United States Court of International Trade

Slip Op. 20-29

Before the Court in Wirtgen Am., Inc. v. United States, et. al., Slip Op. 20-29, Court No. 20-00027 (March 4, 2020) was a challenge to the exclusion from entry of six road milling machines by Customs, relying upon an order from the International Trade Commission (“ITC”) excluding similar machines for potential patent infringement. The Court decided two motions, defendant’s motion to dismiss for lack of subject matter jurisdiction and the motion of the ITC to intervene as a party.  For the following reasons, the Court denied both motions.

Plaintiff asserted jurisdiction under 28 U.S.C. § 1581(a) for a denied protest and the Court’s residual jurisdiction under 28 U.S.C. § 1581(i). “Jurisdiction does not exist under subsection (i) when jurisdiction according to another subsection of § 1581 is available unless the remedy … would be manifestly inadequate.” Id.  at 6. “Jurisdiction under 28 U.S.C § 1581 (a) requires a timely protest of a decision of Customs …, a denial of that protest, … and the timely filing of a summons to commence and action to contest the denial of a protest.” Id. “A decision may not be protested when Customs is merely taking action to effectuate a decision of another agency.” Id. at 7. Customs argued the agency merely applied the ITC’s orders and that the agency was not a proper party to the case. However, the Court said because the ITC’s order did not specifically address the design of the machines excluded, Customs exclusion was not just the implementation of another agency’s decision.  The Court noted, statutory language excluding ITC orders from being protested with Customs did not apply because the ITC order did not specifically cover the articles Customs excluded. Finding § 1581(a) jurisdiction the Court moved onto the ITC’s motion to intervene. Under 28 USC § 2631(j)(1)(A), “intervention in an action to contest the denial of a protest is precluded.” Id. at 23. As such, the motion to intervene was denied.