Norman G. Jensen Inc v. United States
| Decision Date | 10 February 2011 |
| Docket Number | Slip Op. 11-15 |
| Parties | NORMAN G. JENSEN, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Before: Richard K. Eaton, Judge
OPINION AND ORDER[Defendant's motion to dismiss granted.]
Joel R. Junker & Associates (Joel R. Junker), for plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (Jason M. Kenner, Justin R. Miller, and David S. Silverbrand); Office of Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection (Paula Smith), of counsel, for defendant.
Eaton, Judge: This matter is before the court on the motion of defendant the United States, on behalf of United States Customs and Border Protection ("Customs"), to dismiss the complaint of plaintiff Norman G. Jensen, Inc. ("Jensen") for lack of subject matter jurisdiction. The question presented is whether the court has jurisdiction to issue a writ of mandamuscompelling Customs to rule on protests of liquidation1 that have been pending beyond the two year statutory time frame set forth in 19 U.S.C. § 1515(a) (2006).2 For the reasons stated below, the court grants defendant's motion and dismisses this action.
The facts, as set forth in Jensen's complaint, are largely uncontested, and are accepted as true for purposes of defendant's motion to dismiss. See Michael Simon Design, Inc. v. United States, 33 CIT,, 637 F. Supp. 2d 1218, 1223 (2009). On February 15, 21, and 22, 2007, Jensen, on behalf of importers that it represents, filed 308 protests with Customs, covering 1, 529 entries of softwood lumber from Canada.3 Compl. ¶ 9. On March 9, 2009, more than two years after filing its protests, plaintiff, through its counsel, contacted Customs' Office of Regulations and Rulings ("OR&R") to inquire about the protests' status. Compl. ¶ 12. Following nearly two months of exchanged phone messages, OR&R informed plaintiff that its protests had been consolidated under a "lead protest," and that a draft protest decision letter had been prepared, but not yet finalized or issued.
Plaintiff, then, asked for a list identifying which of its 308 protests had been consolidated under the "lead protest." Compl. ¶ 13. Plaintiff's request stemmed from its concern that, because its protests pertained to entries from a number of different ports, including, among others, Buffalo, New York, Seattle, Washington, and Great Falls, Montana, the consolidation might not include all 308 protests. Compl. ¶ 15.
Customs never provided plaintiff with the requested information. Compl. ¶¶ 15-16. Rather, by email message dated August 7, 2009, OR&R suggested that plaintiff contact the Port of Detroit, Michigan to obtain a list of consolidated protests. Compl. ¶ 14. By reply email, plaintiff expressed its concern that the port of Detroit might not have information on the entries from other ports. Accordingly, plaintiff stated that "[w]e would appreciate if whoever in your office has access to the file would be able to send us a listing of the protests covered by the ruling." Compl. ¶ 15. When plaintiff did not receive any further response to its inquiries, it commenced an action in this Court on August 10, 2009 "for the purpose of preserving its appeal rights in the event [Customs] had issued any decisions regarding some or all of the protests within the statutory deadline and not given notice to [Jensen]."4 Compl. ¶ 16; See Norman G. Jensen, Inc. v. United States, Court No. 0900332 ("2009 Action").5
On October 20, 2009, plaintiff again contacted OR&R to inquire about the protests. Compl. ¶ 17. By email message dated October 22, 2009, OR&R responded that pursuant to 19 C.F.R. § 177.7(b), 6 Customs would not issue a ruling with respect to any issue pending before this Court, and, therefore, Customs would not rule on plaintiff's protests because they were the subject of the 2009 Action. Compl. ¶ 18. By letter dated November 10, 2009, plaintiff's counsel responded to OR&R's October 22 communique, "reiterat[ing] [Customs'] statutory obligation to issue a decision with respect to the protests within two years from the date the protests were filed, and requested once again that [Customs] advise when a decision would be rendered on the protests." Compl. ¶ 19.
Plaintiff received no further response from Customs, and on April 2, 2010 Jensen commenced the action now before the court, seeking a writ of mandamus to compel Customs to rule on its protests. See Compl. ¶ 27. Jurisdiction is asserted under 28 U.S.C. § 1581(i). Compl. ¶ 2; Pl.'s Resp. to Def.'s Mot. to Dism. and Mot. to Ext. Dead. ("Pl.'s Mem.") 5.
Defendant moves to dismiss plaintiff's action for lack of subject matter jurisdiction, 7 arguing that "an importer may notobtain jurisdiction under 28 U.S.C. § 1581(i) where another administrative avenue, such as accelerated disposition of a protest under 19 U.S.C. § 1515(b) and 19 C.F.R. § 174.22(d), exists." Mem. in Supp. of Def.'s Mot. to Dis. and Mot. to Stay the Fil. of its Resp. to the Pet. for Writ of Mand. Pend. the Res. of the Mot. to Dis. ("Def's Mem.") 6. According to defendant, plaintiff can obtain the relief sought from this Court by following the statutory scheme set forth in 19 U.S.C. §§ 1514 () and 1515 (providing for the accelerated disposition of protests), and, if necessary, seeking review of Customs' determinations in this Court pursuant to 28 U.S.C. § 1581(a). Defendant argues, therefore, that plaintiff may not invoke this Court's § 1581(i) residual jurisdiction because of the availability of an adminstrative procedure that could lead to jurisdiction under § 1581(a). Def's Mem. 6-7.
Whether jurisdiction exists is a question of law for the ourt. Shah Broths., Inc. v. United States, 34 CIT,, Slip Op. 10—115 at 9 (October 6, 2010). The party seeking to invoke this Court's subject-matter jurisdiction bears the burden of establishing it. Alden Leeds Inc. v. United States, 34 CIT,, 721 F. Supp. 2d 1322, 1327 (2010) (citing AutoAlliance Int'l, Inc. v. United States, 29 CIT 1082, 1088, 398 F. Supp. 2d 1326, 1332 (2005)). To meet its burden, the plaintiff must plead facts from which the court may conclude that it has subject-matter jurisdiction with respect to each of its claims. Schick v. United States, 31 CIT 2017, 2020, 533 F. Supp. 2d 1276, 1281 (2007) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
"It is a 'well-established principle that federal courts... are courts of limited jurisdiction marked out by Congress.'" Norcal/Crosetti Foods v. United States, 963 F.2d 356, 358 (Fed. Cir. 1992) (quoting Aldinger v. Howard, 427 U.S. 1, 15 (1976)). The jurisdiction of the Court of International Trade is found in 28 U.S.C. § 1581. Subsections (a)-(h) of § 1581 delineate the specific actions over which this Court has subject matter jurisdiction. See 28 U.S.C. § 1581.
Section 1581(i) sets forth this Court's so-called "residual" or "catch-all" jurisdictional grant. Although § 1581(i) is a "broad residual jurisdictional provision," its application is generally limited to cases for which jurisdiction is not or could not have been available under another subsection of § 1581. See Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1292-93 (Fed. Cir. 2008) (citing Int'l Customs Prods, v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006)).
If jurisdiction is or could have been available under another subsection of § 1581, jurisdiction under subsection (i) will not lie "unless the other subsection is shown to be manifestly inadequate." Hartford Fire Ins. Co., 544 F.3d at 1292. As the Court of Appeals for the Federal Circuit explained:
unless such traditional means are manifestly inadequate.
Id. (quoting Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1549 (Fed. Cir. 1983)). When 1581(i) jurisdiction is asserted, the party invoking jurisdiction bears the burden of demonstrating that another subsection is either unavailable or manifestly inadequate. Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987).
Section 1581(a) governs this Court's jurisdiction to review Custom's treatment of protests. Pursuant to that subsection, "[t]he [Court] shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section [19 U.S.C. § 1515]." 28 U.S.C. § 1581(a). Accordingly, in order to invoke this Court's jurisdiction to review Customs' treatment of a protest, a plaintiff must first obtain a denial of that protest from Customs. See Playhouse Imp. & Exp., Inc. V. United States, 18 CIT 41, 43, 843 F. Supp. 716, 719 (1994).
Under 19 U.S.C. § 1514(a), a party can challenge Customs' liquidation of entries by filing a protest with Customs. In turn, 19 U.S.C. § 1515(a) provides that Customs shall allow or deny a protest within two years of its filing. Pursuant to § 1515(b), however, a party may submit a request to Customs for accelerated disposition at any time concurrent with or after the filing of a protest. If accelerated disposition is requested, the protest is deemed denied unless Customs takes action to allow or deny it by the thirtieth day following mailing of the request.See 19 U.S.C. § 1515(b). A party can seek judicial review of a protest that is denied, or deemed denied, by filing a summons in this Court within 180 days of the denial or...
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