United States Court of International Trade

Slip Op. 22-30

Before the Court in J.D. Irving, Limited v. United States, Court No. 21-641, Slip Op. 20-40 (May 2, 2022) was plaintiff’s motion to expedite the briefing and consideration of the action. Plaintiff filed its complaint to challenge the antidumping duty (“AD”) cash deposit instructions that Commerce issued to U.S. Customs and Border Protection (“Customs”) on December 9, 2021. Plaintiff is a Canadian producer and exporter of softwood lumber. The AD order on Canadian Softwood lumber was initially published on January 3, 2018. Plaintiff participated in the first review in 2019, and was not selected as a mandatory respondent. Accordingly after the first review plaintiff was assigned a non-selected companies assessment rate of 1.57%. The first review results were published on Dec. 2, 2021. Commerce initiated the second annual review in March of 2020. Plaintiff was again not selected as a mandatory respondent and assigned the non-selected companies’ assessment rate of 11.59%. Following Commerce’s initiation of the second administrative review on March 10, 2020, and prior to Commerce’s publication of the review’s Final Results on December 2, 2021, Commerce initiated a third administrative review. Accordingly, Commerce instructed Customs to liquidate plaintiff’s entries that would have been subject to the third review at the 1.57% rate then in effect, which had been assigned to plaintiff in the first review Final Results. Commerce initiated the fourth administrative review on March 9, 2022, plaintiff has requested review and has until June 7 th to withdraw. In this action Plaintiff contests the instructions that Commerce issued to Customs on December 9, 2021, to collect cash deposits on plaintiff’s entries at the 11.59% rate assigned in the second administrative review Final Results, to plaintiffs third review entries. Plaintiff requested expedition of the case to resolve this issue before the June 7 th deadline to withdraw from the fourth administrative review. “On March 4, 2022, defendants filed a motion to dismiss the complaint, contending that: (1) the court does not possess subject matter jurisdiction to hear plaintiff’s action; (2) plaintiff does not have standing to bring its claim; and (3) plaintiff fails to state a claim upon which relief can be granted pursuant to USCIT Rule 12(b)(6).” Id. at 6. For the following reasons the Court denied plaintiff’s motion to expedite the case.

“USCIT Rule 3(g)(5) permits the Court to expedite any ‘action that the court determines, based on motion and for good cause shown, warrants expedited treatment.” Id. at 7. “The Court has concluded that ‘good cause’ exists to expedite the briefing and consideration of an action: [1] in a case in which failure to expedite would result in mootness or deprive the relief requested of much of its value, [2] in a case in which failure to expedite would result in extraordinary hardship to a litigant, or [3] actions where the public interest in enforcement of the statute is particularly strong.” Id. The Court found that plaintiff had not established “that ‘good cause’ exists to expedite the briefing and consideration of this action.” Id. at 10. “Should the court rule in plaintiff’s favor on the substantive merits of this action subsequent to plaintiff’s deadline to withdraw its request for an AR 4 on June 7, 2022, that ruling would have the same effect on the “rights and other legal relations” between the parties as if the court had issued such a declaration prior to June 7, 2022.” Id. at 10-22. In addition, regarding the liquidation instructions the Court said “should the court rule in plaintiff’s favor subsequent to the deadline of June 7, 2022, plaintiff still will be entitled to the full relief that it requests — the reinstatement of the 1.59% cash deposit rate as well as a refund, plus interest, of any excess cash deposits provided for entries made on or after December 2, 2021.” Id. at 11. The Court next turned to examine the public interest and said that plaintiff did “not demonstrate any ‘exigen[cy]’ with respect to plaintiff’s action and does not ‘distinguish[]’ this action from other cases in which parties have asserted that their respective interpretations of the applicable statutes and regulations would serve ‘the public policy . . . that [the parties] receive accurate rates.’” Id. at 13. As such, the plaintiff’s motion to expedite was denied.