## United States Court of Appeals for the Federal Circuit

2007-1173

SAKAR INTERNATIONAL, INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

James C. Tuttle , Tuttle Law Offices, of New York , New York, argued for plaintiffappellant. Domenique Kirchner , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief was Jeanne E. Davidson , Director. Appealed from: United States Court of International Trade Judge Timothy C. Stanceu

## United States Court of Appeals for the Federal Circuit

2007-1173

SAKAR INTERNATIONAL, INC., Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

Appeal from the United States Court of International Trade in case no. 06-00025, Judge Timothy C. Stanceu.

_________________________ DECIDED: February 19, 2008

_________________________

Before LOURIE, SCHALL, and GAJARSA, Circuit Judges

. SCHALL, Circuit Judge

. Sakar International, Inc. (“Sakar”) br ought suit against the United States (“the government”) in the United St ates Court of Internati onal Trade to challenge an administrative decision of the Bureau of Cust oms and Border Protecti on, United States Department of Homeland Security (“Customs”) , assessing Sakar a civil fine of $67,775 for the importation by Sakar of merchandise that Customs determined was counterfeit. After concluding that it had jurisdiction ov er Sakar’s suit pursuant to 28 U.S.C. § 1581(i)(4) as it relates to 28 U.S.C. § 1581( i)(3), the Court of In ternational Trade ruledthat Customs’ assessment of the civil fine did not constitute final agency action for purposes of the Administrative Procedure Act (“APA”), 5 U.S.C. § 704 (2000). The court therefore held that Sakar had failed to state a claim upon which relief could be granted and granted the government ’s motion to dismiss Sakar’ s complaint pursuant to USCIT Rule 12(b)(5). Sakar Int’l, Inc. v. United States , 466 F. Supp. 2d 1333, 1351 (Ct. Int’l Trade 2006). Because we conclude that section 1581(i)(4 ) as it relates to section 1581(i)(3) did not provide the Court of Inte rnational Trade with jurisdic tion over Sakar’s suit, and because we conclude that none of the other statutory provisions cited by Sakar supported jurisdiction, we vacate the decisi on of the Court of International Trade and remand the case to the court with the instruct ion that it dismiss Sakar’s complaint for lack of jurisdiction. BACKGROUND
I. On October 7, 2002, Sakar presented for importation into the United States 500 travel chargers for personal digital assi stants (“PDAs”) and 2,311 mini-keyboards for PDAs, all of which were products of the Peopl e’s Republic of China. Upon examination, Customs determined that the goods were “c ounterfeit” in that they made unauthorized use of two registered United St ates trademarks. Specifical ly, the travel chargers bore the “UL” trademark registered to Underw riters Laboratories, whereas the minikeyboards displayed the “Flying Window” tradem ark of Microsoft Cor poration. Customs seized the goods on December 18, 2002, pur suant to its statutory authority under Section 526(e) of the Tari ff Act of 1930, as amended, 19 U.S.C. § 1526(e) (2000).

2007-1173 2Section 1526(e) provides in relevant part that any “mer chandise bearing a counterfeit mark . . . imported into the United States . . . shall be seized and, in the absence of the written consent of the trademark owner, forfeited for violations of the customs laws.” In a letter dated December 30, 2002, Customs not ified Sakar of the seizure, and informed Sakar that the goods would be forfeited—and disposed of in accordance with 19 C.F.R. § 133.52 1 —unless, within 30 days, the trademark owners consented in writing to the importation of the goods. Consent was not received; consequently, on August 28, 2003, Customs destroyed the goods. Subsequently, Customs exer cised its discretion under 19 U.S.C. § 1526(f) to impose a civil fine upon Sakar. 2 Customs set the amount of the fine at $381,500, which was twice the amount that Customs determined to be the manufacturer’s suggested retail price (“MSRP”) of the goods. 3 In response to a petition filed by Sakar, Customs mitigated the fine by 50% to $190,750. Ev entually, in a letter dated December 29,

1 Section 133.52(c) r equires the destruction of all forfeited merchandise unless two requirements are satisfied. Fi rst, a determination must be made that the merchandise is “not unsafe or a hazard to health.” Second, the trademark owner must consent in writing to the merchandise’s non-destruction. If both requirements are met, instead of destroying the merchandise, Custom s may “dispose of the merchandise, after obliteration of the tr ademark” by either (1) delivery to any federal, state, or local government that has demonstrated a need for the merchandise; (2) gift to any charitable institution that has demons trated a need for the merchandi se; or (3) sale at public auction in certain cases. 19 C.F.R. § 133.52(c) (2007); see also 19 U.S.C. § 1526(e). 2 Section 1526(f)(1) provides that “[a]ny person who directs, assists financially or otherwise, or aids and abets the importati on of merchandise for sale or public distribution that is seiz ed under [19 U.S.C. § 1526(e)] shall be subject to a civil fine.” Under section 1526(f)(4), the imposition of any such fine is “within the discretion of the Customs Service.” 3 Customs determined that Sakar had been subject to two prior seizures under section 1526(e). Thus, Customs set t he amount of Sakar’s fine at twice the MSRP of the impor ted goods. See 19 U.S.C. § 1526(f)(3) (“F or the second seizure and thereafter, the fine shall be not more than t wice the value that the merchandise would have had if it were genuine . . . .”).

2007-1173 32005, Customs adjusted the MSRP it had initially used to ca lculate the fine. This recalculation resulted in a fu rther reduction of the fine to $67,775. In the December 29th letter, Customs stated that the letter constituted the “f inal administrative review” available to Sakar and that Customs w ould accept “[n]o further petitions.” II. Following Customs’ action, Sakar filed suit in the Court of International Trade. Sakar’s first amended complaint (“complaint ”) challenged Customs’ mitigated fine by alleging, among other things, t hat Customs had acted contrary to law in calculating the MSRP of the seized goods and in concludi ng that the goods were counterfeit. Sakar , 466 F. Supp. 2d at 1336-37. Customs eventually moved to dismiss the complaint under USCIT Rule 12(b)(1) for lack of subject matterjurisdiction or, alternatively, under USCIT Rule 12(b)(5) for failure to state a clai m on which relief could be granted. Id. Sakar’s complaint purported to base the Co urt of International Trade’s jurisdiction on several different provisions of 28 U.S. C. § 1581. The court declined to exercise jurisdiction under all but one of those provisi ons, concluding that jurisdiction was proper only under section 1581(i)(4) as it re lates to section 1581(i)(3). Id. at 1337-46. Section 1581(i) provides in pertinent part as follows: [T]he Court of Internati onal Trade shall have exclus ive jurisdiction of any civil action commenced against the United St ates, its agencies, or its officers, that arises out of any law of the United States providing for—

. . . (3) embargoes or other quantitative re strictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enfor cement with respect to the matters referred to in paragraphs (1)-(3) of this subsection . . . .

2007-1173 4The court concluded that Customs’ seizure of Sakar’s goods amounted to an “embargo” within the meaning of section 1581(i)(3) and t hat the fine issued by Customs thus related to the “administration and enforcement” of an embargo within the meaning of section 1581(i)(4). Id. at 1341-46. Based upon that conc lusion, the court held that it had jurisdiction over Sakar’s claim under section 1581(i)(4) as it relates to section 1581(i)(3). Id. Next, the Court of Inte rnational Trade considered whether, under USCIT Rule 12(b)(5), Sakar’s first amended complaint stated a claim upon which relief could be granted. The court first explained that none of the statutory provisi ons actually cited by Sakar created a cause of action. Id. at 1347. Consequently, t he court reasoned that, if Sakar was entitled to bring any claim at all, the claim had to be premised upon the APA’s “right of review” provision, 5 U.S.C. § 702. Section 702 generally entitles any person “suffering legal wrong because of agen cy action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute . . . to judicial review thereof.” Id. However, in the court’s view , even if Sakar’s first amended complaint had ascribed its cause of action to the APA—which it did not—Sakar would have been unable to satisfy the APA’s requir ement of a “final agency action” under 5 U.S.C. § 704. 4 Sakar , 466 F. Supp. 2d at 1347. Acco rding to the court, that was because the action taken by Customs was neither the “consummation of the agency’s

4 Section 704 provides that “[a]gency action m ade reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” When review is sought not pursuant to specific statutory authorization, but only under t he general review provisions of the APA, the “agency action” referred to in section 702 must be “final agency action” within the meaning of section 704. Norton v. S. Utah Wilderness Alliance , 542 U.S. 55, 61- 62 (2004); Lujan v. Nat’l Wildlife Fed’n , 497 U.S. 871, 882 (1990).

2007-1173 5decision-making process” nor “one by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 1347-48 (quoting Bennett v. Spear , 520 U.S. 154, 177-78 (1997)). The court explained that, although the Dece mber 29, 2005 letter stated it was the “final administrative review” available to Saka r, the letter did not actually represent the “consummation of the agency’s decision-ma king process” because Customs retained discretion over the ultimate decis ion of whether or not to sue Sakar in a district court in order to collect the fine. Id. at 1348. Further, the cour t reasoned, the letter did not determine any legal rights or obligations bec ause the letter expired according to its own terms when Sakar failed to pay the fine within 30 days. Id. at 1347. By the time Sakar initiated its suit in the Cour t of International Trade, the mi tigated fine set forth in the letter no longer had any legal effect. Id. According to the court, any subsequent suit by Customs to collect the fine would be a de novo proceeding in federal district court. Id. at 1347-48. Thus, the court det ermined that “the findings of fact and conclusions of law Customs made during the adminis trative proceeding are no lon ger of any binding legal effect.” Id. at 1348. Because the action taken by Customs wa s not “final agency action,” the court held that Sakar had failed to plead a cause of action that could entitle it to relief under the APA. Id. at 1350. Moreover, the court found that Sakar had not alleged a nonstatutory (i.e., constitutional) cause of acti on despite Sakar’s purported “due process” claim. Id. Therefore, the court gr anted the government’s motion to dismiss Sakar’s first amended complaint under USCIT Rule 12(b)(5). Id. at 1351.

2007-1173 6DISCUSSION We have jurisdiction over Sakar’s appeal purs uant to 28 U.S.C. § 1295(a)(5). On appeal, Sakar argues that the Court of International Tra de erred in dismissing its complaint for failure to st ate a claim upon which relief could be granted. Sakar contends that the administrative fine set forth in Customs’ December 29, 2005 letter was sufficiently final for judicial review by the Court of Inte rnational Trade. With respect to the merits of the case, Sakar asserts t hat Customs acted contrary to the law in calculating the MSRP of the seized goods. The government responds that the Court of International Trade erred in ruling that it had jurisdiction over Sakar’s suit. At the same time, the government argues that, assuming it had jurisdiction, the C ourt of International Trade did not err in dismissing Sakar’s compla int under USCIT Rule 12(b)(5). For the reasons set forth below, we hold that the Court of Internati onal Trade erred in ruling that it had jurisdiction over Sakar’s suit. We therefore vacate the court’s decision and remand the case to the court with the instruct ion that it dismiss Sakar’s complaint for lack of jurisdiction. I. Whether the Court of International Tr ade had subject matter jurisdiction over Sakar’s suit is a question of law that we review de novo . Int’l Custom Prods., Inc. v. United States , 467 F.3d 1324, 1326 (Fed. Cir. 2006) (citing Xerox Corp. v. United States , 289 F.3d 792, 793-94 (Fed. Cir. 2002)). As stated above, the court held that it had jurisdiction over Sakar’s claim under 28 U. S.C. § 1581(i)(4) as it relates to 28 U.S.C. § 1581(i)(3) because Customs’ seiz ure of Sakar’s goods amounted to an “embargo” within the meaning of section 1581(i)(3) and, thus, the fine assessed against

2007-1173 7Sakar by Customs related to the “adminis tration and enforcement” of an embargo within the meaning of section 1581(i)(4). Sakar , 466 F. Supp. 2d at 1346. However, the government, relying upon K Mart Corp. v. Cartier, Inc. , 485 U.S. 176 (1988), argues that the seizure of Saka r’s goods did not constitute an embargo. Hence, the government urges that the Court of International Tra de erred when it held that it had jurisdiction over Sakar’s claim. In K Mart , the Supreme Court c onsidered whether 19 U. S.C. § 1526(a), which makes it unlawful to import into the Un ited States goods beari ng a registered U.S. trademark without the trademark owner’s written consent, cr eates an “embargo” within the meaning of 28 U.S.C. § 1581(i)(3). The Court conclude d that the word “embargo” should be interpreted according to its ordi nary meaning, which is “a governmentally imposed restriction—of zero—on the importation of merchandise.” Id. at 185. The Court explained that “[a]n importation prohibition is not an embargo if rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by wh ich a private party migh t, at its own option, enlist the Government’s aid in restricting the quantity of im ports in order to enforce a private right.” Id. (emphasis in original). Acco rding to the Court, section 1526(a) creates an importation prohibi tion of the latter type. Id. The Court reasoned that section 1526(a) is “very different from an embargo” because “[t]he trademark owner has the sole authority to decide that all products bearing its tr ademark will enter or that none will, and to decide what entity may import them, under what conditions, and for what purpose.” Id. at 185-87.

2007-1173 8The government argues t hat the Supreme Court’ s holding in K Mart with respect to 19 U.S.C. § 1526(a) applies with equal force to 19 U.S. C. § 1526(e), the statutory provision under which the gov ernment acted in this case . That is, the government contends that a seizure of goods under se ction 1526(e) does not constitute an “embargo” because it is not a governmentally imposed quant itative restriction on the importation of merchandise. Thus, a civil fine issued by Customs under section 1526(f) does not relate to the “administration and enforcement” of an embargo. For these reasons, the government contends that the Court of Inter national Trade did not have jurisdiction over Sakar’s claim under section 1581(i )(4) as it relates to section 1581(i)(3). In response, Sakar argues that the Co urt of International Trade correctly determined that it had jurisdiction. S pecifically, Sakar distinguishes K Mart by urging that section 1526(e), unlike section 1526(a), constitute s a complete ban on the importation of counterfeit goods. According to Sakar, the governmentally imposed restrictions of section 1526(e) establish an “embargo” under section 1581(i)(3), and, therefore, the fine is sued by Customs to Sakar relates to the “administration and enforcement” of an embargo under28 U.S.C. § 1581(i)(4). Thus, Sakar contends that section 1581(i)(4) as it relates to section 1581(i)(3) provided the C ourt of International Trade with jurisdiction over Sakar’s claim.
II. Section 1581(i)(3) grants t he Court of International Trade exclusive jurisdiction over cases against the United States that arise out of an y law providing for “embargoes or other quantitative restricti ons on the importation of merc handise . . . .” Section 1581(i)(4), in turn, grants the Court of Inte rnational Trade jurisdicti on over cases arising

2007-1173 9out of any law that provides for “adminis tration and enforcement with respect to the matters referred to in” section 1581(i)(3). Thus, section 1581(i)(4) as it relates to section 1581(i)(3) provides the Court of In ternational Trade with jurisdiction over cases that arise out of any law providing for the administration and enforcement of an embargo. The critical question in this case is w hether 19 U.S.C. § 1526( e) establishes an “embargo.” Section 1526(e) pr ovides, in relevant part: Any such merchandise bearing a co unterfeit mark (within the meaning of section 1127 of Title 15) im ported into the United States in violation of the provisions of sect ion 1124 of Title 15, shall be seized and, in the absence of the wri tten consent of the tradem ark owner, forfeited for violations of the customs laws. By its terms, section 1526(e) incorporates provisions of the Lanham Act in order to identify which imported merchandi se Customs shall seize. Sp ecifically, under 15 U.S.C. § 1124, no imported merchandise found to “copy or simulate” 5 a registered trademark “shall be admitted to entry at any customhouse of the United States.” 6

5 A “copying or simulating” mark is “one which may so resemble a recorded mark . . . as to be likely to cause the public to associate the copying or simulating mark . . . with the recorded mark.” 19 C.F.R. § 1 33.22(a). However, a counterfeit mark is “a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127 (2000); 19 C.F.R. § 133.21(a). Merchandise bearing a “counterfeit mark” is thus a subset of merchandise that merely “copies or simulates” a registered mark. See Montres Rolex, S.A. v. Snyder , 718 F.2d 524, 527- 28 (2d Cir. 1983) (“Thus the customs laws and regulat ions create a two-tier classification scheme. The first category consists of marks which are merely infringements, judged by whether they are likel y to cause the public to associate the copying mark with the recorded mark. In the second category are those marks which not only infringe but in addition are such close copies that they amount to counterfeits.”); United States v. 10,510 Packaged Computer Towers, More or Less , 152 F. Supp. 2d 1189, 1200 (N.D. Cal. 2001); Ross Cosmetics Distrib. Ctrs., Inc. v. United States , 18 C.I.T. 979, 984-85 (1994). Theref ore, the provisions of se ctions 1526(e) and 1124, read together, relate only to mar ks that are “counterfeit.” 6 Limited, non-relevant exceptions are provided in 19 U.S.C. § 1526(d).

2007-1173 10Examining these provisions , the Court of Internati onal Trade determined that the import restrictions imposed by sections 1 526(e) and 1124 together were “sufficiently dissimilar” to those imposed by section 1526(a) that the Supreme Court’s K Mart decision was not controlling. Sakar , 466 F. Supp. 2d at 1343. In K Mart , the Supreme Court determined that section 1526(a) did not create an em bargo because “[t]he private party, not the Government, by deciding whet her and how to exercise its private right, determines the quantity of any particular pr oduct that can be import ed.” 485 U.S. at 185. Because section 1526(a) does not cr eate a governmentally imposed import restriction, it does not fall within the plain meaning of “embargo.” Id. Here, the Court of International Trade concluded t hat section 1526(e) differs from section 1526(a) in that it establishes a governmentally imposed prohibition on the importation of counterfeit merchandise. Sakar , 466 F. Supp. 2d at 1343. Centra l to that conclusion was the court’s belief that the trademark owner, as a private party, does not control whether or not counterfeit merchandise is seized by Customs under section 1526(e). The court reasoned that section 1526(e) “does not pe rmit the owner of a trademark to import counterfeits of its trademarked merchandi se. Nor does it permit goods bearing a counterfeit trademark to be released into comme rce, even with the consent of the owner of the genuine trademark.” Id. In short, the Court of Inte rnational Trade determined that section 1526(e) is a “gover nmentally imposed quantitative restriction—of zero—on the importation of merchandise.” In the c ourt’s view, under section 1526(e), the government alone, not the pr ivate party, determines the quantity of any particular product that can be imported. Accordingly, the court held that section 1526(e) falls within the plain meaning of “em bargo” as set forth in K Mart

.

2007-1173 11We do not agree with the Court of In ternational Trade’s interpretation of section 1526(e). Section 1526(e) does not constitute a governmentally imposed quantitative limit on importati on, because under that provis ion the trademark owner, not the government, retains ultimate control over whether or not the “counterfeit” merchandise is imported. In that regard, secti on 1526(e), like section 1526(a), “merely provides a mechanism by which a private party might, at its own option, enlist the Government’s aid in restricti ng the quantity of imports in order to enforce a private right,” K Mart , 485 U.S. at 185, and, thus, does not create an “embargo” wit hin the meaning of section 1581(i)(3). Section 1526(e) sets forth a two step process. First, any counterfeit merchandise imported in violation of 15 U.S.C. § 1124 “s hall be seized” by Cu stoms. 19 U.S.C. § 1526(e). Only in the absenc e of written consent from the trademark owner, however, is the merchandise ultimately forfeited. Id. Customs regulations set forth the specific procedures to be followed once goods are se ized. Upon seizur e of counterfeit merchandise, Customs must promptly not ify the trademark ow ner. 19 C.F.R. § 133.21(c). The seized merchandise is subs equently forfeited “[u] nless the trademark owner, within 30 days of notificat ion, provides written cons ent to importation of the articles, exportation, entry a fter obliteration of the trademark, or other appropriate disposition . . . .” Id. § 133.21(e). Importantly, under th is regime, it is the trademark owner that ultimately controls the disposition of the merchandi se. At any time within 30 days of notification, the tradem ark owner may consent to the importation of the seized merchandise. We therefore think that the Court of Internati onal Trade erred in concluding that section 1526(e) “[does not] permit goods bearing a counterfeit

2007-1173 12trademark to be released into commerce, ev en with the consent of the owner of the genuine trademark.” Sakar , 466 F. Supp. 2d at 1343. To the contrary, the import prohibition created by secti on 1526(e) falls squarely within the holding of K Mart . Under section 1526(e), “[t]he private party, not t he Government, by deciding whether and how to exercise its private right, determines the quantity of any particula r product that can be imported.” K Mart , 485 U.S. at 185. Thus, section 1526(e) does not impose an “embargo” within the meaning of that term as used by Congress in section 1581(i)(3) and interpreted by the Supreme Court in K Mart

. The Court of International Trade, in fi nding that trademark owners lack the ability to consent to the importation of “counterfe it” merchandise, apparently focused on the mandatory language of sections 1526(e) and 1124. Sakar , 466 F. Supp. 2d at 1343. Specifically, section 1526(e) pr ovides that counterfeit merc handise imported in violation of section 1124 “shall be seized.” At the same time, section 1124 states that no article of imported merchandise that copies or simulates a registered trademark “shall be admitted to entry at any customhouse of th e United States.” Even assuming, however, that the statutory regime does not allow trademark owners to prevent the initial seizure of such merchandise, 7 the fact remains that the se izure of imported merchandise

7 Both the text and context of sect ion 1526(e) suggest that the trademark owner does, in fact, have control over w hether Customs seizes the merchandise. Section 1526(e) states that “[a]ny such merchandise” bear ing a counterfeit trademark shall be seized. The use of “such” apparently refers back to the intr oduction of the term “merchandise” in section 1526(a), which makes it unlawful to import “any merchandise” bearing a registered trademark where (1) the trademark ownerfiles a copy of the certificate of registration with the Secretar y of the Treasury and (2) the trademark owner does not consent in wr iting to the importation. Thus, trademark owners play a significant role in determining whet her Customs may seize merchandise under section 1526(e). If, for example, the tradem ark owner files written consent to an importation of goods bearing it s trademark, that importati on would not be “unlawful”

2007-1173 13cannot, by itself, constitute an “embargo.” That is, by simply seizing certain goods, Customs does not impose a “ quantitative restriction . . . on the importation of merchandise.” K Mart , 485 U.S. at 185. As expl ained above, seized goods may subsequently be released for importation if the trademark owner consents within 30 days of notification. A seiz ure of merchandise by Cust oms under section 1526(e) is merely an intermediate step in the ultimate disposition of that merchandise. Therefore, to the extent that a seizure under section 1526(e) may be viewed as being solely within the government’s control, the seizure alone c annot constitute an “embargo.” In sum, the Court of International Trade erred in holding that it had jurisdiction over Sakar’s suit pursuant to 28 U.S.C. § 1581(i)(4) as it relates to 28 U.S.C. § 1581(i)(3).
III. Sakar also argues that the Court of Inter national Trade erred in rejecting one of its alternate grounds for jurisdiction. Saka r argued that jurisdiction in the Court of International Trade was proper under 28 U.S.C. § 1581(i)(4) as it relates to 28 U.S.C. § 1581(i)(1) because the fine issued by Cust oms arose out of a law providing for “administration and enforcement” wit h respect to “revenue from imports.” 8 In making

under section 1526(a), and, thus, Customs w ould not be authorized to seize the goods under section 1526(e). 8 Section 1581(i) provides, in relevant part: [T]he Court of Internati onal Trade shall have exclus ive jurisdiction of any civil action commenced against the United St ates, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage;

. . . (4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection . . . .

2007-1173 14this argument, Sakar pointed to 19 U.S.C. § 1526( f), the civil penalty provision, as a law providing for “administrati on and enforcement” with respect to “revenue from imports.” The Court of International Trade rejected this argument on the gr ound that “[s]ection [1]526(f), which imposes civil fines associat ed with seizures of imported counterfeit merchandise, is not, in any ordinary sense, a law providing for revenue from imports.” Sakar , 466 F. Supp. 2d at 1341. We too reje ct Sakar’s argument. We agree with the Court of International Trade t hat section 1526(f) is not “in any ordinary sense” a law providing for revenue from imports. Nor does it relate to “administration and enforcement” of a law providing for revenue from imports. Sect ion 1526(f) is punitive in nature; it authorizes Customs to issue “[c]ivil penalties” to those who import, or assist the importation of, counterfeit merchandise. Legislative history indicates that the Congressional purpose behind se ction 1526(f) was to strengthen the private rights of trademark owners, not to provide the government with an additional s ource of revenue. See S. Rep. No 104-177, at 2 (1995) (“[T] he bill strengthens the hand of businesses harmed by counterfeiters by updating existi ng statutes and providing stronger civil penalties against counterfeiters . . . .”); H.R. Rep. No 104-556, at 1-2 (1995) (“The purpose of H.R. 2511 is to pr event counterfeiting of copyrighted and trademarked goods and services and to ensure that counterfeit goods produced elsew here cannot enter the United States.”), as reprinted in 1996 U.S.C.C.A.N. 1074, 1074-75. Thus, the Court of International Trade correctly concluded that it lacked jurisdiction over Sakar’s claim under 28 U.S.C. § 1581(i)(4) as it re lates to 28 U.S.C. § 1581(i)(1).

2007-1173 15IV. Finally, citing Conoco Inc. v. United States , 18 F.3d 1581 (Fed. Cir. 1994), Sakar argues that jurisdiction in t he Court of International Tra de was proper based upon what it refers to as “non-statutory, judicially-granted” review. We do not agree. The Court of International Trade, like all federal courts, is a court of limited jurisdiction. Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006). It possesses only that power authorized by the Constitution and federal statutes, which is not to be expanded by judicial decr ee. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). In Conoco , we did not hold that the appel lants were entitled to “nonstatutory, judicially-granted” review. Instead, starting fr om the presumpt ion that agency action is subject to judicial review, we an alyzed various federal statutes in order to determine which statute provided jurisdiction over the appellants’ case and, thus, where jurisdiction was proper (i.e., in the Court of International Trade or in the appropriate district court). Conoco , 18 F.3d at 1585- 1590. Conoco provides no support for Sakar’s concept of “non-statut ory, judicially-granted” review. Sakar’s final jurisdictional argument thus fails. CONCLUSION For the foregoing reasons, we conclude that the Court of International Trade lacked jurisdiction over Sakar’s suit. Thus, we vacate the decision of the Court of International Trade and remand the case to the court with the instruction that it dismiss Sakar’s complaint for lack of jurisdiction. Because we conclude that the Court of International Trade did not have jurisdiction over Sakar’s suit, we do not address the

2007-1173 162007-1173 17 decision by the court to dismiss Sakar’s cl aim under USCIT Rule 12 (b)(5) for failure to state a claim upon which relief could be granted. VACATED and REMANDED COSTS No costs.