8th Amendment AD/CVD Challenge Should Be Tossed for Lack of Jurisdiction, Proposed Intervenor Argues
The Court of International Trade should toss steel importer Rimco's challenge to the antidumping and countervailing duties it paid for lack of subject matter jurisdiction, proposed defendant-intervenor Accuride argued in a May 4 reply brief at the Court of International Trade. The case should be dismissed because CIT isn't the proper jurisdiction for the importer's challenge to the Commerce Department's decisions, the company argued (Rimco v. United States, CIT #21-00537).
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Rimco filed its case to contest the 457.10% countervailing duty rate and 231.70% China-wide antidumping duty rate on its steel wheel imports (see 2109240049). Both rates were imposed with an adverse inference. The importer said the duties were penal not remedial, in violation of the Eighth Amendment. This led DOJ to file a motion to dismiss -- a bid now supported by proposed defendant-intervenor Accuride. Rimco challenged CBP's imposition of the duties even though CBP has a ministerial role in administering AD/CVD.
"In this case, Plaintiff’s pleading is not even creative," Accuride said. "Instead of presenting a creative theory on why a challenge to a ministerial act by Customs could be allowed regardless of the distinct jurisdictional limits of the statute, Plaintiff simply insists that the Court ignore that Plaintiff’s attacks are unmistakably aimed at determinations made by Commerce and accept Plaintiff’s pretense otherwise. But this Court does not allow a plaintiff to frame its action in any way it chooses just to create jurisdiction ex nihilo."
The action challenges Commerce's decisions in the AD/CVD proceedings, the proposed defendant-intervenor argued. Regardless of whether proper jurisdiction was filed, the court lacks jurisdiction over the matter because Rimco failed to exhaust its administrative remedies, Accuride said.
"This Court also lacks jurisdiction over Plaintiff’s true claims, against Commerce’s determinations, as Plaintiff failed to take any of the statutorily required actions to timely challenge those determinations, either before this Court following Commerce’s investigations or by seeking an administrative review from the agency," the brief said. "Plaintiff failed to exhaust any remedies before the agency by making no effort to participate before Commerce and failing to raise any of these challenges at that level. Instead, Plaintiff chose to sit on any rights it may believe it has for years before deciding to make any exertion to pursue its claims. Such tardiness is not permitted by the statute and necessitates dismissal by this Court."