Corning Gilbert Inc. v. United States

Slip Op 12-62
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Leo M. Gordon, Judge
Court No. 11-00511
MEMORANDUM and ORDER
[Motion to appear as amicus curiae denied.]
Dated: May 14, 2012
Joseph P. Lavelle and Andrew N. Stein, DLA Piper LLP (US), of Washington, DC for
Plaintiff Corning Gilbert Inc. 	With them on the brief was Melvin S. Schwechter, Dewey &
LeBouef LLP, of Washington, DC.
Amy 	M. 	Rubin, 	Senior 	Trial 	Counsel, 	International 	Trade 	Field 	Office,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York,
NY, 	for 	Defendants 	United 	States, 	U.S. 	Department 	of 	Homeland 	Security, 	U.S.
Customs and Border Protection, and David V. Aguilar, Acting Commissioner of U.S.
Customs and Border Protection. 	With her on the memorandum were Tony West,
Assistant Attorney General and Barbara S. Williams, Attorney-in-Charge.
Patrick D. Gill and R. Brian Burke, Rode & Qualey, of New York, NY for Movant John
Mezzalingua Associates, Inc. d/b/a PPC. 	Of counsel on the motion were Douglas J. Nash
and John D. Cook, Hiscock & Barclay, LLP, of Syracuse, New York.
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.
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Court No. 11-00511 	Page 2
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 	“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 	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
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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 section 1581(a), the court 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.
The specific contours of Rule 76 make this clear. 	The rule provides that an
applicant may, with the court’s permission, file “a brief,” and, for extraordinary reasons,
participate in “the oral argument.” 	USCIT R. 76. 	These are predominantly (though not
exclusively) appellate concepts. 	The rule certainly does not contemplate general
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Court No. 11-00511 	Page 4
participation at the trial level, with everything that entails (e.g., procedural motions,
discovery motions, or settlement discussions). 	The broad scope of PPC’s requested
involvement—the filing of briefs on all pending motions and the ultimate disposition of
this case—is problematic. 	PPC, in effect, is seeking the same rights as those afforded
an intervenor. 	In the court’s view, granting PPC’s motion would be akin to granting a
motion to intervene, which is statutorily barred by section 2631(j)(1)(A).
With that said, amicus briefs are not altogether unheard of in section 1581(a)
actions. 	See, e.g., Amoco Oil Co. v. United States, 7 CIT 13, 583 F. Supp. 581 (1984)
(allowing amicus brief on legal issue of meaning of tariff provision). PPC points out that
the court has previously granted an amicus motion in a similar case, Jazz Photo Corp.
v. United States, Court No. 04-00494. 	In Jazz Photo, a domestic patent holder, like
PPC, sought to participate as amicus curiae in a section 1581(a) action challenging the
exclusion of merchandise covered by an ITC general exclusion order. 	Although the
court granted the motion, it did so without explanation. 	See Order on Fuji’s Mot. to
Appear as Amicus Curiae, Oct. 13, 2004, ECF No. 14. 	More important, in its quite
lengthy disposition on the merits involving complex factual findings and conclusions of
law related to the underlying patents, the court also resolved in one paragraph a bevy of
outstanding motions relating to the amicus curiae (at least six, perhaps more), granting
some and denying others. 	Jazz Photo Corp. v. United States, 28 CIT 1954, 1996, 353
F. Supp. 2d 1327, 1363 (2004), aff’d 439 F.3d 1344 (Fed. Cir. 2006). Reading between
the lines, one wonders whether the amicus submissions (and attendant motions) aided
the court, or proved more of a burden and distraction.
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The court understands PPC’s desire to participate as the owner of the underlying
patent. 	PPC has a direct and immediate interest in this litigation. 	The court though
does not believe that PPC’s participation at this point in the litigation will assist with the
“just, speedy, and inexpensive determination” of this action. 	USCIT R. 1. 	Instead, the
court believes that PPC may prove more of a hindrance than help, as the court will have
to 	repeatedly 	weigh 	whether 	PPC’s 	participation 	runs 	afoul 	of 	the 	prohibition 	on
intervention. The court in Stewart-Warner said it best:
In the abstract, the Court sees no limitation to the issues on which a
brief by amicus curiae may be found useful. 	Nor is it an objection that
amicus has an adversarial objective. 	However, amicus briefs are solely
for the benefit of the Court and their filing and scope are strictly subject to
its control. The granting of an application does not bestow a general right
of participation, but rather is limited to those issues which the Court allows
the amicus to address.
Stewart-Warner, 4 CIT at 142. 	When, as, and if the court determines that PPC’s views
on a particular legal issue may be helpful (and not a hindrance), the court will 	invite
PPC to file an amicus curiae brief. 	Until then, PPC may offer whatever informal
assistance Defendant is willing to accept.
For the foregoing reasons, the court denies PPC’s motion for leave to appear as
amicus curiae.
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Accordingly, it is hereby
ORDERED 	that 	John 	Mezzalingua 	Associates, 	Inc. 	d/b/a 	PPC’s 	motion 	to
participate, as amicus curiae, is denied.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: 	May 14, 2012
New York, New York
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