47TH STREET PHOTO, INC., PETITIONER V. COALITION TO PRESERVE THE
INTEGRITY OF AMERICAN TRADEMARKS, ET AL.

   No. 86-624

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Memorandum for the Federal Respondents

   The federal respondents in No. 86-624 submit this memorandum to set
forth the government's position on the jurisdictional issue raised in
47th Street Photo, Inc.'s brief.  /1/

   47th Street Photo contends that the Customs Courts Act of 1980, 28
U.S.C. 1581, vests the Court of International Trade with exclusive
jurisdiction over the present challenge to the Customs Service
regulation, 19 C.F.R. 133.21, which implements Section 526 of the
Hawley-Smoot Tariff Act of 1930, 19 U.S.C. 1526.  We disagree.  The
district court properly exercised jurisdiction under 28 U.S.C. 1331,
empowering the district courts to hear "civil actions arising under
the Constitution, laws or treaties of the United States," and under 28
U.S.C. 1338(a), empowering the district courts to hear civil actions
"arising under any Act of Congress relating to * * * trademarks." The
Customs Courts Act did not divest the district court of jurisdiction
under those provisions in the present case.

   1. 47th Street Photo contends, first, that the present action falls
within the exclusive jurisdiction of the Court of International Trade
because it arises out of a law of the United States providing for
"embargoes or other quantitative restrictions on the importation of
merchandise for reasons other than the protection of the public health
or safety" (28 U.S.C. 1581(i)(3)).  It is true that Section 526, which
restricts the importation of foreign merchandise bearing a mark
identical to a U.S. trademark, could be literally construed as an
"embargo" in the sense that it results in a "prohibition imposed by
law upon commerce" (47th Street Photo Br. 11 n.3, quoting Webster's
New International Dictionary (3d ed. 1971)).  We agree with the court
of appeals, however, that the term is better understood as limited to
traditional prohibitions on imports "arising out of trade policy, the
sort of measures that have traditionally limited the importation of
shoes, textiles, automobiles, and the like" (86-625 Pet. App. 8a).

   2. 47th Street Photo also contends that the Court of International
Trade has exclusive jurisdiction over a determination of the Customs
Service regulation's validity "'as a corollary to protest jurisdiction
under 28 U.S.C. Section 1581(a)'" (47th St. Photo Br. 17, quoting
Vivitar Corp. v. United States, 761 F.2d 1552, 1560 (Fed. Cir. 1985),
cert. denied, No. 85-411 (Jan. 13, 1986)).  /2/ Section 1581(a)
confers exclusive jurisdiction on the Court of International Trade
over "any civil action commenced to contest the denial of a protest,
in whole or in part, under section 515 of the Tariff Act of 1930" (18
U.S.C. 1581(a)).  And Section 1581(i)(4) further confers jurisdiction
over any action against the United States that arises out of a law
"providing for * * * administration and enforcement with respect to
matters referred to in" 28 U.S.C. 1581(a).  28 U.S.C. 1581(i)(4).

   We agree with the court of appeals (86-625 Pet. App. 6a-7a) that 28
U.S.C. 1581(a) deals strictly with judicial review of a limited class
of statutorily defined protests.  It does not grant the Court of
International Trade exclusive jurisdiction over a civil action, as
here, that contests the admission of imported goods.  And the civil
action here does not fall within 28 U.S.C. 1581(i)(4).  That
subsection provides jurisdiction over cases challenging the procedures
governing protests;  it does not provide exclusive jurisdiction over
any challenge to a statute and regulation that, in other
circumstances, might provide the basis for a protest.  See 86-625 Pet.
App. 7a.

   Thus, we submit that the district court had jurisdiction under 28
U.S.C. 1331 and 1338(a) over the present dispute and that the Customs
Courts Act did not divest the court of that jurisdiction.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   MAY 1987

   /1/ We discuss the issue of the validity of the Customs Service
regulation -- an issue that is presented in this case as well as two
companion cases, Nos. 86-495 and 86-625 -- in our brief for the
federal petitioners.  See 86-625 Fed. Pet. Br.

   /2/ Protests are administrative complaints challenging certain
Customs Service actions, including "the exclusion of merchandise from
entry or delivery * * * under any provision of the Customs laws" (19
U.S.C. 1514(a)(4)).  See also 19 U.S.C. 1515.