CIT Has 1581(i) Jurisdiction Over Liquidation Instructions Case in Solar Cell AD Case, Importer Argues

The Court of International Trade shouldn't dismiss a lawsuit brought by MS Solar over the Commerce Department's liquidation instructions issued following an antidumping duty administrative review, MS Solar said in a March 2 brief. The court has repeatedly found it has jurisdiction for these claims under Section 1581(i), the court's "residual" jurisdiction, according to the brief, which also took issue with DOJ's claim that the action's true nature is to challenge the final ADD rate (MS Solar Investments v. U.S., CIT #21-00303).

In 2010 and early 2011, MS Solar bought 20 solar panels from Chinese exporter Yingli Green Energy Americas, 20 from Sun Earth Solar Power and 23 from Upsolar. The panels were originally shipped to Canada, but after the intended projects were canceled the panels were sent to a storage facility in the Bahamas. They were then shipped to the U.S. in 2013 once proper uses for them were found. Commerce 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 wouldn't 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, it said. Despite this, MS Solar was hit with the China-wide solar panel dumping rate instead of the Yingli company-specific rate.

MS Solar filed suit at CIT, where it originally asserted jurisdiction under Sections 1581(a) and 1581(i) because it was seeking "critical documents" from the U.S. at the time to elucidate which agency was responsible, the company said. After "months of unsuccessful efforts" to get these documents, MS Solar eventually obtained them via discovery. As a result, MS Solar amended its complaint to add its claims under 1581(i). Prior to, and after, amending the complaint, DOJ filed a motion to dismiss.

This motion is "nothing more than an effort to avoid judicial scrutiny of the Department’s arbitrary and unreasonable actions," MS Solar said in its responses to both motions (see 2112030031). In the March 2 brief, MS Solar again argued that the case shouldn't be dismissed because the trade court has jurisdiction to hear the case. "In their latest Motion, Defendants allege that '[t]he true nature of MS Solar’s action is a challenge to the antidumping duty rate it was assessed in' Commerce’s Final Results," the brief said. "This is incorrect and is directly contradicted by the language of the Complaint itself. MS Solar clearly states in its Complaint that it challenges the application of Commerce’s Final Results as set out in the Yingli Liquidation Instructions, not the Final Results themselves."