 
                                       Slip Op 12-62

               UNITED STATES COURT OF INTERNATIONAL TRADE


CORNING GILBERT INC.,

                         Plaintiff,
                    v.

UNITED STATES OF AMERICA; U.S.
DEPARTMENT       OF     HOMELAND                       Before: Leo M. Gordon, Judge
SECURITY;   U.S.  CUSTOMS    AND
BORDER PROTECTION; AND DAVID. V.                       Court No. 11-00511
AGUILAR, IN HIS OFFICIAL CAPACITY
AS THE ACTING COMMISSIONER OF
U.S.  CUSTOMS      AND    BORDER
PROTECTION,

                         Defendants.


                              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.
 
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
 
Court No. 11-00511                                                                  Page 3


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
 
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.
 
Court No. 11-00511                                                                    Page 5


       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.




 
Court No. 11-00511                                                      Page 6


       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




 
