US Asks Trade Court to Toss Case on Assessment of AD/CVD on Vietnam Solar Cells for Lack of Jurisdiction

The Court of International Trade lacks jurisdiction to hear importer Greentech Energy Solution's claims challenging CBP's decision to assess antidumping and countervailing duties on its 2019 imports of solar modules from Vietnam, the U.S. said in a Sept. 7 motion to dismiss. The "protest procedure" at CIT and "judicial review" under Section 1581(a) are not "manifestly inadequate" to review Greentech's claims, barring review under Section 1581(i), the government said (Greentech Energy Solutions v. United States, CIT # 23-00118).

Greentech filed its case in June, arguing that the imposition of the AD/CVD were illegal, given the lack of a dumping, subsidization or injury finding for Vietnam, nor even the existence of an anti-circumvention inquiry at that time (see 2306130025). The U.S. based its collection of the duties on Greentech's inability to submit "importer and exporter certifications completed, signed, and dated at the time of shipment from Vietnam and the time of entry into the U.S. of solar modules." The government claimed the certifications were needed for Vietnamese imports despite the fact that the certification provision was set in the AD investigation on solar cells from China.

In its motion to dismiss, the government said that to the extent Greentech challenges the certification requirement, the suit is "untimely." Over two years have passed since the "accrual of any cause of action challenging the 2012 certification requirement." In its complaint, Greentech also levied an Eight Amendment claim at the U.S. for excessive fines. The government said this also should be dismissed due to a failure to state a claim. The Eighth Amendment "applies to only penalties, whereas the antidumping and countervailing duty scheme is remedial in nature," the brief said.

All three of Greentech's claims challenge cBP's use of the certification requirement. "The protest process, including judicial review pursuant to 28 U.S.C. § 1581(a), is not manifestly inadequate to resolve such claims," the brief said, adding that judicial review may not occur until the importer "exhausts its administrative remedies."