Court of International Trade (CIT) decision in Zojirushi v. U.S. (CIT 2016) is a great jurisdictional monologue explaining how and when 28 U.S.C. § 1581 can be invoked when challenging Customs and Border Protection (CBP) protest. In Zojirushi, CBP did not approve nor deny protestant’s GSP claim, but instead checked the box on CBP Form 19 “rejected as non-protestable.”
Protestant brought action against CBP in CIT under 28 U.S.C. § 1581(i), which is a residual jurisdictional subdivision. CIT declined jurisdiction under 28 U.S.C. § 1581(i), saying that for this type of action, jurisdiction pursuant to 28 U.S.C. § 1581(a) should be invoked, which explicitly provides for protests. (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) However, the problem here was that CBP had neither denied nor approved the protest, but rather “rejected” the document. According to CIT, this problem is easily corrected through “accelerated disposition” clause under 19 U.S.C. § 1515(b). In other words, before showing up to court, protestant should request accelerated disposition.
Then wait thirty (30) for “deemed” denial. And only then, ask CIT for jurisdictional availability under 28 U.S.C. § 1581(a).
Cognizant of Zojirushi actions (i.e. filing of accelerated request and then being back few months later), CIT also provided a sneak preview of how the case will be decided on the mertis. CIT chastised CBP’s HQ H193959 as “misinterpretations of two decisions of the Court of Appeals for the Federal Circuit (“Court of Appeals”), Xerox Corp. v. United States, 423 F.3d 1356 (Fed. Cir. 2005), and Corrpro Companies, Inc. v. United States, 433 F.3d 1360 (Fed. Cir. 2006),” concluding that protest procedure is available for Generalized System of Preferences claims that have not been made at the time of entry.
