United States Court of International Trade

Slip Op. 20-156

Before the Court in Full Member Subgroup of the Am. Inst. Of Steel Constr., LLC v. United States, et. al., Court No. 20-00088, Slip Op. 20-156 (November 3, 2020) was Defendant’s motion to dismiss Plaintiff’s complaint for lack of subject-matter jurisdiction. Defendant argued that section 516A(g) of the Tariff Act of 1930, as amended precluded the Court from exercising jurisdiction over Plaintiff’s challenge to Commerce’s final affirmative determination in its less than fair value investigation of fabricated structural steel from Canada because Industries Canatal Inc.’s and Les Constructions BeauceAtlas, Inc. filed timely requests for binational panel review of the final determination pursuant to Article 1904 of NAFTA. Plaintiff agreed that the Court did not have jurisdiction, but nonetheless requested that the Court issue its decision in accordance with the pending motion to dismiss in Building Systems de Mexico, S.A. de C.V. v. United States, Ct. No. 20-00069. For the following reasons, the Court granted the motion to dismiss.

“28 U.S.C. § 1581(c) … vests exclusive jurisdiction with the Court over any civil action commenced under section 516A of the Tariff Act of 1930, as amended 19 U.S.C. § 1516a.” Id. at 5. Under 19 U.S.C. § 1516a, the Court may review “[f]inal affirmative determinations by the administering authority and by the Commission …, including any negative part of such a determination.” Id. However, 19 U.S.C. § 1516a(g) provides, in relevant part, that if a party seeks binational review of “a determination . . . the determination is not reviewable under 19 U.S.C. § 1516a.” Id. Nonetheless, 19 U.S.C. § 1516a(g)(3) enumerates certain exceptions, and permits judicial review of “a determination as to which neither the United States nor the relevant free trade area (“FTA”) country requested review[.]” Id. at 6. In this case, the Court held that the Court “cannot exercise jurisdiction over Plaintiff’s complaint because no exception to the preclusion of judicial review under § 1516a(g) applies.” Id. at 7. The Court concluded that “[t]here is no dispute as to whether the timely request for binational panel review of Commerce’s final determination in this case is deemed filed by an FTA country.” Id. As such, the Court granted Defendant’s motion to dismiss. Id.

Slip Op. 20-159

Before the Court in Jinxiang Infang Fruit & Vegetable Co. v. United States, et. al., Court No. 20-00108, Slip Op. 20-159 (November 9, 2020) was the Court’s own order to show cause as to why the Court should not sustain the Commerce’s determination in the new shipper review at issue, because plaintiff failed to follow the instructions from the Court laid out in the Court’s Scheduling Order. For the following reasons, the Court sustained Commerce’s determinations.

“[T]he Scheduling Order cautioned Plaintiff … ‘not to rely too heavily on its administrative case briefs’ and not to ‘merely cut-and-paste’ arguments from administrative case briefs, and think anew about the issues against the operative standards of review the court must apply.” Id. at 2. “[T]he Scheduling Order also cautioned that failure to heed the guidance may result in the court ‘summarily sustaining Commerce’s action.’” Id. Plaintiff failed to follow this instruction and “largely replicated its administrative case brief as its USCIT Rule 56.2 opening brief.” Id. In addition, “Plaintiff also failed to disclose a related case on its Information Statement.” Id. Plaintiff’s filed an “apologia” with the Court. However, the Court said “Plaintiff’s arguments about why it replicated its administrative case brief … are unpersuasive.”

As such, the Court entered judgment in favor of the Government.