At first blush, the subject matter of this paper would seem a particularly anomalous topic for discussion at a conference devoted to the jurisprudence of the U.S. Court of International Trade (“CIT”). After all, among the some four thousand published decisions the CIT has issued since its creation in 1980, relatively few have involved causes of action predicated explicitly on the Administrative Procedure Act (“APA”). One might reasonably ask why we should bother devoting an entire panel discussion to an issue that so infrequently commands the CIT’s attention.
The first answer is that all is not as it seems, and the just quoted statistic regarding the frequency of APA claims at the CIT is, in fact, misleading. Although very few complaints lodged under the CIT’s residual jurisdiction explicitly cite the APA as the basis for the plaintiff’s cause of action, there is a compelling statutory argument, supported by the Federal Circuit’s recent en banc decision in Motion Systems Corp. v. Bush, that the overwhelming number of claims filed under the CIT’s jurisdictional statute (“§ 1581(i)”) are necessarily predicated on the APA. The second answer is that even if one were to take issue with that conclusion, it is worth considering whether the increase in the number of highprofile actions explicitly predicated on the APA in recent years re- flects a potential structural change in the content of the Court’s docket, or rather is merely coincidental.
To address these issues, this paper first presents a brief statutory analysis of the relationship between APA claims and the CIT’s § 1581(i) jurisdiction, followed by a survey of the CIT’s § 1581(i) jurisprudence and broad categorization of the types of complaints invoking the Court’s jurisdiction under that provision. This paper then analyzes the recent cases in which APA claims have featured prominently at the CIT, and closes with some thoughts regarding to what degree, if any, these cases reflect a structural change in the nature of claims likely to be brought before the CIT in the future.
Mark A. Moran & Wentong Zheng, Claims Under the Administrative Procedure Act Before the Court of International Trade — A General Overview and Analysis of Significant Recent Jurisprudence, 28 U. Pa. J. Int'l Econ. L. 21 (2007), available at http://scholarship.law.ufl.edu/facultypub/224