Trade Court Tosses Bid to Expedite Challenge of AD Cash Deposit Instructions

The Court of International Trade in a May 2 order rejected Canadian exporter J.D. Irving's bid to establish expedited briefing and consideration of its challenge to the Commerce Department's antidumping duty cash deposit instructions. Judge Timothy Reif said the exporter failed to establish that "good cause" exists to expedite the case since the company's requested relief can be granted even after the deadline to withdraw its request for the fourth review of the AD order on softwood lumber products from Canada.

In particular, the case concerns the customs instructions that followed the final results of the order's 2019 administrative review. Neither J.D. Irving nor any U.S. lumber producer requested a review of the exporter for the 2020 period of review, yet Commerce replaced J.D. Irving's 2020 AD cash deposit rate with an AD rate for the 2019 period. J.D. Irving filed suit at CIT, arguing that the lack of a request for the 2020 review signaled that both sides agreed the cash deposit rate in effect was an accurate measure of J.D. Irving's dumping level and not the higher rate CBP used to liquidate the entries (see 2201050029).

The U.S. then moved to dismiss the case (see 2204050067) while J.D. Irving sought an expedited briefing schedule. Reif ruled that, contrary to the plaintiff's assertion, a decision to not expedite consideration of the case would not deprive the plaintiff of the requested relief. J.D. Irving wants the court to declare that the instructions are unlawful and order Commerce to tell CBP to reinstate the lower deposit rate and refund any excess cash deposits made for the entries.

On the first relief request, the judge said that if he favors the plaintiff's arguments on the merits, the ruling would have the same effect as it would have without an expedited briefing schedule, or after the deadline to withdraw its request for a fourth administrative review. On the second relief request, Reif said that refunds and the lower cash deposit rate will be available after the deadline to withdraw the request for the fourth administrative review.

The judge further ruled that no "exigent circumstance" existed in this case that would warrant a priority ruling. As opposed to J.D. Irving's characterization of the issue, which says that thousands of AD cases would benefit form the disposition of the issue, the court said that the case really challenges Commerce's established practice on cash deposit rates.

J.D. Irving also argued that good cause existed to hear its case on an expedited schedule because it involves only one legal issue. Reif, however, said this isn't one of the factors that goes into consideration of whether to grant an expedited briefing, and even if it were, the defendant raises three legal issues in its motion to dismiss. "Were the court to grant expedited briefing and consideration of this action, the court would consider these issues," the opinion said. "The need to consider multiple legal issues undermines plaintiff’s assertion that this action is 'well-suited for expedited treatment.'"

(J.D. Irving v. United States, Slip Op. 22-40, CIT #21-00641, dated 05/02/22, Judge Timothy Reif. Attorneys: Jay Campbell of White & Case for plaintiff J.D. Irving; Kelly Krystyniak for defendant U.S. government)