No CIT Jurisdiction to Challenge Denial of Scope Ruling Request, DOJ Argues

The Court of International Trade should dismiss a case led by exporter Zhejiang Yuhua Timber Co. challenging the Commerce Department's decision to deny a scope ruling request, the U.S. argued in a May 6 reply brief. Responding to Yuhua's arguments attempting to establish jurisdiction under Section 1581(c), and in the alternative, Section 1581(i), the court's "residual" jurisdiction, DOJ argued that the decision to not start a scope inquiry is not a reviewable decision under Section 1581(c) (Zhejiang Yuhua Timber Co. v. United States, CIT #21-00502).

Three companies, Yuhua, A-Timber Flooring Company and Mullican Flooring Co., challenged Commerce's decision to not undertake a scope inquiry as part of the antidumping duty investigation on multilayered wood flooring from China (see 2109210059). In the investigation, Commerce found a zero percent dumping margin for Yuhua, excluding it from the order. Nevertheless, the respondent had requested the scope ruling from Commerce to confirm that its wood flooring products imported by A-Timber are excluded from the order. After the request was denied, the plaintiffs then requested a changed circumstances review seeking the same result. The agency then initiated the review. Proceedings are ongoing.

DOJ moved to dismiss the scope ruling denial challenge, arguing that Commerce's move to deny the scope ruling request is not a reviewable decision (see 2203010043). Jurisdiction will instead be available once Commerce has completed its changed circumstances review, DOJ said. The plaintiffs then filed their brief contesting the U.S.'s position, arguing that the government has no basis on which to assure the companies that they will receive complete relief in the changed circumstances review (see 2204010035).

Yuhua argued that since it is uncertain what the final relief will be, it's not clear whether there will be jurisdiction under Section 1581(c) to make its case, vying for Section 1581(i) jurisdiction instead. In response to Yuhua's arguments, the U.S. says that whether the requested relief is granted is irrelevant to the availability of judicial review after the changed circumstances review. The U.S. also said that establishing Section 1581(i) requires the other elements of the law to be "manifestly inadequate" to serve as the basis for judicial review.

"This standard does not require that the desired remedy be obtained in the administrative proceeding; it merely requires that there remains available to the party the opportunity to obtain administrative relief to address the remedy it seeks," the brief said. "... Yuhua is pursuing such administrative relief through a changed circumstances review. Yuhua concedes that the relief sought in its request for a changed circumstances review is 'identical' to the relief sought in its request for a scope ruling. Therefore, until and unless Yuhua’s ability to pursue a changed circumstances review, or any other 'avenue' under 28 U.S.C. § 1581, is foreclosed, Yuhua cannot resort to 28 U.S.C. § 1581(i) as a basis for jurisdiction."