N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ BEST KEY TEXTILES CO. LTD., Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2015

- 1775

______________________ Appeal from the United States Court of International Trade in No. 1:13

- cv

- 00367

- RKM, Senior Judge R. Kenton Musgrave.

______________________

Decided: August 15 , 2016

______________________

J OHN M ICHAEL P ETERSON , Neville Peterson LLP, New York, NY, argued for plaintiff

- appellant. Also represen ted by R ICHARD F. O’N EILL , R USSELL A NDREW S EMMEL

.

B EVERLY A. F ARRELL , International Trade Field Office, United States Department of Justice, New York, NY, argued for defendant -appellee. Also represented by M ARCELLA P OWELL , A MY R UBIN ; J EANNE E. D AVIDSON , B ENJAMIN C. M IZER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin g-BEST KEY TEXTILES CO

. v. U NITED STATES 2

ton, DC; P AULA S. S MITH , Bureau of Customs and Border Protection, United States Department of Homeland Security, New York, NY.

______________________
Before O’M ALLEY , W ALLACH , and T ARANTO , Circuit Judges

. W ALLACH , Circuit Judge

. In February 2015, we held that the U nited States Court of International Trade (“CIT”) erred in asserting subject matter jurisdiction over a suit filed by Best Key Textiles Co. Ltd. (“Best Key”) pursuant to 28 U.S.C. § 1581(i)(4) (2012). See Best Key Textiles Co. v. United States ( Best Key I ), 777 F.3d 1356, 1362 (Fed. Cir. 2015). In reaching that conclusion, we observed that the “proper

‘ avenue of approach ’ ” to redress the harm alleged in Best Key’s action would have been a challenge under § 1581(a). Id. (quoting Hartford Fire Ins. Co. v. United States , 544 F.3d 1289, 1292 (Fed. Cir. 2008) ). Because Best Key had not properly invoked the CIT’s jurisdiction pursuant to § 1581(a), we remanded “with instructions to dismiss for lack of jurisdiction.” Id. at 1357; see Hartford Fire , 544 F.3d at 1292 (“[J]urisdiction under subsection 1581(i) may not be invoked if jurisdiction under another subsection of section 1581 is or could have been available, unless the other subsection is shown to be manifestly inadequate.” (citation omitted)).

When the su it returned to the CIT, Best Key filed a motion to transfer the action to the United States District Court for the District of Columbia (“D.C. District Court”). The CIT denied Best Key’s motion as foreclosed by this court’s mandate in Best Key I and dismi ssed the action

. 1

1 “Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of theBEST KEY TEXTILES CO

. v. U NITED S TATES 3

See Best Key Textiles Co. v. United States ( Best Key II ), No. 13

- 00367, 2015 WL 3798041, at * 2– 3 (Ct. Int’l Trade June 18, 2015).
Best Key appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.

D ISCUSSION

I. Stand ard of Review and Legal Framework
“[T]he interpretation by an appellate court of its own mandate is properly considered a question of law, revie wable de novo.” Laitram Corp. v. NEC Corp. , 115 F.3d 947, 950 (Fed. Cir. 1997).

“The mandate rule

. . . dictate s that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Banks v. United States , 741 F.3d 1268, 1276 (Fed. Cir. 2014) (internal quotation marks and citation omitted). “ Th is rule is limited to issues ac tually decided” by the appellate court, “either explicitly or by necessary implication.” Id. (internal quotation marks and citation omitted) ; see SUFI Network Servs., Inc. v. United States , 817 F.3d 773, 779 (Fed. Cir. 2016) (“ For an issue to be implicitl y decided, it must be decided by necessary implication. ” (internal quotation marks and citation omitted))

. When a trial court inte rprets a mandate from this court, “both the letter and the spirit of the mandate must be considered.” TecSec, Inc. v. Int’l Bus. Mach. Corp. , 731 F.3d 1336, 1342 (Fed. Cir. 201 3 ) (internal quotation marks and citation omitted)

.

judgment, a copy of the court’s opinion, if any, and any direction about costs.” Fed. R. App. P. 41(a).BEST KEY TEXTILES CO

. v. U NITED STATES 4

II. The CIT Properly Held that Best Key I Implicitly Precluded Consideration of Best Key’s Motion to Transfer
Best Key argues that “the ‘mandate rule’ should not be interpreted as precluding the CIT from considering the question of transfer.” Appellant’s Br. 17 (capitalization omitted). That is so, Best Key continues, because “[t]he CIT’s power to transfer is statutory and derived from [28 U.S.C.] § 1631 [ 2 ]

— not from this [c]ourt’s mandate.” Id. at 18. Although the transfer issue was not raised in Best Key I , we implicitly decided it. There, we held the CIT did not possess subject matter jurisdiction over Best K ey’s suit pursuant to § 1581(i)(4) 3 and that the “proper avenue of approach” to redress the harm alleged in Best Key’s action “is a challenge under § 1581(a).” Best Key I , 777

2 In relevant part, § 1631 provides :
W henever a civil action is filed in a court . . . and that court finds that there is a want of jurisdi ction, the court shall, if it is in the interest of ju stice, transfer such action or appeal to any other such court in which the action . . . could have been brought at the time it was filed.
28 U.S.C. § 1631.

3 “Section 1581(i) provides the CIT with residual j urisdiction over civil actions that arise from import tran sactions.” Hutchison Quality Furniture, Inc. v. United States , No. 2015

- 1900, 2016 WL 3668030, at * 3 (Fed. Cir. July 6, 2016) (citation omitted). Section 1581(i)(4) specifically provides the CIT with “exclusive jurisdiction” over “any civil action commenced against the United States . . . providing for

. . . administration and enforc ement with respect to the matters referred to in” § 1581(a)

– (i)(3).BEST KEY TEXTILES CO

. v. U NITED S TATES 5

F.3d at 1362 (internal quotation marks and citation omitted). Section 1581(a) provides the CIT with “excl usive jurisdiction” over matters that fall within its pu rview, such as the denial of a protest concerning the appropriate classification of (and the attendant duty rate that applies to) imports. See 28 U.S.C. § 1581(a) (provi din g the CIT with “exclusive jurisdiction” over “any civil action commenced to contest the denial of a protest, in whole or in part, under” 19 U.S.C. § 1515 (2012)); see also 19 U.S.C. § 1514(a) (listing protestable decisions). B ecause the CIT would possess exclusive jurisdiction over any such denied protest, the CIT did not err in finding Best Key’s transfer request implicitly foreclosed by Best Key I

. See K Mart Corp. v. Cartier, Inc. , 485 U.S. 176, 182

– 83 (1988) (Federal district courts are “divested of j urisdiction . . . if th[e] action [falls] within one of the specific grants of exclusive jurisdiction to the [CIT].”); Conoco, Inc. v. U.S. Foreign

- Trade Zones Bd. , 18 F.3d 1581, 1586 (Fed. Cir. 1994) (discussing same); accord Nippon Miniature Bearing Corp. v. Weise , 230 F.3d 1131, 1135

– 39 (9th Cir. 2000) (discussing same); Miami Free Zone Corp., Inc. v. Foreign Trade Zones Bd. , 22 F.3d 1110, 1111

– 13 (D.C. Cir. 1994) (discussing same); Trayco Inc. v. United States , 967 F.2d 97, 98

– 99 (4th Cir. 1992) (di scus sing same).
Best Key also contends that, because we permitted the CIT to consider transfer ring an action to a federal district court in a prior appeal, it was appropriate for the CIT to do so on remand. Appellant’s Br. 18 (citing Schick v. United Stat es , 554 F.3d 992 (Fed. Cir. 2009))

. Schick does not necessitate a different result

. Schick involved a cause of action for which no provision of § 1581 provided the CIT with exclusive jurisdiction. See 554 F.3d at 994

– 95. Because the CIT did not possess exclusive jurisdiction over the question presented, we instructed the CIT to consider on remand whether a federal district court would have jurisdiction. See id. at 995

– 96. By contrast, BestBEST KEY TEXTILES CO

. v. U NITED STATES 6

Key I found that the CIT would have exclusive jurisdiction

ove r the harm alleged in Best Key’s action pursuant to § 1581(a). See 777 F.3d at 1362. Thus, Sc hick is inapp osite.
Best Key next avers that “it would be reasonable to expect that this [c]ourt would have expounded on the [transfer] issue, or sought briefing from the parties co ncerning [the] same if, as the CIT surmises, this [c]ourt considered the question of transfer in formulating its mandate.” Appellant’s Br. 22

– 23. But Best Key overlooks the consequences that flow from a finding that the CIT

possesses subject matter jurisdiction over an action pu rsuant to § 1581(a). When an action falls within the ambit of § 1581(a), the CIT has “exclusive jurisdiction” over the suit

. See K Mart , 485 U.S. at 182

– 83. Because the CIT would have exclusive jurisdiction over the harm alleged in Best Key’s action, no federal district court could properly assert jurisdiction over the action

. There was no reason to address the transfer issue in Best Key I

. Finally, Best Key argues that judicial review purs uant to § 1581(a) would be unavailable or otherwise man ifestly inadequate, so the CIT should have decided whether to transfer its action to the D.C. District Court. See Appellant’s Br. 3; Appellant’s Reply 7. We rejected these arguments in Best Key I

, see 777 F.3d at 1362

– 63 (rejecting Best Key’s argument that “§ 1581(a) is neither available nor adequate”), and Best Key has not identified

a valid reason for revisiting that determination, see Banks , 741 F.3d at 1276 (explaining that, “[u]nder the mandate rule, a court below must adhere to a matter decided in a prior appeal unless . . . (1) subsequent ev idence presented at trial was substantially different from the original evidence; (2) controlling authority has since made a contrary and applicable decision of the law; orBEST KEY TEXTILES CO

. v. U NITED S TATES 7

(3 ) the decision was clearly erroneous” (citation omi tted)). 4 W e decline to revisit that holding.

C ONCLUSION We have considered Best Key’s remaining arguments and find them unpersuasive. Accordingly, the final jud gment of the United States Court of International Trade is

AFFIRMED

4 A fter we issued Best Key I , Best Key did not seek panel rehearing or rehearing en banc of that decision before the mandate issued

.