On the stated purpose of the bill-to perfect the status of the customs court and to provide it with plenary powers-two other suggestions come to mind and are submitted for your consideration.

No proposals are included in the present bill to correct two other existing disparities betwen the customs court and the district courts. These two disparities also impose limitations on the customs court's ability to function as efficiently and as effectively, within its jurisdiction, as a district court. I refer to the effect on appeal of factual determinations by the customs court and the ability of the court to correct its own judgments and orders.

We believe and recommend that statutory provision should also be made in these two areas in order fully to equate the customs court's status and powers with those of a district court under rules 52 (a) and 60(b) of the Federal Rules of Civil Procedure.

Toward that end, I have attached to my written statement, which I hope, with your permission, may be introduced into the record, suggested statutory language intended to achieve that result.

Senator DECONCINI. Without objection, the attachment referred to will be inserted into the record at this point.

[Material follows:]

PROPOSED STATUTORY AMENDMENTS

All cited sections are from Title 28 of the United States Code. (New matter is in italic; deleted matter is bracketed.)

"SEC. 251. Appointment and number of judges; offices

"The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record known as the United States Customs Court. Such court is hereby declared to be a court established under Article III of the Constitution of the United States. [Not more than five of such judges shall be appointed from the same political party."]

["The President shall designate from time to time one of the judges to act as chief judge."]

The President shall designate one of the judges, under seventy years of age, to be the chief judge of the court. The judge so designated shall continue to serve as chief judge until he reaches the age of seventy and a new chief judge is designated.

"The offices of the court shall be located at the port of New York."

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(a)

(b) The Chief Justice of the United States may designate and assign temporarily any judge of the Customs Court to perform judicial duties [in a district court in any circuit upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises."] in any circuit, either in a court of appeals or district court, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises.

66

(c)

(d) The chief judge of the Customs Court may, upon presentation to him by the chief judge of the Court of Customs and Patent Appeals or the chief judge of the Court of Claims of a certificate of necessity, designate and assign temporarily any judge of the Customs Court to serve as a judge of the Court of Customs and Patent Appeals or the Court of Claims.

"SEC. 1581. Powers generally

["The Customs Court and each judge thereof shall possess all the powers of a district court of the United States for preserving order, compelling the attendance of witnesses and the production of evidence."] 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.

"SEC. 1582. Jurisdiction of the Customs Court

(a)
(b)

(c) 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 of the United States 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.

"(d) [The] Except in cases arising under subsection (c), the Customs Court shall not have jurisdiction of an action unless (1) either a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended, and denied in accordance with the provisions of section 515, of the Tariff Act of 1930, as amended, or if the action relates to a decision under section 516 of the Tariff Act of 1930, as amended, all remedies prescribed therein have been exhausted, and (2) except in the case of an action relating to a decision under section 516 of the Tariff Act of 1930, as amended, all liquidated duties, charges or exactions have been paid at the time the action is filed."

(e) "Only one civil action may be brought in the Customs Court to contest the denial of a single protest. However, any number of entries of merchandise involving common issues may be included in a single civil action. Actions may be consolidated by order of the court or by request of the parties, with approval of the court, if there are common issues."

"SEC. 2601. Appeals from Customs Court decisions

(a) (b)

"(c) The Court of Customs and Patent Appeals may affirm, modify, vacate, set aside, or reverse any judgment or order of the Customs Court lawfully brought before it for review, and may remand the cause and direct the entry of an appropriate judgment or order, or require such further proceedings as may be just under the circumstances." Findings of fact by the Customs Court shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the Customs Court to judge of the credibility of the witness. "The judgment or order of the Court of Customs and Patent Appeals shall be final and conclusive unless modified, vacated, set aside, reversed, or remanded by the Supreme Court under section 2106 of this title."

SEC. 2640. Relief from judgment or order

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is made to the Court of Customs and Patent Appeals, and thereafter while the appeal is pending may be so corrected with leave of the Court of Customs and Patent Appeals.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due dilligence could not have been discovered in time to move for a new trial; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the

finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding.

Judge RE. Indeed, the attachment will show that simply by adding and deleting several phrases to six existing sections of title 28 of the United States Code, Congress can achieve all that is necessary to confirm the article III status of the customs court, and confer upon it the plenary powers of a district court. The suggestions, may I add, are borrowed from the provisions in this bill, Senator DeConcini's earlier bill, and the Federal Rules of Civil Procedure.

My comments so far have dealt with those provisions intended to perfect the status of the court and confer upon it the same plenary powers as are possessed by the district courts. I have indicated that these provisions are essential. If Congress authorizes the customs court to exercise within its existing subject matter jurisdiction the same plenary powers as a district court, there will be no necessity for a plaintiff to seek relief in a district court. With the adoption of these suggested provisions, a plaintiff will have effective access to adequate remedies before the customs court.

As another major purpose, the bill proposes to establish a comprehensive system with expanded opportunities for judicial review of matters directly affecting importations. As we view it, this issue presents a fundamental and overriding question for congressional determination: should those agencies which deal with importations be made subject to the same policy of judicial review as Congress has provided for other administrative agencies?

We believe that the acceptance of the policy which makes available judicial review, as stated in the bill, is a major step forward in this area. We commend the proponents for having included it in this bill.

On a personal note, I should like to congratulate and thank the Department of Justice, in general, and the distinguished Attorney General, Judge Griffin Bell, in particular, who has encouraged this initiative; and also Ms. Barbara Babcock and Mr. David Cohen, for their great efforts so that we might consider these tremendously important questions.

Their acceptance of this policy will expand the existing opportunities for judicial review in matters affecting importations.

I must state, however, that we do not believe that the bill, in its present form, will make this policy applicable to the actions of the three agencies most directly involved with importations; specifically the Customs Service, the International Trade Commission, and the Secretary of the Treasury.

When the actions of these agencies are in issue, the bill contains so many exceptions to the stated congressional policy pertaining to judicial review that the exceptions tend to negate the policy.

If Congress is "to provide a comprehensive system of judicial review of matters directly affecting imports," we should like to suggest a different approach to attain that desirable purpose.

We believe that the best approach is to begin, conceptually, with the premise that persons adversely affected or aggrieved by agency actions affecting importations should be provided with the same access to judicial review and judicial remedies as Congress has made available for persons aggrieved by actions of other agencies.

Under the judicial review provisions of the Administrative Procedure Act, there has developed a well-established body of statutory and case law which pertains to judicial challenges to administrative actions. This body of law regulates such matters as: subject matter jurisdiction; standing to sue; time to commence suit; exhaustion of administrative remedies; scope and standard of review; and forms of relief available.

Although S. 2857 accepts this body of law with respect to standing to sue section 2631 (a); time to commence an action-section 2635 (c) ; exhaustion of administrative remedies-section 2636 (c); scope and standard of review-section 2640(b); and relief available-section 2643 (a); it does so subject to certain major exceptions.

Because of these major exceptions, the pertinent provisions would be applicable to new subject matter jurisdiction of the customs court for which actions or suits may be authorized by some other statutes. Judicial challenges to agency actions within the present subject matter jurisdiction of the customs court, that is, those taken by the Secretary of the Treasury, the International Trade Commission, and the Custom Service, will still remain essentially the same.

Notwithstanding the stated purpose of the bill, these agency actions remain relatively immunized from meaningful judicial review when compared with judicial review of other agency actions.

By way of illustration, section 1581 would grant to the customs court subject matter jurisdiction over civil actions which directly affect importations. This grant is similar to and is patterned after the grant of "Federal question" jurisdiction conferred upon the district courts by title 28, United States Code 1311. This general grant, however, is limited by the provision which does not confer jurisdiction upon the custom court if there exists a more specific jurisdictional provision which applies to a particular civil action.

The bill contains several instances of more specific jurisdictional provisions, including sections 1584, 1585, 1586, 1587, 1588, and 1589. The subject matter covered by these more specific jurisdictional provisions is basically the same as the existing subject matter jurisdiction of the customs court.

The administrative decisions covered by these more specific jurisdictional provisions are excluded from those sections of the bill which accept the general congressional policy for such matters as standingsection 2631; time to commence an action-section 2635; and exhaustion of administrative remedies-section 2636.

Because they are excluded and are regulated by more restrictive limitations, the administrative actions of the three agencies which are within the existing subject matter jurisdiction of the customs court will continue to receive a special treatment which will tend to restrict access to judicial review and judicial remedies in the customs court. As a result, persons adversely affected or aggrieved by the actions of the three agencies most directly involved with importations will continue to be faced with obsolete procedures which are inconsistent with the principles of accountable and responsive government.

In the absence of congressional attention, the courts in recent years, on a case-by-case basis, have attempted in customs litigation to fashion solutions for the various problems presented. The result has not been satisfactory.

Today, the law pertaining to judicial review of the actions taken by these three agencies is unpredictable, inconsistent, and, in some instances, unjust. Without remedial congressional action, the confusion and injustice will be increased and perpetuated.

The essential and sound policy that courts should not engage in indiscriminate and unwarranted interference with administrative procedures would not be abandoned by adopting existing standards and principles which permit access to the court and judicial review.

These standards and principles of administrative law govern such matters as lack of standing, lack of ripeness, availability of an alternative remedy, express or implied statutory preclusion of judicial review, action committed by law to agency discretion, privileged nature of the Government's action, failure to exhaust administrative remedies, discretionary power to grant or refuse equitable relief, the "political question" doctrine, as well as the scope of judicial review.

If the Customs Service, the Secretary of the Treasury, or the International Trade Commission claim that they should not be subject to the congressional policy of judicial review, they should state the reasons in support of their claim for different or preferential treatment. They should establish, to the satisfaction of Congress, why persons engaged in importations are not entitled to the same due process and equal protection of those laws which Congress has provided for persons dealing with other administrative agencies.

My remarks and observations have been intended to assist the Congress in achieving the declared purposes of the bill. It is the function of Congress to decide to what extent its policy of making available judicial review will be made applicable to those agencies which deal with importations.

Personally and on behalf of the U.S. Customs Court, I wish to encourage this committee to continue its efforts to achieve a comprehensive system of judicial review. We believe that a thorough congressional study of this area-judicial review of all agency actions affecting importations-is long overdue and urgently needed.

It would not only be undesirable, but also unnecessary for that study to delay enactment of the suggested provisions intended to give the customs court plenary powers within its existing subject matter jurisdiction. Hence, we urge you to consider the desirability of separating and enacting those statutory amendments which will solve the immediate problems.

As I mentioned earlier, the attachment to my statement contains suggested statutory provisions which would achieve that limited but essential result. To that extent one of the major purposes expressed in the bill will be fully accomplished.

I should like to add, Senator DeConcini, that subsequent to the preparation of my statement, I was asked to amplify the separation recommendation which I had included in the statement. Does it mean that the court would not wish the entire bill passed as it might be amended, so as to correct some of the provisions that are regarded as unacceptable, not only by the judges of the court but by others?

To the contrary. I know that my colleagues join me in the hope that it may be possible to enact this bill in the second session of the 95th Congress.

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