CIT Says Parties Must Provide Notice Before Seeking CIT Review of AD/CVD Cases Subject to USMCA
The Court of International Trade on Sept. 8 dismissed exporter Pipe & Piling Supplies' case against the 2022-23 administrative review of the antidumping duty order on large diameter welded pipe from Canada, for lack of subject-matter jurisdiction. Judge Jane Restani said the company failed to notify the other interested parties of its lawsuit as required by the USMCA, as required by 19 U.S.C. 1516a(g)(3)(B), adding that this requirement is a jurisdictional one.
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Under the USMCA, member countries can request that a binational panel review another member nation's AD or countervailing duty determination. The agreement itself says each party "shall replace judicial review of final antidumping and countervailing duty determinations with binational panel review." As a result, Congress passed Section 1516a(g)(2), which says if a USMCA member nation requests a binational panel, "the panel replaces traditional judicial review, and 'no court of the United States has power or jurisdiction to review the determination on any question of law or fact.'"
Under the statute, however, there's an exception where judicial review is allowed if no country requests review by a binational panel. However, the party seeking judicial review still must notify the interested parties that it's seeking such review. Under the U.S. statute, the party seeking judicial review must provide the notice no later than 20 days after the "date of publication of the contested determination."
Restani said this deadline "works in concert with other deadlines," namely, the 30-day deadline for USMCA members to request a binational panel. This means the member nations have at least 10 days to decide whether to request a panel or allow judicial review to proceed. If these 30 days lapse with no request for a panel, "only then, on day 31, may a party seeking judicial review bring its case."
The "text and structure" of the applicable statute suggests this 20-day notice requirement is "jurisdictional," Restani held. The statute says judicial review is available "only if the party seeking to commence review has provided timely notice," plainly conditioning judicial review on compliance with the statute.
The statutory scheme also supports this conclusion, the court held, noting the 30-day deadline for USMCA member nations to request a binational panel. Reading the 20-day notice requirement as non-jurisdictional could thus "result in USMCA members being unable to preempt domestic judicial review by requesting a binational panel, because they would only receive notice after the time to request a panel expires." This result is "incongruous" with the USMCA's "command that" the U.S. statute help "replace judicial review," the court said. Restani added that the notice requirement also ensures that the court's jurisdiction isn't "improperly expanded," making it function similarly to "jurisdictional appellate" deadlines.
The court also said the statute's "operation and context" supports a jurisdictional reading. Restani noted that nearly all provisions held non-jurisdictional by the Supreme Court are either a "deadline a litigant must meet" or an "exhaustion requirement." The statute here "works differently because it gives parties the chance to choose an alternative forum and strip the court of jurisdiction," the court said. The context of the statute also "carefully divides up jurisdiction" between U.S. courts and binational panels. Making the notice requirement non-jurisdictional "would upend this careful scheme."
Lastly, Restani said "unique considerations weigh in favor of a jurisdictional reading" of the statute, including the USMCA's "emphatic requirement that member countries" implement the notice provision to "facilitate binational panel review." If the statute were read as non-jurisdictional, "the court may undermine the United States’ ability to live up to its international obligations in the eyes of other USMCA members" and the court may "narrow the rights of foreign countries advocated for in a 'contract between [] nations,'" the court said.
Timothy Brightbill, counsel for petitioner American Line Pipe Producers Association Trade Committee, said in an email that he commends the court for dismissing the case. "The Canadian producer Pipe & Piling failed to properly notify the other interested parties before filing an appeal, and the Court found that this violated USMCA procedures and stripped the court of jurisdiction," he said. "As such, Pipe & Piling’s high dumping rate in the prior Commerce administrative review will stand.”
(Pipe & Piling Supplies v. United States, Slip Op. 25-119, CIT # 24-00211, dated 09/08/25; Judge: Jane Restani; Attorneys: Alexander Schaefer of Crowell & Moring for plaintiff Pipe & Piling Supplies; Isabelle Aubrun for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor American Line Pipe Producers Association Trade Committee)