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Corning Gilbert, Inc. v. United States

United States Court of International Trade

May 14, 2012, Decided

Court No. 11-00511

Opinion

 [*1305]  MEMORANDUM and ORDER

Gordon, Judge: Before the court is a motion by John Mezzalingua Associates, Inc., d/b/a PPC ("PPC"), pursuant to USCIT Rule 76 for leave to (1) participate as amicus curiae and (2) file briefs regarding all  [**2] "pending motions or the ultimate disposition of the case." Mot. to Appear as Amicus Curiae at 4, Dec. 27, 2011, ECF No. 23. For the reasons set forth below, PPC's motion is denied.

Background

U.S. Customs and Border Protection ("Customs") excluded Plaintiff's coaxial cable connectors from entry into the United States because Customs determined that they violated a General Exclusion Order issued by the U.S. International Trade Commission ("ITC") on unlicensed connectors covered by U.S. Patent No. 6,558,194, which PPC owns. Plaintiff, Corning Gilbert Inc., filed a number of protests contesting the exclusion, which Customs denied. This action ensued. The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2006).

Discussion

] In section 1581(a) actions challenging a denied protest, Congress limited the number of interested parties to two: the importer (or someone standing in the shoes of the importer under 19 U.S.C. § 1514) and the Government. The statute forecloses intervention by any other interested party. 28 U.S.C. § 2631(j)(1)(A) (2006) ("[N]o person may intervene in a civil action under [19 U.S.C. § 1515 or 1516]."). The scope of PPC's motion implicates this statutory prohibition and  [**3] raises an issue about the appropriateness of the role of amicus curiae in de novo, trial-based proceedings at the U.S. Court of International Trade. See Stewart-Warner Corp. v. United States, 4 CIT 141, 142 (1982) ("The Court is also somewhat concerned that in this action participation as amicus should not become a substitute for intervention. Participation in this action by intervention is expressly forbidden by . . . 28 U.S.C. § 2631(j)(1)(A)"); see also United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991) ("Amicus curiae may not and, at least traditionally, has never been permitted to rise to the level of a named party/real party in interest nor has an amicus curiae been conferred with the authority of an intervening party . . . .").

USCIT Rule 76, which governs amicus curiae motions, is unique to the U.S. Court of International Trade as a trial-level federal court. It has no counterpart in the Federal Rules of Civil Procedure, but instead finds a parallel in Rule 29 of the Federal Rules of Appellate Procedure. Rule 76 is a consequence of the hybrid nature of the subject matter jurisdiction of the U.S. Court of International Trade. In some actions, e.g., those brought under  [**4] section 1581(a), the court  [*1306]  functions as a federal district court hearing cases de novo; in others, such as those commenced under 28 U.S.C. § 1581(c), the court functions as a federal circuit court of appeals, reviewing determinations based on the record made before an administrative agency. Rule 76, therefore, should typically find application in those actions in which the court functions as an appellate court.

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837 F. Supp. 2d 1303 *; 2012 Ct. Intl. Trade LEXIS 63 **; 34 Int'l Trade Rep. (BNA) 1503; SLIP OP. 2012-62; 2012 WL 1681766

CORNING GILBERT INC., Plaintiff, v. UNITED STATES OF AMERICA; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; AND DAVID. V. AGUILAR, IN HIS OFFICIAL CAPACITY AS THE ACTING COMMISSIONER OF U.S. CUSTOMS AND BORDER PROTECTION, Defendants.

Subsequent History: Related proceeding at John Mezzalingua Assocs. v. Corning Gilbert, Inc., 2012 U.S. Dist. LEXIS 175593 (N.D.N.Y, Sept. 5, 2012)

Summary judgment granted by, Patent interpreted by Corning Gilbert, Inc. v. United States, 896 F. Supp. 2d 1281, 2013 Ct. Intl. Trade LEXIS 19 (2013)

Disposition:  [**1] Motion to appear as amicus curiae denied.

CORE TERMS

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Civil Procedure, Appeals, Amicus Curiae, International Trade Law, US Court of International Trade, Parties, Intervention, Intervention of Right, Jurisdiction, Subject Matter Jurisdiction, General Overview