US Seeks to Dismiss Lumber Exporter's New Case Challenging AD Cash Deposit Rate
Citing a lack of subject matter jurisdiction, the U.S. sought March 14 to have dismissed exporter J.D. Irving’s case regarding some of its entries’ cash deposit rate (J.D. Irving v. U.S., CIT #22-00256).
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J.D. Irving claimed in a September complaint that CBP assigned the wrong antidumping duty cash deposit rate to its 2020 entries. No party requested that the exporter be reviewed in the 2020 review, the exporter said. In 2021, before the 2019 review’s results were released, Commerce ordered that J.D. Irving’s entries be liquidated at the 2017-18 review’s 1.57% AD rate. But when the 2019 results were released months later, assigning non-selected respondents an 11.59% rate, Commerce updated its instructions to assign J.D. Irving the higher rate.
The 2020 review then saw non-selected respondents’ rates drop back down to 1.57%, but Commerce declined to drop J.D. Irving’s rate back down because the exporter hadn’t been a part of the review, it said. The exporter brought the issue to the trade court (see 2209120031).
The U.S. said in its motion to dismiss that J.D. Irving first brought a complaint to the Court of International Trade in December 2021 -- a complaint that asked that its entries be assessed the 1.57% rate instead of the 11.59% rate, and that the Court of International Trade dismissed. That dismissal was affirmed by the U.S. Court of Appeals for the Federal Circuit, it said, as the exporter could have brought its case under 1581(c).
But J.D. Irving was trying “[t]o get around this jurisdictional bar” by claiming that “there is a ‘fundamental difference’ between the two cases that would permit this one to proceed” under 1581(i), the government said. In particular, the exporter was arguing that it was instead challenging the administration of the 2020 review’s results -- saying that it should have received the 2020 review’s 1.57% rate.
CAFC had three reasons for determining that the “true nature” of J.D. Irving’s suit was a challenge to the 2019 review’s final results, the government said: First, the exporter first raised its claim that it was entitled to a 1.57% rate in an administrative case brief; second, that claim was addressed by Commerce in the 2019 review’s final results; and, third, J.D. Irving’s "Notice of Intent to Seek Judicial Review" provided to a USMCA panel stated that the exporter was challenging those review results.
All of these were also true in regard to J.D. Irving’s challenge of the 2020 review, it said -- the claim had been raised in an administrative brief, addressed in Commerce’s final results and stated in a notice to the USMCA panel.
“[E]ven if no review were requested [in 2020], so long as jurisdiction under another section ‘could have been available,’ a party cannot invoke § 1581(i)(1) without showing that the ‘remedy provided under that other subsection would be manifestly inadequate,’” the U.S. said.
It said J.D. Irving was still an interested party for the 2020 administrative review and therefore still had jurisdiction under 1581(c).