DOJ Further Pushes for Jurisdiction-Based Dismissal of Customs Spat Over Airline Customs User Fees

Commercial airline operator NetJets Aviation's request for leave to reassert Section 1581(i) jurisdiction in a customs challenge should jurisdiction under Section 1581(a) be unavailable should be denied, the Department of Justice said in Aug. 10 comments at the Court of International Trade. Further responding to its motion to partially dismiss NJA's case, DOJ said that the court lacks jurisdiction for the spat under Section 1581(i) and that NJA fails to even allege that this jurisdiction is available in its response (NetJets Aviation, Inc. v. U.S., CIT #21-00142).

NJA filed its suit to challenge CBP's assessment of customs user fees on its flights. The company provides services to people who want to fly in a corporate jet but don't need full-time access to the aircraft. Interested parties can purchase the right to a certain amount of flight time per year in one of NJA's corporate jets. The law requires that each passenger of a commercial aircraft must be assessed customs user fees. However, CBP doesn't collect these fees directly from the passengers, rather they gather them from the entity that issues a ticket for entrance into the U.S. The U.S. Court of Appeals for the Federal Circuit held, however, that airlines aren't required to pay uncollected fees since they are primarily the passenger's responsibility.

CBP held an audit of NJA's flights from 2016 and found that the company was indeed a commercial airline and should be collecting the CUFs. Since NJA wasn't doing so, CBP held that NJA owed zero dollars. Nevertheless, the airline filed its complaint in March contesting the agency's finding that it operates commercial aircraft and that it issued tickets to passengers, making it responsible for the fee collection. NJA filed its challenge under both Section 1581(a) and 1581(i), prompting the partial motion to dismiss from DOJ. The government defense said that 1581(a) was the proper jurisdictional home of the case and that NJA fails to assert that 1581(a) is manifestly inadequate.

In its response, NJA agreed with DOJ's jurisdictional claims, but still wished to maintain the option to file suit under 1581(i) should the court find that the airline's suit doesn't have jurisdiction under 1581(a). "NJA agrees with the Government but essentially asks this Court for leave to reassert section 1581(i) jurisdiction at a later date if it is determined that NJA’s protest remedy was unavailable or inadequate," DOJ said in its response. "NJA’s request should be denied. No set of circumstances occurring after the filing of a complaint can establish section 1581(i) jurisdiction. If NJA believes there is a legal argument as to why section 1581(i) jurisdiction is available, it was required to address the issue in response to our partial motion to dismiss."