United States Court of International Trade

Slip Op. 21-89

           Before the Court in Jaramillo Spices Corp. v. United States, Court No. 20-00148, Slip Op. 21-89 (July 19, 2021) was Plaintiff Jaramillo’s action to contest Custom’s decision, which assessed Jaramillo liquidated damages of $50,000 for failure to redeliver to CBP’s custody a shipment of tamarind imported from Mexico and determined by the FDA to be adulterated, and the Government’s motion to dismiss this action for lack of subject matter jurisdiction under USCIT Rule 12(b)(1).  Id. at 1-2. In this case, Plaintiff attempted to invoke the court’s jurisdiction under 28 U.S.C. § 1581(a), or in the alternative under 28 U.S.C. § 1581(i). Id. at 5. For the following reasons, the Court granted the Government’s motion to dismiss for lack of subject matter jurisdiction. Id. at 2.

 “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.” Id. “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.” Id. at 8. “Subsection (i)(3) of § 1581 provides as follows: [T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for . . . embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety.” Id. at 9-10. “According to 28 U.S.C. § 1631, a court lacking jurisdiction over an action shall transfer that action to another court in which the action could have been brought if such a transfer is in the interest of justice and the transferee court would have had jurisdiction over the matter at the time it was filed.” Id. at 10. In this case, the Court found that “Jaramillo’s action could not be heard according to the court’s jurisdiction under 28 U.S.C. § 1581(a) because it was untimely, and even had it not been, the measure taken by Customs to effectuate the FDA’s decision to refuse admission of Jaramillo’s merchandise was not a protestable decision according to 19 U.S.C. § 1514(a).” Id. at 9. Furthermore, the Court found that it lacked jurisdiction over this case according to 28 U.S.C. § 1581(i) because “Jaramillo’s tamarind was refused admittance to the United States for reasons relating to the protection of public health.” Id. at 10. Moreover, the Court concluded that it would not be “in the interest of justice” for the Court to transfer this action. Id. The Court explained the following: “Jaramillo did not endeavor to bring a subsequent action in the District Court following that Court’s dismissal of its action without prejudice. Thus, Jaramillo denied the District Court not only once, but twice, the occasion to rule on whether that Court had jurisdiction over its action. Plaintiff has had the full opportunity to pursue any available remedy against defendant United States, and its purposeful actions mitigate against continuing this litigation to allow a third opportunity.” Id. at 11. As such, the Court granted the Government’s motion and entered judgment dismissing Plaintiff action. Id. at 12.