Norman G. Jensen, Inc. v. United States
2012 U.S. App. LEXIS 16784
| Fed. Cir. | 2012Background
- Jensen is a licensed customs broker who filed 308 protests in Feb 2007 seeking reliquidation of softwood lumber entries from Canada.
- Protests remained pending; in 2009 Customs indicated those protests were consolidated under a lead protest and a draft decision existed but was not finalized.
- Jensen filed suit in 2009 seeking information about the protests and to preserve appeal rights; Customs did not respond.
- Jensen filed a mandamus action in April 2010 in the Court of International Trade under 28 U.S.C. § 1581(i).
- Court of International Trade dismissed for lack of jurisdiction, holding §1581(i) available only where no adequate remedy exists under other 1581 subsections.
- Jensen appeals, arguing §1581(i) is appropriate; government contends accelerated disposition under §1515(b) provides adequate remedy and §1581(a) review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is §1581(i) jurisdiction available when §1515(b) could provide a remedy | Jensen relies on §1581(i) as manifestly inadequate remedy under §1515(b). | Jensen could pursue accelerated disposition under §1515(b) and then §1581(a) review, so §1581(i) is not available. | No; §1581(i) not available because §1515(b)/§1581(a) provides adequate remedy. |
| Does Hitachi govern whether two-year deadlines create entitlement to a decision | Two-year deadline creates entitlement to a Customs decision, not a deemed denial. | Hitachi shows deadlines are directory; no automatic entitlement to decision; §1515(b) results in deemed denial if no action. | Hitachi controls; two-year deadline is directory, not mandatory entitlement. |
| Does Canadian Wheat Board support Jensen's §1581(i) jurisdiction | Canadian Wheat Board supports §1581(i) where another avenue exists but is not pursued. | Canadian Wheat Board is distinguishable; Hitachi controls; accelerated disposition defeats §1581(i). | Canadian Wheat Board not controlling; §1581(i) barred where §1515(b) available. |
Key Cases Cited
- Hitachi Home Elec- tronics (America), Inc. v. United States, 661 F.3d 1343 (Fed. Cir. 2011) (accelerated disposition can provide jurisdiction under §1581(a))
- Hartford Fire Ins. Co. v. United States, 544 F.3d 1289 (Fed. Cir. 2008) (1581(i) is a catch-all; cannot be used if another §1581 avenue exists unless manifestly inadequate)
- Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356 (Fed. Cir. 1992) (limits on 1581(i) to prevent circumvention of administrative processes)
- International Custom Prods., Inc. v. United States, 467 F.3d 1324 (Fed. Cir. 2006) (propensity to avoid using 1581(i) when other avenues exist)
- Canadian Wheat Board v. United States, 641 F.3d 1344 (Fed. Cir. 2011) (discusses jurisdiction; not controlling for the §1581(i) issue here)