopping carts. Friedman Affidavit, attached to Plaintiff's Opposition, at ¶ 3. Plaintiff claims the Mexican company was to operate as a maquiladora under Mexican law, receiving customs and other benefits, and to use this status to export the merchandise to the United States. Id. He states that a U.S. company, to which Plaintiff contributed substantial funds, was to supply raw materials to the Mexican company. Id.

Plaintiff further claims that the Mexican operations "encountered a number of serious difficulties and [were] forced to cease operations in 1991, together with the U.S. company." Id. at ¶ 4. Those difficulties included the Mexican government's cancellation of the company's maquiladora permit and legal proceedings in Mexican courts involving the company's Mexican landlord, which led to the latter's taking possession of the company's equipment and to a personal judgment against Plaintiff. Friedman Affidavit at ¶¶ 4-5. Plaintiff alleges that the government's action was improper and that the court rulings were biased against him and the company as foreign investors. Id.

Plaintiff claims that he sought help from the above-named U.S. agencies in connection with the company's maquiladora permit and the litigation in Mexican courts, which allegedly continues today. Id. at ¶¶ 5-6. However, according to him, little, and nothing effective, was done in response to his request, and this "failure by the responsible government agencies and officials to provide any effective assistance has prevented the business operations in Mexico from reopening." Id. at ¶¶ 7-9.

DISCUSSION

I This Action Is Not Within the Scope of the Court's Residual Jurisdiction

Plaintiff contends that this Court has subject matter jurisdiction under 28 U.S.C § 1581(i).⁴ The argument is premised on the assertion that Defendants' failure to help him with his business difficulties in Mexico amounted to an "embargo" or the administration and enforcement of an embargo within the meaning of section 1581(i)(3)-(4). However, the language of section 1581(i) is clear that the Court has jurisdiction only over a civil action that "arises out of any law of the United States providing for ... [an embargo]" or the administration and enforcement of such a law. The present action does not arise out of such a law. On the contrary, Plaintiff alleges a cause of action under the APA⁵ and statutes or regulations defining, respectively, the functions of the Commercial Service, the USTR, and the Foreign Service. These provisions may implicate certain international trade issues, but neither of them is a law providing for an embargo or for other import regulation, as specified in section 1581(i). Thus, while section 1581(i) was "intended to give the Court of International Trade broad residual authority over civil actions arising out of federal statutes governing import transactions," Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1588 (Fed.Cir.1994), it cannot confer jurisdiction in the absence of such a statute merely because the action involves issues of international trade. See Phibro Energy, Inc. v. Franklin, 17 CIT 383, 822 F.Supp. 759 (1993).

Plaintiff contends that the inaction of Defendant agencies completely prevented his company from importing in the United States and therefore amounted to an embargo within the meaning of K Mart Corp. v. Cartier, which defined the term as "a governmentally imposed quantitative restriction — of zero — on the importation of merchandise." 485 U.S. 176, 185, 108 S.Ct. 950, 957, 99 L.Ed.2d 151 (1988). However, K Mart addressed the issue of whether the prohibition of certain imports contained in a U.S. law — section 526(a) of the 1930 Tariff Act, 19 U.S.C. § 1526(a) — constituted an embargo.⁶ Thus, nothing in this case supports the proposition that the failure of U.S. agencies to assist a foreign company seeking to import merchandise in the United States is somehow equivalent to a U.S. law providing for an embargo or the administration and enforcement of such a law.⁷

On the contrary, K Mart stands for the proposition that section 1581(i), while intended to remedy the problem of overlapping jurisdictions between the Court of International Trade and district courts, is a relatively narrow grant of jurisdiction. The Supreme Court stated:

Congress did not commit to the Court of International Trade's exclusive jurisdiction every suit against the Government challenging customs-related laws and regulations. Had Congress wished to do so it could have expressed such an intent much more clearly and simply by, for example, conveying to the specialized court "exclusive jurisdiction ... over all civil actions against the [Government] directly affecting imports," ... or over "all civil actions against the [Government] which arise directly from import transactions...."

485 U.S. at 188, 108 S.Ct. at 958 (citations omitted) (...