U.S. Requests Dismissal in Canadian Lumber Duty Case

March 10th, 2022 by Editor

On Friday, March 4, the U.S. government filed a Motion to Dismiss the case against it, brought by Canadian lumber producer and exporter J. D. Irving at the end of December. The case, in front of Timothy M. Reif, is before the U.S. Court of International Trade and was brought by the Canadian company contesting “the antidumping duty cash deposit instructions issued by the U.S. Department of Commerce … following publication of the final results of the 2019 administrative review of the [antidumping] duty order on certain softwood lumber products from Canada.”

J.D. Irving filed in the U.S. Court of International Trade because, they state in the initial complaint, the “court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(i).” This jurisdiction is the first point that the Department of Commerce countered in the Motion to Dismiss, arguing that “the Court does not possess subject-matter jurisdiction pursuant to 19 U.S.C. 1581(i).”

It’s not the only argument the Department of Commerce makes for having the case dismissed, however. Government lawyers argue that “J.D. Irving lacks standing to bring the claim” and also that “this Court is statutorily barred from reviewing the determination, and can therefore provide no relief,” because that which the Plaintiffs are challenging is “subject to binational panel review.”

The Commerce Department’s legal team points out that “J.D. Irving filed a notice of intent to seek judicial review of Commerce’s final results of the second administrative review with the USMCA Secretariat on December 21, 2021” and that “certain Canadian parties requested USMCA binational panel review on December 28, 2021.” It’s exactly this, the Commerce Department lawyers say, that removes the case from the jurisdiction of the U.S. Court of International Trade, because “a party filing notice of a request for a panel review supplants another party’s intent to seek review before this Court.” In the initial complaint, J.D. Irving’s attorneys’ stated that “USMCA binational panels lack equitable powers,” unlike—they said—the U.S. Court of International Trade.

The Commerce Department opines that J.D. Irving is trying to use the courts to obtain more than they are due, writing in the Motion to Dismiss that “At the conclusion of the process, if J.D. Irving prevails, it will receive a refund of any overpaid deposits, with interest. What J.D. Irving really wants is to not pay current cash deposits at the rate assigned in the second administrative review.”

Instead, the U.S. argues that “this Court lacks jurisdiction because J.D. Irving’s only alleged injury is the payment of cash deposits,” in part because the U.S. Court of International Trade itself has previously ruled, “the payment of cash deposits does not establish standing because it is not an injury in fact—any overpayment of cash deposits would be returned with interest upon the determination of ultimate duty liability through the panel review.”

With those arguments spelled out, the Commerce Department is seeking to have the case dismissed. Stay tuned to [DWM] for more information on this case as it becomes available.

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