US Seeks Dismissal of Suit on AD/CVD Pause on SE Asian Solar Cells for Lack of Jurisdiction

The U.S. moved to dismiss a complaint from solar cell maker Auxin Solar and solar module designer Concept Clean Energy at the Court of International Trade challenging the Commerce Department's pause of antidumping and countervailing duties on solar cells and modules from Southeast Asian countries found to be circumventing the AD/CVD orders on these goods from China (Auxin Solar v. United States, CIT # 23-00274).

The government argued that the trade court doesn't have jurisdiction under Section 1581(i), the court's "residual" jurisdiction, to hear the case. The matter should instead be filed under Section 1581(c) -- the provision allowing the court to hear challenges to decisions made by the Commerce Department, the U.S. said.

Auxin made many arguments against the duty suspension decision during the four relevant anti-circumvention proceedings, and Commerce addressed them in its final determinations. The U.S. solar cell maker and Concept Clean Energy now ask the trade court to order the agency to reverse the decision and instruct CBP differently. These types of claims are "quintessentially the types of" arguments made under Section 1581(c), barring relief under Section 1581(i), the brief argued.

In making its case for dismissal, the U.S. said Auxin cited Section 1581(c) as the basis for jurisdiction in its four other cases challenging the four anti-circumvention proceedings. It is clear that Auxin and Concept Clean Energy are "undeniably challenging aspects of the final determinations," as shown by the "unmistakable overlap between the issues raised and decided in the final determinations and those raised in this complaint," the brief said.

While the government admitted there wasn't a complete overlap between the issues in the final determinations and those in this complaint, "that fact does not affect the jurisdictional inquiry," the U.S. said. Because "whether jurisdiction is or could have been available under section 1581(c) depends on whether the determination is made reviewable by 19 U.S.C. 1516a, not on the specific issues raised before Commerce." It's not an exception to Section 1581(c) that plaintiffs failed to raise the issues they could have brought to Commerce, the government argued.

If Auxin and Concept Clean Energy received the relief they are requesting, it would "invalidate" an element of Commerce's final determinations. As a result, "in substance, if not in form, the 'true nature of the action' is a challenge to the final determinations for which jurisdiction is, or would be, available under section 1581(c)," the brief said. Additionally, the duty suspension rule was issued 15 months ago, yet no case was filed until after the final determinations came out, indicating that the true nature of the action challenges the determinations, the U.S. argued.

Commerce issued the rule in question following a proclamation from President Joe Biden calling for the duty pause due to the emergency of "electricity generation capacity." The move was taken following a preliminary affirmative anti-circumvention finding on solar cells and modules from Malaysia, Thailand, Vietnam and Cambodia (see 2212020064).