ELR Citation: ELR 21263
No(s). s. 92-15126, -15387 (9th Cir. Jun 28, 1994)

The court holds that 28 U.S.C. §1581 grants the Court of International Trade (CIT) exclusive jurisdiction over civil actions against the United States arising out of the Marine Mammal Protection Act (MMPA) §101(a)(2)(C)'s ban on the importation of tuna from secondary or intermediary nations. Section 1581 grants the CIT exclusive jurisdiction over civil actions against the United States that arise out of U.S. laws providing for embargoes on the importation of merchandise for reasons other than the protection of public health and safety. In K Mart Corp. v. Cartier, Inc., 485 U.S. 176 (1988), the U.S. Supreme Court held that the term "embargo" in §1581 should be construed using its ordinary meaning. The Court further held that the meaning that Congress apparently adopted in the statutory language is a governmentally imposed "quantitative restriction—of zero—on the importation of merchandise." The MMPA involves such a restriction. The court here holds that the MMPA provides for an embargo under the ordinary meaning of the term. Also, the court finds that the legislative history of §1581 suggests that the CIT's jurisdiction should not be interpreted functionally and limited to areas in which it has developed expertise. The U.S. Supreme Court has already concluded that §1581 extends jurisdiction to all kinds of embargoes, not just to those rooted in trade policy or import transactions. And this court, in a prior case, rejected the same functional argument plaintiffs assert here. The court, therefore, vacates a district court preliminary injunction requiring the United States to enforce the tuna ban.

[Prior decisions in this litigation are published at 21 ELR 20259 and 20843 and 22 ELR 20990.]

Counsel for Plaintiffs
Joshua R. Floum, Deborah A. Sivas
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Counsel for Defendants
Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sneed and Trott, JJ.