Sundwig v. United States, 062018 USCIT, 18-00142

Docket Nº:18-00142, Slip Op. 18-74
Opinion Judge:Jennifer Choe-Groves, Judge.
Party Name:ANDRITZ SUNDWIG GMBH, Plaintiff, v. UNITED STATES, Defendant.
Attorney:James G. Hurst and Scott L. Johnston, Givens & Johnston, PLLC, and Stacey L. Barnes, Kearney, McWilliams & Davis, PLLC, of Houston, TX, for Plaintiff Andritz Sundwig GMBH. Justin R. Miller, Senior Trial Counsel, Alexander J. Vanderweide and Hardeep K. Josan, Trial Attorneys, and Amy M. Rubin, Ass...
Judge Panel:Before: Jennifer Choe-Groves, Judge.
Case Date:June 20, 2018
Court:Court of International Trade
 
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ANDRITZ SUNDWIG GMBH, Plaintiff,

v.

UNITED STATES, Defendant.

No. 18-00142

Slip Op. 18-74

Court of Appeals of International Trade

June 20, 2018

Dismissing this action for lack of subject matter jurisdiction.

James G. Hurst and Scott L. Johnston, Givens & Johnston, PLLC, and Stacey L. Barnes, Kearney, McWilliams & Davis, PLLC, of Houston, TX, for Plaintiff Andritz Sundwig GMBH.

Justin R. Miller, Senior Trial Counsel, Alexander J. Vanderweide and Hardeep K. Josan, Trial Attorneys, and Amy M. Rubin, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., for Defendant United States. With them on the brief was Chad A. Readler, Acting Assistant Attorney General. Of counsel were Edward N. Maurer and Alexandra Khrebtukova, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of New York, N.Y.

OPINION

Before: Jennifer Choe-Groves, Judge.

Jennifer Choe-Groves, Judge.

This matter involves a request seeking the court's intervention to prevent the emergency exportation of machinery in wood packaging material containing an invasive insect species of the family Siricidae, commonly known as horntails or woodwasps. Plaintiff Andritz Sundwig GMBH ("Andritz" or "Plaintiff") is a German company that supplies production machinery to steel and aluminum manufacturers. See Aff. Deborah Zink at 1, June 17, 2018, ECF No. 4-1. Andritz is the importer of record for the subject merchandise at issue here: "one complete 4-High Temper Mill (Cold Rolling Mill)" and "one complete S6 High Cold Rolling Mill" (collectively, "Cargo"). Id. at 2. The Cargo is valued at approximately $39.5 million. See id. Plaintiff commenced this action to obtain judicial review of two Emergency Action Notifications ordering the immediate exportation of the Cargo. See Original Compl. & Appl. TRO, Temp. Inj. & Permanent Inj., June 17, 2018, ECF No. 4 ("Compl."). Before the court is Plaintiff's Application for Temporary Restraining Order, see Appl. TRO, June 17, 2018, ECF No. 5 ("Pl.'s Mot."), and Defendant's cross-motion to dismiss for lack of subject matter jurisdiction under USCIT Rule 12(b)(1). See Teleconference at 0:21:30-0:23:17, June 20, 2018, ECF No. 22. For the reasons explained below, the court denies Plaintiff's motion, grants Defendant's cross-motion, and dismisses this action for lack of subject matter jurisdiction.

BACKGROUND

The U.S. Department of Agriculture ("USDA") Animal and Plant Health Inspection Service ("APHIS") and the Department of Homeland Security ("DHS") are responsible for enforcing the Plant Protection Act, 7 U.S.C. §§ 7701 et seq.1 APHIS and DHS have the authority to regulate certain animal- and plant-related issues, including wood packaging material used for the importation of goods into the United States. If the wood packaging material is not properly treated and marked, then a port inspector may order immediate re-exportation. See 7 C.F.R. § 319.40-3(b)(3) (2018).2

The Cargo at issue in this case arrived in the United States on June 8, 2018, listed on two bills of lading numbered BBCH1222001AH01 and BBCH1222001AH02. See Compl. ¶¶ 9, 13. Andritz received Emergency Action Notification ("EAN") 96081 on June 11, 2018 in relation to Bill of Lading BBCH1222001AH01. See id. ¶ 12. Plaintiff received EAN 96733 in relation to Bill of...

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