USCIT R. 03

TITLE II. COMMENCING AN ACTION; AMENDING A SUMMONS; SERVICE OF SUMMONS, PLEADINGS, MOTIONS, AND ORDERS Rule 3-1 Rule 3. Commencing an Action (a) Commencement. A civil action is commenced by filing with the clerk of the court: (1) A summons in an action described in 28 U.S.C. ' 1581(a) or (b); (2) A summons, and within 30 days thereafter a complaint, in an action described in 28 U.S.C. ' 1581(c) to contest a determination listed in section 516A(a)(2) or (3) of the Tariff Act of 1930; or (3) A summons and complaint concurrently in all other actions. (b) Filing Fee. When an action is commenced, the plaintiff must pay a $400 filing fee to the clerk of the court, except that: (1) the plaintiff must pay a $175 filing fee when the action is one described in 28 U.S.C. ' 1581(a); and (2) the plaintiff must pay a $35 filing fee when the action is one described in 28 U.S.C. ' 1581(d)(1). (c) Complaint Fee. When filing a complaint in an action described in 28 U.S.C. ' 1581(a), the plaintiff must pay a $200 fee to the clerk of the court. (d) Information Statement. When an action is commenced, the plaintiff must file a completed Information Statement on the form shown in Form 5 in the Appendix of Rule 3-2 Forms. (e) Amending a Summons. The court may allow a summons to be amended at any time on such terms as it deems just, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the amendment is allowed. (f) Notice to Interested Parties. In an action described in 28 U.S.C. § 1581(c), the plaintiff, as provided in section 516A(d) or 517(g) of the Tariff Act of 1930, must notify every interested party who was a party to the administrative proceeding of the commencement of the action, by mailing a copy of the summons in section 516A actions and summons and complaint in section 517 actions at the time the action is commenced, or promptly thereafter, by certified or registered mail, return receipt requested, to each such party at the address last known in the administrative proceeding. When filing a complaint in an action described in 28 U.S.C. § 1581(c) in section 516A actions, the plaintiff must promptly serve a copy of the complaint, by certified or registered mail, return receipt requested, on every interested party who was a party to the administrative proceeding at the address last known in that proceeding. Rule 3-3 (g) Precedence of Action. On motion for good cause or on its own the court may expedite the following actions and give them precedence over other pending actions: (1) An action involving the exclusion of perishable merchandise or redelivery of such merchandise; (2) An action described in 28 U.S.C. § 1581(c) to contest a determination under section 516A or 517(g) of the Tariff Act of 1930; (3) An action described in 28 U.S.C. § 1581(a) to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930, involving the exclusion or redelivery of merchandise; (4) An action described in 28 U.S.C. § 1581(b) to contest a decision of the Secretary of the Treasury under section 516 of the Tariff Act of 1930; (5) Any other action that the court determines, based on motion and for good cause shown, warrants expedited treatment. (h) Special Rule for Actions Described in 28 U.S.C. § 1581(c). When an action is commenced under 28 U.S.C. § 1581(c) to contest a determination listed in section 516A(a)(2) or (3) of the Tariff Act of 1930 by the administering authority and such a determination by the Commission, a party must file a separate summons and complaint with respect to each agency. Also, in an action described in 28 U.S.C. § 1581(c), except arising from section 517 of the Tariff Act of 1930, when the plaintiff files the summons, attorneys for the plaintiff are required to comply with the procedures set forth in Rule 73.2(c) by filing of a Business Proprietary Information Certification where appropriate. Rule 3-4 (i) Disclosure Statement. A disclosure statement as provided by Form 13 must be filed by every party to an action, including parties seeking or permitted to intervene, and for each amicus curiae. The disclosure statement must be filed with the entry of appearance (or with the summons if no separate notice of appearance is required). If any of the information required changes after the disclosure statement is filed, and before a final judgment is issued, the party or amicus curiae must promptly file an amended disclosure statement. PRACTICE COMMENT: For the appropriate summons form and number of copies to be filed, refer to Forms 1 to 4 of the Appendix of Forms. Information Statement forms, as shown in Form 5, are available on request from the office of the clerk. PRACTICE COMMENT: As provided in section 516A(a)(2) and (3) of the Tariff Act of 1930, a complaint must be filed within 30 days after the filing of the summons. See Georgetown Steel v. United States, 801 F.2d 1308 (Fed. Cir. 1986). Nevertheless, counsel are encouraged to commence any action described in section 516A(a)(2) or (3) of the Tariff Act of 1930 and 28 U.S.C. ' 1581(c) by the concurrent filing of a summons and complaint. This will serve to expedite the prosecution of the action. When an action is commenced by manual filing, counsel should contact the Clerk's Office not more than 24 hours prior to filing to obtain a court number and must endorse that court number on the summons and complaint. Counsel for plaintiff will be responsible for service of the summons and complaint as prescribed in Rules 4(b), (c), and (d). Under these circumstances, the clerk of the court will not make service of the summons as prescribed in Rule 4(a)(4). PRACTICE COMMENT: As prescribed by Rule 5(d), a summons or a summons and complaint may be filed by delivery, by mailing, or electronically. The filing is completed when received, except that when the method of mailing prescribed by Rule 5(e) is used, the summons or summons and complaint are deemed filed as of the date of mailing. PRACTICE COMMENT: Internal inconsistencies exist within the provisions of the Customs Courts Act of 1980 with respect to the method of commencing customhouse broker license actions, the kind of action described in 28 U.S.C. ' 1581(g). These actions are included among those actions which, pursuant to 28 U.S.C. ' 2632(a), are to be commenced by filing concurrently a summons and complaint with the clerk of the court as prescribed by the rules of the court. The rules of the court require the plaintiff to Rule 3-5 cause concurrent service of the summons and complaint to be made. (See Rules 3(a) and 4(b).) The inconsistency pertaining to customhouse broker license actions appears in 19 U.S.C. ' 1641(e), which provides that an action is commenced by filing "a written petition" in the court and further provides that a copy of the petition is to be "transmitted by the clerk of the court to the Secretary [of the Treasury] or his designee." Until such time as the matter is resolved, the preferred procedure to achieve uniformity and consistency and to minimize the ambiguity created by these inconsistent statutory provisions is to follow the provisions in Title 28. (In one unreported case, James A. Barnhart v. United States, Court No. 81-3-00328, the court directed plaintiff to comply with the requirements of 28 U.S.C. ' 2632(a) by filing a summons and complaint notwithstanding the fact that plaintiff had complied with the requirements of 19 U.S.C. ' 1641(e) by filing a petition.) PRACTICE COMMENT: Although this rule requires that the two agencies subject to suit under 28 U.S.C. § 1581(c) are in the first instance the subject of separate summonses and complaints, it does not prohibit consolidation of actions against the two agencies on an adequate showing of grounds for consolidation. PRACTICE COMMENT: A party seeking judicial review of an antidumping, countervailing duty, or injury determination regarding a class or kind of merchandise from a signatory to the North American Free Trade Agreement should be aware of the additional notice and timing requirements of 19 U.S.C. §1516a(g)(3) and the separate filing and timing requirements of 19 U.S.C. §1516a(a)(5) and (g)(4). to commence PRACTICE COMMENT: Rule 3(g) lists four types of actions to which the court may give precedence over other actions, and allows the court to give precedence to any other action when a party can demonstrate, on motion and a showing of good cause, that expedited treatment is warranted. In addition to Rule 3(g), other rules that may bear on scheduling include Rule 16 (Post Assignment Conferences; Scheduling; Management), Rule 40 (Request for Trial), Rule 56.2 (Judgment on an Agency Record for an Action Described in 28 U.S.C. § 1581(c)), Rule 65 (Injunctions and Restraining Orders), and Rule 78 (Motion Part). PRACTICE COMMENT: Rule 3(a) sets forth whether an action can be commenced by filing a summons alone or whether a summons and complaint must be filed concurrently. The Enforce and Protect Act (EAPA), Title IV, section 421 of the Trade Facilitation and Enforcement Act (TFTEA) of 2015, amended the Tariff Act of 1930 to add section 517 to the Tariff Act of 1930, “Procedures for investigating claims of evasion of antidumping and countervailing duty orders,” codified at 19 U.S.C. § 1517. Civil actions of EAPA cases shall be commenced by filing the summons and complaint concurrently, pursuant to 28 U.S.C. § 2632(a). Rule 3-6 PRACTICE COMMENT: A party seeking to amend a summons should conform to the procedures set out in Administrative Order 02-01, Paragraph 4(d)(i). Specifically, any time an amendment or correction (motion for errata) is made or proposed, the filing must have appended to it: (1) a list of each amendment or correction including the page number for each amendment or correction, (2) a complete copy of the amended or corrected document, and (3) an amended or corrected version of the document showing the additions, deletions, and any other changes in a “redline and strikeout” format. (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 21, 1986, eff. Oct. 1, 1986; Dec. 3, 1986, eff. Mar. 1, 1987; Sept. 25, 1992, eff. Jan. 1, 1993, Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 1997, eff. Nov. 1, 1997; May 27, 1998, eff. Sept. 1, 1998; Jan. 25, 2000, eff. May 1, 2000; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001, eff. Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004; Sept. 28, 2004, eff. Jan. 1, 2005; Mar. 29, 2005, eff. Oct. 1, 2005; Nov. 29, 2005, eff. Jan. 1, 2006; Mar. 21, 2006, eff. Apr. 10, 2006; Nov. 25, 2008, eff. Jan. 1, 2009; Nov. 25, 2009, eff. Jan. 1, 2010; Dec. 7, 2010, eff. Jan. 1, 2011; Dec. 4, 2012, eff. Jan. 1, 2013; Mar. 19, 2013, eff. May 1, 2013; Dec. 22, 2014, eff. Jan. 28, 2015; Sept. 18, 2018, eff. Oct. 15, 2018; Mar. 23, 2021, eff. May 3, 2021.)