CAFC Rejects Lumber Exporter’s Attempt to Bring AD Rate Case Under 1581(i)

The U.S. Court of Appeals for the Federal Circuit on Oct. 10 rejected a Canadian lumber exporter’s attempt to challenge the denial of a cash deposit rate under 28 U.S.C. 1581(i), saying the exporter was attempting "to use § 1581(i) to make an end run around the binational panel’s exclusive review."

Exporter J.D. Irving was a respondent in 2018 and 2019 reviews on Canadian lumber but not in the 2020 review. When the Commerce Department began its 2020 review, it instructed CBP to liquidate J.D. Irving’s 2020 entries at the 1.57% rate calculated in the 2018 review, as the 2019 review’s results weren’t available yet. But, before CBP liquidated the entries, the results of the 2019 review did come out -- and J.D. Irving’s rate jumped to 11.59%. Commerce therefore then instructed the exporter’s 2020 entries to be liquidated at that higher rate instead, which J.D. Irving contested saying that Commerce’s earlier instruction shouldn’t have been revocable.

CIT dismissed the case in 2023, agreeing with the government that the company could receive relief by having its 11.59% cash deposit rate reviewed by a USMCA binational panel (see 2301250060). Other respondents to the 2019 review had requested that a binational panel make a ruling on the review's results, meaning that, under U.S. law, CIT was barred from ruling on the same issue.

J.D. Irving claimed that the error it was contesting wasn’t in the results of the 2019 review -- rather, it was contesting the department’s resultant instructions to CBP to liquidate J.D. Irving’s 2020 entries at the 2019 rate.

The appellate court disagreed. The “true nature” of J.D. Irving’s action challenged the 2019 rate, it said.

“The ‘particular agency action underlying [J.D. Irving’s] claimed harm’ is Commerce’s assignment of a cash deposit rate higher than 1.57% in the [2019 antidumping review’s] preliminary results and Final Results,” it said.

In its appeal to CAFC, J.D. Irving also argued that binational panels couldn’t enjoin Commerce from ordering CBP to set the cash deposit rate of its 2020 entries at 11.59%, so the relief one might offer would be “manifestly inadequate” (see 2406060072).

But the exporter didn’t meet its burden to show that the alternative methods of relief available were actually ”manifestly inadequate,” CAFC said in its opinion. It said binational panels may review final antidumping determinations to determine their legality, then require Commerce to “take action not inconsistent with the decision of the panel.” The court noted that this was binding on the department.

Allowing the exporter to seek relief from CIT instead of the panel actually went directly against statute, it said, as 1581(i)(2)(B) expressly states that the subsection doesn’t confer jurisdiction over AD/CVD decisions reviewable by USMCA binational panels.

Plus, “allowing the CIT to exercise concurrent jurisdiction with a binational panel ‘would strongly [and impermissibly] discourage the use of the [binational] panel system,’” it said.

(J.D. Irving v. U.S., Fed. Cir. # 23-1652, dated 10/10/24; Judges: Kara Stoll, Tiffany Cunningham and Claire Cecchi; Attorneys: Jay Cambell of White & Case for plaintiff-appellant J.D. Irving; Eric Laufgraben for defendant-appellee U.S. government)