US Defends Bid to Dismiss 1581(i) Suit on Decision Not to Open Changed Circumstances Review
The U.S. last week filed a supplemental brief regarding its motion to dismiss importer Houston Shutters' Section 1581(i) case at the Court of International Trade against the Commerce Department's failure to open a changed circumstances review of antidumping duty and countervailing duty determinations on wood moldings and millwork products from China." In the brief, the government discussed a 2010 ruling from the U.S. Court of Appeals for the Federal Circuit, Trustees in Bankruptcy of North American Rubber Thread Co. v. U.S., which the U.S. says supports dismissal of the suit for lack of jurisdiction (Houston Shutters v. United States, CIT # 24-00193).
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During the contested investigations, exporter Lanzhou Xinyoulian Industrial requested that Commerce exclude wood shutter components from the scope of the orders. The agency asked for information regarding the goods, which Lanzhou failed to submit, leading Commerce to include the components under the orders' scope.
Houston Shutters filed a CCR looking to exclude the same goods from the orders, submitting the information Commerce previously requested from Lanzhou. The agency denied the request, prompting the Section 1581(i) suit and a dismissal request from the government (see 2501220090). The U.S. said the true nature of the action is a challenge to a scope determination, which is properly filed under Section 1581(c).
In support of its bid to dismiss the case, the government invoked the Trustees decision, which involved Commerce's unpublished decision not to open a CCR and was also filed under Section 1581(i). The decision involved a 1992 AD order on extruded rubber thread from Malaysia. Exporter Heveafil requested a CCR to revoke the order after the petitioner, North American Rubber Thread, filed for bankruptcy and ceased operations.
Commerce opened the CCR and revoked the order, effective 2003. Heveafil filed suit under Section 1581(c) seeking an earlier revocation of the order, effective in 1995. The petitioner reached a settlement with Heveafil, which led to both parties asking for another CCR to move the effective revocation date of the order to 1995. Commerce declined to do so, prompting Section 1581(i) lawsuits from both companies.
The Federal Circuit ultimately held in the case that the petitioner had jurisdiction under Section 1581(i) but that the respondent did not. The court said Heveafil had an "alternative avenue to pursue 'the same ultimate outcome' in another case" -- its Section 1581(c) suit. In contrast, the petitioner opposed the earlier revocation date during the Commerce proceedings and "thus could not have challenged Commerce's determination during the first Section 1581(c) case."
The U.S. argued that, similar to the Trustees case, Houston Shutters "had an alternative remedy to achieve the same ultimate outcome sought in this case" and thus can't establish Section 1581(i) jurisdiction. "Specifically, the ultimate outcome requested by Houston Shutters is a scope exclusion for shutters, retroactive to the underlying investigations."
Unlike the petitioner in Trustees, Houston Shutters hasn't identified any "change in circumstances" in the "nature of wooden shutters since the investigation," the brief said. In fact, another importer, Lanzhou Xinyoulian, requested "nearly the same scope exclusion." Lanzhou Xinyoulian wouldn't be able to rely on Section 1581(i) jurisdiction, and "Houston Shutters is in no better position when it could have participated in the investigations but failed to do so," the brief said