U.S. Supreme Court, SEC v. Jarkesy, Docket No. 22-859

Tariffs

 

Customs

 

Import

 

Unfair Competition

 

Article III of the Constitution

 

 

 

In Ex parte Bakelite Corp., we upheld a law authorizing the President to impose tariffs on goods imported by “unfair methods of competition.” 279 U. S. 438, 446 (1929). The law permitted him to set whatever tariff was necessary, subject to a statutory cap, to produce fair competition. If the President was “satisfied the unfairness was extreme,” the law even authorized him to “exclude” foreign goods entirely. Ibid. Because the political branches had traditionally held exclusive power over this field and had exercised it, we explained that the assessment of tariffs did not implicate Article III. Id., at 458, 460–461.

 

 

 

(U.S. Supreme Court, June 27, 2024, SEC v. Jarkesy, Docket No. 22-859, C.J. Roberts)

 

 

Customs (U.S.) - Temporary Importation under Bond (TIB)

Customs (U.S.)

Import

Temporary Importation under Bond (TIB)

 

U.S. Customs and Border Protection

June 1^st, 2023

Republication

https://www.cbp.gov/trade/programs-administration/entry-summary-and-post-release-processes/temporary-importation-under-bond

 

 

A Temporary Importation under Bond (TIB) is a temporary importation of goods under bond, not imported for sale or sale on approval, without payment of duty with the intent to export or destroy the goods within a certain period of time not to exceed three years from the date of importation. Failure to export or destroy the articles in accordance with the regulations within the appropriate period of time will result in liquidated damages. The only goods that qualify for TIB entry are those listed in the fourteen subheadings 9813.00.05 through 9813.00.75 of the Harmonized Tariff Schedule of the United States (HTSUS).

 

Regulations concerning TIB entry procedures, eligibility for TIB entry, and bond cancellation through exportation or destruction are provided in 19 CFR 10.31 through 10.40. General requirements for all categories and specific rules for certain types of goods are also set forth in the legal notes of the HTSUS Chapter 98, Subchapter XIII. Chapter 98 is a U.S. Chapter of the tariff and is not part of the international tariff.

 

TIB References

 

• Source: 19 CFR 10.31 through 10.40
• Temporary Importations under Bond

 

• Source: Harmonized Tariff Schedule of the United States
• Chapter 98, Subchapter XIII

 

• Source: ACE Entry Summary Business Rules and Process Document
• TIB Chapter

 

• November 14, 2022 | Source: CSMS 53992279
• CBP Verification of Bond Amounts and Requests for Additional Security for Temporary Importation Under Bond (TIB) Entries

 

• November 1, 2017 | Source: 82 FR 50656
• Modification and Clarification of the National Customs Automation Program Tests Regarding Post-Summary Corrections and Periodic Monthly Statements

 

• August 31, 2001 | Source: Customs Directive 3230-039A
• Quota and Temporary Importation Under Bond (TIB)

 

TIB Contact Information

 

For questions about whether goods qualify for TIB entry, please view TIB references, CBP rulings, or contact a customs broker.

For assistance concerning a particular TIB entry, please contact the Center of Excellence and Expertise assigned to the importer or entry.

Technical requirements for filing a TIB entry can be found in the ACE Automated Broker Interface (ABI) CBP and Trade Automated Interface Requirements (CATAIR). Technical questions should be directed to your Client Representative. If you do not have an assigned Client Representative, you can email clientrepoutreach@cbp.dhs.gov.

For TIB policy questions, please email otentrysummary@cbp.dhs.gov

• Last Modified: June 1, 2023

 

U.S. Court of Appeals for the Federal Circuit, Philip Morris v. ITC, Docket No. 2022-1227

Customs

 

Import

 

Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337

 

Duty to Consult Under Section 337

 

Forfeiture

 

Public Interest

 

Domestic Industry Requirement

 

Patent Infringement

 

Cease and Desist Order

 

Limited Exclusion Order

 

 

 

 

Appeal from the United States International Trade Commission in Investigation No. 337-TA-1199.

 

 

RAI Strategic Holdings, Inc., R.J. Reynolds Vapor Company, and R.J. Reynolds Tobacco Company (collectively “Reynolds”) filed a complaint at the International Trade Commission alleging that respondents Philip Morris Products S.A., Philip Morris USA, Inc., and Altria Client Services LLC (collectively “Philip Morris”) violated Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, through the importation and sale of tobacco products that infringed certain claims of U.S. Patent Nos. 9,901,123 and 9,930,915. After conducting a Section 337 investigation, the Commission barred Philip Morris and its affiliates from importing products infringing the asserted patents. Philip Morris appeals, contending that the Commission failed to “consult with, and seek advice and information from” the Department of Health and Human Services (HHS) as required by Section 337. In addition, Philip Morris challenges the Commission’s determinations on public interest, domestic industry, patent validity, and infringement. For the reasons set forth below, we affirm the Commission’s decision in full.

 

 

(…) In response to Reynolds’ complaint, the Commission instituted an investigation and ordered the presiding administrative law judge (ALJ) to “provide the Commission with findings of fact and a recommended determination on the issue” of public interest. J.A. 3432–33 (85 Fed. Reg. 29,482–83 (May 15, 2020)).

 

 

The ALJ issued a final initial determination (FID) concluding that: (1) Reynolds had shown that Philip Morris infringed the asserted claims, and that Philip Morris had not shown the asserted claims to be invalid, id. at *58; (2) Reynolds had established the existence of a domestic industry with respect to both of the asserted patents, id.; and (3) “the public interest evidence of record did not weigh against entry of a remedy,” id. at *73. The ALJ also recommended that the Commission issue a limited exclusion order, id. at *74, but not cease and desist orders, id. at *76. Philip Morris petitioned the full Commission for review of the FID.

 

 

It is undisputed that Reynolds satisfied the technical prong of the domestic industry requirement with respect to the asserted patents. (Fn. 1).

 

 

The Commission decided to review the FID in part. In the Matter of Certain Tobacco Heating Articles & Components Thereof, Inv. No. 337-TA-1199, Commission Opinion, 2021 WL 4947427 (Oct. 19, 2021) (Commission Op.). Among other things, it affirmed the ALJ’s determination of nonobviousness of the asserted claims of the ’123 patent and the ALJ’s determination that Reynolds satisfied the domestic industry requirement. The Commission concluded that Philip Morris had violated Section 337 and issued cease and desist orders directed to Altria Client Services LLC and Philip Morris USA, Inc., and issued a limited exclusion order banning the importation of infringing products by Philip Morris and its affiliates. Philip Morris appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(6).

 

 

Our court reviews the Commission’s decisions under the standards of the Administrative Procedure Act (APA). 19 U.S.C. § 1337(c); 5 U.S.C. § 706(2). We review the Commission’s legal determinations, including statutory interpretation, de novo and its factual findings for substantial evidence. Spansion, Inc. v. Int’l Trade Comm’n, 629 F.3d 1331, 1343–44 (Fed. Cir. 2010).

 

 

We begin with Philip Morris’s argument that the Commission erred by failing to meet its statutory duty as set forth in Section 337. That statutory duty requires that: During the course of each investigation under this section, the Commission shall consult with, and seek advice and information from, the Department of Health and Human Services, the Department of Justice, the Federal Trade Commission, and such other departments and agencies as it considers appropriate. 19 U.S.C. § 1337(b)(2).

 

 

Because Philip Morris forfeited this argument, and because in any event the Commission satisfied its duty to “consult with” HHS, we conclude that the Commission committed no error.

 

 

(…) Even in the absence of forfeiture, we conclude that, in this case, the Commission satisfied its duty to “consult with” HHS and the FDA. When the Commission instituted the investigation in May 2020, it published a Notice of Investigation in the Federal Register, J.A. 3432–33, and individually served letters enclosing the Notice of Investigation to representatives of the Department of Justice, the U.S. Bureau of Customs and Border Protection, the Federal Trade Commission, and HHS. J.A. 43501.

 

 

Public Interest:

 

§ 1337(d)(1) provides that if the Commission determines “that there is violation of this section, it shall direct that the articles concerned. . . be excluded. . . unless, after considering public interest, it finds that such articles should not be excluded” (emphasis added). In deciding this issue, the Commission must consider the effect of the remedy on four statutory public interest factors: (1) public health and welfare, (2) competitive conditions in the U.S. economy, (3) the production of like articles in the United States, and (4) U.S. consumers. 19 U.S.C. § 1337(d)(1), (f)(1).

 

 

 

Domestic industry requirement:

 

The domestic industry requirement of Section 337, 19 U.S.C. § 1337(a)(2) and (a)(3), includes an economic prong, which “requires that there be an industry in the United States,” and a technical prong, which “requires that the industry relate to articles protected by the patent,” both of which must be met. InterDigital Commc’ns, LLC v. Int’l Trade Comm’n, 707 F.3d 1295, 1298 (Fed. Cir. 2013).

 

 

(…) Obviousness of the ’123 Patent Claims (…).

 

 

(…) Infringement of the ’915 Patent.

 

 

 

 

(U.S. Court of Appeals for the Federal Circuit, March 31, 2023, Philip Morris v. ITC, Docket No. 2022-1227)

 

U.S. Court of Appeals for the Federal Circuit, Aspects Furniture International, Inc. v. United States, Docket No. 21-2060, 21-2061

Customs

 

Import

 

Protest and Other Procedural Steps

 

 

When Entry is Covered by an Antidumping Order:

 

Suspension of Liquidation

 

Liquidation of the Entries

 

Liquidation Instructions from Commerce to Customs

 

Antidumping Duty Rate of 216.01 Percent

 

Reliquidation

 

Harmless Error

 

 

 

 

Appeals from the United States Court of International Trade in Nos. 1:18-cv-00222-MAB, 1:19-cv-00029-MAB

 

 

“Liquidation” is defined as “the final computation or ascertainment of duties on entries for consumption or drawback entries.” 19 C.F.R. § 159.1.

 

 

Appellants challenge the timing and procedure by which the United States Customs and Border Protection provided notice to Appellants of the liquidation of eleven entries of wooden bedroom furniture from China. Appellants contend that the United States Court of International Trade erred in determining that Customs timely liquidated or reliquidated ten entries and that Customs’ mislabeling of the notice of reliquidation for the remaining entry was harmless. We affirm.

 

 

On March 2, 2015, the U.S. Department of Commerce (“Commerce”) initiated the tenth administrative review of the antidumping order covering wooden bedroom furniture imported into the United States from China. See Initiation of Antidumping & Countervailing Duty Admin. Revs., 80 Fed. Reg. 11,166, 11,168 (Dep’t Commerce Mar. 2, 2015). On April 11, 2016, Commerce published the results of the tenth administrative review in the Federal Register, which set a China-wide antidumping duty rate of 216.01 percent ad valorem. See Wooden Bedroom Furniture From the People’s Republic of China: Final Results & Final Determination of No Shipments, In Part: 2014 Admin. Rev., 81 Fed. Reg. 21,319 (Dep’t Commerce Apr. 11, 2016) (“Final Admin Results”). On April 26, 2016, the American Furniture Manufacturers Committee for Legal Trade and Vaughn-Bassett Furniture Company, Inc. (“AFMC”) filed a lawsuit challenging the Final Admin Results before the Court of International Trade. Am. Furniture Mfrs. Comm. for Legal Trade v. United States, No. 16-cv-00070 (Ct. Int’l Trade) (“AFMC Litigation”). On April 27, 2016, the Court of International Trade issued an injunction to enjoin the liquidation (“suspension of liquidation”) of the entries involved in the AFMC Litigation, including the entries at issue in this appeal. J.A. 6. On March 13, 2017, the Court of International Trade dismissed the AFMC Litigation for lack of subject-matter jurisdiction. See Am. Furniture Mfrs. Comm. for Legal Trade v. United States, No. 16-00070 2017 Ct. Intl. Trade LEXIS 24, at *5–12 (Mar. 13, 2017). On May 12, 2017, the dismissal of the AFMC Litigation became final. See J.A. 8. On May 30, 2017, Commerce issued liquidation instructions to Customs for the subject entries, which notified Customs of the end of the injunction. Id. On November 24, 2017, Customs liquidated AFI’s Nine Subject Entries. J.A. 158, 173, 183, 194, 204, 215, 226, 234, 245. On November 30, 2017, AFI’s Tenth Subject Entry was deemed liquidated. J.A. 413. On December 1, 2017, Customs sent a notice of liquidation as to AFI’s Tenth Subject Entry. J.A. 260. AFI’s Subject Entries were assessed a final antidumping duty rate of 216.01 percent. J.A. 9. AFI timely protested the liquidations, and Customs denied the protests. J.A. 286.

 

 

(…) On October 27, 2018, AFI timely filed suit before the Court of International Trade challenging Customs’ denial of its protests. Id. On March 22, 2019, IMSS filed a similar suit. Id. On August 25, 2020, the Court of International Trade consolidated the two actions for purposes of discovery and briefing. J.A. 11.

 

 

On April 9, 2021, the Court of International Trade issued final judgment, granting the government’s motion for summary judgment. J.A. 1. The Court of International Trade determined that the applicable date of notice under 19 U.S.C. § 1504(d) was May 30, 2017, the date on which Commerce sent liquidation instructions to Customs. J.A. 23. The Court of International Trade also determined that its March 13, 2017, decision in the AFCM litigation did not provide unambiguous notice that the relevant injunction was lifted. J.A. 17–18. As such, the Court of International Trade denied Appellants’ request for discovery concerning when Customs received a copy of the Court of International Trade’s decision, reasoning that even if Customs received the decision before May 30, the decision did not provide the requisite notice. J.A. 18–19. The Court of International Trade also concluded that Customs’ error in labeling the notice regarding AFI’s Tenth Subject Entry as a liquidation instead of a reliquidation was harmless because that entry was liquidated or reliquidated within the relevant statutory period, and the effect was the same. J.A. 42. Appellants timely appealed. This court has exclusive jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

 

 

We review a grant of summary judgment by the Court of International Trade de novo. Kahrs Int’l v. United States, 713 F.3d 640, 643–44 (Fed. Cir. 2013). Although we apply a de novo standard of review, we give great weight to the informed opinion of the Court of International Trade. Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1341 (Fed. Cir. 2016).

 

 

When importing a good into the United States, a U.S. importer of record is required to use reasonable care in providing Customs with true and correct documentation regarding the value it declares for the imported merchandise. 19 U.S.C. §§ 1484, 1485. Should a dispute arise with Customs as to the actual value of the entry, an interested party may challenge the value asserted by Customs by filing a protest. Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1368 (Fed. Cir. 2002) (citing 19 U.S.C. § 1675b).

 

 

When Customs determines that an entry is covered by an antidumping order, it suspends liquidation and notifies the importer of “determined or estimated” duties. 19 U.S.C. § 159.58. When the suspension of liquidation is lifted, either by statute or court-order, 19 U.S.C. § 1504(d) establishes that Customs shall liquidate the relevant entry “within 6 months after receiving notice of the removal from Commerce, another agency, or a court with jurisdiction over the entry.” Otherwise, the entry will be deemed liquidated “at the rate of duty, value, quantity, and amount of duty asserted by the importer of record.” 19 U.S.C. § 1504(d). In order for an entry to be deemed liquidated, the suspension of liquidation must have been removed; Customs must have received notice of the removal of the suspension; and Customs must not have liquidated the entry at issue within six months of receiving notice of the suspension removal. Cemex, S.A. v. United States, 384 F.3d 1314, 1321 (Fed. Cir. 2004) (quoting Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002)).

 

 

We have interpreted § 1504 to require that a notice of removal of suspension of liquidation must be “unambiguous and public.” See id. at 1320. We have also clarified that the suspension of liquidation under 19 U.S.C. § 1516a(c)(2) cannot be lifted until the time for petitioning the Supreme Court for certiorari expires. Id. (citing Fujitsu, 283 F.3d at 1379). An entry that has been liquidated, or deemed liquidated by operation of law, may be voluntarily reliquidated by Customs pursuant to 19 U.S.C. § 1501 provided it is undertaken within 90 days from the date of the original liquidation. Section 1501 provides: A liquidation made in accordance with section 1500 or 1504 of this title or any reliquidation thereof made in accordance with this section may be reliquidated in any respect by U.S. Customs and Border Protection, notwithstanding the filing of a protest, within ninety days from the date of the original liquidation. Notice of such reliquidation shall be given or transmitted in the manner prescribed with respect to original liquidations under section 1500(e) of this title. 19 U.S.C. § 1501.

 

 

(…) The first unambiguous notice of the removal of the suspension of liquidation was the May 30, 2017 liquidation instructions from Commerce to Customs.

 

 

Despite Appellants’ arguments to the contrary, this court has never held that liquidation instructions cannot provide the statutorily required unambiguous and public notice. See Appellants’ Br. 19–21 (citing Int’l Trading Co. v. United States, 412 F.3d 1303 (Fed. Cir. 2005)). In International Trading, this court held that, under the facts of that case, the first public and unambiguous notice of the removal of the suspension of liquidation was when Commerce published the final results of the relevant administrative review in the Federal Register. Int’l Trading, 412 F.3d at 1313. In so holding, the court rejected the date on which Commerce sent liquidation instructions to Customs as the operative date of notice because Commerce’s earlier publication in the Federal Register had already provided notice to Customs that the suspension of liquidation had lifted. Id. Nothing in that decision, or in our holding today, prevents or requires that notice be provided in the form of liquidation instructions from Commerce to Customs. Instead, the relevant event that triggers the date of notice is the first publication of an unambiguous and public notice that then becomes the starting point for the six-month liquidation period, whatever form that may take. See Int’l Trading, 281 F.3d at 1275.

 

 

(…) § 1501 states explicitly that “notice of such reliquidation shall be given or transmitted in the manner prescribed with respect to original liquidations under section 1500(e) of this title.” 19 U.S.C. § 1501. Here, there are no allegations that the notice was deficient in any manner, except for the missing “re” in “reliquidation.”

 

 

Informed importers are aware that, under the established statutory scheme, Customs has six months from the notice of the removal of the suspension [§ 1504(d)] plus an additional 90 days from any liquidation or reliquidation [§ 1501] to notify an importer of the “the final computation or ascertainment of duties on entries for consumption or drawback entries” [19 C.F.R. § 159.1]. Here, notice was provided within that window.

 

 

We affirm the decision of the Court of International Trade.

 

 

 

(U.S. Court of Appeals for the Federal Circuit, July 28, 2022, Aspects Furniture International, Inc. v. United States, Docket No. 21-2060, 21-2061)

 

 

U.S. Court of Appeals for the District of Columbia, CSL Plasma Inc. v. U.S. Customs and Border Protection, Docket No. 21-5282

Customs (U.S.)

 

Change in Policy

 

Immigration Law

 

Business Visitor Visa (B-1)

 

Notion of International Business Visits

 

Administrative Procedure Act (APA)

 

Zone of Interests Test 

 

 

 

 

 

In June 2021, U.S. Customs and Border Protection (“CBP”) announced that aliens seeking to sell blood plasma could no longer enter the United States using “B‑1” business visitor visas. Before this policy went into effect, a significant amount of the plasma used for medical treatments and research in this country came from Mexican nationals selling their plasma on the U.S. side of the southern border. CSL Plasma Inc., as well as other companies (“plasma companies”), had invested substantial resources to develop plasma collection facilities near the border to take advantage of this market.

 

 

The plasma companies sued, alleging that CBP’s policy runs afoul of the Administrative Procedure Act (“APA”) and unlawfully cuts off a major source of plasma that they use to manufacture therapies to treat a range of diseases. The district court concluded the plasma companies were not within the “zone of interests” of the B-1 business visitor classification set out in the Immigration and Nationality Act (“INA”) and sua sponte dismissed the suit for lack of subject matter jurisdiction. We reverse. Whether the plasma companies are within the statutory zone of interests is a merits issue, not a jurisdictional one. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014). Moreover, the plasma companies’ claims easily fit within the zone of interests of the B‑1 classification, and therefore they have a cause of action under the APA.

 

 

According to their complaint, the plasma companies have long depended on donations by “many thousands” of paid Mexican donors, who contribute a substantial portion of the plasma collected by the companies and whose donations make up some five to ten percent of all plasma collected nationwide. Until June of last year, Mexican donors would enter the United States and sell plasma at dozens of border area facilities in exchange for roughly $50 per donation. They typically entered the country using “border crossing cards,” a combined B‑1/B-2 (business and pleasure) visa that permits an alien to enter the United States for multiple limited stays. See 22 C.F.R. § 41.32; 8 C.F.R. § 212.1(c)(1)(i).

 

 

For decades, CBP and its predecessor agencies allowed Mexicans with border crossing cards to enter the United States to sell plasma. Even at the peak of the COVID-19 pandemic, when B‑1 visa holders were generally prohibited from entering the United States, the Department of Homeland Security “designated plasma donors as ‘essential’ and plasma collection a ‘critical infrastructure industry.’” That changed in June 2021, when CBP instructed its border agents not to allow aliens to enter with B‑1 visas if they were planning to sell plasma.

 

 

(The term “B‑1” comes from the regulations describing categories of nonimmigrants by reference to the relevant INA provisions. See 22 C.F.R. § 41.12 (citing Immigration and Nationality Act, Pub. L. No. 82-414, § 101(a)(15)(B), 66 Stat. 163, 167 (1952) (codified at 8 U.S.C. § 1101(a)(15)(B))). Fn. 2).

 

 

CBP explained in a memorandum that “selling plasma constitutes labor for hire in violation of B‑1 nonimmigrant status, as both the labor (the taking of the plasma) and accrual of profits would occur in the U.S., with no principal place of business in the foreign country.” CBP said paid plasma donors were not proper B‑1 visitors because that category excludes anyone coming to engage in “labor” within the meaning of the INA’s B-1 classification.

 

 

(The INA’s B‑1 business visitor classification extends to an alien (other than one coming for the purpose of ... performing skilled or unskilled labor ...) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business. 8 U.S.C. § 1101(a)(15)(B).)

 

 

For the plasma companies to sue under the APA, they must have been “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. To determine whether a plaintiff has a cause of action we consider whether a plaintiff’s claims fall within the relevant statute’s “zone of interests” by “using traditional tools of statutory interpretation.” Lexmark, 572 U.S. at 127. The Supreme Court has made clear that the zone of interests test is a merits issue because it addresses whether the plaintiff “has a cause of action under the statute.” Id. at 128. That inquiry “does not implicate subject-matter jurisdiction.” Id. at 128 n.4 (cleaned up); see also Bell v. Hood, 327 U.S. 678, 682 (1946) (failure to plead a cause of action is not a jurisdictional defect). Our cases have repeatedly recognized the non-jurisdictional nature of the zone of interests test since Lexmark was decided in 2014. See, e.g., Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 319 (D.C. Cir. 2015) (explaining the zone of interests test is neither a component of “prudential standing” nor a jurisdictional question); Am. Inst. of Certified Pub. Accts. v. IRS, 804 F.3d 1193, 1199 (D.C. Cir. 2015) (same).

 

 

(…) The district court erred in dismissing for lack of subject matter jurisdiction.

 

 

The substantive question of whether the plasma companies fall within the B‑1 classification’s zone of interests is a purely legal question squarely before this court. We thus address the zone of interests question and hold that the plasma companies are within the statute’s zone of interests and therefore they have a cause of action to challenge the plasma policy. Cf. Mendoza v. Perez, 754 F.3d 1002, 1020 (D.C. Cir. 2014) (reaching a merits issue despite erroneous jurisdictional holding below because the issue was “purely legal” and “fully briefed” by both sides).

 

 

To determine whether the plasma companies have a cause of action, we consider whether their alleged injuries are “arguably within the zone of interests to be protected or regulated by the statute.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (cleaned up). The zone of interests test does not require that the statute directly regulate the plaintiff, nor does it require specific congressional intent to benefit the plaintiff. See Amgen Inc. v. Smith, 357 F.3d 103, 108 (D.C. Cir. 2004). Instead “the salient consideration ... is whether the challenger’s interests are such that they in practice can be expected to police the interests that the statute protects.” Id. at 109 (cleaned up). Under this “lenient” test, “the benefit of any doubt goes to the plaintiff,” and “the test forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue.” Lexmark, 572 U.S. at 130 (cleaned up). When a claim arises under the APA, the zone of interests test requires considering the “substantive provisions” of the underlying statute, the “alleged violations of which serve as the gravamen of the complaint.” Bennett v. Spear, 520 U.S. 154, 175 (1997). The gravamen of the plasma companies’ complaint is that CBP adopted an overly restrictive interpretation of the B-1 statutory classification in its plasma policy. The question we must answer is whether the plasma companies’ injuries are within the zone of interests of the INA’s B-1 business visitor classification. The INA creates a category of “nonimmigrant” temporary visitor that includes an alien (other than one coming for the purpose of ... performing skilled or unskilled labor ...) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business. 8 U.S.C. § 1101(a)(15)(B). To ascertain the interests this classification protects, “we must consider its context and purpose” within the INA’s larger scheme. Indian River Cnty. v. U.S. Dep’t of Transp., 945 F.3d 515, 530 (D.C. Cir. 2019) (cleaned up). The B‑1 provision creates a classification of nonimmigrant temporary visitors who may enter the United States in order to transact business. This business visitor classification imposes a lower barrier to enter the country than other nonimmigrant classifications, particularly the temporary worker classifications. With narrow exceptions, any alien coming to the United States to perform labor is presumptively inadmissible and must secure an affirmative determination from the Department of Labor that there are no Americans available to perform the same work. 8 U.S.C. § 1182(a)(5)(A). B‑1 business visitors face no comparable burden. By regulation, an alien who meets the definition of a B‑1 “nonimmigrant” presumptively can enter the country and, if he is a Mexican seeking to enter only the border area, can do so using a border crossing card. See 22 C.F.R. § 41.121 (“Nonimmigrant visa refusals must be based on legal grounds.”); id. § 41.32 (describing eligibility for border crossing cards).

 

 

In its plasma policy memorandum, CBP maintains that donors from Mexico who are “selling plasma” are engaged in “labor for hire” and therefore cannot use a B‑1 nonimmigrant visa to enter the United States for that purpose. Because the plasma companies rely on Mexican plasma donors who enter this country using B‑1 visas, the companies maintain that their interests are such that “in practice they can be expected to police the interests that the statute protects.” Amgen, 357 F.3d at 109 (cleaned up). We agree.

 

 

The B‑1 business visitor classification is designed to protect at least two classes of interests: American workers facing competition from immigrant labor and American businesses benefitting from transactions with B‑1 business visitors. American workers are protected because the classification specifically excludes aliens coming “for the purpose of ... performing skilled or unskilled labor.” 8 U.S.C. § 1101(a)(15)(B). The advantages of the B‑1 business visitor classification are denied to aliens coming for employment in competition with American workers. This court has held that labor unions, for instance, can sue to enjoin expansive readings of the B‑1 classification to protect the interests of domestic workers. See Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 804–05 (D.C. Cir. 1985). An overly expansive reading of the B‑1 classification would allow an end run around the requirements for a work visa, and thus workers and their unions can fall within the statutory zone of interests. The B‑1 classification also affirmatively promotes American business interests. Congress provided a path for aliens to enter the United States for temporary business purposes, presumably because those visits would benefit the people and companies that do business with them. An excessively strict interpretation of the B‑1 classification could therefore undermine the congressional policy of permitting temporary border crossings to facilitate business transactions. Here, the plasma companies easily clear the low hurdle of pleading injuries within the zone of interests protected by the B‑1 classification. The plasma companies depend heavily on B‑1 visitors in the border region. They have invested hundreds of millions of dollars to construct and staff dozens of facilities geared toward collecting plasma from Mexican donors. The plasma companies made these investments in reliance on the large number of Mexicans who cross the border to sell plasma: they allege Mexican B‑1 visitors “comprise the majority of donors at most of the border centers” and that the domestic population of the border areas could not support the substantial plasma collection activities of these facilities. By denying plasma donors the benefit of the B‑1 classification, CBP’s policy directly harms the companies’ businesses by depriving them of plasma they need to manufacture and develop their therapeutic products. Therefore, the companies may sue to vindicate the interests protected by the INA’s B-1 classification.

 

 

(…) The government’s limitation of the B‑1 classification is found in neither the text of the statute nor longstanding judicial and agency interpretations. There is no international nexus requirement in the B‑1 classification. The statutory definition simply includes aliens “visiting the United States temporarily for business” and specifically excludes aliens “coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation.” 8 U.S.C. § 1101(a)(15)(B). These are the only statutory carve outs from the general “business” category, and nowhere does the B‑1 classification use the term “international” or otherwise suggest that the “business” must be of a particular type.

 

 

The distinction between local and international activity emerged in cases that defined the “labor” exception to “business” visits. These decisions addressed the practical reality that if business visitors could not engage in literally any work or “labor” while in the United States, the “business” classification would be an empty set. See Garavito v. INS, 901 F.2d 173, 175 (1st Cir. 1990) (noting that at least some work activities must be permissible under a B‑1 visa in order to conduct “business”). The Third Circuit, for example, has explained that the Executive reasonably distinguishes between “local employment” that is outside the B‑1 classification and “activities that are a necessary incident to international trade or commerce” and therefore permissible “business.”Mwongera v. INS, 187 F.3d 323, 329 (3d Cir. 1999) (cleaned up).

 

 

The cases from the Board of Immigration Appeals (“BIA”) cited by the government also rely on an international connection to distinguish business activity from “labor” within the meaning of the INA. See, e.g., Matter of Camilleri, 17 I. & N. Dec. 441, 444 (BIA 1980) (a truck driver crossing from Canada to the United States to deliver commodities was a business visitor); Mwongera, 187 F.3d at 329 (upholding the BIA’s determination that “extending a retail sales business that was incorporated in the United States” was “labor” and not proper B‑1 “business”).

 

 

Although this decision on the zone of interests necessarily implicates the merits and although both parties ask us to resolve the underlying merits, we decline to reach issues not decided by the district court. See Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d 784, 789 (D.C. Cir. 2019) (“We are a court of review, not of first view.”) (cleaned up).

 

 

The zone of interests test is a lenient one, not to be conflated with either the court’s subject matter jurisdiction or the underlying merits of the case. The B‑1 classification protects the interests of American businesses such as the plasma companies, so they have a cause of action under the APA to challenge CBP’s plasma policy. We therefore reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

 

 

 

 

(U.S. Court of Appeals for the District of Columbia, May 10, 2022, CSL Plasma Inc. v. U.S. Customs and Border Protection, Docket No. 21-5282)