Slip Op. 23-31
UNITED STATES COURT OF INTERNATIONAL TRADE
PRINTING TEXTILES, LLC, doing business as BERGER TEXTILES,
Plaintiff, Before: Timothy C. Stanceu, Judge
v. Court No. 23-00056
UNITED STATES,
Defendant.
OPINION
[Dismissing action for lack of subject matter jurisdiction]
Dated: March 10, 2023
Kyl J. Kirby, Attorney and Counselor of Law, P.C., of Fort Worth, Texas, for plaintiff.
Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. Also appearing were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director.
Stanceu, Judge: Plaintiff commenced this action on March 8, 2023, contesting
various decisions of U.S. Customs and Border Protection (“Customs” or “CBP”)
following CBP’s denial of two administrative protests filed by plaintiff. Concluding
that the Court of International Trade lacks subject matter jurisdiction, the court
dismisses this action. Court No. 23-00056 Page 2
I. BACKGROUND
Plaintiff Printing Textiles, LLC dba Berger Textiles (“Berger”), a company based
in Garden Grove, California, states in its complaint that it was the importer on entries of
what it describes as “Canvas Banner Matisse coated fabric” that it imported from the
People’s Republic of China (“China” or the “PRC”). Compl. 1 (Mar. 8, 2023), ECF No. 2.
A. The Protests and Protest Denials by Customs
Plaintiff states, further, that it filed two administrative protests with Customs
pertaining to various of these entries, one on June 16, 2020 (Protest No. 520120101583)
and another on March 16, 2022 (Protest No. 270422159803). Id. ¶¶ 16, 18. Berger filed
Protest No. 520120101583 with an application for further review. Id. ¶ 16. Customs
denied both protests on September 16, 2022. Id. ¶ 19. In denying Protest No.
520120101583, Customs also denied the application for further review. Id. ¶ 20.
Plaintiff filed with Customs a request to set aside the denial of the application for
further review of Protest No. 520120101583 on November 15, 2022, id. ¶ 21, which
Customs denied on January 14, 2023, id. ¶ 24. On December 15, 2022, Berger requested
that Customs void the denials of the protests on the ground that it submitted to the U.S.
Department of Commerce (“Commerce”), on that same date, a request for a scope
ruling on the issue of whether the Canvas Banner Matisse coated fabric is within the
scope of an antidumping duty order, Notice of Antidumping Duty Order: Certain Artist
Canvas from the People’s Republic of China, 71 Fed. Reg. 31,154 (Int’l Trade Admin. June 1, Court No. 23-00056 Page 3
2016) (the “Antidumping Duty Order”). Compl. ¶ 22, 23. Plaintiff asserts that
Commerce deemed the scope inquiry initiated on January 23, 2023. Id. ¶ 25.
On February 10 and March 3, 2023, plaintiff made further requests to Customs
for the voiding of one or both protest denials, and the denial of the request for further
review. Id. ¶¶ 26, 27.
B. Plaintiff’s Submissions in the Court of International Trade
Plaintiff commenced this action on March 8, 2023 by the filing of a Summons,
ECF No. 1, and the Complaint, ECF No. 2. On the same day, plaintiff moved for
injunctive relief. Pl.’s Mot. for TRO and Prelim. Inj., ECF No. 6 (“Pl.’s Mot.”).
II. DISCUSSION
Berger attempts to invoke the jurisdiction of the Court of International Trade
according to the Court’s residual jurisdictional provision, 28 U.S.C. § 1581(i).1 Compl.
¶¶ 3–10. This is unavailing, as the court may not exercise jurisdiction under that
provision if jurisdiction is, or could have been, available under a provision in
paragraphs (a) through (h) of § 1581, unless the relief available under such provision
would be “manifestly inadequate.” Wanxiang America Corp. v. United States, 12 F.4th
1369, 1373 (Fed. Cir. 2021) (Ҥ 1581(i) is a statute of residual jurisdiction that may not be
invoked where jurisdiction is or could have been available under any other subsection
1 Citations herein to the United States Code are to the 2018 edition. Court No. 23-00056 Page 4
of § 1581, unless such other relief would be manifestly inadequate.”) (citing Miller & Co.
v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987)).
The court interprets plaintiff’s claim to be, in essence, that Customs unlawfully
refused to void the denial of its two protests. See Compl. ¶ 30. As a remedy, Berger
seeks an order that would require Customs “to reverse its protest denial decisions and
return of [sic] the entries to unliquidated status or suspend the protest during the
pendency of the litigation.” Compl. 8. It also seeks immediate injunctive relief to this
effect. Pl.’s Mot. 22.
A plaintiff has the burden of demonstrating facts under which the court may
exercise subject matter jurisdiction over its claim. Norsk Hydro Canada, Inc. v. United
States, 472 F.3d 1347, 1355 (Fed. Cir. 2006) (“It is true that the Court of International
Trade, like all federal courts, is a court of limited jurisdiction, and that the party
invoking that jurisdiction bears the burden of establishing it.”) (citing Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Berger has failed to do so.
According to Berger, Customs denied the two protests on the ground, inter alia,
that it has made a final determination that the imported merchandise is subject to the
Antidumping Duty Order. Compl. ¶ 19. Plaintiff has not demonstrated that any
remedy it might obtain according to an action brought to contest CBP’s denial of its
protests under section 515 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1515, over Court No. 23-00056 Page 5
which action the court may exercise jurisdiction according to 28 U.S.C. § 1581(a), would
be manifestly inadequate.
One of the justifications plaintiff offers to show manifest inadequacy is that an
action brought according to 28 U.S.C. § 1581(a) would not “ensure adequate relief for
successful scope decisions where entries have been finally liquidated.” Compl. ¶ 8. In
making this assertion, plaintiff fails to explain how the relief is inadequate even though
the commencing of an action to contest a protest denial under 19 U.S.C. § 1515 may
prevent finality of liquidation from attaching. See 19 U.S.C. § 1514(a). Berger adds that:
CBP does not have scope ruling/inquiry statutes to follow for implementing regulations to provide adequate relief.
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Slip Op. 23-31
UNITED STATES COURT OF INTERNATIONAL TRADE
PRINTING TEXTILES, LLC, doing business as BERGER TEXTILES,
Plaintiff, Before: Timothy C. Stanceu, Judge
v. Court No. 23-00056
UNITED STATES,
Defendant.
OPINION
[Dismissing action for lack of subject matter jurisdiction]
Dated: March 10, 2023
Kyl J. Kirby, Attorney and Counselor of Law, P.C., of Fort Worth, Texas, for plaintiff.
Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. Also appearing were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director.
Stanceu, Judge: Plaintiff commenced this action on March 8, 2023, contesting
various decisions of U.S. Customs and Border Protection (“Customs” or “CBP”)
following CBP’s denial of two administrative protests filed by plaintiff. Concluding
that the Court of International Trade lacks subject matter jurisdiction, the court
dismisses this action. Court No. 23-00056 Page 2
I. BACKGROUND
Plaintiff Printing Textiles, LLC dba Berger Textiles (“Berger”), a company based
in Garden Grove, California, states in its complaint that it was the importer on entries of
what it describes as “Canvas Banner Matisse coated fabric” that it imported from the
People’s Republic of China (“China” or the “PRC”). Compl. 1 (Mar. 8, 2023), ECF No. 2.
A. The Protests and Protest Denials by Customs
Plaintiff states, further, that it filed two administrative protests with Customs
pertaining to various of these entries, one on June 16, 2020 (Protest No. 520120101583)
and another on March 16, 2022 (Protest No. 270422159803). Id. ¶¶ 16, 18. Berger filed
Protest No. 520120101583 with an application for further review. Id. ¶ 16. Customs
denied both protests on September 16, 2022. Id. ¶ 19. In denying Protest No.
520120101583, Customs also denied the application for further review. Id. ¶ 20.
Plaintiff filed with Customs a request to set aside the denial of the application for
further review of Protest No. 520120101583 on November 15, 2022, id. ¶ 21, which
Customs denied on January 14, 2023, id. ¶ 24. On December 15, 2022, Berger requested
that Customs void the denials of the protests on the ground that it submitted to the U.S.
Department of Commerce (“Commerce”), on that same date, a request for a scope
ruling on the issue of whether the Canvas Banner Matisse coated fabric is within the
scope of an antidumping duty order, Notice of Antidumping Duty Order: Certain Artist
Canvas from the People’s Republic of China, 71 Fed. Reg. 31,154 (Int’l Trade Admin. June 1, Court No. 23-00056 Page 3
2016) (the “Antidumping Duty Order”). Compl. ¶ 22, 23. Plaintiff asserts that
Commerce deemed the scope inquiry initiated on January 23, 2023. Id. ¶ 25.
On February 10 and March 3, 2023, plaintiff made further requests to Customs
for the voiding of one or both protest denials, and the denial of the request for further
review. Id. ¶¶ 26, 27.
B. Plaintiff’s Submissions in the Court of International Trade
Plaintiff commenced this action on March 8, 2023 by the filing of a Summons,
ECF No. 1, and the Complaint, ECF No. 2. On the same day, plaintiff moved for
injunctive relief. Pl.’s Mot. for TRO and Prelim. Inj., ECF No. 6 (“Pl.’s Mot.”).
II. DISCUSSION
Berger attempts to invoke the jurisdiction of the Court of International Trade
according to the Court’s residual jurisdictional provision, 28 U.S.C. § 1581(i).1 Compl.
¶¶ 3–10. This is unavailing, as the court may not exercise jurisdiction under that
provision if jurisdiction is, or could have been, available under a provision in
paragraphs (a) through (h) of § 1581, unless the relief available under such provision
would be “manifestly inadequate.” Wanxiang America Corp. v. United States, 12 F.4th
1369, 1373 (Fed. Cir. 2021) (Ҥ 1581(i) is a statute of residual jurisdiction that may not be
invoked where jurisdiction is or could have been available under any other subsection
1 Citations herein to the United States Code are to the 2018 edition. Court No. 23-00056 Page 4
of § 1581, unless such other relief would be manifestly inadequate.”) (citing Miller & Co.
v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987)).
The court interprets plaintiff’s claim to be, in essence, that Customs unlawfully
refused to void the denial of its two protests. See Compl. ¶ 30. As a remedy, Berger
seeks an order that would require Customs “to reverse its protest denial decisions and
return of [sic] the entries to unliquidated status or suspend the protest during the
pendency of the litigation.” Compl. 8. It also seeks immediate injunctive relief to this
effect. Pl.’s Mot. 22.
A plaintiff has the burden of demonstrating facts under which the court may
exercise subject matter jurisdiction over its claim. Norsk Hydro Canada, Inc. v. United
States, 472 F.3d 1347, 1355 (Fed. Cir. 2006) (“It is true that the Court of International
Trade, like all federal courts, is a court of limited jurisdiction, and that the party
invoking that jurisdiction bears the burden of establishing it.”) (citing Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Berger has failed to do so.
According to Berger, Customs denied the two protests on the ground, inter alia,
that it has made a final determination that the imported merchandise is subject to the
Antidumping Duty Order. Compl. ¶ 19. Plaintiff has not demonstrated that any
remedy it might obtain according to an action brought to contest CBP’s denial of its
protests under section 515 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1515, over Court No. 23-00056 Page 5
which action the court may exercise jurisdiction according to 28 U.S.C. § 1581(a), would
be manifestly inadequate.
One of the justifications plaintiff offers to show manifest inadequacy is that an
action brought according to 28 U.S.C. § 1581(a) would not “ensure adequate relief for
successful scope decisions where entries have been finally liquidated.” Compl. ¶ 8. In
making this assertion, plaintiff fails to explain how the relief is inadequate even though
the commencing of an action to contest a protest denial under 19 U.S.C. § 1515 may
prevent finality of liquidation from attaching. See 19 U.S.C. § 1514(a). Berger adds that:
CBP does not have scope ruling/inquiry statutes to follow for implementing regulations to provide adequate relief. The existing statute (19 U.S.C. § 1515(d)) does not go far enough in providing a remedy by forcing CBP to stand by while Commerce makes a decision as held by the aforementioned case law.
Compl. ¶ 9.2 This argument is puzzling in light of plaintiff’s factual assertion that
Customs already has made a “final and conclusive” decision on the scope issue. See id.
¶ 19.
Plaintiff’s final argument is that “[i]t is necessary that CBP receive gap filling
directives to save the rights of plaintiff if either CBP or the CIT [Court of International
Trade] is unwilling to reliquidate if the Plaintiff is eventually successful” and that “[i]f
CBP does not have adequate law to law [sic], 28 U.S.C. § 1581(a) would accomplish
2This is an unclear reference. The Complaint does not contain citations to court cases in the portion appearing prior to ¶ 9. Compl. (Mar. 8, 2023), ECF No. 2. Court No. 23-00056 Page 6
nothing other than forcing Plaintiff to file a redundant case with the CIT.” Id. ¶ 10.
Because the action plaintiff has commenced according to 28 U.S.C. § 1581(i) must be
dismissed for lack of jurisdiction, such a case would not be “redundant.” Moreover,
plaintiff indicates that it has a scope ruling request pending before Commerce. Compl.
¶ 25. Commencing an action to contest the protest denials would not by itself preclude
plaintiff from also contesting a future scope ruling by Commerce by bringing an action
under section 516A of the Tariff Act, 19 U.S.C. § 1516a, which potentially could be heard
in this Court according to the jurisdictional provision in 28 U.S.C. § 1581(c).
The only remaining issue for the court to decide is whether the action plaintiff
has commenced could be construed by the court as an action to contest the protest
denials. In some circumstances, a court may be able to exercise jurisdiction of an action
even though plaintiff invokes the incorrect jurisdictional provision. The question
presented is whether the action Berger has commenced under 28 U.S.C. § 1581(i) could
suffice as an action brought according to 28 U.S.C. § 1581(a) to contest the denial of
protests under section 515 of the Tariff Act, 19 U.S.C. § 1515. No such circumstance is
presented here. An action to contest a protest denial by Customs is lawfully
commenced only “in accordance with the rules of the Court of International Trade.”
28 U.S.C. § 2636(a). The action plaintiff has commenced does not conform to this
Court’s rules for commencing an action to contest a denial of a protest. See USCIT Rs.
3(a)(1), 87; Form 1. Court No. 23-00056 Page 7
III. CONCLUSION
For the reasons discussed in the foregoing, the court must dismiss this action for
lack of subject matter jurisdiction. Judgment will enter accordingly.
/s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: March 10, 2023 New York, New York