CIT Declines to Dismiss Untimely Challenge, Orders Briefing on Jurisdiction & Equitable Tolling

The Court of International Trade ruled that a challenge to the International Trade Administration’s exclusion (because of a zero rate) of a Chinese company from the antidumping duty order on multilayered wood flooring from China (A-570-970) was untimely filed, but said it would not dismiss the case because of questions, in light of recent Supreme Court and appellate court rulings, regarding (i) whether the relevant time requirements preclude jurisdiction and (ii) the possibility of equitable tolling. CIT ordered further briefing to address these issues.

ITA Wanted Dismissal Because Challenge Should have been Filed After the Order

Chinese wood flooring producer/exporter Zhejiang Yuhua Timber Co., Ltd. received a zero rate in the final determination of the wood flooring from China investigation, and as a result was excluded from the AD order. The Coalition for American Hardwood Parity (CAHP) filed a summons, after the publication of the final determination but before publication of the AD order, giving notice that it would challenge Yuhua’s exclusion, as well as other aspects of the final determination. The ITA then filed a motion to dismiss CAHP’s challenge as untimely filed because, according to the ITA, the statute at 19 USC 1516a(a)(2) says that challenges to a final affirmative determination must be filed after the antidumping or countervailing duty order is published, even if they include a challenge to a partial negative determination such as the exclusion of a company.

CAHP Argued the Statute Required Filing After the Final Determination

CAHP argued that the relevant statute says that “any part of a final affirmative determination which specifically excludes any company or product” must be filed “within thirty days after the date of publication of the final determination”. Referring to 16 USC 1516a(a)(2)(B)(i), CAHP said the statute specifically says that only affirmative determinations and partial negative determinations except for exclusions of specific companies may be filed within 30 days after publication of the order.

CIT Said Statute Gives Both Options, but Other Aspects of Challenge Require Filing After Order

CIT ruled that CAHP’s interpretation ignored the statute’s stipulation that a challenge to the exclusion of a company or product may be filed after the final determination “at the option of the appellant.” Therefore, said CIT, while CAHP had the option to file its challenge of Yuhua’s exclusion after publication of either (i) the final determination or (ii) the order, its challenges to other aspects of the final determination were required to have been filed after (ii) the order. Noting the legislative record, CIT said that Congress intentionally wrote the statute in this way to avoid piecemeal litigation -- Congress gave litigants this option in order to allow challenges of partial negative determinations to be filed simultaneously with both affirmative and negative final determinations, depending on the nature of the litigant’s challenge, CIT said.

CIT also said that it could not separate the challenge to Yuhua’s exclusion from the challenges to other aspects of the ITA’s final determination, because of the Congressional intent to avoid piecemeal litigation.

CIT Doesn’t Dismiss, Says Recent Court Rulings Open Door to Jurisdiction and Equitable Tolling

However, said CIT, in light of recent Supreme Court and court of appeals rulings that questioned whether CAHP’s untimely filing precluded CIT’s jurisdiction. Also, CIT said that the appeals court held in 2004 calls into question whether untimely challenges are subject to equitable tolling. Therefore, rather than dismiss the case, CIT ordered further briefing on these issues.

(Slip Op. 12-90, dated 06/27/12, Judge Pogue)