Pipe Exporter's Jurisdictional Challenge Just Seeks to Rectify Filing Error, US Says
The U.S. supported May 19 its motion to dismiss Canadian exporter Pipe & Piling Supplies’ challenge to the results of a Commerce Department pipe investigation (see 2503250054). The exporter has admitted it erred when it filed under the wrong jurisdictional regulation, the government said (Pipe & Piling Supplies v. United States, CIT # 24-00211).
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The exporter accidentally brought its case to the Court of International Trade early under the rules for countries that don’t have free trade agreements with the United States. Under Special Rule 19 U.S.C. 1516a(g)(3)(B), therefore, it was supposed give notice it was seeking judicial review and wait at least 30 days from the investigation’s conclusion to file, giving other parties the chance to seek a binational review panel first, DOJ said. The exporter didn’t offer any notice and only waited 29 days.
To try to stay in court, Pipe & Piling is wrongly calling its case a constitutional attack against the Special Rule, requiring a three-judge panel, the government said.
But the Special Rule is not unconstitutionally vague or ambiguous, it said -- Pipe & Piling just misread it.
The exporter also argued that the rule only takes effect if a party actually does seek a binational panel, but, first, this ignores Pipe & Piling’s other obligation to notify all parties that it is heading to CIT, it said.
In two similar cases, Bhullar and American Cast Iron, CIT dismissed claims for lack of subject matter jurisdiction because the claims’ plaintiffs failed to notify other parties it was filing at the trade court, the government said. Bhullar’s claim couldn’t even be litigated by a binational panel, it noted. And Pipe & Piling’s attempt to distinguish American Cast Iron, by arguing the prior case didn’t deal with the Special Rule’s constitutional issues, similarly “fall[s] flat,” it said.
Second, Pipe & Piling also argued that the other interested party in its case, the government of Canada, has no interest in seeking binational review, the U.S. said. But the exporter offers no evidence of that claim. Even if it were true, the law still requires the exporter to provide notice and wait the required period.
DOJ also asked the trade court not to equitably toll the notice requirement and 30-day waiting period for Pipe & Piling.
The law isn’t as complicated as the exporter claims, it said, and the legislature’s intent in enacting it is clear.
“Congress enacted a detailed statutory structure for challenging Commerce’s determinations regarding FTA country merchandise by importing USMCA’s provisions for exclusive binational panel review into 19 U.S.C. 1516a(g)(3), it said.
If Congress hadn’t intended to emphasize binational panel review for FTA merchandise disputes, it wouldn’t have explicitly established judicial review as only an exception to a binational panel default, the government said.
The exporter pointed out that the court will equitably toll deadlines in non-FTA cases and that USMCA allows for deadline extensions. But neither argument is translatable because the former doesn’t deal with FTA cases, the government said, and the latter isn’t a grant of equity powers to reviewing panels.