THE COURT OF INTERNATIONAL TRADE’S
APPLICATION OF 28 U.S.C. § 1581(I)
JURISDICTION IN 2014
JEFFREY M. TELEP AND ELIZABETH E. OWERBACH*
ABSTRACT
In 2014, the United States Court of International Trade continued to
selectively allow cases to proceed under its subsection 1581(i) residual jurisdiction. In cases involving jurisdictional disputes, the Court conveyed a strong
preference for plaintiffs to litigate challenges against U.S. Customs and Border
Protection via the traditional subsection 1581(a) route, but extended residual
jurisdiction where it had rejected jurisdiction under subsection 1581(h), and
allowed for a challenge against the International Trade Commission and the
U.S. Department of Commerce to proceed under subsection 1581(i). In cases not
involving jurisdictional challenges, the Court set a high bar for granting
preliminary relief, and continued to deny challenges brought under the Continued Dumping and Subsidy Offset Act.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. CASES INVOLVING JURISDICTIONAL DISPUTES . . . . . . . . . . . . . . .
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* © 2015, Jeffrey M. Telep and Elizabeth E. Owerbach.
Jeffrey M. Telep is a partner in the International Trade and Litigation practice group at King
& Spalding. Mr. Telep has over 20 years’ experience litigating high-profile international trade
disputes, specifically antidumping and countervailing duty investigations under Title VII the
Tariff Act of 1930, unfair trade practice investigations at the U.S. International Trade Commission
under Section 337 of the Tariff Act; Customs civil penalty prosecutions, seizures, and forfeitures;
litigation involving international anti-money laundering; and other commercial disputes. Mr.
Telep also advises the firm’s clients on international trade regulatory matters, including Customs
and Foreign Trade Zone issues, economic sanctions, and anti-money laundering and asset
forfeiture issues. Before joining King & Spalding, Mr. Telep spent six years as a trial attorney with
the Civil Division of the United States Department of Justice. During his tenure with the Justice
Department, Mr. Telep was lead counsel for the United States in more than 75 cases involving
international trade disputes, including antidumping and countervailing duties cases, Customs
civil fraud prosecutions, and trade embargo enforcement actions.
Elizabeth E. Owerbach is an associate in the International Trade and Litigation practice
group at King & Spalding. Her practice consists of assisting clients on a variety of international
trade matters, including trade remedy proceedings, litigation, and compliance with foreign trade
regulations and economic sanctions. Ms. Owerbach holds a B.A. in International Relations and
Russian and Post-Soviet Studies from the College of William & Mary and a J.D. from Columbia Law
School, where she was named a Harlan Fiske Stone scholar.
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A. Competing Jurisdictional Claims Under Subsections 1581(a)
and 1581(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. The Ford Motor Co. v. United States Litigation . . . . .
a. The Origins of the Ford Litigation . . . . . . . . . . . .
b. The CAFC Appeal. . . . . . . . . . . . . . . . . . . . . . . .
c. 2014 CIT Remand . . . . . . . . . . . . . . . . . . . . . . .
i. Statute of Limitations Issue . . . . . . . . . . .
ii. The Court’s Discretion to Decline Declaratory Judgment Jurisdiction. . . . . . . .
2. General Mills, Inc. v. United States. . . . . . . . . . . . . . .
3. Carbon Activated Corp. v. United States . . . . . . . . . . .
B. Reasserting Residual Jurisdiction in a Subsection 1581(h)
and 1581(i) Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. The 2013 Decision . . . . . . . . . . . . . . . . . . . . . . . . .
2. The 2014 Decision . . . . . . . . . . . . . . . . . . . . . . . . .
3. The CAFC Decision . . . . . . . . . . . . . . . . . . . . . . . .
C. Competing Jurisdictional Claims Under Subsections 1581
(c) and 1581 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. The Diamond Sawblades Manufacturers Coal. v. U.S.
Department of Commerce Litigation . . . . . . . . . . . . . .
2. Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v.
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Cases Where Jurisdiction Was Contested Due to Mootness or
Ripeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Aluminum Extrusions Fair Trade Comm. v. United
States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Fedmet Res. Corp. v. United States . . . . . . . . . . . . . . .
IV. CASES DECIDED UNDER SUBSECTION 1581(I) JURISDICTION . . . .
A. Cases Concerning Preliminary Relief . . . . . . . . . . . . . . . . .
1. Diamond Sawblades—Manifestly Inadequate
Remedy v. Irreparable Harm . . . . . . . . . . . . . . . . .
2. International Fresh Trade Corp. v. United States and
Kwo Lee, Inc. v. United States—Severity of Likely
Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. CDSOA Update . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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I. INTRODUCTION
In 2014, the Court of International Trade preserved a high bar for
plaintiffs to meet in order to succeed under residual jurisdiction, but
carved out limited exceptions under which plaintiffs challenging the
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government could proceed and prevail under 28 U.S.C. § 1581(i). This
Article examines decisions by the Court of International Trade (CIT or
the Court) in 2014 that involved the Court’s residual jurisdiction under
28 U.S.C. §1581(i). Consistent with its legislative mandate, the CIT
continued to enforce subsection 1581(i) jurisdiction as being applicable only in cases where other jurisdictional provisions are unavailable
or manifestly inadequate, and continued to set a high standard for
plaintiffs to secure jurisdiction under subsection 1581(i) over claims
against U.S. Customs and Border Protection (Customs) and the U.S.
Department of Commerce (Commerce) under the CIT’s residual
jurisdiction. After briefly outlining the CIT’s jurisdiction in Part II, this
article will examine key takeaways from 2014 CIT cases where subsection 1581(i) jurisdiction was challenged in Part III, and then look at
cases that were decided under subsection 1581(i) in Part IV.
In cases against Customs that contested subsection 1581(i) jurisdiction, the CIT demonstrated a strong preference for plaintiffs to litigate
under subsection 1581(a) whenever possible. The CIT found that
parties must import their entries and take advantage of the Customs
protest remedy, and that the administrative burden and costs of
proceeding with the subsection 1581(a) remedy will not be enough to
show that jurisdiction is manifestly inadequate. Furthermore, the CIT
found that, in certain circumstances, even if subsection 1581(i) jurisdiction has been upheld by the U.S. Court of Appeals for the Federal
Circuit (CAFC), it may still block subsection 1581(i) claims via statute
of limitations bars or its discretionary, prudential jurisdiction. As an
exception to this general tendency to avoid residual jurisdiction, the
CIT did reverse its own decision in 2014, allowing review of a Customs
challenge under residual jurisdiction where it had previously denied it
and jurisdiction under subsection 1581(h).
In suits against Commerce and the International Trade Commission
(ITC), the CIT confirmed that subsection 1581(i) jurisdiction may
prevail over subsection 1581(c) jurisdiction. Although plaintiffs seeking to challenge an aspect of a Commerce antidumping or countervailing duty proceeding will need to await the final determination and
pursue jurisdiction under subsection 1581(c), plaintiffs may have recourse through subsection 1581(i) where they allege that the entire
proceeding was initiated ultra vires, that is, beyond the powers of the
law.
The 2014 cases decided under subsection 1581(i) that did not
involve contested jurisdiction primarily dealt with plaintiffs’ attempts to
secure a preliminary injunction. The CIT emphasized the importance
of establishing likely irreparable harm when seeking a preliminary
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injunction, and found that just because a plaintiff demonstrates that it
faces manifestly inadequate relief under the jurisdictional statute does
not mean that it has necessarily proven sufficient likelihood of irreparable harm. The CIT indicated further that it will grant a preliminary
injunction when the likelihood of irreparable harm is thoroughly
shown by record evidence.
Finally, in 2014, the CIT continued to address outstanding claims
regarding the Continued Dumping and Subsidy Offset Act of 2000
(CDSOA). Plaintiffs in those cases raised issues that had been largely
addressed in litigation over previous CDSOA distributions. Nonetheless, the CIT rejected the plaintiffs’ attempts to stay the present actions
pending the outcome of other CIT decisions and went on to dismiss
their claims.
When taken together, the 2014 CIT decisions demonstrate that
plaintiffs seeking residual jurisdiction should be prepared to demonstrate why their case presents a challenge to Customs, Commerce, or
the ITC where relief is unavailable or manifestly inadequate under the
traditional jurisdictional remedies, and that those seeking relief under
subsection 1581(i) must marshal strong evidence in its favor.
II. BACKGROUND
The CIT plays a “special role in the federal judicial system.”1 Established from the former U.S. Customs Court in 1980, the Court was
designed by the Customs Court Act of 1980 to facilitate “a comprehensive system for judicial review of civil actions arising out of import
transactions and federal transactions affecting international trade.”2
The CIT has jurisdiction over civil actions brought against the United
States, its agencies, and its officers, as provided for in 28 U.S.C. § 1581.
Section 1581 provides jurisdiction for civil actions arising out of: the
review of protests in the ascertainment, collection, and recovery of
duties;3 petitions by domestic interested parties in the ascertainment,
collection, and recovery of duties;4 judicial review in countervailing
duty and antidumping duty proceedings;5 determinations in trade
1. About the Court, U.S. COURT OF INTERNATIONAL TRADE (Aug. 4, 2015), http://www.cit.uscourts.
gov/AboutTheCourt.html.
2. Id.
3. 28 U.S.C. § 1581(a) (2012); 19 U.S.C. § 1515 (2012).
4. 28 U.S.C. § 1581(b) (2012); 19 U.S.C. § 1516 (2012).
5. 28 U.S.C. § 1581(c) (2012); 19 U.S.C. § 1516a (2012).
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adjustment assistance for workers, firms, communities, and farmers;6
determinations of the Secretary of the Treasury on rules of origin;7
disclosure of information under orders of the CIT;8 decisions relating
to customs brokers licenses and private laboratory accreditation;9 and
certain rulings “relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel
repairs, or similar matters.”10 Additionally, subsection 1581(j) provides
that “[t]he Court of International Trade shall not have jurisdiction of
any civil action arising under section 305 of the Tariff Act of 1930,”
which prohibits importation of immoral articles.11
Additionally, the statute provides for “residual jurisdiction” over
other causes of action in subsection 1581(i), which reads:
(i) 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
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—
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the importation of
merchandise for reasons other than the raising of revenue;
(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or
(4) administration and enforcement with respect to the matters referred to in paragraphs (1)–(3) of this subsection
and subsections (a)–(h) of this section.
This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable
6. 28 U.S.C. § 1581(d)(1)-(4) (2012); 19 U.S.C. § 2273 (2012); 19 U.S.C. § 2341 (2012); 19
U.S.C. § 2401b (2012).
7. 28 U.S.C. § 1581(e) (2012); 19 U.S.C. § 2515(b)(1) (2012).
8. 28 U.S.C. § 1581(f) (2012); 19 U.S.C. § 1677f(c)(2) (2012).
9. 28 U.S.C. § 1581(g)(1)-(3) (2012); 19 U.S.C. § 1641(b)(2), (3), (5), (c)(1)-(2) and
(d)(2)(B) (2012); 19 U.S.C. § 1499(b) (2012).
10. 28 U.S.C. § 1581(h) (2012).
11. 28 U.S.C. § 1581(j) (emphasis added) (2012); 19 U.S.C. § 1305 (2012).
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either by the Court of International Trade under section
516A(a) of the Tariff Act of 1930 or by a binational panel under
article 1904 of the North American Free Trade Agreement or
the United States-Canada Free-Trade Agreement and section
516A(g) of the Tariff Act of 1930.12
In 2014, the CIT adjudicated cases that challenged its subsection
1581(i) jurisdiction, where it was asked to grant preliminary relief and
motions to stay under subsection 1581(i) jurisdiction, and where it
entertained continued challenges to the Continued Dumping and
Subsidy Offset Act. A summary of these decisions is set forth below.
III. CASES INVOLVING JURISDICTIONAL DISPUTES
In 2014 claims involving jurisdictional disputes, the CIT, with the
unique exception of the Best Key case, (1) demonstrated a preference
for subsection 1581(a) over 1581(i) jurisdiction, even after appellate
intervention upholding subsection 1581(i), and (2) recognized a limited exception to subsection 1581(c) jurisdiction where the challenge
confronts the ultra vires nature of an entire proceeding. The Court also
emphasized that even where subsection 1581(i) jurisdiction may be
available, the case presented to the Court must be ripe for review.
The U.S. Court of Appeals for the Federal Circuit has “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 subsection 1581 is
or could have been available, unless the other subsection is shown to be
manifestly inadequate.”13 The threshold for “manifest inadequacy”
tends to be quite high, as “[n]either the burden of participating in the
administrative proceeding nor the business uncertainty caused by such
a proceeding is sufficient to constitute manifest inadequacy,”14 and
“mere allegations of financial harm, or assertions that an agency failed
to follow a statute, do not make the remedy established by Congress
manifestly inadequate.”15 When subject matter jurisdiction is challenged, the plaintiff bears the burden of demonstrating that jurisdic-
12. 28 U.S.C. § 1581(i) (2012).
13. Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008).
14. Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 986 F. Supp. 2d 1381,
1384-85 (Ct. Int’l Trade 2014).
15. Miller & Co. v. United States, 824 F.2d 961, 964 (Fed. Cir. 1987).
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tion exists.16 In 2014, the CIT reviewed cases against Customs involving
competing jurisdictional claims under subsections 1581(i) and 1581(a),
a reconsideration for jurisdiction under subsection 1581(i) when subsection 1581(h) had been dismissed, and competing jurisdiction between subsections 1581(i) and 1581(c) in suits against Commerce. The
Court also heard cases where subject matter jurisdiction was challenged
due to ripeness and mootness.
A. Competing Jurisdictional Claims Under Subsections 1581(a) and 1581(i)
Competing jurisdictional claims often arise out of challenges to
actions taken by Customs. Subsection 1581(a) states: “The Court of
International Trade shall have exclusive jurisdiction of any civil action
commenced to contest the denial of a protest, in whole or in part,
under section 515 of the Tariff Act of 1930 [19 USCS § 1515].”17
Section 1515 of the Tariff Act provides for the review of protests for the
ascertainment, collection, and recovery of duties.18 The process for
protesting a Customs decision pursuant to duty rates, liquidations, and
other decisions is codified at 19 U.S.C. § 1514.
The 2014 cases involving competing jurisdictional claims under
subsections 1581(a) and 1581(i) show the CIT finding other mechanisms to prioritize subsection 1581(a) jurisdiction where the CAFC has
upheld jurisdiction under subsection 1581(i), and continuing to enforce a standard whereby subsection 1581(i) is only available if the
other jurisdictional avenues are unavailable or manifestly inadequate.
1. The Ford Motor Co. v. United States Litigation
In Ford Motor Co. v. United States, the CIT addressed in 2014 a case that
had been remanded by the CAFC, which had found that subsection
1581(i) jurisdiction was still available to the Plaintiff despite Customs
having taken liquidation action after Plaintiff had filed suit.19 The
CIT’s decision in the case is significant in that it followed the CAFC’s
decision to uphold subsection 1581(i) jurisdiction, but found that the
statute of limitations applicable to claims brought under subsection
1581(i) would still apply, indicating that a grant of subsection 1581(i)
16. Ford Motor Co. v. United States (Ford II)), 992 F. Supp. 2d 1346, 1354 (Ct. Int’l Trade
2014). See also Chemsol, LLC v. United States, 755 F.3d 1345, 1349 (Fed. Cir. 2014).
17. 28 U.S.C. § 1581(a) (2012).
18. 19 U.S.C. § 1515 (2012).
19. Ford II, 992 F. Supp. 2d at 1353.
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jurisdiction does not do away with timeliness concerns.20 The CIT also
declined to render a declaratory judgment on the non-time barred
claims in this case, finding that subsection 1581(a) would provide a
better avenue for addressing them.21
a. The Origins of the Ford Litigation
The case first arose in the CIT in 2010 when the Plaintiff-importer
Ford brought suit under subsection 1581(i) challenging Customs’
failure to complete liquidation of its entries in a timely manner.22
Plaintiff asserted that the entries had been deemed liquidated as a
matter of law.23 Deemed liquidation allows for a reconciliation entry
not liquidated within one year of its date of filing to “be deemed
liquidated at the rate of duty, value, quantity, and amount of duties
asserted by the importer of record,” absent an extension or suspension
by Customs.24 Plaintiff alleged that Customs had not extended the
liquidation, and alternatively that, assuming Customs did extend the
period, it was not conducted lawfully and with proper notice.25 After
Plaintiff filed suit, Customs liquidated some of the entries subject to the
Plaintiff’s suit, and both liquidated and reliquidated certain other
entries in the suit.26,27 Thus, by time the case reached the CIT,
Plaintiff’s claims included unliquidated, liquidated, and reliquidated
entries. The question thus arose as to whether jurisdiction under
subsection 1581(i) was still proper for the liquidated and reliquidated
entries where an option to protest Customs’ actions and seek jurisdiction under subsection 1581(a) had become available because of Customs’ post-filing liquidation actions.28
Regarding the reliquidated claims, the CIT noted that the Plaintiff
had protested the reliquidated entries and, when the protest was
denied, filed suit under subsection 1581(a).29 Finding that Plaintiff
20. Id. at 1353-56.
21. Id. at 1359.
22. Ford Motor Co. v. United States (Ford (CAFC)), 688 F.3d 1319, 1321 (Fed. Cir. 2012).
23. Ford Motor Co. v. United States (Ford I), 716 F. Supp. 2d 1302, 1306 (Ct. Int’l Trade
2010).
24. 19 U.S.C. § 1504(a) (2012).
25. Ford I, 716 F. Supp. 2d at 1307.
26. Ford (CAFC), 688 F.3d at 1322.
27. Liquidation is the action taken by Customs to ascertain the final duty owed by the
importer. See, e.g., 19 C.F.R. § 159.1.
28. Ford I, 716 F. Supp. 2d at 1307.
29. Id. at 1310.
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then had adequate jurisdiction under subsection 1581(a), “the preferred jurisdictional vehicle established by Congress,” the CIT found
that it no longer had subject matter jurisdiction under subsection
1581(i) for Plaintiff’s claims relating to the reliquidated entries.30 The
CIT also found that subsection 1581(a) was available, and thus that
subsection 1581(i) was unavailable, for the entries that had been
liquidated and were pending reliquidation.31
As to the unliquidated entries, the CIT first found that Plaintiff had
conceded that Customs had extended the liquidation.32 Accordingly,
Plaintiff’s liquidation claims for these entries did not amount to a “case
or controversy,” and the CIT did not possess subject matter jurisdiction.33 The Court then addressed the remaining claims regarding the
legality of the extension and notice of the extension for the unliquidated entries. The CIT found that Plaintiff’s claims related to the
unliquidated entries did survive, but used its discretion (discussed
further below) in declining to issue a declaratory judgment over these
claims, as the claims had been undermined during the litigation, and
relief could be obtained via subsection 1581(a) once the entries were
liquidated.34
b. The CAFC Appeal
The CAFC reversed in part, remanded in part, and vacated in part
the CIT’s decision. In particular, the CAFC found that jurisdiction
under subsection 1581(i) was still proper for the reliquidated entries,
despite the fact that Customs’ liquidation actions would normally give
rise to a remedy under subsection 1581(a).35 The crucial fact was that
“at the time Ford [Plaintiff] initiated this lawsuit, none of these
liquidations had yet occurred.”36 While the appellate court cautioned
that it did not reach the question of “whether post-filing actions by a
defendant can ever defeat jurisdiction in a federal question case under
the time-of-filing rule,”37 it noted that it did not need to reach that issue
in this case because “it is clear that where the jurisdictional question is
really a question of exhaustion, a defendant cannot defeat jurisdiction
30.
31.
32.
33.
34.
35.
36.
37.
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Id. at 1310.
Id.
Id. at 1310-11.
Id. at 1311.
Id. at 1313-14.
Ford (CAFC), 688 F.3d at 1327.
Id. at 1323.
Id. at 1326 (emphasis added).
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by simply creating a new avenue for exhaustion of administrative
remedies that had not been available at the time of the original
filing.”38 Customs may have created a new avenue for jurisdiction
under subsection 1581(a), but those post-filing actions did not defeat
the jurisdiction, which Plaintiff properly asserted at the time of suit.
The CAFC also disagreed with the CIT on whether the Plaintiff had
conceded that Customs had extended the liquidation. Finding that
Plaintiff did have a case or controversy over this question, the CAFC
reversed the CIT’s dismissal of this cause of action, reopening the
possibility for Plaintiff to seek a declaratory judgment that Customs had
not extended the liquidation and that the entries had been deemed
liquidated.39
Finally, the CAFC vacated the CIT’s dismissal of the surviving claims
related to the unliquidated entries. While acknowledging that the CIT
had discretion over these claims, the CAFC vacated them in this case
because they were based on the previously discussed “flawed jurisdictional analysis.”40 The CAFC noted that the CIT “retain[ed] authority,
but no obligation” to address these claims on remand.41
c. 2014 CIT Remand
On remand to the CIT in 2014, the Court dismissed Plaintiff’s
remaining claims. After Ford (CAFC), Plaintiff’s claims largely echoed
those in its original filing, whereby Plaintiff asked the Court to declare
that Customs had not extended the liquidation, and thus that Ford’s
entries had been “deemed liquidated” by operation of law one year
after they were originally filed.42 Plaintiff’s alternative claims also
persisted, alleging that if Customs did extend the liquidation, it did so
in an unlawful manner that nullified the extension and would result in
deemed liquidation.43 The CIT rejected all of Plaintiff’s claims, finding
38. Id.
39. Id. at 1329-30.
40. Id. at 1330.
41. Id. at 1330.
42. Ford Motor Co. v. United States (Ford II), 992 F. Supp. 2d 1346 (Ct. Int’l Trade 2014).
Note that Plaintiff continued to pursue on remand these claims under subsection 1581(i) for both
the reliquidated and unliquidated entries in this case, despite having a subsection 1581(a) claim
regarding the reliquidated entries pending at the time. See Docket of Ford Motor Co. v. U.S., No.
1:10-cv-00138 (Ct. Intl. Trade, filed April 21, 2010). As of August 2015, the subsection 1581(a)
action was still pending, with the CIT having granted Plaintiff’s motion for extension of time to
remain on reserve calendar. Id.
43. Id. at 1350-51.
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that claims that involved the reliquidated entries were barred by a
two-year statute of limitations,44 and declining to issue a declaratory
judgment over the remaining claims in the prudential interests of
effectiveness and efficiency.45
i. Statute of Limitations Issue
The CIT found that Plaintiff’s claims challenging Customs’ reliquidation were barred by statute of limitations. The CIT first noted that
“[a]lthough statutes of limitations are not necessarily restrictions on
subject matter jurisdiction, the Court previously has concluded that 28
U.S.C. § 2636(i) ‘constitutes a limitation on the government’s waiver of
sovereign immunity and that the statute of limitations is therefore
jurisdictional.’”46 Customs argued that because the entries at issue were
filed in 2005, they were deemed liquidated in 2006 according to
Plaintiff’s allegations, which meant that Plaintiff had only until 2008 to
file suit; because Plaintiff did not file until 2009, its claims were barred
by statute of limitations.47 Plaintiff argued that “[t]he [statute of]
limitations issue was necessarily decided by implication when the
Federal Circuit held that it and this Court had subject matter jurisdiction over all of [Plaintiff]’s Entries at issue in this case.”48 Thus, Plaintiff
argued that the Federal Circuit had implicitly decided the statute of
limitations issues by granting subsection 1581(i) jurisdiction, and that
the CIT was barred by the doctrine of the law of the case from
relitigating issues previously decided.49
The CIT rejected Plaintiff’s contention. It first confirmed that it is
empowered to rule on matters of its own jurisdiction, and that questions of “law of the case” doctrine are matters within its discretion—the
“law of the case” doctrine should not be applied “woodenly” “in a way
44. 28 U.S.C. § 2636(i) provides that “A civil action of which the Court of International Trade
has jurisdiction under section 1581 of this title, other than an action specified in subsections
(a)-(h) of this section, is barred unless commenced in accordance with the rules of the court
within two years after the cause of action first accrues.” Thus, a two-year statute of limitations can
be conferred on subsection 1581(i). It appears that Customs only argued that the re-liquidated
entries had been time barred in this case, and the CIT only addressed the statute of limitations
argument for these claims.
45. Ford II, 992 F. Supp. 2d at 1359.
46. Id. at 1359 n.6 (quoting NSK Corp. v. United States, 821 F. Supp. 2d 1349, 1354 (Ct. Int’l
Trade 2012)).
47. Id. at 1353-54.
48. Id. at 1354.
49. Id.
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inconsistent with substantial justice.”50 The CIT then found that it was
not barred by the doctrine of the law of the case in this instance: “While
the Federal Circuit closely considered whether this court could properly entertain Plaintiff’s [subsection] 1581(i) claims despite the subsequent liquidations of those very same entries, nothing suggests that the
court gave any consideration to Defendant’s statute of limitations
claim.”51 Thus, it was in the CIT’s power to make a determination on
the statute of limitations issue. The Court found that Plaintiff should
have been on notice when it did not hear from Customs that its entries
had been liquidated, and as a result Plaintiff “had two years from the
period it should have received notice” in 2006 to file its claims,
rendering the expired claims time-barred.52 Consequently, while under the CAFC decision Plaintiff was not bound by avenues of relief that
were not available at the time they filed suit, the CIT decision meant
that Customs’ inaction put Plaintiff on notice, and required them to
file any subsection 1581(i) claims in a timely manner.
ii. The Court’s Discretion to Decline Declaratory Judgment
Jurisdiction
After finding that the majority of Plaintiff’s claims were time-barred
as they related to the reliquidated entries,53 the CIT declined to
exercise discretionary jurisdiction over Plaintiff’s remaining declaratory judgment claims. Though the only requirement for jurisdiction
over a claim for declaratory judgment is that the Plaintiff present a case
or controversy within the meaning of Article III of the U.S. Constitution, the Court “‘retains discretion . . . to decline declaratory judgment
jurisdiction’ and not address the merits of the claim.”54 In deciding
whether or not to decline declaratory judgment jurisdiction, the Court
50. Id. at 1355 (quoting Hudson v. Principi, 260 F.3d 1357, 1363-64 (Fed. Cir. 2001)).
51. Id.
52. Id. at 1356-57.
53. In addition to the deemed liquidation and lawfulness of extension arguments, Plaintiff
also argued that the liquidation of one of its entries was improper due to the content of the Notice
of Action Taken for one of its specific entries. The CIT included this claim among the claims it
found time-barred. Id. at 1351-52, 1359. Plaintiff also argued that Customs’ “respective August 7
and July 31, 2009 reliquidations of [two of the entries] were invalid because the entries were
deemed liquidated prior to those dates,” and that “even if Customs properly extended the entries’
liquidation for the four-year maximum permitted by statute, see 19 U.S.C. § 1504(b), Customs
could not lawfully reliquidate the entries more than four years after their filing date.” Id. at 1351.
The CIT did not discuss this claim, but found it not to be time-barred and instead declined to
exercise discretionary jurisdiction over it. Id. at 1351, 1359.
54. Id. at 1358 (citation and internal quotation marks omitted).
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“may look to subsequent procedural events and parallel proceedings to
evaluate the appropriateness of the expenditure of judicial time and
resources.”55
Here, although the CIT confirmed that “the Federal Circuit held
that this court has subject matter jurisdiction over Plaintiff’s non-timebarred declaratory judgment claims pursuant to 28 U.S.C. § 1581(i),
and Customs’ post-filing actions have not altered this jurisdictional
landscape,” the CIT nevertheless found it prudent to decline to exercise declaratory judgment jurisdiction.56 The CIT found that because
the subsection 1581(a) remedy was now available, and in fact a subsection 1581(a) action was pending, “entertaining Plaintiff’s remaining
claims pursuant to § 1581(a) would permit the court to adjudicate all
potential disputes stemming from Plaintiff’s entries,” and thus “not
exercising declaratory judgment jurisdiction over the remaining claims
would make best use of the court’s time and resources.”57 The Court
found that subsection 1581(a) presented the proper forum for addressing Plaintiff’s challenges to the liquidation for both the non-timebarred and time-barred claims alike.
In sum, although the CIT claimed that this case followed the CAFC’s
Ford decision, the CIT nonetheless created a mechanism through
which the claims challenging liquidation will proceed through subsection 1581(a) instead of 1581(i). Despite an appellate decision by the
CAFC in the intervening years, the CIT’s 2014 decision in this case
ultimately created an outcome similar to that of its 2010 holding,
whereby relief for the reliquidated entries was unavailable under
subsection 1581(i), and the CIT declined to exercise jurisdiction over
the remaining claims. In August 2014, Plaintiff appealed the CIT’s
decision to the CAFC.58
2. General Mills, Inc. v. United States
In General Mills, the CIT also found in favor of subsection 1581(a)
jurisdiction, distinguishing the potential subsection 1581(i) claims at
issue from those allowed in the Ford (CAFC) litigation. In this case,
Plaintiff General Mills had sought a ruling from Customs regarding the
tariff classification of its Brussels sprouts, which originate from Belgium
55. Id. at 1359.
56. Id.
57. Id.
58. Notice of Appeal for Ford Motor Co. v. United States, No. 1:09-cv-00151 (Ct. Int’l Trade Aug.
14, 2014), ECF No. 86.
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but are packaged with ice chips in Mexico.59 Though Customs reclassified the product from a “set” to a “prepared vegetable product,”
Customs found that the vegetable, when prepared with sprouts from
Belgium, would not be treated as duty-free “originating goods” under
NAFTA because the further processing in Mexico did not constitute a
“qualifying change” sufficient to grant it NAFTA status.60 Plaintiff
challenged this decision, seeking a ruling on the record, and asserted
subsection 1581(i)(4) jurisdiction.61
Plaintiff argued that subsection 1581(a) was not available because
“there were no liquidated entries or pending protests which could have
formed the predicate for bringing an action” under that section.62
Plaintiff relied on the Ford (CAFC) case,63 discussed above, because
subsection 1581(i) jurisdiction was allowed where Customs had failed
to liquidate nine entries for over a year.64 The Court rejected this claim,
however, noting the key distinction between Customs’ prolonged
failure to act65 versus Plaintiff’s failure to make an entry in the first
place, and “purs[ue] the proper procedural path in order to obtain
jurisdiction under § 1581(a).”66 Plaintiff could have imported the
product and then filed a protest. The Court essentially concluded that
a remedy is not “unavailable” merely because the Plaintiff has not
chosen to pursue the steps needed to secure an administrative ruling
that would lead to a remedy.
Plaintiff further argued that relief under subsection 1581(a) was
manifestly inadequate because “it would require General Mills to file a
59. Gen. Mills, Inc. v. United States, 32 F. Supp. 3d 1324, 1326-27 (Ct. Int’l Trade 2014).
60. Id. at 1325-27.
61. Id. at 1327.
62. Id. at 1328.
63. Plaintiff also relied on the Best Key litigation, where the CIT had entertained the idea of
properly possessing subsection 1581(i) jurisdiction where the party had not imported a good but
rather had ordered a shirt made and asked Customs for a ruling on its classification. Id. at 1329-31.
The CIT rejected Plaintiff’s comparison to Best Key II– here General Mills was an importer, and
thus would be subject to subsection 1581(a) requirements. Furthermore, as discussed below, the
CIT’s decision in Best Key II was overruled by the CAFC in 2015, which found that the CIT erred in
presuming jurisdiction under subsection 1581(i). Best Key Textiles Co., v. United States, 777 F.3d
1356, 1362 (Fed. Cir. 2015).
64. Gen. Mills, Inc., 32 F. Supp. 3d at 1328.
65. In 2014, the CAFC also highlighted the importance of Customs’ unlawful failure to act in
establishing subsection 1581(i) jurisdiction. CAFC distinguished Ford from the case before it in
Chemsol, where Commerce had properly extended the period for deemed liquidation, thus
properly triggering the Customs protest mechanism over which the CIT has jurisdiction under
subsection 1581(a). See Chemsol, LLC v. United States, 755 F.3d 1345, 1351-1352 (Fed. Cir. 2014).
66. Gen. Mills, Inc., 32 F. Supp. 3d at 1329.
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future entry of the Product, pay duties, sue for recovery based on
Customs’ classification, and ‘incur mandatory changes in marking and
administrative costs, which would not be recouped even if it were
successful.’”67 The Court found that these inconveniences were insufficient to make relief manifestly unavailable, stating “neither the procedural and administrative costs inherent in § 1581(a) . . . . render the
remedy manifestly inadequate.”68 Thus, the General Mills case upholds
the principle whereby subsection 1581(i) jurisdiction may only be
employed in lieu of subsection 1581(a) if subsection 1581(a) relief is
unavailable or manifestly inadequate.
3. Carbon Activated Corp. v. United States
In Carbon Activated Corp. v. United States, the CIT again held that it
lacked jurisdiction under subsection 1581(i) because subsection 1581(a)
jurisdiction was available.69 Plaintiff claimed that three entries were
prematurely and unlawfully liquidated; however, Plaintiff missed both
the 180-day window for protesting liquidation with Customs, and the
two-year period for filing a court challenge to the protest under
subsection 1581(a).70 Plaintiff argued that though the alleged error
occurred in 2008, it did not become aware of the error until 2012.71
The CIT rejected this as grounds for relief being unavailable under
subsection 1581(a), as it is “a tenant of customs law that the importer
has a duty to monitor liquidation.”72
Plaintiff further argued that the liquidation rate did not become
final until the Court’s decision in Hebei Foreign Trade and Advertising
Corp. v. United States—a case involving other unliquidated entries by the
same importer.73 In Hebei, the CIT upheld Commerce’s decision to
grant separate rate status to a provider of certain activated carbon from
China.74 Plaintiff’s argument in Carbon Activated Corp. was that the
“‘importer only definitively knows that the rate was incorrect upon final
resolution of the proceeding’ before the Department of Commerce,
67. Id. at 1330.
68. Id. at 1331.
69. Carbon Activated Corp. v. United States, 6 F. Supp. 3d 1378, 1379-80 (Ct. Int’l Trade
2014) aff’d, 791 F.3d 1312 (Fed. Cir. 2015).
70. Id. at 1380.
71. Id. at 1379-80.
72. Id. at 1380-81.
73. Hebei Foreign Trade & Adver. Corp. v. United States, 807 F. Supp. 2d 1317, 1317 (Ct.
Int’l Trade 2011).
74. Id. at 1323.
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which here was the date of publication of the Hebei decision.”75 Thus,
Plaintiff contended that a protest under subsection 1581(a) before the
Hebei decision would have been manifestly inadequate, because Customs would not yet know the final rates to use in liquidation.76
The CIT rejected Plaintiff’s argument, finding that it still could have
sought adequate relief under the protest mechanism connected to
subsection 1581(a).77 The CIT was persuaded by Customs’ argument
that “‘[w]hile the lack of information about the final rate would have
prevented [Customs] from acting to grant the protest,’ it ‘would have
kept a protest pending until instructions [as to the final rate] became
available.’”78 Consequently, the protest remedy was available to
the Plaintiff and residual jurisdiction was thus improper.
Taken together, these cases illustrate a preference in the CIT for
claims to be litigated under subsection 1581(a) whenever possible.
General Mills demonstrates that if jurisdiction under subsection 1581(a)
is available, plaintiffs generally must pursue it. As found in General Mills,
the expense and burden of going through with an importation merely
to appeal it later will not be enough to demonstrate that relief is
manifestly inadequate under subsection 1581(a).79 While the Ford
(CAFC) ruling stands for the proposition that Customs’ post-filing
actions cannot destroy subsection 1581(i) jurisdiction where subsection 1581(a) was not previously available, the CIT’s subsequent decision demonstrates that subsection 1581(i) jurisdiction may still be
susceptible to attack under statute of limitations challenges or the
CIT’s discretion to decline jurisdiction over declaratory judgment
claims.80 As discussed in the next section, however, the CIT demonstrated a degree more leniency in allowing subsection 1581(i) claims to
proceed in challenges against Commerce, which are normally litigated
under subsection 1581(c).
B. Reasserting Residual Jurisdiction in a Subsection 1581(h)
and 1581(i) Case
Though the CIT’s 2014 decision in Best Key has since been overruled
by the CAFC, the case merits a brief discussion because it illustrates an
75.
76.
77.
78.
79.
80.
202
Carbon Activated Corp., 6 F. Supp. 3d at 1381.
Id.
Id.
Id.
Gen. Mills, Inc. v. United States, 32 F. Supp. 3d 1324, 1330 (Ct. Int’l Trade 2014).
Ford Motor Co. v. United States (Ford II), 992 F. Supp. 2d 1346 (Ct. Int’l Trade 2014).
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attempt by the Court to reclaim jurisdiction over a Customs challenge
under the residual jurisdiction prong.
1. The 2013 Decision
This case involved a plaintiff who sought to sell its yarn to foreign
manufacturers to make a “Johnny Collar” shirt, and requested a
Customs ruling pursuant to the classification of the yarn.81 It then
challenged the yarn ruling, and asserted jurisdiction under subsection
1581(h) or, alternatively, subsection 1581(i)(4).82 Importantly, subsection 1581(h)83 allows parties to contest Customs rulings prior to
importation, but only when certain conditions are met:
(1) judicial review must be sought prior to importation of
goods; (2) review must be sought of a ruling, a refusal to issue a
ruling, or a refusal to change such ruling; (3) the ruling must
relate to “certain subject matter”; and (4) it must be shown that
irreparable harm will occur unless judicial review is obtained
prior to importation.84
Taking up the issue in 2013, the Court found that Plaintiff failed to
prove prongs (3) and (4) because it conflated the implications of
Customs rulings on the shirts and on the yarn, and failed to show that it
would suffer any harm from the importation of yarn into the United
States.85 The CIT found that “plaintiff’s actual injury complaint here is
that garment makers will not buy its yarn because importers of those
garments will not get a more favorable duty rate for items made of the
plaintiff’s yarn.”86 To the degree that future importation was at issue,
the Court concluded that Plaintiff was attempting to protect the
81. Best Key Textiles Co. v. United States (Best Key I), 2013 Ct. Intl. Trade LEXIS 155 at *1-5
(Ct. Int’l Trade Dec. 13, 2013).
82. Id. at *2.
83. 28 U.S.C § 1581(h) states, “The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to review, prior to the importation of the goods
involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a
ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry
requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the
civil action demonstrates to the court that he would be irreparably harmed unless given an
opportunity to obtain judicial review prior to such importation.”
84. Best Key 1, 2013 Ct. Intl. Trade LEXIS 155 at *6.
85. Id. at *9-10.
86. Id. at *13.
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interests of future garment importers, and thus did not have as case or
controversy as intended by subsection 1581(h).87
Turning to Plaintiff’s residual jurisdiction claim, the CIT noted that
“if jurisdiction does not lie under § 1581(h), a plaintiff must import the
merchandise in question, file a protest with Customs regarding the
classification decision, and fully exhaust its administrative remedies.”88
In other words, a plaintiff should take the steps necessary to have
jurisdiction under subsection 1581(a). The CIT reiterated the standard
of subsection 1581(i) jurisdiction only being an option where the other
subsections are unavailable or manifestly inadequate.89 The CIT stated
“[t]he plaintiff cannot argue that the ‘traditional approach’ of section
1581(a) to the classification claims it would attempt to assert here
under the guise of section 1581(h) provides a manifestly inadequate
remedy,” and denied residual jurisdiction under subsection 1581(i).90
Thus, the Court seemed to imply that garment manufacturers would
have the traditional subsection 1581(a) remedy in the future if they
went through the process of importing shirts, but that residual jurisdiction was not available to Plaintiff here.
2. The 2014 Decision
In 2014, the CIT considered a motion of reconsideration from
Plaintiff, and reversed itself on subsection 1581(i) jurisdiction.91 While
the 2013 decision focused on the fact that subsection 1581(h) was
inappropriate—a “guise” for other parties’ subsection 1581(a) claims—
and found subsection 1581(i) inapplicable based on that analysis,92 the
2014 opinion took a different approach. The Court stated that while “it
is ‘highly questionable’ whether a Customs’ ruling that lowers the rate
of duty on a product the plaintiff has no expressed intention of
importing can result in aggrievement or adverse effect to the plaintiff,”
it nonetheless concluded that it was “the plaintiff’s product that is the
subject of the ruling at issue, and the court has undoubted exclusive
jurisdiction over the general administration and enforcement of this
type of matter in 28 U.S.C. §1581(i)(4).”93 In discussing adverse effect,
87. Id. at *9.
88. Id. at *10.
89. Id. at *12.
90. Id. at *12-13.
91. Best Key Textiles Co. v. United States (Best Key II), 2014 Ct. Intl. Trade LEXIS 22, at *1-2
(Ct. Int’l Trade Feb. 25, 2014).
92. Best Key I, 2013 Ct. Intl. Trade LEXIS 155 at *12-13.
93. Best Key II, 2014 Ct. Intl. Trade LEXIS 22 at *2-3.
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the Court allowed for the possibility, however remote, that Plaintiff
could suffer actionable harm via the “zone of interest” test established
under the Administrative Procedure Act.94 Citing principles of administrative law, the CIT found that Customs’ ruling was “reviewable” as an
agency action, and that the complaint’s “allegation of ‘aggrievement’
[was] sufficient to invoke jurisdiction under section 1581(i)(4).”95 The
Court went on to deny Plaintiff’s claims on the merits.96
3. The CAFC Decision
In 2015, the CAFC overruled the 2014 decision, holding that the CIT
“erred in exercising jurisdiction over this case and should have upheld
its initial ruling that jurisdiction did not exist over this action.”97 The
CAFC noted that that “[t]he CIT itself did not appear fully convinced
jurisdiction was proper,” and agreed instead with the CIT’s 2013
decision.98 The CAFC clarified:
The proper “avenue of approach” to redress this harm is a
challenge under § 1581(a). That is, any producer who imports
items made from Best Key’s yarn and believes the merchandise
should be subject to a lower duty rate should protest the
classification and challenge any denial of its protest before the
CIT. The present action, where Best Key seeks to undo an
administrative decision made in its favor so that its customers
might benefit from a lower duty rate, contemplates the creation
of a new cause of action under § 1581(i), but § 1581(i) “was not
intended to create new causes of action nor was it meant to
supersede more specific jurisdictional provisions.”99
Due to the CAFC’s decision, the CIT’s 2014 decision will be of limited
use to plaintiffs seeking residual jurisdiction in the future. However, it
demonstrates an instance where the CIT departed somewhat from its
preference for subsection 1581(a) jurisdiction, in that it extended
residual jurisdiction over a plaintiff’s claim rather than simply insisting
that another party go through the subsection 1581(a) jurisdictional
94.
95.
96.
97.
98.
99.
2015]
Id. at *2.
Id. at *3.
Id. at *22-44.
Best Key Textiles Co. v. United States, 777 F.3d 1356, 1363 (Fed. Cir. 2015).
Id. at 1362-63.
Id.
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channel. It remains to be seen how the CIT will treat future instances of
pre-importation challenges asserted under subsections 1581(h) and
1581(i), given the CAFC’s response in Best Key.
C. Competing Jurisdictional Claims Under Subsections 1581(c) and 1581(i)
This section discusses suits against Commerce and the competing
jurisdictional claims that arise regarding subsection 1581(c), which
grants jurisdiction over claims arising out of judicial review in countervailing duty and antidumping duty proceedings.100 In determining
whether subsection 1581(i) jurisdiction is available in the context of an
antidumping proceeding review, the CIT traditionally examines whether
parties were being required to participate in a proceeding which is ultra
vires, or outside the bounds of the law.101 If the agency has exceeded
the bounds of its authority, then subsection 1581(c) relief may be
inadequate, and residual jurisdiction available in some circumstances.102 This was the Court’s conclusion in the 2014 Diamond Sawblades case.
1. The Diamond Sawblades Manufacturers Coal. v. U.S. Department of
Commerce Litigation
In 2014, the CIT addressed a suit related to the five-year “sunset
review” of the antidumping order on diamond sawblades from China.
By statute, Commerce and the ITC will reevaluate an antidumping or
countervailing duty order every five years in a process known as “sunset
reviews.”103 In this case, the CIT considered a challenge to subsection
1581(i) jurisdiction where Plaintiff questioned the timeliness of an
initiation of a sunset review.104 The CIT, however, sided with Plaintiff
and found that subsection 1581(i) jurisdiction was in fact available.105
In this case, “[t]he sole question posed by the case . . . [was] whether
the review was initiated at the proper time.”106 Following the original
100. 28 U.S.C. § 1581(c) (2012); 19 U.S.C. § 1516a (2012).
101. See, e.g., Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 986 F. Supp.
2d 1381, 1388-89 (Ct. Int’l Trade 2014) (distinguishing a line of cases along these lines).
102. Gov’t of the People’s Republic of China v. United States, 483 F. Supp. 2d 1274, 1282 (Ct.
Int’l Trade 2007).
103. 19 U.S.C. § 1675(c). (West, Westlaw through Pub. L. No. 114-49 approved 8-7-2015).
104. Diamond Sawblades Mfrs.’ Coal. v. U.S. Dep’t of Commerce, 11 F. Supp. 3d 1303 (Ct.
Int’l Trade 2014).
105. Id. at 1309-1310.
106. Id. at 1306.
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antidumping investigation launched in 2005, the CIT remanded the
injury determination back to the ITC, having found that its determination was insufficiently supported.107 On remand, the ITC again found
that the U.S. was materially injured by the imports, and this time the
CIT affirmed its determination.108 By the time the CIT affirmed, it was
2009.109 While Commerce had published the antidumping order on
November 4, 2009, it stated therein that the order was effective dating
back to January 23, 2009.110 Commerce then used the January 23 date
to calculate when the five-year “sunset” reviews would be initiated, and
Plaintiff challenged the decision to use January 23 as opposed to the
November 4 date.111
Plaintiff sought to be excused from participation in the sunset
review, which it considered to be untimely due to the use of the January
23 date, and thus ultra vires.112 Commerce moved to dismiss
the case on the theory that “plaintiff now has, and has always had, the
ability to obtain complete relief by challenging the final determination
once the sunset review is finished,” alleging that jurisdiction was proper
under subsection 1581(c).113 Plaintiff initially commenced this action
as a subsection 1581(i) case before either the ITC or Commerce had
begun its review, and when Commerce made a determination in its
portion of the sunset review, added a subsection 1581(c) challenge as
well.114
The CIT decided this case based on the “manifestly inadequate”
prong of the jurisdiction test. Citing a line of previous cases, the CIT
stated that “this Court has found that, when faced with an unlawfully
commenced review, waiting for the final determination of the review to
challenge its unlawful commencement is ‘manifestly inadequate,’ and
jurisdiction under subsection 1581(i) is available.”115 The CIT found
that in this “unlawful commencement” case, the Court properly had
107. Id. at 1307.
108. Id.
109. Id.
110. Id. at 1303.
111. Id. at 1307-08.
112. Id. at 1306.
113. Id. at 1309.
114. Id.
115. Id. (referencing, among others, Dofasco Inc. v. United States, 326 F. Supp. 2d 1340,
1345 (2004) (“[F]orcing Dofasco to wait until a final determination has been issued before it may
challenge the lawfulness of the administrative review, would mean that Dofasco’s opportunity for
full relief—i.e., freedom from participation in the administrative review—would be lost.” (citations omitted)).
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jurisdiction under subsection 1581(i): “although the Department has
completed its part of the sunset review, the ITC’s portion of the sunset
review is in its nascent stage . . . . [t]hus, plaintiff still seeks a remedy
that 28 U.S.C. § 1581(c) cannot provide, namely being excused from
further participation in an ongoing ultra vires proceeding.”116
On the merits, the Court found that Commerce improperly used the
January 23 date for calculating when to initiate the sunset review, and
thus that the review had been unlawfully initiated.117 The Court further
rejected Commerce’s argument that the public was put on “constructive notice” regarding the antidumping order beginning in January
2009, when the notice was not published in the federal register until
“over nine months later.”118 The CIT ordered that Commerce’s sunset
review results be rescinded, and that activity on the ITC review cease.119
Although the CIT found for the plaintiff, it noted that “it is unlikely
that the facts present here will be repeated . . . [i]f true, then no
practice or precedent will be established by this case. Therefore, the
time for correcting this one-time mistake has come.”120 As a result, the
CIT continued in its tradition of enabling subsection 1581(i) jurisdiction to apply where there has been ultra vires action by an agency, but
did take pains to narrow the decision as being particular to the
circumstances of this case.
2. Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States
In contrast to Diamond Sawblades, the CIT rejected an argument for
subsection 1581(i) jurisdiction in Borusan Mannesmann Boru Sanayi ve
Ticaret A.S. v. United States. In that case, Plaintiff sought to compel
Commerce to perform a verification in an ongoing countervailing duty
investigation, asserting jurisdiction under subsections 1581(i)(2) and
(4) on the grounds that subsection 1581(c) jurisdiction was manifestly
inadequate.121 The CIT took it upon itself to challenge jurisdiction in
this case, stating that “[t]he court may dismiss a case for lack of subject
matter jurisdiction on its own motion because the court must enforce
the limits of its jurisdiction.”122
116. Diamond Sawblades Mfrs.’ Coal., 11 F. Supp. at 1309.
117. Id. at 1310.
118. Id. at 1316.
119. Id.
120. Id.
121. Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 986 F. Supp. 2d
1381, 1382 (Ct. Int’l Trade 2014).
122. Id. at 1384.
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Plaintiff alleged that Commerce’s failure to verify certain information both “impair[s] Borusan’s ability to meaningfully participate in
the countervailing duty investigation,” and that it “constitutes the
unlawful prejudgment of this issue.”123 The CIT disagreed. It reiterated
that subsection 1581(c) jurisdiction covers “judicial review of both
matters of procedural correctness, as well as the substantive merits of
the [countervailing duty] determination.”124 The CIT found that jurisdiction under subsection 1581(c) should still be available in this case,
as an allegation that “Commerce was acting contrary to law when it
failed to verify certain information and that in doing so Commerce
prejudged the matter” can be made after the determination is final.125 If
Plaintiff were to be successful on these as subsection 1581(c) claims
after the final determination, it “would get all the relief then that it
could get now.”126 Finding that subsection 1581(c) relief was available,
the CIT also concluded that Plaintiff failed to allege that relief under
subsection 1581(c) would be manifestly inadequate. The fact that
“Plaintiff would prefer that if Commerce is to be told it is acting
contrary to law that it be told so now, and not after a final determination is issued when Plaintiff will be required to make cash deposits” was
not persuasive because “paying deposits pending court review is an
ordinary consequence of the statutory scheme.’”127
In rejecting Plaintiff’s claim, the Court distinguished this case from
prior cases where it had asserted subsection 1581(i) jurisdiction during
the pendency of an investigation, including those that the CIT had
relied on in Diamond Sawblades.128 In Borusan, the CIT found that
subsection 1581(i) is permissible where a plaintiff seeks “to stop an
allegedly unnecessary or ultra vires administrative proceeding before
plaintiffs were burdened with them.”129 However, in this case “Plaintiff
[was] not claiming that it will be spared an illegal proceeding. It claims
that the proceeding it has already endured was defective and it hopes to
forestall the final determination which it fears will be wrong.”130
Consequently, the plaintiff would have a remedy only if it appealed
123. Id. at 1385.
124. Id.
125. Id.
126. Id.
127. Id. at 1386 (citing MacMillan Bloedel Ltd. v. United States, 16 C.I.T. 331, 333 (1992)).
128. See, e.g., Dofasco Inc. v. United States, 326 F. Supp. 2d 1340, 1345-47 (2004), aff’d, 390
F.3d 1370 (Fed. Cir. 2004).
129. Borusan Mannesmann, 986 F. Supp. 2d at 1389.
130. Id.
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Commerce’s final determination in accordance with subsection
1581(c).131
The CIT’s finding in Borusan can thus be read as consistent with its
decision in Diamond Sawblades. In Diamond Sawblades, Plaintiff sought to
avoid participation altogether in a review that was itself unlawful, which
was a permissible use of subsection 1581(i) jurisdiction. Conversely, the
plaintiff in Borusan sought to challenge a facet of Commerce’s review,
and subsection 1581(i) jurisdiction was denied. Thus, the CIT still
enforces subsection 1581(c) as the principal jurisdictional avenue for
relief for challenges to antidumping and countervailing duty proceedings, directing plaintiffs to wait until Commerce’s determinations are
final before challenging them under subsection 1581(c), unless the
entire proceeding is beyond the bounds of the law and may be avoided
in its entirety, in which case subsection 1581(i) jurisdiction may be
appropriate.
D. Cases Where Jurisdiction Was Contested Due To Mootness or Ripeness
In addition to cases involving competing jurisdictional claims under
subsections 1581(a), (c), and (i), the CIT also entertained subsection
1581(i) challenges to subject matter jurisdiction based on ripeness and
mootness. The CIT split on these cases, dismissing one action as unripe
while declining to grant a motion to stay the filing of an administrative
record for another case’s alleged mootness.
1. Aluminum Extrusions Fair Trade Comm. v. United States
In Aluminum Extrusions Fair Trade Committee v. United States, the CIT
rejected a subsection 1581(i) claim because it was not ripe. Plaintiffs
challenged Commerce’s scope language determination in the antidumping and countervailing duty orders on Finished Heated Sinks (“FHS”)
on the grounds that: (1) language excluding articles “sold to electronic
manufacturers” did not accurately reflect the ITC’s scope definition;
and (2) Commerce failed “to specify in the instructions issued to
Customs and Border Protection . . . that importers must certify that
their products meet certain testing requirements allegedly required by
the ITC’s definition of FHS.”132 The Court exercised jurisdiction under
subsection 1581(c) and upheld Commerce’s scope exclusion language
131. Id.
132. Aluminum Extrusions Fair Trade Comm. v. United States, 968 F. Supp. 2d 1244, 1246
(Ct. Int’l Trade 2014).
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with regards to the first argument, but found that Plaintiff’s second
argument regarding testing requirements was not ripe.133 Plaintiff
contended that by failing to specify testing or certification requirements, the orders would allow sinks that are untested, “and therefore
unfinished under the ITC’s definition,” to be included in the scope.134
While the CIT agreed that this was a fair concern regarding the future
implementation of the order, the fact that it was a speculated concern
and not an actual “case or controversy” rendered it unactionable for
the time being.135 The Court noted, however, that if the harm were to
occur, and Plaintiff were to have a case or controversy, “the path for
review is clear under . . . 28 U.S.C. 1581(i)(4).”136 This decision follows
the CAFC’s 2004 holding that the CIT has jurisdiction under subsection 1581(i)(4) “if Commerce instructions [to Customs] are inaccurate
or incorrect.”137
2. Fedmet Res. Corp. v. United States
In Fedmet Res Corp. v. United States, Plaintiff brought a case under
subsections 1581(i)(2) and (4), challenging Customs’ requirement
that it “post single transaction bonds equal to 260.24% ad valorem for
each of four entries of Plaintiff’s imports of magnesia carbon bricks,”
claiming that Customs did not give adequate reason for this requirement.138 Customs moved to stay the filing of the administrative record
pending resolution of its own motion to dismiss, which claimed that
Fedmet’s case was moot.139 Customs argued that the case was moot
because “Fedmet [had] redirected the Chicago entries to Canada and
posted [Single Transaction Bonds] STBs for the Cleveland entries.”140
Weighing the competing interests, the CIT found that it would be
inappropriate and premature for it to declare Plaintiff’s challenge
moot, particularly given that mootness might be demonstrated or
refuted by Plaintiff’s response to the defendant’s motion to dismiss.141
133. Id. at 1253-55.
134. Id. at 1253.
135. Id. at 1254.
136. Id. at 1254-55.
137. Id. at 1255 n.22 (citing Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1306 (Fed.
Cir. 2004)).
138. Fedmet Res. Corp. v. United States, 2014 Ct. Intl. Trade LEXIS 142, at *1-2 (Ct. Int’l
Trade Dec. 8, 2014).
139. Id. at *2-3.
140. Id. at *6.
141. Id. at *7-8.
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Furthermore, Customs would not face any hardship in having the
administrative record filed.142 Customs’ motion to stay its filing of the
administrative record pending its motion to dismiss was denied.143
In the 2014 cases addressing ripeness and mootness, the Court thus
found that (1) a case challenging Commerce’s instructions to Customs
would constitute an appropriate assertion of subsection 1581(i) jurisdiction, but only if the case involved was ripe for review, and (2) it was
disinclined to prematurely determine that a subsection 1581(i) claim
was moot before both parties had an opportunity to brief the issue.144
IV. CASES DECIDED UNDER SUBSECTION 1581(I) JURISDICTION
A. Cases Concerning Preliminary Relief
In 2014, the CIT also addressed a number of requests for preliminary
relief where it had jurisdiction under subsection 1581(i). These cases
involved a request to enjoin a sunset review proceeding and two
requests to enjoin Customs from imposing a bond, pending the outcome of litigation. The Court in these cases demonstrated that it will
maintain a high bar for parties to establish their entitlement to preliminary relief, even when the “manifestly inadequate” standard under
subsection 1581(i) has been met.
1. Diamond Sawblades—Manifestly Inadequate Remedy v. Irreparable
Harm
The CIT addressed the burden of proving harm in a preliminary
injunction when it first took up the Diamond Sawblades case, discussed
above, in March 2014, and made an interesting distinction between
alleging harm for purposes of an injunction as opposed to alleging a
manifestly inadequate remedy when contesting jurisdiction. Before
reaching the merits of the Diamond Sawblades case in June, the Court
entertained Plaintiff’s motion for a preliminary injunction to stop
142. Id. at *9.
143. Id. at *3-4.
144. In 2014, the CIT also addressed ongoing issues in cases that had been litigated under
multiple jurisdictional prongs, including subsection 1581(i). However, as subsection 1581(i)
issues were not at the forefront of these decisions, they are not the focus of this article. See Slip
Opinions, UNITED STATES COURT OF INTERNATIONAL TRADE, http://www.cit.uscourts.gov/SlipO
pinions/index.html (listing 2014 decisions by the CIT); Golden Dragon Precise Copper Tube
Group, Inc. v. United States, 2014 Ct. Intl. Trade LEXIS 85 (Ct. Int’l Trade July 18, 2014); Shah
Bros., Inc. v. United States, 32 F. Supp. 3d 1348 (Ct. Int’l Trade 2014); Shah Bros. v. United States,
9 F. Supp. 3d 1402 (Ct. Int’l Trade 2014).
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Commerce from conducting the sunset review.145
The Court found that it had jurisdiction under subsection 1581(i) to
rule on the injunction, but denied the request. The CIT stated that to
prove that a preliminary injunction is warranted, a plaintiff must “show
that he is likely to suffer irreparable harm in the absence of preliminary
relief,”146 among other things.147 To make this showing, Plaintiff relied
on Dofasco, a subsection 1581(i) CIT case from 2004.148 In Dofasco, the
Court held that subsection 1581(i) jurisdiction was appropriate “because forcing the plaintiff to await the conclusion of a proceeding
alleged to be illegal, and then bring a suit under [28] U.S.C. § 1581(c)
would be a manifestly inadequate remedy.”149 However, the CIT in Diamond Sawblades clarified that demonstrating irreparable harm for a
preliminary injunction and a manifestly inadequate remedy for jurisdictional purposes are not one and the same.150 Thus,
[A]lthough the relief that plaintiff seeks (not being forced to
participate in an unlawful proceeding) is sufficient to provide
the court with jurisdiction under [28] U.S.C. § 1581(i), a
temporary denial of that remedy during the pendency of this
action is not a sufficient harm to support a preliminary injunction under the prevailing case law.151
Plaintiff’s motion for a preliminary injunction was denied.152,153
145. Diamond Sawblades Mfrs.’ Coal. v. U.S. Dep’t of Commerce, 968 F. Supp. 2d 1338, 1339
(Ct. Int’l Trade 2014).
146. Id. at 1341.
147. “A plaintiff seeking a preliminary injunction must establish (1) that he is likely to
succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary
relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public
interest.” Id. (citing Wind Tower Trade Coalition v. United States, 741 F.3d 89, 95 (Fed. Cir.
2014)).
148. Diamond Sawblades Mfrs. Coal., 968 F. Supp. 2d at 1342 (citing Dofasco Inc. v. United States,
326 F. Supp. 2d 1340 (2004)).
149. Id. (emphasis added).
150. Id. at 1342-43.
151. Id.
152. Id. at 1343.
153. In April, the Court denied Plaintiff’s subsequent motion to stay the order denying
injunctive relief and reinstate the temporary restraining order halting the sunset review. The
Court found that Plaintiff’s alleged injuries were “essentially identical to those it argued for, and
the court rejected, in the order denying the preliminary injunction,” and thus denied Plaintiff’s
request for relief. Diamond Sawblades Mfrs.’ Coal. v. U.S. Dep’t of Commerce, 973 F. Supp. 2d
1341, 1344 (Ct. Int’l Trade 2014).
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2. International Fresh Trade Corp. v. United States and Kwo Lee, Inc. v.
United States—Severity of Likely Harm
In International Fresh Trade Corp. v. United States and Kwo Lee, Inc. v.
United States, the Court addressed two different instances of importers
challenging Customs’ transaction bond requirement on entries of
fresh garlic, and sought a preliminary injunction to prevent Customs
from imposing the bond. In each case, the bond was set at the
China-wide rate ($4.71/kg), which was higher than the rates the
companies expected after having received separate rates in a New
Shipper Review of the antidumping order on fresh garlic ($0.24/kg for
International Fresh Trade Corporation and $0.35/kg for Kwo Lee).154
The China-wide bond rate was imposed to account for the companies’
“potential” antidumping duty liabilities.155 This was triggered by evidence suggesting that a producer had undergone changes that might
disqualify it for a separate rate in International Fresh Trade Corp., and by
Customs denying entries—perhaps due to improper filing—in Kwo
Lee.156
Notably, the Court came to different conclusions in the two cases:
the plaintiff was denied a preliminary injunction in International Fresh
Trade Corp., and granted one in Kwo Lee. A key difference between the
two cases appears to lie in the evidence submitted by the plaintiffs
regarding the severity of injury that they would each suffer without an
injunction. International Fresh Trade Corporation “allege[d] inability
to pay the required cash deposit and, in the absence of a preliminary
injunction, continued denied entry, mounting demurrage and storage
charges, loss of reputation amongst customers (including threatened
litigation for failure to deliver), financial inability to re-export, and loss
of the imports themselves.”157 The CIT wrote that “[w]hile these harms
are potentially irreparable, Plaintiff has failed to prove that they are
immediate and viable: Plaintiff’s evidence on irreparable harm consists
solely of two affidavits from its vice president.”158 Having failed to
demonstrate harm, International Fresh Trade Corporation faced a
higher burden demonstrating success on the merits.159 It failed to meet
that burden, as well as to tip the balance of equities or public interest
154. Int’l Fresh Trade Corp. v. United States, 26 F. Supp. 3d 1363, 1365 (Ct. Int’l Trade
2014); Kwo Lee, Inc. v. United States, 24 F. Supp. 3d 1322, 1325 (Ct. Int’l Trade 2014).
155. Kwo Lee, Inc., 24 F. Supp. 3d at 1327.
156. Int’l Fresh Trade Corp., 26 F. Supp. 3d at 1366; Kwo Lee, Inc., 24 F. Supp. 3d at 1325-26.
157. Int’l Fresh Trade Corp., 26 F. Supp. 3d at 1367.
158. Id. at 1367-68.
159. Cf. Kwo Lee, Inc., 24 F. Supp. 3d at 1328.
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factors in its favor.160
On the other hand, Kwo Lee was able to demonstrate irreparable
harm, and its success on the other prongs of the preliminary injunction
test followed. The CIT held that, while financial loss alone is insufficient to establish irreparable harm, financial loss linked to a loss of
business opportunity may be persuasive to show irreparable harm.161
Plaintiff in this case was able to demonstrate that Customs’ bond
requirement, calculated at the China-wide rate, would result in “more
than $10 million in additional bonding” for Kwo Lee.162 While Customs had shown that “[n]ormally, an importer could obtain such single
transaction bonds from a surety for a fraction of the bond value,” Kwo
Lee was not a “normal case” because “obtaining a bond at this time, in
this industry would require full collateral for the millions of dollars at
issue.”163 The Court was similarly persuaded that the bond requirement left Kwo Lee “[u]nable to meet either Customs’ or his customers’
demands,” and so “Plaintiff face[d] imminent and immediate bankruptcy, loss of business, and, therefore, loss of access to meaningful
judicial review.”164 Instead of requiring Kwo Lee to post STBs, Plaintiff
was required to provide $1 million in security.165
Thus, while International Fresh Trade Corporation did not supply
enough evidence to show the likely harm that it would suffer absent an
injunction, Kwo Lee made an effective argument for loss of business
opportunity that was persuasive to the Court.
B. CDSOA Update
In 2014, the CIT stayed the course of its recent approach under the
Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA”),
rejecting Plaintiffs’ request to stay claims pending appeal to the Supreme Court, and rejecting claims for failure to state a claim upon
which relief could be granted. The CDSOA, also known as the “Byrd
Amendment,” enabled “affected domestic producers” (“ADPs”) to
receive disbursements of antidumping and countervailing duties that
had been imposed.166 The CDSOA was repealed effective in 2006. The
160. Int’l Fresh Trade Corp., 26 F. Supp. 3d at 1368-71.
161. Kwo Lee, Inc., 24 F. Supp. 3d at 1327-28.
162. Id. at 1327.
163. Id. at 1327-28.
164. Id.
165. Id. at 1332. Customs’ negative bonding determination was eventually sustained. See Kwo
Lee, Inc. v. United States, 70 F. Supp. 3d 1369 (Ct. Int’l Trade 2015).
166. 19 U.S.C.A. § 1675c (repealed 2006) (2012).
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CIT’s jurisdiction to hear CDSOA cases was once contested.167 Addressing the issue in 2011, however, the CIT found that CDSOA cases are
properly decided under subsection 1581(i) jurisdiction.168 The Court
found that CDSOA cases could be heard under subsection 1581(i)(4)
because the CDSOA is a law “‘providing for . . . administration . . . with
respect to’ antidumping and countervailing duties.”169 The CIT found
that the CDSOA’s mandate for Customs “to maintain the deposited
antidumping and countervailing duties by order and to allocate and
distribute these duties to ADPs annually as reimbursement for qualifying expenditures” is an administrative function.170 Cases now arising
from continuing CDSOA claims fall under subsection 1581(i)
jurisdiction.
A few years ago, CDSOA cases dominated the CIT docket.171 While
CDSOA played less of a role in 2014, the Court continued to entertain
claims from the furniture industry asserting claims to FY 2011 and 2012
ADP distributions that were similar to claims alleged for distributions in
other fiscal years. In 2014, the CIT consistently rejected Plaintiffs’
attempts to stay the proceedings pending the outcome of other ongoing CDSOA litigation.
In Ashley Furniture Industries, Inc. v. United States, Plaintiff challenged
the ITC’s decision not to include it on a list of eligible ADP recipients,
and Customs’ subsequent decision to deny CDSOA distributions to
Plaintiff in FY 2011 and 2012.172 Plaintiff moved to stay the case
pending resolution of a writ of a petition for certiorari dealing with the
CDSOA distributions that Customs had denied to Ashley Furniture in
FY 2007 through 2010.173 The CIT noted that it had jurisdiction under
subsection 1581(i), and that “[t]he power to stay a case ‘is incidental to
the power inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.’”174 The Court found Ashley Furniture’s
argument that the pending proceedings on its FY 2007-10 claims would
167. See, e.g., Furniture Brands Int’l v. United States, 807 F. Supp. 2d 1301 (Ct. Int’l Trade
2011).
168. Id.
169. Id. at 1308.
170. Id. at 1308.
171. See, e.g., Nancy A. Noonan, Court of International Trade Decisions During 2012 Under 28
U.S.C. § 1581(i) Residual Jurisdiction, 45 GEO J. INT’L L. 151 (2013).
172. Ashley Furniture Indus., Inc. v. United States, 36 ITRD 587, 2014 WL 2750255, at *1-3
(Ct. Int’l Trade 2014).
173. Id. at *3.
174. Id. at *6-7 (quoting Landis v. North American Co., 299 U.S. 248, 254 (1936)).
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have a direct impact on its FY 2011-12 claims to be “mere speculation,”
as there was “no assurance that the Supreme Court is likely to grant
Ashley’s petition.”175 Thus, Ashley Furniture did not “show that a stay of
this action would promote judicial economy and efficiency rather than
simply cause delay,” and its motion for stay was denied.176
The CIT similarly denied motions to stay from furniture companies
Ethan Allen and Standard Furniture Manufacturing Co., who also
sought to stay their ITC and Customs CDSOA claims pending the
resolution of the writ of certiorari in Ashley Furniture.177 The Court
denied the motions to stay there as well, again on the grounds that
“Plaintiffs’ argument that the petition ‘will have a direct impact’ on the
instant case is mere speculation.”178
In December 2014, the CIT addressed the government’s motion to
dismiss in these three cases, relying on past CDSOA precedent to find
that Plaintiffs had failed to state a claim upon which relief could be
granted.179 This is consistent with CIT’s actions in 2013, where it
denied several constitutional challenges to the CDSOA following the
CAFC’s decision in SKF USA II, which rejected First Amendment and
equal protection challenges to the CDSOA.180 The CIT’s recent decisions demonstrate that, after entertaining years of CDSOA litigation, it
is unlikely to grant plaintiffs further CDSOA relief.
V. CONCLUSION
The CIT decisions from 2014 demonstrate that it can be difficult for
plaintiffs challenging Customs or Commerce action in a civil suit to
assert subsection 1581(i) jurisdiction, prevail on requests for preliminary relief, or, particularly in CDSOA cases, find success on the merits.
175. Id. at *7-8.
176. Id.
177. Ethan Allen Global, Inc. v. United States, 36 ITRD 647, 2014 WL 2898617, at *1, *3 (Ct.
Int’l Trade 2014); Standard Furniture Mfg. Co. v. United States, 36 ITRD 650, 2014 WL 2898617,
at *1 (Ct. Int’l Trade 2014).
178. Ethan Allen Global, 2014 WL 2898617 at *2; Standard Furniture Mfg., 2014 WL 2898617
at *3.
179. Ashley Furniture Indus., Inc. v. United States, 34 F. Supp. 3d 1386, 1390 (Ct. Int’l Trade
2014); Ethan Allen Global, Inc. v. United States, 37 F. Supp. 3d 1371, 1377 (Ct. Int’l Trade 2014);
Standard Furniture Mfg. Co. v. United States, 37 F. Supp. 3d 1365 (Ct. Int’l Trade 2014).
180. See, e.g., Daniel L. Porter & Claudia D. Hartleben, Court of International Trade Decisions
Rendered in 2013 Under 28 U.S.C. § 1581(i) Residual Jurisdiction, 46 GEO. J. INT’L L. 197, 219-224
(2014) (discussing the application of SKF USA II on subsequent CIT CDSOA decisions); see also
SKF USA Inc. v. United States Customs & Border Prot. (SKF USA II), 556 F.3d 1337 (Fed. Cir.
2009).
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Ford (to some extent), Best Key II, Diamond Sawblades, and Kwo Lee stand
out as exceptions to this. The CIT’s decision in Ford follows the CAFC
reasoning that actions taken by an agency after the plaintiff files suit
may open up new jurisdictional avenues, and subsection 1581(i) jurisdiction will not be defeated if it has been previously established.
However, the CIT found that it could still bar subsection 1581(i) claims
based on statute of limitations, and could decline to exercise its
discretion to rule on declaratory judgment claims even where claims
were allowed under subsection 1581(i). Though overruled by the
CAFC, the Court in Best Key II was willing to extend residual jurisdiction
to evaluate a case where it had rejected jurisdiction under subsection
1581(h). Diamond Sawblades demonstrates that subsection 1581(i) jurisdiction may be available in limited circumstances where the plaintiff
challenges the lawfulness of the proceedings in their entirety, and Kwo
Lee illustrates that a plaintiff that has met its burden by proving likely
harm beyond what is “normal” for a party pending judicial review may
obtain preliminary relief. Nonetheless, for the most part, parties will
face an uphill battle in attempting to establish residual jurisdiction and
win relief in subsection 1581(i) cases.
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