If CBP seizes the imports, the CIT would have to dismiss the appeal because only U.S. district courts have subject matter jurisdiction over CBP seizures.See, e.g.,H & H Wholesale Servs., Inc. v. United States, 437 F. Supp. 2d 1335 (Ct. Int’l Trade 2006). Over the years, the Customs and International Trade Bar Association hasoffered legislative proposalsto transfer jurisdiction over seizure disputes to the CIT.The U.S. government sought to dismiss the new lawsuit, arguing that the dispute does not fall within 28 U.S.C. §1581(h), which authorizes challenges to a pre-importation CBP ruling, or the CIT’s jurisdictional “catch all provision” in 28 U.S.C. §1581(i). It further alleged that One World’s claims would not ripen until CBP selected one of the three options (release, exclusion or seizure) described above.

19-112On August 19, 2019, the CIT granted the defendant’s motion to dismiss for lack of subject matter jurisdiction in the antidumping duty case of tapered roller bearings from the People’s Republic of China. The court concluded that because jurisdiction could have been invoked under 28 U.S.C. §1581(c), residual jurisdiction under 28 U.S.C. § 1581(i) is not available. Moreover, although Plaintiff Wanxiang America Corporation contended otherwise, the Commerce guidance to CBP is not a reviewable Administrative Procedure Act (“APA”) final agency action.

The CIT is a court of special jurisdiction that has nationwide jurisdiction over civil actions arising out of import transactions and federal transactions affecting international trade. The CIT has jurisdiction to review CBP’s protest decisions pursuant to 28 USC § 1581(a). The CIT has also, on occasion, exercised jurisdiction under other sections of 28 USC § 1581 to review CBP’s actions with respect to enforcement of ITC remedial orders.

At the time of importation, CBP required the posting of antidumping and countervailing duties based upon its belief that the imported citric acid was subject to the antidumping and countervailing duties on citric acid from China. TRI sought an injunction against CBP, challenged the collection of duties under the CIT’s residual jurisdiction outlined in 28 U.S.C. § 1581(i), and sought to have CBP reliquidate the entries without antidumping and countervailing duties.TRI alleged that (1) CBP assessed the duties based on undisclosed or confidential instructions from Commerce that were arbitrary, capricious, an abuse of power, and without proper procedure, (2) CBP exceeded its authority by determining that the imported citric acid was subject to AD and CVD duties because determinations of what is inside and outside scope are reserved for Commerce, and (3) CBP misapplied Commerce’s liquidation instructions and “disregarded procedural requirements to issue notices of action proposed or action take before liquidating TRI’s entries,” which deprived TRI of the opportunity to present its reasons to CBP to withhold liquidation of the entries.

The CAFC found no substantive or procedural error in Commerce’s ruling or in their continuation of a suspension liquidation for the Plaintiff’s sake.2018-1282On July 22, 2019, Plaintiff-Appellant Erwin Hymer Group North America, Inc. appealed the final judgment of the United States Court of International Trade (CIT) that granted the Government’s motion for judgment on the agency record. The CAFC found that the CIT’s assertion of residual jurisdiction was improper due to a civil action for contesting the denial of protests that could have been available under 28 U.S.C. § 1581(a), and the remedy provided under § 1581(a) is not manifestly inadequate. Because the CIT lacked jurisdiction, the CAFC reversed and remanded with instructions to dismiss.

The trade bar commonly refers to these orders as the Solar I Orders. Sunpreme challenged CBP’s action by filing suit at the U.S. Court of International Trade (CIT) under 28 U.S.C. § 1581(i), arguing that CBP exceeded its authority by determining whether an import fell within the scope of an order. After years of litigation, the Federal Circuit dismissed the suit, holding that Sunpreme could have an adequate remedy—i.e., a lawsuit challenging an adverse scope ruling issued by Commerce—under 28 U.S.C. § 1581(c), such that the CIT lacked subject matter jurisdiction under 28 U.S.C. § 1581(i).

The ARP Materials and Harrison Steel cases are proceeding as the lead cases for these issues, and the government is expected to file a (consolidated) motion to dismiss by early December. We expect that the government will assert that the court lacks jurisdiction to hear the plaintiffs’ refund claims because the plaintiffs have all filed their lawsuits under 28 U.S.C. § 1581(i), a “catch-all” jurisdictional provision that litigants often turn to when the remedies offered by other jurisdictional bases are deemed “manifestly inadequate.” The government will likely argue that the proper and exclusive cause of action for post-liquidation Section 301 duty refund claims arises under 28 U.S.C. § 1581(a), a provision that confers jurisdiction on the court only after an importer receives a denied protest.

Id. at 5-6. For example, while 28 U.S.C. § 1581(a) gives the ITC exclusive jurisdiction over denials of protests arising under 19 U.S.C. § 1515, the section is silent as to a district court’s jurisdiction over patent infringement claims or injunctions. Likewise, as noted by the Court, although § 1515 states that a district court does not have the jurisdiction to consider a seizure protest, the statute does not mention, let alone limit, a district court’s jurisdiction to enjoin importation.

ease or DetainCBP will issue a notice to importer advising them of:The initiation of detentionDate merchandise examinedReason for detentionAnticipated length of detentionNature of tests and inquiries to be conductedInformation to accelerate dispositionUpon written request, CBP must provide importer with testing procedures, methodologies used, and testing resultsWithin 30 Days of ExaminationCBP will make a final determination as to the admissibility of merchandiseIf CBP does not make a determination within the 30-day period, the merchandise will be deemed excludedThis means any submission to rebut the presumption should be made before this 30 day periodWithin 180 Days of CBP Determination/ExclusionImporters may protest CBP’s final determinationWithin 30 Days After Protest SubmittedThe protest is deemed denied if CBP does not grant or deny the protest within 30 daysWithin 180 Days after the Date the Protest is DeniedThe importer may commence a court action contesting the denied protest (28 U.S.C. § 1581(a))In a court action, CBP must establish by a preponderance of the evidence that an admissibility decision has been reached for good causeCustoms can decide to grant the protest after the deemed denial but before a court case is filedThis is a much shorter timeline than the WRO process. Importantly, a company contesting CBP’s detention of merchandise pursuant to the UFLPA would be required to submit documentation to rebut the presumption within the 30 day period that CBP is assessing admissibility, whereas the WRO process permits 90 days.

Notes Conferring upon the CIT "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 . . . tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue[.]" 28 U.S.C. § 1581(i)(1)(B). Explaining that a civil action commenced at the CIT under its residual jurisdiction provision "is barred unless commenced in accordance with the rules of the court within two years after the cause of action first accrues."