Trade Court Denies Partial Motion to Toss AD Case, Sets Jurisdiction Under Section 1581(i)
The Court of International Trade in a Dec. 1 opinion rejected the U.S.' motion to partially dismiss the alternative claims of jurisdiction in a case over the Commerce Department's assessment of antidumping duties. Judge Gary Katzmann said the question of the opinion was whether a party can dismiss an alternatively pleaded ground of jurisdiction. The judge said that since the U.S.'s motion "as styled is not the proper vehicle," the motion is denied.
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"We are pleased to have the jurisdictional issue resolved and look forward to the merits phase of our appeal," said Jordan Kahn, counsel for plaintiff Goodluck India.
The case was filed to contest Commerce's assessment of antidumping duties on Goodluck's entries even though they were allegedly not subject to the antidumping duty order on cold-drawn mechanical tubing of carbon and alloy steel from India at the time. Goodluck participated in the original AD investigation, then successfully challenged the decision at CIT, where the court revoked the order for Goodluck.
The case was then appealed to the U.S. Court of Appeals for the Federal Circuit, where the decision to revoke the order for Goodluck was reversed. The order was reinstated and along with it the 33.7% cash deposit rate. But during this time, Commerce began the second and third administrative reviews of the AD order. Commerce then instructed CBP to liquidate Goodluck's entries subject to the third administrative review at the 33.7% rate -- a move Goodluck now contests since it says it was not subject to the order at the time the review was initiated (see 2201310039).
Goodluck filed its case under sections 1581(c) and (i), leading to DOJ filing a partial motion to dismiss the Section 1581(c) claims. While the respondent does not oppose the motion, it wants jurisdiction solidified under Section 1581(i). In the opinion, Katzmann ruled that the question before the court "is whether a party may move to dismiss one of the alternatively pleaded grounds of jurisdiction." The court said that since "the Government's Motion as styled is not the proper vehicle ... the Motion is denied."
The U.S. conceded that the court has the power to hear both of Goodluck's claims, contesting only the "proper jurisdictional basis" of the case. "Despite the procedural uncertainties surrounding the Government’s Motion, the parties agree that subsection (i) jurisdiction provides a proper ground of jurisdiction," Katzmann said. The court said that the action "[a]t its core" challenges the application of a standard policy laid out in Commerce's regulations and "the setting of an effective date for a duty rate determined through litigation." The decisions to apply a standard policy and set a date for a post-litigation rate "do not constitute a 19 U.S.C. § 1516a determination, and thus subsection (c) jurisdiction will not attach," the judge held.
1581(c) does not attach since Goodluck does not challenge a section 1516a determination despite its arguments to the contrary, the opinion said. The plaintiff does not challenge an administrative review finding and it did not participate in the third administrative review of the AD order. "Nevertheless, because the agency decision involves administration and enforcement of the antidumping laws, and because no other subsection of section 1581 is or could have been available, subsection (i) jurisdiction may attach in this case," the opinion said. As such, the court denied the partial motion to dismiss.
(Goodluck India v. United States, Slip Op. 22-133, CIT #22-00024, dated 12/1/22, Judge Gary Katzmann. Attorneys: Jordan Kahn of Grunfeld Desiderio for plaintiff Goodluck India; Ioana Cristei for defendant U.S. government; David Smith of Kelley Drye for defendant-intervenors ArcelorMittal Tublar Products, Michigan Seamless Tube, PTC Alliance Corp., Webco Industries, Zekelman Industries and Plymouth Tube Co.)