Norman G. Jensen, Inc. v. United States , 687 F.3d 1325 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
NORMAN G. JENSEN, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
__________________________
2011-1319
__________________________
Appeal from the United States Court of International
Trade in case no. 10-CV-0115, Judge Richard K. Eaton.
_________________________
Decided: August 10, 2012
_________________________
JOEL R. JUNKER, Joel R. Junker & Associates, of Seat-
tle, Washington, argued for plaintiff-appellant.
JUSTIN R. MILLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of New York, New York, argued for defendant-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director, of
Washington, DC; and BARBARA S. WILLIAMS, Attorney in
Charge, and JASON M. KENNER, Trial Attorney, of New
York, New York. Of counsel on the brief was PAULA S.
SMITH, Office of Assistant Chief Counsel, International
NORMAN G JENSEN INC v. US 2
Trade Litigation, U.S. Customs and Border Protection, of
New York, New York.
SIDNEY N. WEIS, Hitachi Home Electronics (America),
Inc., of New York, New York. Of counsel on the brief was
STEVEN B. ZISSER, Zisser Customs Law Group, PC, of San
Diego, California.
__________________________
Before BRYSON, SCHALL, and PROST, Circuit Judges.
SCHALL, Circuit Judge.
Norman G. Jensen, Inc. (“Jensen”) appeals the final
decision of the United States Court of International Trade
in Norman G. Jensen, Inc. v. United States, Slip Op. 11-
15, 2011 WL 587174 (Ct. Int’l Trade Feb. 10, 2011). In
that decision, the court dismissed for lack of jurisdiction
Jensen’s complaint under 28 U.S.C. § 1581(i). In its
complaint, Jensen sought a writ of mandamus to compel
Customs and Border Protection (“Customs”) to rule on
Jensen’s protests that have been pending before Customs
beyond the two year time period set forth in 19 U.S.C.
§ 1515(a). The court concluded that jurisdiction was
lacking under § 1581(i) because jurisdiction only lies
under that provision when no other subsection of § 1581
provides an adequate remedy. The court stated that
Jensen had such a remedy in the form of an action under
§ 1581(a). The court reasoned that Jensen could seek
accelerated disposition of its protests by Customs under
19 U.S.C. § 1515(b) and then contest under § 1581(a) any
subsequent denial of the protests. See Jensen, 2011 WL
587174, at *4. Because we discern no error in the Court
of International Trade’s decision, we affirm its dismissal
of Jensen’s complaint.
3 NORMAN G JENSEN INC v. US
BACKGROUND
I.
The pertinent facts are not in dispute. Jensen is a li-
censed customs broker. On February 15, 21, and 22,
2007, it filed with Customs 308 protests on behalf of
various importers. The protests sought reliquidation of
1,529 entries of softwood lumber from Canada.
On March 9, 2009, more than two years after the pro-
tests were filed, Jensen contacted Customs to inquire
about the status of the protests. After nearly two months,
Customs replied that the protests had been consolidated
under a “lead protest” and that a draft protest decision
letter had been prepared, but not yet finalized.
On August 7, 2009, in response to an inquiry by Jen-
sen, Customs suggested that Jensen contact the Port of
Detroit, Michigan, for a list of the protests consolidated
under the lead protest. Jensen responded to Customs on
August 10, 2009, expressing its concern that the Port of
Detroit might not possess a complete list of protests
consolidated under the lead protest, as some of the pro-
tests had been filed in ports other than the Port of De-
troit. Jensen again requested from Customs a complete
list of the consolidated protests.
After receiving no response to its request, Jensen filed
suit in the Court of International Trade on August 13,
2009. Jensen states that it filed suit “for the purpose of
preserving its appeal rights in the event [Customs] has
issued any decisions regarding some or all of the protests
within the statutory deadline and not given notice to
[Jensen].” Compl. ¶16, Jensen, 2011 WL 587174.
On October 20, 2009, after still having received no re-
sponse to its inquiry of August 10, 2009, Jensen again
inquired regarding the status of its protests. Customs
NORMAN G JENSEN INC v. US 4
responded via email message on October 22, 2009, stating
that pursuant to 19 C.F.R. § 177.7(b), it would not issue a
ruling with respect to any issue pending before the Court
of International Trade and that therefore it would not
rule on Jensen’s protests because of the action that Jen-
sen had filed on August 13.
Responding by letter to Customs’ email on November
10, 2009, Jensen stated that Customs had a statutory
obligation to issue a decision with respect to the protests
within two years from the date they were filed; it again
requested a decision on the protests. Customs did not
respond.
II.
On April 2, 2010, Jensen brought an action in the
Court of International Trade seeking a writ of mandamus
to compel Customs to rule on its protests. Jensen as-
serted jurisdiction under 28 U.S.C. § 1581(i). The gov-
ernment responded by moving to dismiss the action,
arguing that jurisdiction did not lie under § 1581(i) be-
cause jurisdiction under another subsection of § 1581 was
available. The government contended that Jenson could
request accelerated disposition of its protests under 19
U.S.C. § 1515(b) and then contest any subsequent denial
of the protests in the Court of International Trade pursu-
ant to 28 U.S.C. § 1581(a). For this reason, the govern-
ment argued, Jensen could not invoke the Court of
International Trade’s § 1581(i) residual jurisdiction.
The Court of International Trade held that it lacked
jurisdiction over the mandamus action and dismissed
Jensen’s complaint. Jensen, 2011 WL 587174. The court
started from the premise that jurisdiction under § 1581(i)
is limited to those circumstances in which either no other
provision of § 1581 can provide jurisdiction or, if jurisdic-
tion does lie under another subsection, “the other subsec-
5 NORMAN G JENSEN INC v. US
tion is shown to be manifestly inadequate.” Id. at *3
(quoting Hartford Fire Ins. Co. v. United States, 544 F.3d
1289, 1292–93 (Fed. Cir. 2008)). The court then stated
that Jensen had a clear path to having its protests de-
cided by Customs by following the procedure for an accel-
erated disposition set forth in 19 U.S.C. § 1515(b). Id. at
*4. By following this procedure, the court observed,
Jensen could obtain a ruling on the protests within 30
days and then appeal any denial under § 1581(a). That
provision gives the Court of International Trade “exclu-
sive jurisdiction of any civil action commenced to contest
the denial of a protest, in whole or in part, under [19
U.S.C. § 1515].” Thus, the court held, because jurisdiction
was available under another subsection of § 1581, juris-
diction did not exist under § 1581(i).
In its ruling, the court relied on Hitachi Home Elec-
tronics (America), Inc. v. United States, 704 F. Supp. 2d
1315 (Ct. Int’l Trade 2010), aff’d, 661 F.3d 1343 (Fed. Cir.
2011), reh’g en banc denied, 676 F.3d 1041. Jensen, 2011
WL 587174, at *5. In Hitachi, the Court of International
Trade stated that delay by Customs in issuing a protest
decision could be addressed under the accelerated disposi-
tion procedure of 19 U.S.C. § 1515(b), followed by an
appeal to the court under 28 U.S.C. § 1581(a). Hitachi,
704 F. Supp. 2d at 1320. Under § 1515(b), “[f]or purposes
of section 1581 of Title 28, a protest which has not been
allowed or denied in whole or in part within thirty days
following the date of mailing . . . of a request for acceler-
ated disposition shall be deemed denied on the thirtieth
day following mailing of such request.”
Finally, the court was not persuaded by Jensen’s ar-
gument that because Jensen was requesting a decision on
the protests and not a deemed denial, § 1515(b) was
“manifestly inadequate.” Jensen, 2011 WL 587174, at *5.
The court rejected the proposition that a request for
NORMAN G JENSEN INC v. US 6
accelerated disposition would necessarily result in a
deemed denial, stating “Congress established the acceler-
ated disposition procedure so that Customs would have an
opportunity to make a decision and the court will not
assume that Customs will fail to act.” Id.Jensen has appealed the Court of International
Trade’s decision. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(5).
DISCUSSION
I.
This court reviews de novo the Court of International
Trade’s dismissal for lack of jurisdiction. Hitachi Home
Elecs. (Am.), Inc. v. United States, 661 F.3d 1343, 1344
(Fed. Cir. 2011), reh’g en banc denied, 676 F.3d 1041. We
also review de novo the Court of International Trade’s
statutory interpretation. Id.II.
Jensen states that the relief it is seeking in its man-
damus action is specific and straightforward: “Customs’
review of its protests and a protest decision by Customs
that allows or denies Jensen’s protests in whole or in part
with stated reasons for any denial, as expressly required
by 19 U.S.C. § 1515(a).” 1 Pl.’s Br. at 15. Jensen says that
it is not interested in the deemed denial that it asserts
would inevitably flow from resort to accelerated disposi-
1 Section 1515(a) states, in pertinent part:
Unless a request for an accelerated disposition of
a protest is filed in accordance with subsection
(b) of this section the appropriate customs officer,
within two years from the date a protest was
filed in accordance with section 1514 of this title,
shall review the protest and shall allow or deny
such protest in whole or in part.
7 NORMAN G JENSEN INC v. US
tion under § 1515(b). Id. at 15–21. Jensen contends that
because it cannot obtain the relief it seeks under
§ 1515(b), § 1581(a) is manifestly inadequate and thus
jurisdiction under § 1581(i) is appropriate. In pressing its
case, Jensen relies on our decision in Canadian Wheat
Board v. United States, 641 F.3d 1344 (Fed. Cir. 2011),
arguing that, in that case, jurisdiction was held to exist
under § 1581(i) despite the fact that jurisdiction would
have existed under another subsection of § 1581 had the
plaintiff opted for an alternative avenue for resolving its
complaint. Pl.’s Br. at 27–30.
The government responds that the Court of Interna-
tional Trade correctly dismissed Jensen’s mandamus
action for lack of jurisdiction. Jurisdiction under § 1581(i)
cannot be invoked, it argues, because Jensen can seek
accelerated disposition under § 1515(b), followed by suit
in the Court of International Trade under § 1581(a) if the
protests are denied or deemed denied. Def.’s Br. at 7–19.
The government also takes the position that Customs’
failure to decide Jensen’s protests, which is the basis for
Jensen’s complaint, is the product of Jensen’s own action,
namely the filing of suit in the Court of International
Trade. Id. at 15–16. The government states that, pursu-
ant to 19 U.S.C. § 1515(c) and 19 C.F.R. § 177.7(b), 2
2 19 U.S.C. § 1515(c) states, in pertinent part:
If an action is commenced in the Court of Interna-
tional Trade that arises out of a protest or an appli-
cation for further review, all administrative action
pertaining to such protest or application shall ter-
minate and any administrative action taken subse-
quent to the commencement of the action is null
and void.
19 C.F.R. § 177.7(b) states, in pertinent part: “No rul-
ing letter will be issued with respect to any issue which is
pending before the United States Court of International
NORMAN G JENSEN INC v. US 8
Customs was barred from ruling on Jensen’s protests by
reason of the action Jensen filed in the Court of Interna-
tional Trade on August 13, 2009.
III.
A.
The Court of International Trade’s jurisdiction is lim-
ited to the situations enumerated in 28 U.S.C. § 1581.
Hartford Fire, 544 F.3d at 1291. As noted, § 1581(a) gives
the court “exclusive jurisdiction of any civil action com-
menced to contest the denial of a protest, in whole or in
part, under [19 U.S.C. § 1515].” Pursuant to 19 U.S.C.
§ 1515(a):
Unless a request for an accelerated disposition of
a protest is filed in accordance with subsection (b)
of this section the appropriate customs officer,
within two years from the date a protest was filed
in accordance with section 1514 of this title, shall
review the protest and shall allow or deny such
protest in whole or in part.
Also relevant to Jensen’s appeal, § 1581(i) provides a
residual grant of jurisdiction in addition to the specific
grants of jurisdiction outlined in subsections (a)-(h) of
§ 1581, stating in relevant part:
In addition to the jurisdiction conferred upon the
Court of International Trade by subsections (a)-(h)
of this section and subject to the exception set
forth in subsection (j) of this section, the Court of
International Trade shall have exclusive jurisdic-
tion of any civil action commenced against the
United States, its agencies, or its officers, that
Trade, the United States Court of Appeals for the Federal
Circuit, or any court of appeal therefrom.”
9 NORMAN G JENSEN INC v. US
arises out of any law of the United States provid-
ing for . . . tariffs, duties, fees, or other taxes on
the importation of merchandise for reasons other
than the raising of revenue . . . .
We have referred to § 1581(i) as a “catch all provi-
sion.” Hartford Fire, 544 F.3d at 1292 (citing Nor-
cal/Crosetti Foods, Inc. v. United States, 963 F.3d 356,
359 (Fed. Cir. 1992)). An overly broad interpretation of
this provision, however, would threaten to swallow the
specific grants of jurisdiction contained within the other
subsections and their corresponding requirements. Ac-
cordingly, “we have [] consistently held that to prevent
circumvention of the administrative processes crafted by
Congress, jurisdiction under subsection 1581(i) may not
be invoked if jurisdiction under another subsection of
1581 is or could have been available, unless the other
subsection is shown to be manifestly inadequate.” Hart-
ford Fire, 544 F.3d at 1292 (citing Int’l Custom Prods.,
Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir.
2006)).
B.
The Court of International Trade held that it lacked
jurisdiction under § 1581(i) because Jensen possessed an
adequate remedy under 19 U.S.C. § 1515(b). Specifically,
Jensen could seek accelerated disposition of its protests
under that provision and then contest any denial with an
action under § 1581(a). Jensen, 2011 WL 587174, at *4.
Accordingly, Jensen could obtain jurisdiction under an
alternate subsection of § 1581, and jurisdiction in the
Court of International Trade under § 1581(i) was barred.
We agree.
Under 19 U.S.C. § 1515(b), a protesting party may file
a request for accelerated disposition at any time concur-
rent with or after the filing of its protest. If a party
NORMAN G JENSEN INC v. US 10
chooses to pursue this option, “[f]or purposes of [28 U.S.C.
§ 1581], a protest which has not been allowed or denied in
whole or in part within thirty days following the date of
mailing . . . of a request for accelerated disposition shall
be deemed denied on the thirtieth day following mailing of
such request.” 19 U.S.C. § 1515(b).
As the Court of International Trade correctly noted,
were Jensen to file a request for accelerated disposition,
within thirty days it would receive either a decision on its
protests by Customs or a deemed denial. Jensen, 2011
WL 587174, at *4. Either result would suffice to confer
jurisdiction in the Court of International Trade under
§ 1581(a). Thus, because Jensen could obtain jurisdiction
under § 1581(a), jurisdiction under § 1581(i) does not
exist. See Hartford Fire, 544 F.3d at 1292.
C.
In attempting to establish jurisdiction under § 1581(i),
Jensen presents two main arguments. We address each
in turn.
Jensen first contends that jurisdiction under § 1581(a)
would be manifestly inadequate because the record estab-
lishes that an accelerated disposition under § 1515(b)
would result in a deemed denial and not a decision by
Customs, which is what it is seeking. Essentially, Jensen
argues as follows: It is entitled by law to a decision on its
protests. The record demonstrates, however, that, in this
case, resort to accelerated disposition would not yield such
a decision. That is because Customs has stated that it is
barred by regulation from issuing a decision. In short,
according to Jensen, accelerated disposition followed by
jurisdiction under § 1581(a) would be manifestly inade-
quate. We do not agree.
11 NORMAN G JENSEN INC v. US
Contrary to its assertion, Jensen is not entitled to an
immediate decision by Customs. Jensen premises its
argument on § 1515(a), which provides in relevant part:
Unless a request for an accelerated disposition of
a protest is filed in accordance with subsection (b)
of this section the appropriate customs officer,
within two years from the date a protest was filed
in accordance with section 1514 of this title, shall
review the protest and shall allow or deny such
protest in whole or in part.
Jensen argues that because two years have passed since
the filing of its protests, as a matter of law it is now
entitled to a decision by Customs, not just the deemed
denial which it states would result from resort to
§ 1515(b). Jensen’s argument, however, fails in light of
this court’s recent decision in Hitachi.
In Hitachi, the plaintiff filed protests related to tariffs
paid on televisions it had imported into the United States.
661 F.3d at 1344. Customs did not issue a decision within
a two-year period, and the plaintiff filed an action in the
Court of International Trade. Id. On appeal, we exam-
ined the “question of whether, if Customs fails to allow or
deny a protest within the two-year period provided by 19
U.S.C. § 1515(a), the protest is deemed allowed by opera-
tion of law and Customs’ power to act on the protest is
expired, and whether § 1581(i) therefore provides jurisdic-
tion for Hitachi to recover the duties subject to the pro-
test.” Id. at 1345.
We began our analysis in Hitachi by examining “the
great weight of precedent that when Congress intends
there to be consequences for noncompliance with statu-
tory deadlines for government action, it says so ex-
pressly.” Id. at 1347. Then, turning to the plaintiff’s
arguments, we stated that although § 1515(a) indicates
NORMAN G JENSEN INC v. US 12
that Customs will render a decision within two years, the
statutory language does not provide for any consequence
for Customs’ failure to act within that time period. Id. at
1348 (“There is no statement of any consequence in the
event that Customs does not act.”). In addition, we stated
that the legislative history was silent regarding any
consequence for Customs’ failure to act. Id. at 1350. The
clear import of our determination that Congress did not
expressly impose any consequence for Customs’ failure to
act within two years is that the two-year requirement is
directory, not mandatory. Jensen cannot claim entitle-
ment to an immediate decision simply because two years
have elapsed since the filing of the protests.
Jensen’s attempt to distinguish Hitachi is unpersua-
sive. According to Jensen, Hitachi is distinguishable
because of the difference in remedy sought; Jensen merely
seeks a decision by Customs, a remedy to which Jensen is
legally entitled, as opposed to the automatic allowance of
the protest sought by the plaintiff in Hitachi. Pl.’s Reply
Br. at 23–24. This distinction, however, ignores the
reasoning of Hitachi. We did not hold in Hitachi that the
plaintiff’s suit failed because it sought the incorrect
remedy for Customs’ failure to render a decision; rather,
we held the plaintiff’s suit failed because Congress had
not provided a “statement of any consequence in the event
that Customs does not act.” Hitachi, 661 F.3d at 1348.
Thus, Hitachi cannot be distinguished simply because
Jensen seeks a remedy different from the one sought in
that case.
Jensen also argues that our decision in Canadian
Wheat supports its position. In Canadian Wheat, the
plaintiff had challenged before a NAFTA binational panel
an antidumping duty order issued by the Department of
Commerce (“Commerce”). 641 F.3d at 1347. The NAFTA
panel found that there was not substantial evidence to
13 NORMAN G JENSEN INC v. US
support certain of Commerce’s findings. As a result,
Commerce subsequently revoked the order. Id. at 1347–
48. After the revocation of the antidumping duty order,
the plaintiff filed suit in the Court of International Trade
under 28 U.S.C. § 1581(i), seeking the return of duties
that had been deposited with the Department of Com-
merce prior to the revocation of the order. Id. at 1348.
In responding to the suit, the government argued that
the Court of International Trade lacked jurisdiction under
§ 1581(i) because the original challenge to the antidump-
ing duty order could have been brought before the Court
of International Trade under § 1581(c) instead of before
the NAFTA panel. Id. at 1351. Importantly, however, the
government did not contend that the suit actually before
the court, a suit for a return of the duties as a result of
the revocation of the antidumping order, could be brought
under another subsection of § 1581. Id. Thus, contrary to
Jensen’s contention, our holding in Canadian Wheat is
entirely consistent with a finding that jurisdiction under
§ 1581(i) is barred in the present case. Unlike in Cana-
dian Wheat, jurisdiction over the present suit could be
procured under another subsection of § 1581 simply by
requesting accelerated disposition under § 1515(b) and
then securing jurisdiction under § 1581(a). As we ex-
plained in Hitachi, jurisdiction cannot lie under § 1581(i)
when an avenue to judicial review under § 1515(b) exists:
Hitachi argues that if its protest was not allowed
by operation of law, then it is nevertheless enti-
tled to jurisdiction under § 1581(a) or (i) because
otherwise it will be deprived of its right to judicial
review due to Customs’ refusal to act. This argu-
ment ignores the remedy available to Hitachi un-
der § 1515(b) and is therefore without merit.
661 F.3d at 1350–51.
NORMAN G JENSEN INC v. US 14
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Court of International Trade.
Each party shall bear its own costs.
AFFIRMED