USMCA's Rule on Notice for Judicial Review Nonjurisdictional, Exporter Tells CAFC

Pipe & Piling argued that the rule's "plain text" and the "statutory scheme in which it is embedded demonstrate no indication of Congressional intent to limit jurisdiction" when no binational panel is requested under the USMCA. The company added that a "nonjurisdictional reading" of the rule better supports the "original purpose of binational panel review," which was to shield Canadian and Mexican companies from the "potential bias of U.S. agencies and from harassment by U.S. litigants."

The company added that there's "no binding precedent that could otherwise overcome the absence of a clear jurisdictional statement" in the rule," and that a jurisdictional reading of the rule "raises serious constitutional questions that could be avoided if the notice provisions are held to be nonjurisdictional."

Pipe & Piling originally filed suit at CIT to contest the 2022-23 administrative review of the AD order on large diameter welded pipe from Canada, in which it received a 50.89% total adverse facts available AD rate. While the USMCA says trade remedy measures levied against other USMCA parties are to be adjudicated via binational panel review, the deal provides an exception to this review, dubbed the "Special Rule."

Under the Special Rule, a U.S. trade remedy determination is reviewable at CIT only if the party looking to file suit has provided notice within 20 days of the final determination to all interested parties and the relevant U.S. and Canadian or Mexican authorities. After filing suit, Pipe & Piling realized it erred by failing to provide such notice, ultimately doing so seven days after the 20-day deadline.

CIT Judge Jane Restani found that the Special Rule is jurisdictional and promptly dismissed Pipe & Piling's lawsuit for lack of subject matter jurisdiction (see 2509080047).

Pipe & Piling appealed, arguing that Restani misapplied the "clear statement rule," which the Supreme Court established to determine whether statutory time bars are jurisdictional. The exporter said there's only "one type of time limit that always 'counts as jurisdictional,'" and that is "statutory deadlines 'to appeal from one Article III court to another.'" For all other time bars, the high court requires a "showing that Congress clearly intended for the time bar to be jurisdictional based on the traditional rules of statutory construction," the brief said.

No such showing of Congress' intent can be made here, the exporter argued. There's no "clear language or scheme" in the statute indicating that Congress or the other USMCA parties meant for the provisions to be jurisdictional where no binational panel has been requested, the brief said. In fact, Pipe & Piling said neither the USMCA's text nor the Special Rule's text "comes anywhere close to containing a clear statement on jurisdiction when no panel has been requested."

While Restani highlighted that the statute says judicial review is available "only if the party seeking to commence review has provided timely notice," Pipe & Piling said the judge glossed over that the Supreme Court has recently held "strikingly similar" language to be nonjurisdictional. In its 2023 decision in Santos-Zacaria v. Garland, the high court said a statute providing that a court can review a final removal order of an immigrant "only if ... the alien has exhausted all administrative remedies available to the alien as of right" isn't jurisdictional.

Given that the statutory language is "so similar" and both time bars and exhaustion requirements are "presumptively treated as 'claim-processing rules,'" as the Supreme Court held, "the notice provisions of the Special Rule are clearly nonjurisdictional," Pipe & Piling argued.

The exporter added that "Congress’ clear statement stripping jurisdiction when a binational panel is requested contrasts with the Special Rule and thus implies that its notice requirements are nonjurisdictional." Congress clearly says in another provision that if a binational panel is requested, CIT is stripped of jurisdiction. "It is hard to imagine a more direct statement on jurisdiction than that," the brief said.

Pipe & Piling went on to argue that the Special Rule was actually created to protect Canadian parties like Pipe & Piling from U.S. agencies and litigants. Citing the statute's legislative history, the exporter said that given this history "it makes no sense for the notice provisions of the Special Rule to be jurisdictional such that a Canadian exporter like Pipe & Piling is denied any access to review of an agency determination -- judicial or otherwise -- simply because of a minor filing error."

Without supporting text or history, the only avenue left to affirm Restani's ruling would be precedent, the exporter said. The only case that could serve this function, though, is CIT's 2019 ruling in American Cast Iron Pipe v. U.S., in which the trade court held that it's stripped of jurisdiction by untimely notice of intent to seek judicial review even where no binational panel review was requested. Pipe & Piling said CIT "essentially" only relied on a "single sentence for its determination on jurisdiction," and, as previously discussed, that sentence is "strikingly similar" to ones the Supreme Court has "subsequently held nonjurisdictional."

Lastly, Pipe & Piling argued that the Special Rule would violate the U.S. Constitution if its notice provisions were jurisdictional, since it would create due process concerns and create a "Constitutional conflict between the USMCA and its implementing statute." Since the Special Rule's deadlines for judicial review and binational panel review are "so close together, litigants can easily be stripped of access to any forum at all based on a single error," presenting a due process issue.