Exclusion of Shipment for Pests in Wood Packaging Can't Be Challenged at CIT, Trade Court Says
Emergency Action Notifications issued by the Animal and Plant Health Inspection Service can’t be challenged at the Court of International Trade, CIT said in a decision issued June 20. Dismissing an importer’s challenge to an EAN citing contaminated wood packaging material and ordering destruction or exportation of the entire shipment, CIT found U.S. district courts have jurisdiction over actions by the Agriculture Department and transferred the case to the Southern Texas U.S. District Court.
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Andritz Sundwig had filed its lawsuit only three days prior, on June 17, after its shipment of steel milling machinery that arrived on June 8 was held up at the Port of Houston. The shipment was the subject of an EAN that cited the presence of pests in the wood packaging material that carried the machinery and ordered the entire shipment destroyed or re-exported. The machinery itself is valued at nearly $40 million.
Andritz Sundwig quickly protested the exclusion and filed a protest. It requested accelerated disposition before bringing its action to CIT. It requested that the trade court vacate the EAN and issue a temporary restraining order allowing it to separate the machinery from its packaging and fumigate the valuable cargo instead of exporting or destroying it.
But before it could even consider the importer’s arguments, CIT found that the lawsuit had been filed in the wrong place. Legal provisions on CIT’s grant of jurisdiction allow it to hear challenges of denied protests challenging exclusion of entry under the customs laws. Those provisions also allow CIT to hear cases on the administration and enforcement of those laws. Here, the EAN was issued by APHIS under the laws on agriculture -- specifically the Plant Protection Act -- not laws on customs, CIT said.
“Claims originating from the Plant Protection Act are properly filed in the U.S. district courts,” CIT said. “It is clear that under the applicable provisions of the Plant Protection Act, jurisdiction does not lie with the U.S. Court of International Trade,” CIT said as it dismissed the case. But “given the extenuating circumstances that Plaintiff faces with the immediate re-exportation of its merchandise, the court finds that it is in the interest of justice to transfer the case to the U.S. District Court for the Southern District of Texas,” the district court with geographic jurisdiction over the Port of Houston.
(Andritz Sundwig GmbH v. U.S., Slip Op. 18-74, CIT # 18-00142, dated 06/20/18, Judge Choe-Groves)
(Attorneys: James Hurst of Givens & Johnston for plaintiff Andritz Sundwig GmbH; Justin Miller for defendant U.S. government)