Saturday, April 07, 2007

Protest Woes

Here's something else that strikes me as interesting: Avecia, Inc. v. United States (CIT Slip Op. 07-41). Basically, the issue is whether a protest filed at and denied by the wrong port give the Court of International Trade subject matter jurisdiction to review the denial on the substance.

The regulations are clear that the protest should be filed with the port director whose decision is being protested. 19 C.F.R. sec. 174.12(d). The statute requires that "the appropriate customs officer" decide the protest, but it does not specify who that officer is. It could be an officer at another port.

Further, the jurisdictional statute giving the court the power to review denied protests doesn't say anything about where that protest had to be filed. From this, the court found that the place of filing regulation was beyond the "metes and bounds" of the subject matter jurisdiction of the court. Customs, through its protest regulations, cannot modify the court's jurisdiction.

This is fundamentally right. The court's jurisdiction is set by statute. No Customs regulation can change it. The statute says that the CIT gets to review denied protests. That means that there needs to be a valid protest. The court seems to hold that there was a valid protest here. It was just filed at the wrong port and that violated the regulation. But, the regulation does not state the consequences of misfiling at the wrong port and does not say that the port director at the wrong port cannot act on the protest. If the regulation said something like that, the case would be a lot harder even though I suspect the decision would have been the same. Jurisdiction is the purview of Congress to be interpreted by the courts. Agency regulations don't really have any say in it.

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