## Facts

- Hitachi imported plasma flat panel televisions made or assembled in Mexico between June 1, 2003, and December 27, 2005.
- Customs liquidated the entries as dutiable under HTSUS subheading 8528.12.72 at 5% ad valorem.
- Hitachi claimed the televisions qualified for duty-free treatment as goods of Mexican origin under NAFTA and filed administrative protests.
- Hitachi filed a protest on March 6, 2007 covering entries imported between November 19 and December 27, 2005.
- Customs did not act on that protest for more than two years.
- Hitachi sued in the Court of International Trade (CIT), asserting the protest was denied or deemed denied under 19 U.S.C. § 1515(a), creating CIT jurisdiction under 28 U.S.C. § 1581(a).
- Alternatively, Hitachi invoked the CIT’s residual jurisdiction under 28 U.S.C. § 1581(i), arguing it otherwise lacked an adequate remedy.
- The CIT dismissed for lack of jurisdiction, reasoning that § 1515(a) does not create an automatic allowance or denial after two years and that § 1581(i) was unavailable because § 1515(b) (accelerated disposition) provided an adequate remedy.
- Hitachi appealed to the Federal Circuit.

## Issues

1. Whether 19 U.S.C. § 1515(a)’s direction that Customs “shall” allow or deny a protest within two years creates a constructive denial when Customs fails to act, permitting CIT jurisdiction under 28 U.S.C. § 1581(a).
2. If § 1515(a) does not create a constructive denial, whether the CIT may exercise residual jurisdiction under 28 U.S.C. § 1581(i) because other remedies are manifestly inadequate.

## Decision

- The Federal Circuit affirmed the CIT’s dismissal for lack of jurisdiction.
- Section 1515(a) imposes a time limit but does not provide that a protest is automatically denied if Customs does not decide within two years; without an actual allowance or denial, § 1581(a) jurisdiction was not established.
- Residual jurisdiction under § 1581(i) was unavailable because § 1515(b) provided an adequate statutory path to obtain a deemed denial (and then sue under § 1581(a)) by requesting accelerated disposition.
- A dissent would have treated Customs’ failure to act within two years as having legal consequence sufficient to permit judicial review.

## Legal Principles

- A statutory command that an agency “shall” act within a specified time does not, without an express consequence, necessarily create a constructive agency decision reviewable in court.
- Where Congress expressly provides a “deemed denied” mechanism (here, § 1515(b)) in one subsection, courts may treat the absence of comparable language elsewhere (here, § 1515(a)) as evidence that constructive denial was not intended there.
- The CIT’s residual jurisdiction under 28 U.S.C. § 1581(i) is unavailable when another subsection provides an adequate remedy, even if the plaintiff did not use that remedy.
- For Customs protest disputes, an importer seeking a reviewable denial in the face of agency inaction must use § 1515(b)’s accelerated disposition procedure to trigger a deemed denial and then proceed under § 1581(a).

## Conclusion

The Federal Circuit held that Customs’ failure to decide a protest within two years under 19 U.S.C. § 1515(a) does not itself create a constructive denial for CIT review under 28 U.S.C. § 1581(a), and that residual jurisdiction under § 1581(i) is barred because § 1515(b) supplies an adequate means to obtain a deemed denial and judicial review.


Hitachi Home Elecs. (Am.), Inc. v. United States, 661 F.3d 1343 (Fed. Cir. 2011)