Slip Op. 25-108
UNITED STATES COURT OF INTERNATIONAL TRADE
J.D. IRVING, LIMITED,
Plaintiff,
v. Before: Timothy M. Reif, Judge
UNITED STATES AND U.S. DEPARTMENT Court No. 22-00256 OF COMMERCE,
Defendants.
OPINION
[Granting defendants’ motion to dismiss.]
Dated: August 21, 2025
Jay C. Campbell, Alison J.G. Kepkay and Walter J. Spak, White & Case, LLP, of Washington, D.C., for plaintiff J.D. Irving, Limited.
Eric E. Laufgraben, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendants United States and U.S. Department of Commerce. With him on the briefs were Yaakov M. Roth, Acting Assistant Attorney General, Patricia M. McCarthy, Director and Claudia Burke, Deputy Director. Of counsel was Benjamin Juvelier, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
* * *
Reif, Judge: J.D. Irving, Limited (“plaintiff” or “J.D. Irving”) brings the instant
action to “contest[] the antidumping (“AD”) duty cash deposit instructions issued by the
U.S. Department of Commerce (“Commerce”) to U.S. Customs and Border Protection
[(“Customs”)] following publication of the final results of the 2020 administrative review
[(“AR”)] of the AD duty order on certain softwood lumber products from Canada.” Am.
Compl. ¶ 1, ECF No. 14; id., attach. 1; see Cash Deposit Instructions for Certain Court No. 22-00256 Page 2
Softwood Lumber from Canada (“AR 3 Cash Deposit Instructions”), Message No.
2228402 (A-122-857) (Aug. 16, 2022); Certain Softwood Lumber Products from
Canada: Antidumping Duty Order and Partial Amended Final Determination (“Softwood
Lumber Order”), 83 Fed. Reg. 350 (Dep’t of Commerce Jan. 3, 2018).
The United States and Commerce (collectively, “defendants”) move to dismiss
the instant action pursuant to Rule 12(b)(1) of the U.S. Court of International Trade.
See Defs.’ Mot. to Dismiss for Lack of Subject-Matter Jurisdiction (“Defs. Br.”), ECF No.
17; see also Defs.’ Reply in Supp. of Mot. to Dismiss for Lack of Subject-Matter
Jurisdiction (“Defs. Reply Br.”), ECF No. 19. For the reasons discussed below, the court
grants defendants’ motion to dismiss.
BACKGROUND
I. The administrative proceedings
J.D. Irving is a Canadian producer and exporter of merchandise subject to the
Softwood Lumber Order, as well as the importer of record of that merchandise. Am.
Compl. ¶ 9.
Commerce published the Softwood Lumber Order on January 3, 2018. See
Softwood Lumber Order, 83 Fed. Reg. 350.
On April 1, 2019, Commerce initiated its first administrative review (“AR 1”) of the
Softwood Lumber Order. Certain Softwood Lumber Products from Canada: Initiation of
Antidumping and Countervailing Duty Administrative Reviews, 84 Fed. Reg. 12,209,
12,209-10 (Dep’t of Commerce Apr. 1, 2019). AR 1 covered entries made between
June 30, 2017, and December 31, 2018. Id. at 12,210. Court No. 22-00256 Page 3
Commerce did not select J.D. Irving as a mandatory respondent in AR 1. See
Certain Softwood Lumber Products from Canada: Preliminary Results of Antidumping
Duty Administrative Review and Rescission of Review, in Part; 2017-2018, 85 Fed. Reg.
7,282, 7,282-83 (Dep’t of Commerce Feb. 7, 2020). Accordingly, upon the publication
of the AR 1 final results on November 30, 2020, Commerce assigned to J.D. Irving the
non-selected companies’ assessment rate of 1.57%. Certain Softwood Lumber
Products from Canada: Final Results of Antidumping Duty Administrative Review; 2017-
2018 (“AR 1 Final Results”), 85 Fed. Reg. 76,519, 76,520-21 (Dep’t of Commerce Nov.
30, 2020). Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended, 19
U.S.C. § 1675(a)(2)(C), 1 Commerce instructed Customs to collect at this 1.57% rate
cash deposits on J.D. Irving's entries made on or after the publication date of the AR 1
Final Results. See AR 1 Final Results at 76,520.
On March 10, 2020, Commerce initiated its second administrative review (“AR
2”), which covered entries made between January 1, 2019, and December 31, 2019.
Initiation of Antidumping and Countervailing Duty Administrative Reviews, 85 Fed. Reg.
13,860, 13,862 (Dep’t of Commerce Mar. 10, 2020) (initiation notice); Certain Softwood
Lumber Products from Canada: Final Results of Antidumping Duty Administrative
Review; 2019 (“AR 2 Final Results”), 86 Fed. Reg. 68,471, 68,471-72 (Dep’t of
Commerce Dec. 2, 2021) and accompanying Issues and Decision Memorandum (“IDM”)
(Dep’t of Commerce Nov. 23, 2021). Commerce did not select J.D. Irving as a
mandatory respondent in AR 2. See AR 2 Final Results, 86 Fed. Reg. at 68,472.
1 References to the U.S. Code are to the 2018 edition. Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of Title 19 of the U.S. Code. Court No. 22-00256 Page 4
Upon the publication of the AR 2 Final Results on December 2, 2021, Commerce
assigned to J.D. Irving the non-selected companies’ assessment rate of 11.59%. See
id. at 68,472-74. Commerce instructed Customs to collect at this 11.59% rate cash
deposits on J.D. Irving's entries made on or after December 2, 2021, the publication
date of the AR 2 Final Results. See id. at 68,473; Am. Compl., attach. 11; Cash Deposit
Instructions for Certain Softwood Lumber from Canada (“AR 2 Cash Deposit
Instructions”), Message No. 1343410 (A-122-857) (Dec. 9, 2021).
On March 4, 2021, following Commerce’s initiation of AR 2 but prior to the
publication of the AR 2 Final Results, Commerce initiated its third administrative review
(“AR 3”) of the Softwood Lumber Order. Initiation of Antidumping and Countervailing
Duty Administrative Reviews, 86 Fed. Reg. 12,599, 12,599-601 (Dep’t of Commerce
Mar. 4, 2021) (initiation notice). AR 3 covered entries made between January 1, 2020,
and December 31, 2020. Id. at 12,601.
On August 3, 2022, Commerce issued the AR 3 final results. Certain Softwood
Lumber Products from Canada: Final Results of Antidumping Duty Administrative
Review and Final Determination of No Shipments; 2020 (“AR 3 Final Results”), 87 Fed.
Reg. 48,465 (Dep’t of Commerce Aug. 9, 2022) and accompanying IDM (Dep’t of
Commerce Aug. 3, 2022); Am. Compl., attach. 13. Commerce did not select J.D. Irving
as a mandatory respondent in AR 3, and no review was requested of J.D. Irving’s
entries. See AR 3 Final Results, 87 Fed. Reg. 48,465.
Upon publication of the AR 3 Final Results, Commerce instructed Customs to
continue to collect at the 11.59% rate cash deposits on J.D. Irving’s entries made on or Court No. 22-00256 Page 5
after the publication date. See AR 3 Final Results IDM at cmt. 9; AR 3 Cash Deposit
Instructions.
II. Binational panel review under the United States-Mexico-Canada Agreement
Article 10.12 of the United States-Mexico-Canada Agreement (“USMCA”), “like
NAFTA Article 1904, provides a dispute settlement mechanism for purposes of
reviewing antidumping and countervailing duty determinations issued by the United
States, Canada, and Mexico.” Procedures and Rules for Article 10.12 of the United
States-Mexico-Canada Agreement, 86 Fed. Reg. 70,045 (Dep’t of Commerce Dec. 9,
2021). The procedures and rules set forth in Article 10.12 of the USMCA are “virtually
unchanged” from those in Article 1904 of the North American Free Trade Agreement
(“NAFTA”). Id. Article 10.12 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.” USMCA art. 10.12, ¶ 8. 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. ¶ 9.
19 U.S.C. § 1516a(g) codifies into U.S. law the binational panel review process
set forth in Article 10.12 of the USMCA. Section 1516a(g)(2) provides that:
If binational panel review of a determination is requested pursuant to . . . article 10.12 of the USMCA, then . . . —
(A) the determination is not reviewable under [19 U.S.C. § 1516a(a)], and
(B) no court of the United States has power or jurisdiction to review the determination on any question of law or fact by an action in the nature of mandamus or otherwise.
19 U.S.C. § 1516a(g)(2)(A)-(B). Court No. 22-00256 Page 6
In essence, “the binational panel process replaces the forumʊnot the
remediesʊavailable to the parties.” Bldg. Sys. de Mex., S.A. de C.V. v. United States,
44 CIT __, __, 476 F. Supp. 3d 1401, 1410 (2020); see S. Rep. No. 100-509, at 31
(1988), as reprinted in 1988 U.S.C.C.A.N. 2395, 2426 (“Because binational panels act
as a substitute for U.S. courts in deciding whether a determination is consistent with
U.S. law, the Committee intends binational panel decisions to be implemented in the
same manner that court decisions are implemented under current law.”).
The U.S. Court of Appeals for the Federal Circuit (the “Federal Circuit”) has
clarified that “when an antidumping duty determination is reviewable by a binational
panel, judicial review by the CIT is unavailable unless and until the time for requesting a
panel has expired or the panel has dismissed its review for lack of jurisdiction (or, the
operation of USMCA Article 10.12 has been suspended).” See J.D. Irving, Ltd. v. United
States (“J.D. Irving I”), 119 F.4th 48, 56 (Fed. Cir. 2024). Several exceptions to the
exclusive review of a determination by a binational panel are set forth in 19 U.S.C. § Court No. 22-00256 Page 7
1516a(g)(3) and (4). 2 There is no indication ʊ nor do the parties assert ʊ that any of
the statutory exceptions applies to the instant action.
The statute defines “determination” with reference to the “[r]eviewable
determinations” enumerated in 19 U.S.C. § 1516a(a)(2)(B), as including “a final
determination . . . by [Commerce] . . . under section 1675” of Title 19 of the U.S. Code
ʊ i.e., Commerce’s final results with respect to the administrative review of an AD or
2 19 U.S.C. § 1516a(g)(3) provides the following exceptions to exclusive binational
panel review:
(A) In general. A determination is reviewable under [19 U.S.C. § 1516a(a)] if the determination sought to be reviewed is ʊ
(i) a determination as to which neither the United States nor the relevant FTA country requested review by a binational panel pursuant to . . . article 10.12 of the USMCA;
(ii) a revised determination issued as a direct result of judicial review, commenced pursuant to [19 U.S.C. § 1516a(a)], if neither the United States nor the relevant FTA country requested review of the original determination,
(iii) a determination issued as a direct result of judicial review that was commenced pursuant to [19 U.S.C. § 1516a(a)] prior to the entry into force of the . . . USMCA,
(iv) a determination which a binational panel has determined is not reviewable by the binational panel,
(v) a determination as to which binational panel review has terminated pursuant to article 10.13 of the USMCA, or
(vi) a determination as to which extraordinary challenge committee review has terminated pursuant to article 10.13 of the USMCA.
19 U.S.C. § 1516a(g)(3)(A). And § 1516a(g)(4) provides for certain exceptions with respect to actions that raise constitutional issues. See Mitsubishi Elecs. Indus. Can., Inc. v. Brown, 20 CIT 313, 316, 917 F. Supp. 836, 838 (1996); J.D. Irving, Ltd. v. United States, 47 CIT __, __ n.3, 615 F. Supp. 3d 1323, 1328 n.3 (2023). Court No. 22-00256 Page 8
countervailing duty (“CVD”) order. 19 U.S.C. § 1516a(a)(2)(B)(iii); 19 U.S.C. § 1675;
see also Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304, 1309-10 (Fed. Cir.
2004) (stating that reviewable determinations under 19 U.S.C. § 1516a(a)(2)(B) include
the final results of Commerce in an administrative review).
III. J.D. Irving I
On December 28, 2021, certain interested parties to the AR 2 proceeding ʊ
apart from J.D. Irving ʊ requested binational panel review of the AR 2 Final Results
pursuant to Article 10.12 of the USMCA. See J.D. Irving, Ltd. v. United States, 47 CIT
__, __, 615 F. Supp. 3d 1323, 1327 (2023).
On December 30, 2021, J.D. Irving filed a complaint and commenced an appeal
before this Court of the AR 2 Cash Deposit Instructions. See id. On January 25, 2023,
the Court concluded that it lacked subject matter jurisdiction under § 1581(i) to hear the
action and granted the government’s motion to dismiss. Id. at __, 615 F. Supp. 3d at
1325. On October 10, 2024, the Federal Circuit affirmed this Court’s decision. J.D.
Irving I, 119 F.4th at 49-50.
IV. Procedural history of the instant action
On September 8, 2022, certain interested parties to the AR 3 proceeding ʊ apart
from J.D. Irving ʊ requested binational panel review of the AR 3 Final Results pursuant
to Article 10.12 of the USMCA. See Am. Compl., attach. 5. On September 9, 2022,
J.D. Irving filed a complaint and commenced an appeal before this Court of the AR 3
Cash Deposit Instructions. Compl., ECF No. 2.
On October 10, 2022, J.D. Irving moved to consolidate the instant action with its
appeal of the AR 2 Cash Deposit Instructions. Mot. to Consolidate Cases, ECF No. 9. Court No. 22-00256 Page 9
On October 31, 2022, the Court stayed the instant action pending a final and conclusive
resolution of the jurisdictional issue raised in J.D. Irving’s appeal of the AR 2 Cash
Deposit Instructions. Order, ECF No. 11.
On February 6, 2025, following the Federal Circuit’s ruling in J.D. Irving I, plaintiff
filed an amended complaint. Am. Compl. On March 14, 2025, defendants moved to
dismiss the amended complaint. Defs. Br.
LEGAL FRAMEWORK
Subject matter jurisdiction is a threshold matter that “cannot be forfeited or
waived and should be considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662,
671 (2009). It is the plaintiff’s burden to demonstrate that subject matter jurisdiction
exists. See Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F. Supp. 428,
432 (1992); Design Int’l Grp., Inc. v. United States, 39 CIT __, __, 113 F. Supp. 3d 1342,
1344 (2015).
28 U.S.C. § 1581(c) provides this Court with “exclusive jurisdiction [over] any civil
actions commenced under [19 U.S.C. § 1516a].” Section 1516a governs judicial review
of determinations of Commerce in AD and CVD proceedings. See 19 U.S.C. § 1516a.
28 U.S.C. § 1581(i) is the Court’s “residual” jurisdictional provision, Fujitsu Gen.
Am., Inc. v. United States, 283 F.3d 1364, 1371 (Fed. Cir. 2002) (citation omitted), which
allows the Court to “take jurisdiction over designated causes of action founded on other
provisions of law.” Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.
Cir. 1992). This Court has stated that § 1581(i) constitutes “a Congressional fail-safe
device” and that “[i]f the circumstances of a case are sufficiently unusual so that one
may presume that Congress could not have provided for such a case under the general Court No. 22-00256 Page 10
language of 19 U.S.C. § 1516a, . . . 28 U.S.C. § 1581(i) is available to afford a means of
vindication of statutory rights.” Hylsa, S.A. de C.V. v. United States, 21 CIT 222, 227-
28, 960 F. Supp. 320, 324 (1997), aff'd sub nom., Hylsa, S.A. v. Tuberia Nat’l, S.A., 135
F.3d 778 (Fed. Cir. 1998).
To determine whether parties may invoke § 1581(i), the Federal Circuit has set
forth a “two-step inquiry”: (1) “[W]e determine whether jurisdiction under a different
subsection of § 1581 could have been available”; and (2) if such jurisdiction was
available, “we ask whether the provided remedy would have been manifestly
inadequate.” J.D. Irving I, 119 F.4th at 53-54 (quoting Rimco Inc. v. United States, 98
F.4th 1046, 1053 (Fed. Cir. 2024)). At the first step, the Federal Circuit has explained
that “[b]ecause the availability of jurisdiction under other subsections of § 1581 depends
on the particular type of agency action challenged, we must first determine the true
nature of an action.” Rimco, 98 F.4th at 1053 (citation omitted). The “true nature”
inquiry requires that the court engage with the “totality” of the allegations of the party
invoking jurisdiction under § 1581 and “identify the particular agency action underlying
the claimed harm.” J.D. Irving I, 119 F.4th at 54. (citing Rimco, 98 F.4th at 1053)
DISCUSSION
The court concludes that “jurisdiction under a different subsection of § 1581,”
namely § 1581(c), “could have been available” in the instant case absent binational
panel review of the AR 3 Final Results. 3 See Rimco, 98 F.4th at 1053.
3 Because the amended complaint does not allege that binational panel remedies would
be “manifestly inadequate,” Rimco Inc. v. United States, 98 F.4th 1046, 1053 (Fed. Cir. 2024), the court declines to address the second step of the Rimco inquiry. Compare Compl. ¶ 7 with Am. Compl. ¶ 7. Court No. 22-00256 Page 11
Plaintiff argues that the “true nature” of its action is a challenge to Commerce’s
AR 3 Cash Deposit Instructions, not to the AR 3 Final Results themselves. Am. Compl.
¶ 7. Plaintiff insists that “[b]ecause Commerce’s cash deposit instructions are not a
reviewable determination under 19 U.S.C. § 1516a(a)(2)(B), jurisdiction under [§
1581(c)] is unavailable.” Id.
In J.D. Irving I, the Federal Circuit rejected J.D. Irving’s identical argument that
the “true nature” of that action was “a challenge to Commerce’s ‘administration and
enforcement’ of the AR 2 Final Results” in the AR 2 Cash Deposit Instructions “as
opposed to a challenge to the Final Results themselves.” J.D. Irving I, 119 F.4th at 55.
The Federal Circuit offered three core reasons for its conclusion.
First, the J.D. Irving I court determined that the particular agency action
underlying the alleged harm to J.D. Irving was “Commerce’s assignment of a cash
deposit rate higher than 1.57% in the AR 2 preliminary results and Final Results.” Id.
Second, the court noted that in the AR 2 Final Results IDM Commerce explained
that it would “assign [J.D. Irving] a cash deposit rate based on the final results of this
administrative review [i.e., AR 2].’” Id. (second alteration in original) (quoting AR 2 Final
Results IDM). Commerce’s explanation addressed objections to the cash deposit rate
that J.D. Irving raised in a case brief submitted in response to the AR 2 preliminary
results. Id. at 52. Commerce in an IDM responds only to objections to the preliminary
results, which suggested that the “true nature” of J.D. Irving’s challenge was a challenge
to the final results.
Third, J.D. Irving confirmed that it sought review specifically of the AR 2 Final
Results in its notice of intent to seek judicial review to the USMCA binational panel. See Court No. 22-00256 Page 12
id. at 55. Such a review is expressly provided for under § 1581(c). In light of the
foregoing points, the Federal Circuit concluded that “the proper source of the CIT’s
jurisdiction over JDI’s action would have been § 1581(c).” Id.
The instant case is identical on all three points. First, the particular agency
action underlying plaintiff’s alleged harm is Commerce’s failure to “update J.D. Irving’s
AD cash deposit rate from the dumping margin determined for 2019 (11.59%) to the
most recent dumping margin established for 2020 (1.57%).” Am. Compl. ¶ 26.
Commerce declined plaintiff’s request to update the cash deposit rate in the AR 3 Final
Results. Id., attach. 13 at 43-44. Commerce’s decision to maintain the AR 2 cash
deposit rate in AR 3 renders the “particular agency action[s]” in J.D. Irving I and the
instant case functionally identical. See J.D. Irving I, 119 F.4th at 55. The operative
action in both reviews was that Commerce assigned a cash deposit rate of 11.59% — in
the case of AR 2 as a result of a requested review, in AR 3 because J.D. Irving was not
under review. Put differently, the two actions concern “Commerce’s assignment of a
cash deposit rate higher than 1.57%.” Id.
As in J.D. Irving I, plaintiff argues that “the Court has jurisdiction under §
1581(i)(1)(D) because [plaintiff] challenges Commerce’s ‘administration and
enforcement’ of ‘tariffs, duties, fees, or other taxes on the importation of merchandise for
reasons other than the raising of revenue’ through Commerce’s issuance of the unlawful Court No. 22-00256 Page 13
[AR 3 Cash Deposit Instructions] to [Customs].” 4 Pl.’s Resp. in Opp’n to Def.’s Mot. to
Dismiss (“Pl. Br.”) at 7, 9, ECF No. 18. Plaintiff analogizes to Consolidated Bearings in
which “the court concluded that jurisdiction under § 1581(i) was proper because it
related to how Commerce incorrectly applied liquidation instructions from an
antidumping administrative review.” Id. at 15 (citing Consol. Bearings Co. v. United
States, 348 F.3d 997, 1002 (Fed. Cir. 2003)). Plaintiff points specifically to the Federal
Circuit’s conclusion that “Consolidated does not object to the final results” but instead
“seeks application of those final results to its entries.” Consol. Bearings Co., 348 F.3d at
1002.
But in J.D. Irving I, the Federal Circuit distinguished J.D. Irving’s challenge to the
AR 2 Cash Deposit Instructions from the challenge to the instructions in Consolidated
Bearings. See J.D. Irving I, 119 F.4th at 54-55. There, the court characterized J.D.
Irving’s action as a “challenge[] to the final results of an administrative review by a
participant in that review” rather than a challenge to the “administration and
enforcement” of the final results. Id. (quoting Consol. Bearings Co., 348 F.3d at 1002)).
Similarly, in this case, J.D. Irving is challenging the final results of AR 3, not the
application of those results to its entries. Accordingly, the instant case aligns with the
Federal Circuit’s first point in J.D. Irving I.
4 Plaintiff does not address directly 28 U.S.C. § 1581(i)(2)(B), which removes jurisdiction
from this Court “over an antidumping or countervailing duty determination which is reviewable by . . . a binational panel under [19 U.S.C. § 1516a(g)].” See Pl. Br. However, plaintiff’s arguments as to the “administration and enforcement” of the AR 3 Final Results indicate that plaintiff’s position is that § 1581(i)(2)(B) is not applicable. As discussed in this section, the court disagrees. Court No. 22-00256 Page 14
Also, as in J.D. Irving I, plaintiff submitted a case brief in AR 3 in which it argued
that the cash deposit rate assigned to J.D. Irving must be updated to reflect the
company’s dumping margin for 2020. See Am. Compl., attach 3; J.D. Irving I, 119 F.4th
at 52. And as in J.D. Irving I, Commerce in the AR 3 Final Results IDM addressed
plaintiff’s arguments and explained that the decision of Commerce comported with
“long-established precedent for the treatment of companies, such as J.D. Irving, that are
not under review.” AR 3 Final Results IDM at 43; see J.D. Irving I, 119 F.4th at 55. The
instant case aligns with J.D. Irving I on this second point as well.
On the Federal Circuit’s third point, plaintiff here in its notice to the USMCA
binational panel of plaintiff’s intent to seek judicial review, stated expressly that plaintiff
sought judicial review “to contest the final determination issued by the United States
Department of Commerce” in AR 3. Am Compl., attach. 4 at 1 (emphasis supplied); cf.
J.D. Irving I, 119 F.4th at 55. At no point did plaintiff state that it sought judicial review to
contest only the accompanying cash deposit instructions. See Am. Compl., attach. 4.
Accordingly, the instant case aligns with J.D. Irving I also on the third point. For these
reasons, the court concludes that the “true nature” of plaintiff’s action is a challenge to
the AR 3 Final Results, specifically the portion that concerns the cash deposit rate
assigned to plaintiff. Rimco, 98 F.4th at 1053.
But despite the substantial factual parallels between J.D. Irving I and the instant
case, plaintiff argues that J.D. Irving I does not control due to what plaintiff describes as Court No. 22-00256 Page 15
“[a] material difference in key facts”. 5 Pl. Br. at 12. Plaintiff asserts that in the instant
case, “J.D Irving was not subject to an administrative review for the 2020 POR.” Id.
And, according to plaintiff, “[b]ecause J.D. Irving was not subject to [AR 3], it is not
subject to the dumping margins and cash deposit rates that are set in the [AR 3] Final
Results.” Id. at 14. Plaintiff’s argument is unavailing.
19 U.S.C. § 1516a(a)(2)(A)(i)(I) provides for judicial review of AD administrative
reviews under § 1675. This Court has jurisdiction over such claims under 28 U.S.C. §
1581(c). Section 1516a(a)(2)(A) requires that a party seeking judicial review of AD
administrative reviews be “an interested party who is a party to the proceeding in
connection with which the matter arises” before the party may “commence [the] action .
. . contesting any factual findings or legal conclusions upon which the determination is
based.” In parallel, 28 U.S.C. § 2631(c) states that “[a] civil action contesting a
determination listed in [19 U.S.C. § 1516a] may be commenced in the Court of
International Trade by any interested party who was a party to the proceeding in
connection with which the matter arose.”
The core question here is whether plaintiff is an “interested party who is a party
to the proceeding in connection with which the matter arises,” namely AR 3. 19 U.S.C.
§ 1516a(a)(2)(A)(i)(I); 28 U.S.C. § 2631(c). The court concludes that plaintiff is such a
party.
5 Plaintiff raises two factual differences: “(1) that J.D. Irving was not subject to an
administrative review for the 2020 POR, and (2) that J.D. Irving has challenged Commerce’s [AR 3 Cash Deposit Instructions] – and is not challenging Commerce’s final results.” Pl. Br. at 12. Because the court has already addressed the second purported difference above, the following analysis will address only the first purported difference. Court No. 22-00256 Page 16
To start, plaintiff concedes that it is an “interested party.” Am. Compl. ¶ 5
(acknowledging that J.D. Irving “participated in [AR 3] as an interested party”); see also
Pl. Br. at 8 (“Although J.D. Irving participated in [AR 3] as an interested party by
submitting a case brief to Commerce, this does not change the ‘true nature of the
action,’ which is Commerce’s failure to update the [AR 3 Cash Deposit Instructions] to
reflect the correct cash deposit rate for J.D. Irving.”). However, plaintiff denies in effect
that it is a “party to the proceeding” when it avers that it “does not contest the [AR 3
Final Results] because it was not subject to those results.” Pl. Br. at 8, 12, 14-15; see
also Am. Compl. ¶ 4 (“Whereas J.D. Irving was subject to [AR 2], it was not subject to
[AR 3]. Consequently, unlike the [AR 2 Final Results], the [AR 3 Final Results] did not
apply to J.D. Irving at all.”). Plaintiff’s denial implies that judicial review pursuant to §
1581(c) “could have been available” only if plaintiff was “subject” to the AR 3 Final
Results. See Rimco, 98 F.4th at 1053.
This Court and the Federal Circuit have stated that to satisfy the “party to the
proceeding” requirement, a party’s participation in the relevant administrative
proceeding “must reasonably convey the separate status of a party” and be “meaningful
enough ‘to put Commerce on notice of a party’s concerns.’” Laclede Steel Co. v. United
States, No. 96-1029, 1996 WL 384010, at *2 (Fed. Cir. July 8, 1996) (citations omitted);
Gov’t of Can. v. United States, 48 CIT __, __, 686 F. Supp. 3d 1320, 1327 (2024); Pay
Less Here, LLC v. U.S. Int’l Trade Comm’n, 49 CIT __, __, 778 F. Supp. 3d 1360, 1364
(2025). At bottom, the “statutory standing requirement that a party first be a ‘party to the
proceeding’ before the agency is a ‘low bar.’” Pay Less Here, 49 CIT at __, 778 F.
Supp. 3d at 1365 (quoting Gov’t of Can., 48 CIT at __, 686 F. Supp. 3d at 1335). Court No. 22-00256 Page 17
The court concludes for two reasons that plaintiff was “a party to the proceeding”
in AR 3. First, plaintiff’s entry of appearance and submission of a case brief in AR 3
“reasonably convey . . . separate status.” See Entry of Appearance, Softwood Lumber
from Canada (A-122-857) (Aug. 23, 2021); Am. Compl., attach. 3; Specialty Merch.
Corp. v. United States, 31 CIT 364, 365, 477 F. Supp. 2d 1359,1361 (2007); cf. Pay
Less Here, 49 CIT at __, 778 F. Supp. 3d at1364-66 (concluding that plaintiff was not “a
party to the proceeding” because plaintiff “failed . . . to clear the unquestionably low bar
of filing an entry of appearance in proceedings before” the agency).
Second, plaintiff’s case brief “‘put Commerce on notice of [plaintiff’s] concerns’”
because Commerce responded to plaintiff’s arguments in the AR 3 Final Results IDM.
Laclede Steel, 1996 WL 384010, at *2; see Am. Compl., attach. 13 at 40-46 (“Comment
9: Whether to Update J.D. Irving’s Cash Deposit Rate”). For this reason as well, it is
evident that plaintiff was a party to the proceeding.
As plaintiff is an “interested party who is a party to the proceeding,” jurisdiction
“could have been available” under § 1581(c) absent the binational panel review initiated
by certain other interested parties that were parties to AR 3. See 19 U.S.C. §
1516a(a)(2)(A)(i)(I); 28 U.S.C. § 2631(c); Rimco, 98 F.4th at 1053. Accordingly, the
court lacks subject matter jurisdiction under § 1581(i). See Rimco, 98 F.4th at 1053. As
the Federal Circuit held in J.D. Irving I, plaintiff may not use its purported challenge to
the AR 3 Cash Deposit Instructions to “make an end run around the binational panel’s
exclusive review." 119 F.4th at 55 (“Allowing the CIT to exercise concurrent jurisdiction
with a binational panel ‘would strongly [and impermissibly] discourage the use of the
[binational] panel system to challenge antidumping duties and make that procedure far Court No. 22-00256 Page 18
less effective and useful than it was intended and expected to be.’” (alterations in the
original) (quoting Canadian Wheat Bd. v. United States, 641 F.3d 1344, 1351 (Fed. Cir.
2011))).
CONCLUSION
For the reasons discussed above, it is hereby
ORDERED that defendants’ motion to dismiss is GRANTED. Judgment will
enter accordingly.
/s/ Timothy M. Reif Timothy M. Reif, Judge
August 21, 2025 Dated:_______________ New York, New York