UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 22-140

Before the Court in MS Solar Investments, LLC v. United States, et.al., Court No. 21-303, Slip Op. 22-140 (December 12, 2022) was the Government’s motion to dismiss plaintiff’s claims for lack of jurisdiction. Plaintiff filed the case to challenging the Department of Commerce’s (“Commerce”) liquidation to U.S. Customs and Border Protection (“Customs”). Plaintiff alleged that jurisdiction existed under 28 U.S.C. § 1581(i), the Court’s residual grant of jurisdiction. For the following reasons the Court dismissed plaintiff’s case without prejudice.

“[A]ny § 1581(i) inquiry requires answering two questions: (1) whether jurisdiction is available under a different subsection; and (2) if so, the question then becomes whether the remedy provided under that subsection is manifestly inadequate.” Id. at 9. The court determined that the “true nature of the issue in dispute is not a problem with Commerce’s liquidation instructions or an error in Customs’ administration and enforcement, because Commerce’s failure to issue importer-specific liquidation instructions” and that this was a challenge to “Commerce’s review, or lack of review, of information on the administrative record that caused an alleged error.” Id. at 14-15. As such, the Court found that the jurisdiction existed under §1581(c).

The Court next examined if remedy available under §1581(c) would be manifestly inadequate. “In order to establish that a remedy is manifestly inadequate, protest must be an exercise in futility, incapable of producing any result, failing utterly to reach the desired end, or useless, ineffectual, and in vain.” Id. at 16. The Court determined a remedy available under §1581(c) would noyt be manifestly inadequate because “a claim under §1581(c) could provide MS Solar with an opportunity to obtain relief for the harm allegedly suffered, were the Court persuaded to remand the case to Commerce.” Id. at 17. In addition for one count alleging entitlement to a separate duty rate the Court found that plaintiff did not “exhaust all administrative remedies available to it” because it did not request a separate rate. As such, the Court granted the defendant’s motion to dismiss.