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have jurisdiction to provide the same relief? If not, will the bill authorize the customs court to provide the same relief?

Ms. BABCOCK. That is the object, the real object of the bill. The real object is that that case would have been very clearly headed for the customs court. The customs court would have been able to do what was necesary.

Mr. ALTIER. Under the bill, what would happen if it was initially filed in the wrong court? What avenues are available to insure that it results in moving to the right court?

Ms. BABCOCK. We hope that it would make it very clear that the customs court is the place to go for any matters affecting imports.

Under this bill, if this bill were in effect, I do not think it would cross peoples' minds to go to the district court. They would know where to go.

Mr. ALTIER. If they did, what would happen? If it did somehow end up in district court and it should not be there, are there any provisions in the bill to allow for rerouting?

Mr. COHEN. Yes; the bill does contain a provision similar to that relating to the court of claims. This provides that if a suit is instituted in a district court which properly belongs in the customs court, the district court can transfer the case to the customs court where the suit will proceed as if it had been filed in the customs court in the first instance.

I want to mention one thing with respect to Sneaker Circus, and that is that it should be made clear that the Government has not acquiesced in the sense that we do not feel that Sneaker Circus reached the correct result with respect to jurisdiction, and we have renewed our jurisdictional arguments in the district court on remand.

Mr. ALTIER. I have one last question.

On page 12 of your section-by-section analysis dated April 3, 1978, there is this analysis of section 1583 (a): “This subsection is intended to bring all customs-related suits into the customs court even if it is ultimately decided that the actions are not reviewable."

Could you explain that statement and perhaps give the committee a list of those agency actions that would not be reviewable if this bill were enacted ?

Mr. COHEN. All that is meant by the term “reviewable” or “not reviewable” is this—those types of cases under traditional doctrine such as the political questions doctrine; that is, the matter would not be subject to judicial review.

For example, if a substantive statute authorized the President, upon recommendation of, let's say, the International Trade Commission, to either grant an industry adjustment assistance, or raise tariffs, or impose quotas on imports, the question of whether or not the President had chosen quotas when he should have chosen adjustment assistance or chosen increased tariffs rather than quotas, would not be subject to judicial review.

What would be reviewable would be whether or not the President had the authority to take the action that he did, and whether or not he complied with the proper procedures. I believe the question of whether or not the President correctly weighed the national interest” in the words of the statute, or whether he correctly estimated the national security needs of the country, would not be subject to judicial review. That is all that statement was meant to say.

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The case might come to the customs court, but it might be found that the only question is whether or not the President correctly estimated the national security needs of the United States. That would not be subject to judicial review even in a district court.

Mr. ALTIER. That is all of the questions I have at this point.

Senator DECONCINI. We want to thank you for your testimony and for the splendid cooperation we have had from your division on this and other legislative matters.

Our next witness is the Honorable Judge Edward D. Re, Chief Judge, U.S. Customs Court, New York City.

Judge Re, we welcome you to the committee, and we are pleased to

have you.



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Judge Re. Thank you very much, Senator DeConcini.
Senator DECONCINI. I understand we have Mr. Lombardi with us.

Judge RE. Yes; I appreciate your invitation to appear on behalf of the U.S. Customs Court to present our views on the proposed Customs Courts Act of 1978.

I should like to have the record reflect, if you please, that I am accompanied by Mr. Joseph Lombardi, clerk of the court.

Senator DECONCINI. The record will so note.

Judge Re. We welcome the attention which this committee will give to the status and powers of the customs court in particular; and, the larger issue which pertains to a comprehensive system for judicial review of agency actions affecting importations.

At the outset, I should like the committee to know that the members of the U.S. Customs Court are in total agreement with the stated purposes of this proposed legislation as they are set forth in section 101 of the bill. We are happy to offer our assistance in helping Congress achieve these laudatory and salutary purposes.

Congress considered the activities of the customs court 8 years ago when it enacted the Custom Court Acts of 1970. As a result of the assistance given at that time, the customs court was relieved of outmoded statutory procedures, and was enabled to revamp and modernize its internal procedures. The customs court is now able to handle more effectively and efficiently the jurisdiction assigned to it by Congress.

The 1970 legislation was not designed to solve all of the impediments to effective utilization of the judicial forum established by Congress to resolve disputes resulting from the tariff laws of the United States. Essentially, it dealt with the internal operations of the customs court. Congress was not then, as it is now, presented with proposals aimed at a large objective; that is, a comprehensive system with expanded opportunities for judicial review of agency actions directly affecting importations.

Since 1970, the court has awaited congressional action to achieve the next logical step forward beyond the accomplishments of the 1970 law. We believe the proposed bill, in its declaration of purpose, provides that next step, and will make a major contribution toward fully utilizing the custom court for its intended purposes.

I have used the word "utilized.” Since it was also used by Ms. Babcock, I should like to say that although we often speak of properly utilizing the court, what I personally regard to be the greatest purpose of this bill is the desire to achieve consistency and uniformity in the law. The court is being utilized, and surely we are happy to be utilized in every possible way. But consistency and uniformity are the goals we ought to strive to achieve as soon as possible.

Personally, and on behalf of all the judges of the customs court, I can assure you that we are ready, willing, and able to discharge any and all judicial responsibilities that may be assigned to us by the Congress.

The committee may wish to know something about the history and purpose of the U.S. Customs Court.

Although the customs court was established as a court in 1926, customs litigation preceded the Constitution and can be traced back to colonial times. In fact, the first case tried before the first judge appointed to the first court organized under the Constitution was a customs case.

The remarkable history of customs law makes the field extremely interesting. The first judge of the United States was Judge James Duane whose commission was signed on the same day that President Washington signed the commission of the first Chief Justice, John Jay. The minutes of the court presided over by Judge Duane indicate that about three-quarters of all of his work dealt with customs cases. The very first case heard by the first court of the United States, the U.S. District Court for the District of New York, was a customs case entitled United States v. Three Boxes of Ironmongery in which Judge Duane held that $95 in duties was owed to the United States.

Before Congress established the forum, with nationwide jurisdiction to resolve disputes arising out of the customs laws, customs cases were tried before the regular Federal courts throughout the country. As a result, there were inevitable, irreconcilable conflicts and the meaning ascribed to a tariff provision varied from place to place throughout the country

In order to provide uniformity and consistency in interpreting and applying the customs laws, Congress established the U.S. Customs Court as the exclusive national tribunal with original jurisdiction to hear civil disputes arising under those laws. It is important to note that this policy of uniformity is required to satisfy the constitutional mandate expressly set forth in article I, section 8 of the Constitution that “all Duties, Imposts and Excises shall be uniform throughout the United States."

When customs disputes were tried before the hundreds of district court judges throughout the country, there were as many potentail interpreters of the customs laws as there were judges, and the uniformity required by the Constitution could not be readily achieved.

For many years the present system established by the Congress worked. That is not to say that it always resulted in just and equitable decisions; for, there were and are serious limitations on the remedies and forms of relief available before the customs court. The system, however, did achieve uniformity, and the district courts almost invariably refused jurisdiction over so-called customs laws disputes.



In recent years, that policy of uniformity has been jeopardized. If we understand the reasons why the judicial implementation of this policy is being impaired, it will be possible to find a solution to the problem.

With this in mind, for discussion purposes, the provisions of the bill, S. 2857, can be grouped into two general categories:

First, those designed to clarify and confirm the status of the customs court as a court established under article III of the Constitution of the United States, and to give the customs court the same plenary powers over cases within its subject matter jurisdiction as those possesed by the district courts of the United States; and

Second, those designed to expand the opportunities for, and create a comprehensive system of, judicial review of all agency actions affecting importation by increasing the jurisdiction of the customs court.

It is the opinion of the judges of the U.S. Customs Court that the purposes intended by the provisions included in the first category will be more readily achieved if these provisions were extricated froin the provisions that pertain to the second category. A comprehensive congressional examination of the second category-judicial review of all agency actions affecting importations—is long overdue and urgently needed. However, such an examination requires more time and study than is needed to pass upon the provisions in the first category, the enactment of which should not be delayed.

We believe that the status of the customs court, as an article III court, will be clarified and confirmed by the provisions of title II of the bill, entitled, “Composition of the Customs Court and Assignment of Judges to Other Courts.” The purpose of these provisions—the elimination of statutory anachronisms affecting the judges of an article III court—is so obvious and salutary, that the proposals need no further justification. We welcome their inclusion in the bill and request your favorable consideration.

Directly related to the provisions which deal with the status of the customs court, but separate, are those intended to give the court the same plenary powers possessed by the district courts.

Notwithstanding the constitutional mandate for uniformity in interpreting and applying the customs laws, Congress has specifically delineated and limited both the subject matter jurisdiction of the customs court and the class of persons with standing to contest administrative decisions affecting importations before the customs court.

Hence, when a customs law dispute arises, which is not within the limited subject matter jurisdiction of the customs court, or in which the aggrieved person has no standing to institute an action in the customs court, the district courts are likely to take jurisdiction over the dispute under one of their general or specific jurisdictional statutes.

The district courts are being compelled to assume jurisdiction of cases which, consistent with the policy of uniformity, should be brought in the customs court, because some plaintiffs have no “effective access," or cannot obtain "adequate remedies" from the customs court.

Consequently, the uniformity required by the Constitution is provided for by statute only in those relatively few administrative actions which are within the customs court's exclusive subject matter jurisdiction.

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To solve this problem, and effectuate the policy of uniformity, Congress must obviate the necessity for plaintiff's to seek judicial relief in the district courts instead of the customs court. This can be accomplished by conferring on the customs court the powers of the district courts to provide effective access to adequate remedies. Those are the two key provisions: Effective access and the power to grant appropriate remedies.

It is a realistic solution for Congress to give the customs court the remedial tools needed to perform the assigned task. Specifically, what is required is the ability to exercise the same powers, both in law and equity, as are conferred by statute upon the district courts.

One sentence in the proposed bill will go a long way toward achieving that purpose. I refer to the first sentence in section 1582 which reads: "The customs court shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States.”

All other provisions of the bill having to do with the powers of the customs court can serve no purpose other than to detract or limit the grant of plenary powers contained in that one sentence.

For cases within the subject matter jurisdiction of the court, that grant of plenary powers will enable the court to function effectively and efficiently in any dispute after the court has acquired jurisdiction. Furthermore, in appropriate situations, it should also be sufficient to enable the court to provide timely and adequate relief before all administrative remedies are exhausted.

I use the word "should” because, even if that one sentence is enacted into law, there may still remain the question whether the customs court, for good cause shown, can intervene in the administrative processes without requiring the exhaustion of all administrative procedures. There may also exist a question as to whether the customs court would be able to compel agency actions—which usually must be taken as a prerequisite to the court's jurisdiction—when these actions are unlawfully delayed or unreasonably withheld.

An additional sentence is required in order to remove any possible doubt that the power of the customs court in these cases is to be no less than the power of a district court.

We believe that another bill, introduced earlier in this session of Congress by Senator DeConcini, the distinguished chairman of this subcommittee, contains a provision which is preferable to any contained in the present bill. In S. 1430—United States Customs Court Act of 1977—there is included the following provision:

The Customs Court shall have exclusive jurisdiction of petitions for immediate relief brought by any person who is authorized by statute to contest a final order or decision of the Secretary of the Treasury or of the U.S. Customs Service, and who is likely to sustain immediate and irreparable injury as a result of a preliminary order or decision (or lack thereof) relating to an actual or attempted importation prior to such final order or decision : provided all required customs duties have been paid, except where the court determines such payment in itself would constitute irreparable injury.

We recommend that particular provision for your favorable consideration. I should like to add that the quoted provision was approved by the Judicial Conference of the United States as well as the American Bar Association.

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