Sunday, August 12, 2012

Jensen follows Hitachi

Remember the Hitachi decision in which the Court of Appeals for the Federal Circuit upheld a Court of International Trade decision that Customs and Border Protection is under no legal obligation to decide a protest within the two-year period provided in the statute and regulations? We discussed it here.

A related issue was addressed in Norman G. Jensen, Inc. v. United States, which we discussed here.
The Federal Circuit has now decided the appeal in Jensen. And, in what is probably not a surprise, has affirmed the dismissal of the case. Jensen is different than Hitachi in that Jensen tried to force Customs to decide the protest via a legal tool known as a writ of mandamus. Jensen brought its case under 28 U.S.C. 1581(i), which is the residual provision giving the Court of International Trade jurisdiction to review decisions relating to the administration and enforcement of the collection of revenue on imports, provided there is no other adequate means of securing judicial review. In most customs cases, the other adequate means is via the review of a denied protest under 28 U.S.C. 1581(a). Because there has been no decision on the protest and the two-year period has expired, Jensen went to Court under (i) to force Customs to approve or deny the protest.

In response, the Government moved to dismiss the case. The government argued that 1581(i) was not the proper basis for jurisdiction. The Government would have Jensen wait for, or force, a decision on the protest. The Court of International Trade agreed and dismissed the action.

On appeal, Jensen argued that forcing a decision via a request for accelerated disposition is not an adequate remedy because it will inevitably lead to a denied protest and further litigation. Rather, its goal in seeking a writ of mandamus is to force Customs to consider the protests and issue a reasoned decision.
The Federal Circuit did not agree. According to the Court, a request for accelerated disposition under 19 U.S.C. 1515(b) would result either in a reasoned decision from Customs or in a deemed denial. Assuming the protest was not approved, either a deemed denial or a denied protest would provide the Court of International Trade with jurisdiction to review the protested liquidations under 1581(a).

Jensen also argued that it had a statutory right to an immediate decision because of the passing of the two-year period. This argument, however, did not hold up following Hitachi, which held that the two-year period was not a meaningful deadline. The fact that Jensen was only seeking a decision from Customs—as opposed to Hitachi, which asked the Court to hold that the protests were automatically approved—was not a meaningful distinction. As a result, the Federal Circuit affirmed the decision to dismiss the case.

All of which is interesting background given that Hitachi has filed a petition for review in the U.S. Supreme Court. As in all cases, the chances of the Supreme Court granting review are slim. That may be exacerbated by the fact that this issue can only come up in the Court of International Trade and Federal Circuit. On the other hand, Supreme Court watchers tell me that the Court may look more closely at Federal Circuit decisions because the issues raised there cannot be worked out in other circuits. We shall have to wait and see.

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