CAFC Affirms Dismissal of Broker's Attempt to Compel CBP Protest Decisions
The Court of Appeals for the Federal Circuit affirmed the Court of International Trade’s February 2011 decision against a customs broker that sought to compel CBP to issue a ruling on its protests. In its decision, CIT had said customs broker Norman G. Jensen still had an administrative remedy in the form of accelerated disposition to force a protest ruling, so CIT had no subject matter jurisdiction for lack of exhaustion. CAFC agreed with CIT, saying Jensen should have requested an accelerated disposition of the protest with CBP and filed suit under 28 USC 1581(a) should the protest have been deemed denied, rather than filing suit under 28 USC 1581(i) before the protest was decided.
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(In 2007, Jensen, a U.S. and Canadian customs broker, filed 308 protests with CBP, claiming that it overpaid AD/CV duty deposits on 1,529 liquidated entries of softwood lumber from Canada because CBP did not adjust the deposit rates on its entries prior to liquidation. By 2009, Jensen’s protests had not been decided by the end of the two-year statutory deadline. After several requests that CBP decide its protests, Jensen filed suit at CIT in August 2009. Jensen then inquired once again about the status of its protests, and when CBP said it would not decide the protests while relevant litigation was pending, Jensen filed this action at CIT requesting a writ of mandamus compelling CBP to decide its protests.)
In its February 2011 ruling, CIT had said it had no subject matter jurisdiction of this matter as filed under 28 USC 1581(i). According to CIT, Jensen could have filed an accelerated disposition under 19 USC 1515(b) and, noting that in accelerated dispositions protests are deemed denied if no decision is forthcoming after 30 days, could have then filed suit under 28 USC 1581(a), which gives CIT jurisdiction over denials of CBP protests. Therefore, said CIT, Jensen could not invoke CIT’s Section 1581(i) residual jurisdiction because Section 1581(i) is limited to those circumstances in which either no other provision of Section 1581 can provide jurisdiction.
In this appeal, Jensen said that it is not interested in the deemed denial that it asserts would inevitably flow from resort to accelerated disposition under Section 1515(b), but rather seeks CBP decisions on its protests. Because it cannot obtain the relief it seeks under Section 1515(b), Section 1581(a) is manifestly inadequate and thus jurisdiction under Section 1581(i) is appropriate, Jensen said. Jensen argued that, among other things, it is entitled by law to a decision within two years of filing of the protests. CAFC disagreed. Neither the relevant provision, 19 USC 1515(b), nor the Congressional record expressly impose penalties on CBP for failing to act within two years, CAFC said. Jensen cannot claim entitlement to an immediate decision simply because two years have passed, as it did in this action.
Therefore, Jensen was required to exhaust the administrative remedies available to it by requesting accelerated disposition. Should the protest have been deemed denied, then it could have filed suit under 28 USC 1581(a). CAFC affirmed CIT’s dismissal because of CIT’s decision that it had no subject matter jurisdiction under Section 1581(i).
(See ITT’s Online Archives 11021417 for summary of CIT’s February 2011 dismissal of Jensen’s request for a writ of mandamus.)