UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 23-10

Before the Court in J.D. Irving, Limited v. United States, et. al., Court No. 21-651, Slip Op. 23-10 (January 25, 2023) was the Government’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff filed the case to challenge the antidumping duty (“AD”) cash deposit instructions issued by the Commerce to Customs following publication of the final results of the 2019 administrative review of the AD duty order on certain softwood lumber products from Canada. Plaintiff asserted that the court had subject matter jurisdiction under 28 U.S.C. § 1581(i). In its complaint, plaintiff alleged that “normally, the court would have jurisdiction to review [plaintiff’s] claim … under 28 U.S.C. § 1581(c).” Id. at 5. “However, on December 28, 2021 — two days prior to plaintiff’s filing of the complaint — other interested parties requested binational panel review of the [administrative review] pursuant to Article 10.12 of the United States–Mexico–Canada Agreement (“USMCA”) thereby providing a binational panel with “exclusive review” of the … Final Results pursuant to 19 U.S.C. § 1516a(g)(2).” Id. at 5-6. The Government moved to dismiss the action for lack of subject matter jurisdiction. For the following reasons the Court granted the Government’s motion to dismiss.

“Article 10.12 of the USMCA provides that a binational panel ‘may uphold a final determination’ by Commerce ‘or remand [the determination] for action not inconsistent with the panel’s decision.’” Id. at 7. In addition, “[t]he decision of a panel . . . shall be binding on the involved Parties with respect to the particular matter . . . that is before the panel.” Id. “19 U.S.C. § 1516a(g) codifies into U.S. law the binational panel review process.” Id. The statute specifies that “the binational panel process replaces the forum — not the remedies — available to the parties.” Id. The Courts jurisdiction under 28 U.S.C. § 1581(i) “may not be invoked when jurisdiction under another [sub]section of § 1581 is or could have been available, unless the relief provided under that other subsection would be manifestly inadequate.” Id. at 10. Regarding, the Court’s 28 U.S.C. § 1581(i) jurisdiction, the Court he ld that “jurisdiction to hear the instant action ‘is or could have been available’ under 28 U.S.C. § 1581(c), but for the decision by interested parties to request binational panel review. Id. at 14-15. Next, the Court concluded that “plaintiff does not meet its burden to demonstrate the manifest inadequacy of the relief available ‘either in this court under 28 U.S.C. § 1581(c) or before a binational panel’ pursuant to Article 10.12 of the USMCA.” Id. at 17-18. As such the Court dismissed the case.