413 F.Supp.3d 1334
Ct. Int'l Trade2019Background
- Commerce issued countervailing duty (CVD) and antidumping orders on softwood lumber from Canada (Jan. 3, 2018); certain non‑investigated exporters were assigned an ‘‘all‑others’’ rate.
- Eight Canadian companies requested expedited CVD reviews under 19 C.F.R. § 351.214(k); Commerce initiated the expedited review and set the period of review to overlap the investigation period.
- On July 5, 2019 Commerce published Final Results of Expedited Review, assigning reduced or de minimis cash‑deposit rates to the eight companies and instructing CBP accordingly.
- Plaintiff (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations) filed suit July 15, 2019 challenging the Final Results and the underlying regulation § 351.214(k), alleging APA and statutory violations.
- The Government moved to dismiss for lack of subject‑matter jurisdiction, arguing review lies under 28 U.S.C. § 1581(c) (i.e., § 1516a review) and, alternatively, that § 1581(i)(4) is unavailable or premature; Plaintiff sought (i) jurisdiction. The court denied dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an expedited review under 19 C.F.R. § 351.214(k) is a § 1675 determination reviewable under § 1516a and § 1581(c) | Expedited reviews are distinct from proceedings in § 1675 and thus not reviewable under (c) | Expedited reviews fall within § 1675 (by cross‑reference in the regulations) and so are reviewable under § 1516a and (c) | Court: No — expedited reviews are not § 1675 proceedings; (c) jurisdiction is unavailable |
| Whether an expedited review is analogous to a final investigation determination under 19 U.S.C. § 1671d (making (c) available) | Expedited reviews are not final investigation determinations | Expedited reviews are akin to final investigation determinations because they produce individual rates and use similar data | Court: Rejected analogy; differences in statutory scheme and effects mean § 1671d does not cover expedited reviews |
| Whether an expedited review is merely Commerce’s reconsideration of a prior closed segment (so (c) applies under TKS) | Expedited review is a separate statutory/regulatory proceeding, not a reconsideration | Expedited review is analogous to agency reconsideration and thus reviewable under (c) per Tokyo Kikai Seisakusho (TKS) | Court: Rejected — TKS inapposite; Commerce relied on URAA authority, not inherent reconsideration power |
| If (c) is unavailable, whether the court nonetheless has jurisdiction under 28 U.S.C. § 1581(i)(4) | (i)(4) provides exclusive jurisdiction over actions arising out of administration/enforcement of CVD laws | Government argued (i) unavailable or premature (procedural objections) | Court: (i)(4) applies; the court will exercise jurisdiction under § 1581(i)(4) |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (federal courts must have subject‑matter jurisdiction to adjudicate)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (plaintiff bears burden to establish jurisdiction)
- Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347 (Fed. Cir. 2006) (plaintiff's burden to establish jurisdiction)
- Shoshone Indian Tribe of Wind River Reservation v. United States, 672 F.3d 1021 (Fed. Cir. 2012) (court may consider extrinsic evidence to resolve factual jurisdictional disputes)
- Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352 (Fed. Cir. 2008) (Commerce’s inherent power to reconsider prior results in limited circumstances)
- Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) (agency post‑hoc rationalizations are impermissible)
- United States v. Williams, 514 U.S. 527 (1995) (statutory construction principles)
- Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006) (arguments unrelated to subject‑matter jurisdiction may be waived)
- Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States (Lumber I), 393 F. Supp. 3d 1271 (Ct. Int'l Trade 2019) (prior related CIT decision discussing expedited review effects)