CIT Notes Split Re Whether Claims or Entire Case Is Transferrable under 28 U.S.C. § 1631

Per Butler v. U.S., --- F.Supp.2d ----, 2006 WL 1815976 (Court of International Trade Jun. 30, 2006):

In Retamal, the Court of Appeals has squarely held that the Court of International Trade lacks subject matter jurisdiction to review the revocation of a customs broker's license for failure to timely file a triennial status report. Retamal v. U.S. Customs & Border Protection, Dep't of Homeland Security, 439 F.3d 1372, 1375-76 (Fed.Cir.2006). Plaintiff contends that this action therefore should be transferred to the U.S. District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 1631.

The statute invoked by Plaintiff provides, in pertinent part: § 1631. Transfer to cure want of jurisdiction Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed ..., and the action ... shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred. 28 U.S.C. § 1631 (emphasis added). [FN12]

FN12. . . . The Courts of Appeals disagree as to whether § 1631 authorizes the transfer of individual claims, or only the transfer of an entire action. See 17 James Wm. Moore et al., Moore's Federal Practice § 111.51[2] (3d ed.1999). Similarly, there is a split in the circuits as to whether actions may be transferred under § 1631 to cure defects other than subject matter jurisdiction (such as a lack of personal jurisdiction over the defendant, or improper venue). See id. § 111.51[1],[3]; Moore's Federal Practice, Judicial Code ¶ 1631.2. However, neither controversy is relevant here.


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