CIT Says Untimely AD/CV Challenges Bar its Jurisdiction, but Offers Interlocutory Appeal

Following further briefing by the parties, the Court of International Trade again took up the issue of whether the Coalition for American Hardwood Parity’s untimely filed challenge to an International Trade Administration antidumping final determination precludes hearing by CIT on jurisdictional grounds. CIT found that it does, and dismissed the challenge without prejudice, but offered to certify its ruling for interlocutory appeal¹ before the Court of Appeals for the Federal Circuit. Alternatively, it said, CAHP can amend its complaint to comply with the time limits.

In the AD investigation of multilayered wood flooring from China (A-570-970), the ITA found a zero AD rate for Zhejiang Yuhua Timber and consequently excluded the company from the AD order. CAHC filed a CIT challenge of the ITA’s finding, as well as others, after the final determination but before the AD order was issued. In its first hearing of this case, CIT found that CAHC’s challenge was untimely filed because challenges of affirmative determinations must be filed after issuance of the order, not the final determination. Although CAHC was challenging a negative aspect of a final determination, for which challenges may be filed after the final determination, the other issues included in CAHC’s challenge meant it should have been filed after issuance of the order. CIT didn’t dismiss to give parties more time for briefing on whether untimely filing of the challenge precluded its jurisdiction and, if not, whether such untimely filings are subject to equitable tolling.² (See ITT’s Online Archives 12062829 for summary.)

CIT Finds AD/CV Challenge Time Limits to be Jurisdictional Requirements

In determining whether the statute that sets time limits for court challenges of AD/CV proceedings (19 USC 1516a(a)(2)) is jurisdictional, CIT said the text of the statute does not imply that the time limits are jurisdictional. Past Supreme Court cases were unclear, it said, as the Supreme Court had established no precedent that directly applied to this case. The Supreme Court did, however, hold filing requirements governing appeals from the federal district courts to federal circuit courts to be jurisdictional in Bowles v. Russell because the requirements had been historically treated as jurisdictional.

Past Court of Appeals for the Federal Circuit rulings were more decisive and specific in holding the time limits to be jurisdictional, said CIT. “The Court of Appeals has held § 1516a(a)(2)’s timing requirements jurisdictional on the grounds that the manner and method for filing a summons and complaint with the Court of International Trade constitute terms and conditions upon which the United States has waived its sovereign immunity,” it said.

In its finding, CIT noted that the Supreme Court in 2006 said in Arbaugh v. Y & H Corp. that “…when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in nature.” As the Supreme Court’s Bowles case and CAFC’s cases on the subject were decided before Arbaugh, CIT said that the timing requirements of Section 1516a(a)(2) “should be reconsidered in light of Arbaugh and its progeny.” In this case, however, CIT said that in light of Bowles and CAFC precedent it was obligated by precedent to find the time limits to be jurisdictional requisites.

Because it found the time limits to be jurisdictional, CIT declined to address whether they are subject to equitable tolling. But were the time limits found to be nonjurisdictional, it said, there is good reason to believe equitable tolling would apply. CAHC’s challenge was filed early -- not late -- due to misinterpretation of a complicated statute, CIT said. There was no prior judicial guidance for CAHC to follow that covered the particular facts of the case. “Together these facts suggest that CAHP filed its summons out of time in an attempt to preserve its rights, a basis upon which courts have found it appropriate to toll a statutory timing requirement,” said CIT.

Due to the complicating factors in the case, CIT said it would, upon request by the parties, order certification for interlocutory appeal to CAFC of the following issues: (1) whether a challenge to the exclusion of a company from an AD/CV duty order can be filed after the final affirmative determination if filed alongside other challenges; (2) whether the time limits in 19 USC (a)(2) are jurisdictional; and (3) if the time limits are not jurisdictional, whether they are subject to equitable tolling. If the parties do not seek interlocutory appeal, CIT said it would enter final judgment dismissing this case unless CAHP files an amended complaint that only challenges the exclusion of Yuhua Timber and not other aspects of the final determination.

¹An interlocutory appeal is an appeal of a ruling before the relevant trial has concluded. Pursuant to 28 USC 1292(d)(1), CIT may file certify an issue for interlocutory appeal when “a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal … may materially advance the ultimate determination of the litigation….”

²Equitable tolling is a legal principle that says the statute of limitations doesn’t bar appeals in cases where the plaintiff, despite showing due diligence, did not discover the injury until after the limitations period had expired.

(Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States, CIT Slip Op. 12-119, dated 09/19/12, Judge Pogue)

(Attorneys: Jeffrey Levin of Levin Trade Law for consolidated plaintiff CAHP; Alexander Sverdlov for defendant U.S. government; Francis Sailer of Grunfeld Desiderio for various defendant-intervenors; Gregory Menegaz for various defendant-intervenors; Jeffrey Neeley for defendant-intervenor Zhejiang Yuhua; Kristin Mowry for defendant-intervenor Fine Furniture; Kristen Smith for various defendant-intervenors)