Section 1581(i) Jurisdiction Stands in Liquidation Instruction Challenge, Solar Cell Importer Argues

The Department of Justice's motion to dismiss a challenge to the Commerce Department's liquidation instructions to CBP over MS Solar's solar panels is "nothing more than an effort to avoid judicial scrutiny of its arbitrary and unreasonable actions," MS Solar said in a Nov. 23 brief to the Court of International Trade. The solar panel importer urged the court to accept jurisdiction under the court's Section 1581(i) "residual" jurisdiction provision (MS Solar Investments, LLC v. United States, CIT #21-00303).

In 2010 and early 2011, MS Solar bought 20 solar panels from Chinese exporter Yingli Green Energy Americas Inc., 20 from Sun Earth Solar Power Co. and 23 from Upsolar Co. The panels were originally shipped to Canada, but after the intended projects were canceled, they were sent to a storage facility in the Bahamas. The panels were then shipped to the U.S. in 2013 once proper uses were found for them. The Commerce Department then undertook an administrative review of the antidumping duty order on solar panels from China, covering 2012-2013 entries.

MS Solar says it attempted to ensure that its imports of the previously purchased panels that had been stored in the Bahamas would not be subject to "an arbitrary and excessive antidumping duty rate." These measures included applying for an administrative review request, submitting a separate rate bid and working with Yingli to report to Commerce the pre-investigation sale of solar panels by Yingli to MS Solar. Despite this, MS Solar was hit with the China-wide solar panel dumping rate instead of the Yingli company-specific rate.

MS Solar took its case to CIT, where it asserted jurisdiction under Sections 1581(a) and 1581(i). Responding to the motion to dismiss, the importer wants to amend its complaint to just assert jurisdiction under Section 1581(i). "Based on the above facts and in light of the new information provided by Defendants, it is now clear that the focus of this action is Commerce’s failure to consider the record evidence submitted by MS Solar and Yingli with regard to the purchase of the imported panels," the brief said.

"The Court possesses subject-matter jurisdiction over MS Solar’s cause of action under 28 U.S.C. § 1581(i) because the complaint alleges an error in the liquidation instructions issued by the Department based on the results of the administrative review," MS Solar said. "Section 1581(i) provides exclusive jurisdiction for the Court to hear claims made against agency actions related to duties and the administration and enforcement of duties. Cases contesting Commerce’s liquidation instructions have consistently been determined to fall under § 1581(i), as liquidation instructions incorporate Commerce’s final antidumping duty results of an administrative review and direct Customs to enforce those results."