CAFC Denies Bid for Full Court Rehearing of Suit on AD Cash Deposit Rate
The U.S. Court of Appeals for the Federal Circuit on Dec. 31 denied Canadian lumber exporter J.D. Irving's bid for a full court rehearing of a three-judge panel's rejection of the company's attempt to challenge the denial of an antidumping duty cash deposit rate under Section 1581(i) (J.D. Irving v. United States, Fed. Cir. # 23-1652).
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J.D. Irving was a respondent in the 2018 and 2019 reviews on Canadian lumber but not in the 2020 review. At the start of the 2020 review, the Commerce Department told CBP to liquidate the exporter's 2020 entries at the 1.57% rate calculated in the 2018 review, given that the 2019 review's results weren't yet available. Before CBP liquidated the entries, the 2019 review ended, handing J.D. Irving an 11.59% rate. Commerce then told CBP to liquidate the goods at the higher rate, which J.D. Irving challenged under Section 1581(i), the trade court's "residual" jurisdiction.
The Court of International Trade dismissed the case, finding that relief could be sought before a USMCA binational panel (see 2301250060). The Federal Circuit affirmed, finding that the true nature of the suit challenged the 2019 rate and that relief could be sought either before a binational panel or in an AD review (see 2410100042).
J.D. Irving vied for rehearing, arguing that the appellate court's decision is "grounded on a fundamental misunderstanding of the law and fact" related to its claim (see 2411270023). CAFC Judges Kimberly Moore, Alan Lourie, Timothy Dyk, Sharon Prost, Jimmie Reyna, Evan Wallach, Richard Taranto, Raymond Chen, Todd Hughes, Kara Stoll, Tiffany Cunningham and Leonard Stark denied the motion.
The decision was also made by Judge Claire Cecchi, a judge on the U.S. District Court for the District of New Jersey, who was sitting by designation.