Solar Cell Importers, Exporters Say Jurisdictional Claim in Case on AD/CVD Duty Pause 'Nonsense'

Proposed intervenors in a lawsuit challenging the Commerce Department's antidumping and countervailing duty pause on Southeast Asian solar panels further defended their motion to dismiss the suit for lack of jurisdiction, claiming that solar cell maker Auxin Solar and solar module designer Concept Clean Energy wrongly characterize the suit as being a Section 1581(i) action (Auxin Solar v. United States, CIT # 23-00274).

Section 1581(i) is the court's "residual" jurisdiction as opposed to Section 1581(c), which allows lawsuits on Commerce's AD/CVD proceedings and anti-circumvention cases. In their initial motion to dismiss, the would-be intervenors said that the "true nature" of the action challenges Commerce's anti-circumvention decision, which plainly fits under Section 1581(c).

Auxin and Concept Clean Energy claimed that the case doesn't challenge the decision on whether circumvention is occurring, but rather that the action's "true nature" is a "facial attack" on the duty pause. The intervenors dubbed this a "cynical" attempt to limit review of Section 1581(c), arguing that the scope of the final determinations' remedy is not a separate agency action but rather an "integral and inseparable part of the Final Determinations themselves."

The solar cell maker and designer said that 19 U.S.C. 1516a(a)(2)(B)(vi), which provides for judicial review of circumvention decisions under Section 1581(c), limits that review to the question of whether there was circumvention (see 2402230066). Auxin and Concept Clean Energy said that's more limited compared with the statute allowing judicial review of AD/CVD reviews, Section 1516a(a)(2)(B)(iii).

The proposed intervenors, led by BYD (H.K.) Co. and Canadian Solar (USA), said in response that this claim "is nonsense." There's no basis on which to "ascribe congressional intent to define 'determination' in one provision in a more limited sense than in the other." Accusing the plaintiffs of cherry picking legislative history language, "the Senate Report to which Plaintiffs cite plainly provides that" the new provisions allowing for review of circumvention cases provide greater access to the trade court for more parties.

Even if "the scope of remedy adopted by Commerce could somehow be separated from the merits of the circumvention determination itself," that distinction "would not rescue Plaintiffs' jurisdictional claim," the brief said. The U.S. Court of Appeals for the Federal Circuit and CIT "have repeatedly ruled that judicial review under 19 U.S.C. § 1516a is broad and available for challenges to both the procedural correctness and the substantive merits of a final determination," the brief said.

The intervenors also said that Auxin and Concept Clean Energy "misleadingly claim that Section 1581(i)" grants broad residual jurisdiction to the trade court where relief is unavailable under another subsection of Section 1581. "Congress did not intend for Section 1581(i) to create a comparatively 'broad grant' of jurisdiction relative to the other subsections of Section 1581, and Congress 'did not intend to create any new causes of action' by including a residual jurisdiction provision,'" the brief said.

The would-be intervenors also challenged Auxin's and Concept Clean Energy's claim that remedy under Section 1581(c) is "manifestly inadequate," arguing that the plaintiffs waived the claim and even if they didn't, remedy isn't "manifestly inadequate." The intervenors challenged the plaintiffs' claim that delays in liquidation, which would impose AD/CVD on solar cells, will injure them. The solar cell exporters and importers said that liquidation itself "does not impose a direct burden on Plaintiffs, because importers pay the applicable duties."

The hardship "allegedly imposed on Plaintiffs by the possible duty-free liquidation of certain entries that potentially compete with Plaintiffs’ merchandise -- and the delays inherent in Commerce reaching its Final Determinations -- are insufficient to establish that the remedy available under Section 1581(c) is manifestly inadequate," the brief said.