JARAMILLO SPICES CORP. v. United States, 531 F. Supp. 3d 1354 – Court of Intl. Trade 2021
“It is a well-established principle that federal courts … are courts of limited jurisdiction marked out by Congress.” Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 358 (Fed. Cir. 1992) 1357*1357 (citations omitted). In the Customs Courts Act of 1980, Congress delineated the jurisdiction of the Court of International Trade over civil actions brought against the United States. Subsections (a)-(h) grant the Court jurisdiction over specific causes of action; subsection (i) contains a grant of residual jurisdiction. See 28 U.S.C. § 1581.
The burden is on a plaintiff to demonstrate facts establishing subject matter jurisdiction. Pentax Corp. v. Robison, 125 F.3d 1457, 1462 (Fed. Cir. 1997), opinion amended on reh’g, 135 F.3d 760 (Fed. Cir. 1998). To avail itself of this Court’s jurisdiction according to 28 U.S.C. § 1581(a), plaintiff must show: (1) a valid and timely protest (i.e., a protest filed within 180 days of a protestable decision); (2) a protest denial by Customs; and (3) commencement of an action in this Court within 180 days of the date of mailing of a protest denial. 28 U.S.C. §§ 1581(a), 2636(a)(1); 19 U.S.C. §§ 1514(a), 1515.
The court need look no further than the third requirement, which is set forth in the Customs Courts Act of 1980 as a statute of limitations, as follows: “A civil action contesting the denial, in whole or in part, of a protest under section 515 of the Tariff Act of 1930 [19 U.S.C. § 1515] is barred unless commenced in accordance with the rules of the Court of International Trade … within one hundred and eighty days after the date of mailing of notice of denial of a protest under section 515(a) of such Act.” 28 U.S.C. § 2636(a)(1).
Moreover, to be considered a protestable decision as enumerated in 28 U.S.C. § 1581(a), a decision must be one made by Customs, not another agency. “Section 1514(a) does not embrace decisions by other agencies.” Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976 (Fed. Cir. 1994). If Customs merely was effectuating a decision of the FDA to refuse admission, under which Customs lacked discretion over whether to issue a notice for redelivery, then the redelivery demand was not a protestable decision, and the court would lack jurisdiction even had plaintiff followed all procedural requirements for contesting a protest denial.
The provision of the Customs Regulations cited by the FDA, 19 C.F.R. § 141.113(c)(3), demonstrates that once the FDA reaches a determination to refuse admission of an imported food product, Customs may not decline to issue a notice of redelivery:
If FDA refuses admission of a food, drug, device, cosmetic, or tobacco product into the United States, or if any notice of sampling or other request is not complied with, FDA will communicate that fact to the Center director. An authorized CBP official will demand the redelivery of the product to CBP custody. CBP will issue a notice of redelivery within 30 days from the date the product was refused admission by the FDA or from the date FDA determined the non-compliance with a notice of sampling or other request. The demand for redelivery may be made contemporaneously with the notice of refusal issued by the FDA.
19 C.F.R. § 141.113(c)(3) (emphasis added). See also United States v. Utex, Int’l Inc., 857 F.2d 1408, 1411 (Fed. Cir. 1988) (noting that “it is Customs’ responsibility to carry out the FDA decisions, in accordance with customs law and regulation” and that “Customs is the enforcement arm of the process wherein admissibility is determined by the FDA.”).