[00:00:00] Speaker 04:
The last case for the day today is J.D.

[00:00:03] Speaker 04:
Irving Limited versus the United States, docket number 23-1652.

[00:00:42] Speaker 04:
Good morning.

[00:00:43] Speaker 04:
Good morning.

[00:00:43] Speaker 04:
You can proceed when you're ready, Mr. Campbell.

[00:00:45] Speaker 01:
Thank you.

[00:00:47] Speaker 01:
May it please the court.

[00:00:49] Speaker 01:
The Court of the National Trade has jurisdiction under 1581 I to hear J.D.

[00:00:55] Speaker 01:
Irving's appeal of Commerce's cash deposit rate instructions.

[00:01:01] Speaker 01:
The well-established test for 1581 I jurisdiction is twofold.

[00:01:06] Speaker 01:
Number one,

[00:01:08] Speaker 01:
It is whether another subsection of 1581 is available or could have been available.

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And number two, if so, whether relief under that other subsection of 1581 would be manifestly inadequate.

[00:01:25] Speaker 01:
Here, although only one of the two criteria is required to be met, we satisfy both.

[00:01:33] Speaker 01:
Number one, no other subsection of 1581 is available

[00:01:38] Speaker 04:
Why isn't Section 1581C available, particularly given, for example, the concession in your complaint, that that's ordinarily the section that would be cited or under which jurisdiction in the Court of International Trade would lie?

[00:01:56] Speaker 01:
Correct.

[00:01:57] Speaker 01:
Section 1581C is unavailable for two reasons.

[00:02:00] Speaker 01:
Number one,

[00:02:01] Speaker 01:
The final results of the 2019 review were taken to a USMTA binational panel.

[00:02:09] Speaker 04:
But more importantly... But that doesn't mean that it can't be used.

[00:02:14] Speaker 04:
That's what would normally be used.

[00:02:17] Speaker 04:
But you can't go to the binational... I mean, you could go to the binational panel with this issue.

[00:02:24] Speaker 04:
The problem is that just because there was a case brought before the binational panel doesn't mean that jurisdiction wouldn't normally lie under 1581C.

[00:02:37] Speaker 01:
Well, I direct you, Your Honor, to this Court's decisions in consolidated barons and

[00:02:44] Speaker 01:
American Signature, where even though a plaintiff importer did not participate in the review but could have, the court still permitted jurisdiction under 1581i for the importer to challenge Commerce's liquidation instructions to custom.

[00:03:01] Speaker 02:
But liquidation instructions are different, aren't they?

[00:03:04] Speaker 01:
They're very much analogous to cash deposit rate instructions, because in both instances, Department of Commerce's

[00:03:10] Speaker 01:
instructing US Customs what to do, whether it's an assessment rate by virtue of liquidation instructions or a cash deposit rate by virtue of cash deposit rate instructions.

[00:03:22] Speaker 01:
And in Consolidated Bearings and American Signature, this court recognized that although the plaintiff could have participated in the underlying administrative review, nevertheless, the true nature of the plaintiff's appeal was

[00:03:40] Speaker 01:
a challenge to commerce's cash deposit, excuse me, liquidation instructions, which are not... Which differed from the rate, right?

[00:03:47] Speaker 01:
Right, which are not a reviewable determination.

[00:03:49] Speaker 01:
And in this case, despite the fact that we raised the issue before commerce, we tried to exhaust our administrative remedies.

[00:03:57] Speaker 01:
Despite that, the true nature of our appeal remains a challenge to commerce's cash deposit rate instruction.

[00:04:04] Speaker 04:
I'm having a hard time understanding

[00:04:06] Speaker 04:
I think there's just some fundamental thing I'm missing with your argument.

[00:04:10] Speaker 04:
I'm just not understanding, which is that you ask commerce to consider this very argument about the instructions.

[00:04:17] Speaker 04:
They did.

[00:04:18] Speaker 04:
And they said, no, you're wrong.

[00:04:20] Speaker 04:
Here's our reasons for why you're wrong.

[00:04:22] Speaker 04:
And then you tried to file a, I think you then filed a case before the CIT, right?

[00:04:28] Speaker 04:
Or said you were going to file a case.

[00:04:31] Speaker 04:
What I'm having a problem understanding is, why doesn't just that determination, by commerce, fall under 1581C?

[00:04:38] Speaker 01:
It could.

[00:04:42] Speaker 01:
It ordinarily could.

[00:04:45] Speaker 02:
We could have, if there were no... Well, isn't that sufficient, though, under this statutory framework?

[00:04:50] Speaker 02:
If it could, then you look to Section C of 1581, correct?

[00:04:56] Speaker 01:
True, but again, I direct your honors again to

[00:04:59] Speaker 01:
this court's decisions in consolidated bearings and American Signature.

[00:05:04] Speaker 04:
But those cases were cases where those issues could not have been brought under 1581C.

[00:05:09] Speaker 04:
That's the fundamental difference.

[00:05:11] Speaker 01:
Respectfully, I disagree.

[00:05:13] Speaker 01:
That's not true.

[00:05:14] Speaker 01:
In fact, our facts are stronger than the facts presented in consolidated bearings and American Signature, because in each of those cases,

[00:05:22] Speaker 01:
the plaintiff importer could have participated in the commerce administrative review and raised the issue.

[00:05:28] Speaker 04:
But nevertheless, so that means- But you did participate, and you did raise the issue.

[00:05:32] Speaker 01:
True, but it can't possibly be the case that we're in a worse position than when we tried to exhaust our remedies.

[00:05:38] Speaker 04:
I'm just following the statute.

[00:05:39] Speaker 04:
This is the way it's set up, right?

[00:05:42] Speaker 04:
I mean, our job, I'm not going to look at, oh, that doesn't make sense policy-wise.

[00:05:46] Speaker 04:
That's not our job here.

[00:05:48] Speaker 04:
Our job is to look at the statute.

[00:05:50] Speaker 04:
Here, you participated in the review.

[00:05:52] Speaker 04:
You raised the issue.

[00:05:54] Speaker 04:
Now we want to say some other part of the Court of International Trade's jurisdiction applies.

[00:05:59] Speaker 04:
That doesn't make any sense to me, to be honest.

[00:06:03] Speaker 01:
Well, again, Your Honors, I would direct you to the Federal Circuit's decisions in Consolidated Barons and American Signature, where even though the plaintiffs could have participated in the review, such that jurisdiction could have been in it.

[00:06:17] Speaker 02:
I'm sorry.

[00:06:18] Speaker 02:
go to American Signature.

[00:06:20] Speaker 02:
In that, it says, as a result, for entries between the date of the preliminary determination and the amended preliminary determination, and for entries between the date of the final determination and the amended final determination, duties were assessed at the cash deposit rates erroneously calculated by Commerce.

[00:06:41] Speaker 02:
In short, although Commerce admitted errors in its calculated dumping margins

[00:06:45] Speaker 02:
It did not correct for the overpayment of each cash deposit when it issued liquidation instructions.

[00:06:51] Speaker 02:
So is there some sort of inconsistency there, internal inconsistency, which would provide a distinction between the liquidation instructions and the issue that we're dealing with here?

[00:07:04] Speaker 01:
Well, there's no inconsistency because the entries were liquidated by virtue of automatic cash

[00:07:12] Speaker 01:
automatic liquidation instructions, which is the way it should normally work.

[00:07:16] Speaker 02:
Well, this says there was an erroneous calculation.

[00:07:18] Speaker 02:
And in our situation, we have a rate, and then we have simple instructions that follow through with no variation between them.

[00:07:26] Speaker 02:
Is that correct?

[00:07:30] Speaker 01:
What we have in our situation is very different, because we're challenging a general commerce policy that's unlawful, by virtue of which commerce

[00:07:39] Speaker 01:
priorities is outdated cash deposit rates calculated, determined in the most recently completed administrative review over more recent cash deposit rates determined for a more recent period by operation of law.

[00:07:54] Speaker 02:
Is that really your argument though?

[00:07:56] Speaker 02:
I have your notice of intent to commence judicial review and it indicates on paragraph five certain softwood lumber products from Canada

[00:08:05] Speaker 02:
final results of anti-dumping duty administrative review 2019.

[00:08:09] Speaker 02:
So it's regarding the final results of the anti-dumping administrative review.

[00:08:16] Speaker 02:
It's not talking about this whole administrative scheme or enforcement.

[00:08:20] Speaker 02:
It's referring to the rates, final results.

[00:08:24] Speaker 01:
But Your Honor, the argument I just described is the very argument we made before commerce in our case brief.

[00:08:30] Speaker 01:
And in American Signature, the Court recognized that even though

[00:08:35] Speaker 01:
the commerce rejected the very argument the plaintiff wished to raise by virtue of under 15A1I jurisdiction that nevertheless, the true nature of plaintiff's challenge were to liquidation instructions.

[00:08:48] Speaker 01:
Just like in our case, the true nature of our appeal is the cash deposit rate instructions and the unlawful fund.

[00:08:55] Speaker 02:
How is that actually the true nature?

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And I believe we should be looking at the true nature.

[00:08:59] Speaker 02:
But how is that the true nature?

[00:09:02] Speaker 01:
Because what commerce does in an administrative review is it calculates a dumping rate for that review period.

[00:09:09] Speaker 01:
In this case, 2019.

[00:09:11] Speaker 01:
And then what commerce does is that sets an assessment rate, the final AD rate that applies to imports entered during 2019, and it calculates a new cash deposit rate.

[00:09:24] Speaker 01:
In this case, the 2019 review had calculated a rate of 11.59%.

[00:09:30] Speaker 01:
We do not challenge that rate.

[00:09:32] Speaker 01:
We do not challenge the calculation of that rate or anything about it.

[00:09:36] Speaker 01:
Our argument is independent.

[00:09:38] Speaker 02:
It looks to an early... How is it independent if, for example, the Notice of Intent specifically refers to the final result of the review?

[00:09:49] Speaker 01:
Right, we raised the issue in the final results of the review, because we were attempting to exhaust our remedies and notify commerce that they might, we were trying to prevent them from doing something unlawful.

[00:09:59] Speaker 01:
But our argument is distinct from the 2019 review in that it depends on an earlier action by commerce, whereby it already assigned JD Irving a deposit rate for a more recent period, 2020 by operation of law.

[00:10:14] Speaker 01:
That's totally separate from 2019.

[00:10:16] Speaker 02:
If the rate had not increased, would you be bringing this challenge?

[00:10:21] Speaker 01:
We would have had the right to bring it of course probably not but But we have the right to bring it because it's what commerce did was unlawful It would have been unlawful either way, but in our circumstance obviously we're bringing the case because we're looking for the best result for the company and do you get notice of the the rate change before the the rate is actually changed and

[00:10:41] Speaker 01:
No, we did not.

[00:10:42] Speaker 01:
That's part of the problem.

[00:10:43] Speaker 01:
That really goes to the merits and why we're contesting this unlawful commerce policy.

[00:10:48] Speaker 02:
Isn't there a preliminary notice that goes out?

[00:10:52] Speaker 01:
The preliminary notice in the 2019 review actually took place after review requests were due for the 2020 period.

[00:11:00] Speaker 01:
So we had no idea what the 2019 rate would be.

[00:11:05] Speaker 01:
What we did know

[00:11:07] Speaker 01:
is that the rate that existed was 1.57%.

[00:11:12] Speaker 01:
And both neither we nor the petitioner nor any other party requested a review of J.D.

[00:11:19] Speaker 01:
Irving for 2020.

[00:11:22] Speaker 01:
And that means that under congressional intent, there's agreements at 1.57%.

[00:11:27] Speaker 01:
And this is by operational law.

[00:11:29] Speaker 01:
Is J.D.

[00:11:30] Speaker 01:
Irving's dumping rate for 2020

[00:11:31] Speaker 01:
And our argument is that, which we'd like our day in court to prove, is that both under the statute and consistent with congressional intent, Congress's policy or practice, whereby it rejected the fact that Irving already had a dumping determination for 2020 by operation of law and replaced that 2020 rate with an outdated 2019 rate.

[00:11:56] Speaker 02:
right but there is a full statutory structure in terms of how to challenge these various rates.

[00:12:01] Speaker 02:
So you know on the one year anniversary of the, I believe it's the duty instruction at the start, you can then file your necessary paperwork.

[00:12:13] Speaker 02:
And I recognize that you were satisfied with your initial rate of one point, what was it, five, seven?

[00:12:19] Speaker 01:
11%, right.

[00:12:21] Speaker 02:
OK.

[00:12:21] Speaker 02:
So you didn't do anything the following year.

[00:12:23] Speaker 02:
But you recognize that is the structure, and those in this

[00:12:26] Speaker 02:
business recognize that that is the structure.

[00:12:29] Speaker 02:
So you do have an opportunity to put something in, in terms of paperwork on that issue, regardless of what you know might be happening.

[00:12:37] Speaker 02:
Because you recognize these rates can change, no?

[00:12:41] Speaker 01:
But that goes to the unlawful practice that we'd like to challenge on the merits.

[00:12:47] Speaker 01:
And what you're referring to is the normal administrative review

[00:12:50] Speaker 01:
process.

[00:12:52] Speaker 01:
But that process, and this goes to the second prong of the 15A when I test.

[00:12:56] Speaker 04:
Why aren't you able to raise that issue before the binational panel?

[00:13:01] Speaker 04:
If the binational panel has jurisdiction to consider whether determinations of commerce are inconsistent with statutes or regulations.

[00:13:10] Speaker 01:
The binational panel is authorized under section 1516 AG to review reviewable determinations

[00:13:19] Speaker 01:
such as the final results of the 2019 review.

[00:13:22] Speaker 01:
But it does not have authority to review cash deposit instructions, which we've appealed.

[00:13:28] Speaker 01:
And on top of that, although I do- What source of law do you have for that?

[00:13:34] Speaker 04:
Because I looked at, for example, I'm looking at the agreement

[00:13:40] Speaker 04:
between the US-Canada-Mexico agreement.

[00:13:45] Speaker 04:
And it reads to me as if the binational panel is going to, it says the United States has to amend its statutes and regulations to ensure concerning many different things, including interest on anti-dumping duties

[00:14:07] Speaker 04:
I think I'm not looking at the right section.

[00:14:10] Speaker 04:
But what law do you have for saying that they're not entitled to review this issue?

[00:14:17] Speaker 04:
Is there a case law?

[00:14:18] Speaker 04:
Is there anything?

[00:14:19] Speaker 04:
No, Your Honor.

[00:14:21] Speaker 01:
If I may clarify, Your Honor.

[00:14:23] Speaker 01:
A USMCA panel can review the issue.

[00:14:27] Speaker 01:
A USMCA panel, however, is powerless to provide any relief.

[00:14:33] Speaker 02:
Well, they're able to do a remand, aren't they?

[00:14:35] Speaker 01:
But a remand would achieve nothing.

[00:14:37] Speaker 02:
Can't they do a directive in a remand?

[00:14:39] Speaker 02:
The commerce is required to follow?

[00:14:41] Speaker 01:
No.

[00:14:42] Speaker 01:
What we need is injunctive relief.

[00:14:44] Speaker 02:
But I do believe there is reference in the statutory structure that commerce is required to follow whatever directive they receive.

[00:14:51] Speaker 02:
How would that not be appropriate here?

[00:14:55] Speaker 01:
Under the law, under the statute 28 USC 1585 and 28 USC 2643C,

[00:15:02] Speaker 01:
uh... the court of national trade congress invested the con com court of national trade with injunctive powers like any article three district court but there are no analogous provisions under the law that provide that i mean it's not simply a sense that i mean it's not a relief when the other may maybe appropriate certainly that is how the structure is the only commerce would be required them to look to see what was provided in the order and adhere to it use a change the rate

[00:15:32] Speaker 01:
USMCA panels can only require direct commerce to change rates prospectively, not retroactively.

[00:15:39] Speaker 02:
Can they provide for a refund?

[00:15:41] Speaker 01:
No, Your Honor, no.

[00:15:42] Speaker 01:
They lack those injunctive powers.

[00:15:45] Speaker 04:
Do you think it would provide remand instructions?

[00:15:48] Speaker 01:
The USMCA panel has no authority under the law to enjoin commerce

[00:15:59] Speaker 01:
to instruct customs to retroactively reinstate the lawful AD cash deposit rate and refund J.D.

[00:16:06] Speaker 01:
Irving the overpaid AD cash deposits.

[00:16:11] Speaker 04:
You are out of your butthole time, Nathan.

[00:16:14] Speaker 04:
So why don't we hear from the government for a little bit, and then I'll give you three minutes.

[00:16:18] Speaker 04:
Oh, thank you.

[00:16:19] Speaker 01:
Thank you very much.

[00:16:27] Speaker 04:
Mr. Loudon, maybe?

[00:16:28] Speaker 00:
Good morning.

[00:16:31] Speaker 00:
And may it please the court.

[00:16:33] Speaker 00:
This case is about a Canadian company's efforts to avoid the binational panel that has been requested to review the final results that JD Irving contests here.

[00:16:46] Speaker 00:
So the decision below should be affirmed because the CIT properly found that it lacks jurisdiction given the pending request for binational panel review.

[00:16:54] Speaker 00:
And there are four points that we'd like to address.

[00:16:57] Speaker 00:
First, Congress foreclosed CIT jurisdiction over the determination at issue in this case, the final results, because the final results are subject to a binational panel review.

[00:17:09] Speaker 00:
Now, without such a ruling, if this case could theoretically proceed while a binational panel is going on, you have the possibility of inconsistent results.

[00:17:17] Speaker 00:
You could have different cash deposit instructions, cash deposit rates applied to different companies that are similarly situated, and that's why Congress

[00:17:27] Speaker 00:
directed that all challenges to the final results are channeled to the same forum.

[00:17:36] Speaker 00:
Second, there are statutory exceptions to the request for binational panel review that do not apply here.

[00:17:44] Speaker 00:
Congress set forth six specific exceptions and two exceptions for constitutional issues.

[00:17:52] Speaker 00:
None of those apply.

[00:17:55] Speaker 00:
Plaintiff has not argued that any of those apply.

[00:17:58] Speaker 00:
And there's no implicit exception if the plaintiff doesn't like the remedy that the binational panel is prepared to provide.

[00:18:07] Speaker 00:
Third, JD Irving can circumvent the binational panel by alleging that it really challenges the cash deposit instructions rather than the final results.

[00:18:17] Speaker 00:
because it challenges the final results.

[00:18:20] Speaker 00:
And 1581C jurisdiction would have been available, but for the request for binational panel review.

[00:18:26] Speaker 04:
Do you think that 1581C also covers their challenge to the instructions?

[00:18:33] Speaker 00:
Well, in this case, it does, because the instructions are entirely consistent with Commerce's findings with respect to the arguments about the cash deposit instructions.

[00:18:42] Speaker 04:
Is that also supported with the Commerce actually address this very issue?

[00:18:48] Speaker 00:
Yes, I could show you.

[00:18:49] Speaker 00:
It's OK.

[00:18:51] Speaker 00:
We saw it.

[00:18:52] Speaker 00:
In the appendix, it did.

[00:18:53] Speaker 00:
In the issues in decision memorandum, the final result specifically says,

[00:18:58] Speaker 00:
that the rates here will be used to determine cash deposit rates.

[00:19:03] Speaker 00:
So.

[00:19:03] Speaker 04:
But you think that outcome could be different had they not addressed the decision below?

[00:19:07] Speaker 00:
Which outcome?

[00:19:09] Speaker 04:
I don't know that it matters.

[00:19:11] Speaker 04:
But if commerce hadn't, if this very issue hadn't been raised to them during the second administrative review, and then they actually addressed it, could you end up with a different result?

[00:19:24] Speaker 04:
That is, that the issue would not be raised under 1581C?

[00:19:29] Speaker 00:
I can't say all the time, but as a general rule, no.

[00:19:33] Speaker 00:
It would be an argument that because cash deposit rates are determined based on the results of administrative reviews, if you're going to argue that the cash deposit rates were, there's nothing about the administrative review that's different than what the party could have raised had it argued here.

[00:19:52] Speaker 00:
In the cases that the plaintiff is citing, like consolidated bearings and American signature, those were cases where the parties didn't participate in the review, didn't raise these arguments, and there were independent errors.

[00:20:10] Speaker 00:
that weren't necessarily apparent from just the existence of the review.

[00:20:15] Speaker 04:
Here.

[00:20:15] Speaker 04:
His response is, well, that's not fair, because just because they didn't participate, they get some added benefit of being able to raise the issue before the CIT.

[00:20:24] Speaker 00:
I'm not sure if they could have necessarily raised that issue and could have predicted the error that was ultimately

[00:20:31] Speaker 00:
that ultimately occurred that they're seeking to challenge.

[00:20:33] Speaker 00:
But to be honest, it's a risk that a party could take not to challenge it and see what happens.

[00:20:39] Speaker 03:
I mean, the problem with those is- I want to follow up on one of her questions.

[00:20:42] Speaker 03:
I know you have a fourth point, and I was waiting for it with baited breath.

[00:20:44] Speaker 03:
But I'm running out of time, so I'm going to have to just go.

[00:20:48] Speaker 03:
So she had a question, Judge Stull did, about retroactive relief being able to be given by the bi-national panel.

[00:20:55] Speaker 03:
Can you answer what you think in terms of a not retroactive relief can be given?

[00:21:00] Speaker 00:
Well, I understand the question.

[00:21:01] Speaker 00:
Because to me, retroactive relief means that to the extent that entries have already been liquidated, the panel can't necessarily order the reliquidation of those entries.

[00:21:12] Speaker 00:
And I will ask my colleague from the Department of Commerce to correct me if that's wrong.

[00:21:16] Speaker 00:
But to the extent that the entries here, the liquidation has been suspended.

[00:21:20] Speaker 00:
So there wouldn't need to be any sort of reliquidation of previously liquidated entries.

[00:21:26] Speaker 04:
So what would the outcome be here?

[00:21:29] Speaker 04:
What sort of relief could the bi-national panel fashion?

[00:21:34] Speaker 00:
Well, the binational panel can remand and can identify any error factor in law.

[00:21:40] Speaker 00:
It applies the same standard of review that the CIT would apply.

[00:21:44] Speaker 00:
So whatever relief that's necessary to address an alleged error in the final results can be provided by the binational panel.

[00:21:55] Speaker 00:
We don't have any examples, for instance,

[00:21:57] Speaker 00:
a case in which some sort of relief that was provided by a bi-national panel was insufficient and didn't address the error.

[00:22:04] Speaker 03:
On TV, your opposing counsel about that he needed injunctive relief, and that was something that they could not do.

[00:22:10] Speaker 03:
Can you respond directly to that point?

[00:22:12] Speaker 00:
Well, there are two issues.

[00:22:14] Speaker 00:
One, first of all, the general remedy for under 1516A in an anti-dumping case would be a rematch.

[00:22:24] Speaker 00:
whether it's the Court of International Trade, whether it's the Binational Panel, that's where you generally get a remand.

[00:22:29] Speaker 00:
The difference is the only injunctive relief that's actually provided with respect to under 1516A refers to the enjoining the liquidation of entries.

[00:22:43] Speaker 00:
But there's also a parallel provision that directs commerce to suspend liquidation when there's a request for a binational panel review if requested.

[00:22:52] Speaker 00:
It's actually an easier standard to meet than the CIT standard.

[00:22:58] Speaker 00:
In that respect, the remedies are parallel.

[00:23:01] Speaker 00:
To the extent that there's an argument, well, an Article III court, such as the Court of International Trade, has these inherent powers that it can draw upon to enjoin what we believe is an error that requires injunctive relief.

[00:23:17] Speaker 00:
I don't know why the binational panel couldn't issue a remand order that addresses the same remedy.

[00:23:23] Speaker 00:
Commerce would be required to take action not inconsistent with that order.

[00:23:28] Speaker 00:
And whatever relief that the plaintiff requires would be provided.

[00:23:35] Speaker 04:
So do I understand correctly that this case really is about the view that commerce took too much in its deposit rate?

[00:23:45] Speaker 04:
And let me try it this way.

[00:23:48] Speaker 04:
For the review period 2020, if ultimately a determination was made that the appropriate rate was 1.5% for the review year 2020, that is the rate that would apply when these entries are liquidated, right?

[00:24:02] Speaker 00:
Because well even though the cash deposit rate was based on a higher amount from 2019 well in 2020 they actually didn't seek review Okay, so the entries the cash deposits that they paid which were

[00:24:19] Speaker 00:
something like 6% for the first 11 months, and then 1.57% are the liquidation rates, are the duties that are assessed.

[00:24:31] Speaker 00:
So for that year, J.D.

[00:24:34] Speaker 00:
Irving elected not to challenge the final results for AR3, although it did participate in Commerce's review process.

[00:24:47] Speaker 00:
And they have also filed a parallel suit in the Court of International Trade to challenge those results.

[00:24:57] Speaker 00:
The final point we wanted to address was- Point number four, right?

[00:25:01] Speaker 00:
Point four, yes.

[00:25:03] Speaker 00:
Is that under the residual jurisdiction provision 1581 I, as counsel mentioned, the standard is if another provision, jurisdiction is not proper if another provision

[00:25:17] Speaker 00:
is or could have been available unless the remedies under that provision are manifestly inadequate.

[00:25:24] Speaker 00:
I think we addressed the general points that the remedies that are available to the plaintiff are not manifestly inadequate because it could provide substantively the same relief that they're seeking in the court of international trade.

[00:25:37] Speaker 02:
So you think regardless of whether he's calling it an injunction or

[00:25:44] Speaker 02:
if you're looking at all the various remedies that you just discussed, including remand and the specifics of that, that that would be equivalent?

[00:25:53] Speaker 00:
Yes.

[00:25:54] Speaker 02:
And also, I think the case law does provide as well that it doesn't have to be the preferred form of remedy.

[00:26:00] Speaker 02:
It just needs to be the appropriate remedy.

[00:26:04] Speaker 02:
Correct?

[00:26:04] Speaker 00:
That is correct.

[00:26:10] Speaker 03:
Oh, you might have been ready to stop, but let me ask one more question.

[00:26:14] Speaker 03:
I know, and following up on Judge Stoll's question, I believe in the complaint itself, paragraph 5.

[00:26:20] Speaker 03:
That's when they speak to the fact that 1581C would have been available.

[00:26:24] Speaker 03:
I think I'm going to do my paragraph.

[00:26:26] Speaker 03:
Obviously, she could correct me if I'm mistaken about the paragraph she was referring to in the complaint.

[00:26:30] Speaker 03:
But my next sort of follow-up on that was, in terms of looking at the true nature of the challenge, right?

[00:26:38] Speaker 03:
They're saying it's the instructions.

[00:26:39] Speaker 03:
I think you're really saying it's the results.

[00:26:42] Speaker 03:
Would we partially need to look at what's stated in the pleadings, such as the complaint, to figure out what is really the true nature here?

[00:26:50] Speaker 00:
Yeah, I mean, it's evidence that the court can consider when it evaluates whether this is actually a challenge to a determination to the final results or to the cash deposit instructions.

[00:27:01] Speaker 00:
I mean, there's no disconnect.

[00:27:03] Speaker 00:
The cash deposit instructions are an instruction from commerce to customs to execute what commerce had already determined in the final results.

[00:27:14] Speaker 02:
So you're saying there's no change between those two?

[00:27:16] Speaker 02:
There's no inconsistency such that we would be looking at,

[00:27:20] Speaker 02:
the instructions versus the fee rate.

[00:27:22] Speaker 02:
You're saying we should just be looking at the fee rate.

[00:27:25] Speaker 00:
You would look at the final results.

[00:27:27] Speaker 02:
The final results, as opposed to any instructions.

[00:27:30] Speaker 04:
Which includes the instructions because that was an issue that was raised to commerce.

[00:27:34] Speaker 00:
That's correct.

[00:27:35] Speaker 02:
Okay, got it.

[00:27:37] Speaker 02:
And just so I understand your position, if there was a difference between the final fee rate and the instruction and the numbers came out different, how would your analysis change?

[00:27:51] Speaker 00:
So if the liquidation instruction said, not the liquidation, sorry, the cash deposit instruction said collect 10%, but the final results said collect 5%?

[00:28:01] Speaker 00:
Yes.

[00:28:02] Speaker 00:
Well, that would be a different case.

[00:28:06] Speaker 00:
That's closer to what consolidated bearings looks like, or even Cooper Tire.

[00:28:11] Speaker 00:
But I don't want to bind the United States to say all cases.

[00:28:16] Speaker 00:
No, I understand.

[00:28:17] Speaker 02:
But that's a different circumstance.

[00:28:18] Speaker 00:
It's a different case, yes.

[00:28:20] Speaker 00:
I mean, there's no way you could grant the plaintiff the relief it seeks without changing the final results.

[00:28:26] Speaker 02:
Very well.

[00:28:27] Speaker 00:
And the court has no further questions.

[00:28:29] Speaker 00:
We respectfully request that it affirm the judgment below.

[00:28:44] Speaker 01:
Thank you so much, Your Honors, and I really appreciate the additional time.

[00:28:47] Speaker 01:
What my colleague just said, that there's no way to give J.D.

[00:28:53] Speaker 01:
Irving what it wants unless the 2019 final results are changed, is absolutely untrue.

[00:28:59] Speaker 01:
Because our whole argument is that by operation of law,

[00:29:03] Speaker 01:
J.D.

[00:29:03] Speaker 01:
Irving already received a dumping rate and cash deposit rate for a more recent period, 2020.

[00:29:08] Speaker 01:
That's by operation of law.

[00:29:11] Speaker 01:
That was supposed to supersede any decision by Commerce in the 2019 review.

[00:29:15] Speaker 04:
I think that he thinks that the second review determination results includes Commerce's determination on the instructions.

[00:29:24] Speaker 04:
I think that's how he's interpreting it.

[00:29:26] Speaker 04:
So if that's so, how would that change what you just said?

[00:29:35] Speaker 01:
We recognize, of course, we raised this issue that the 2020 cash deposit rate should continue to apply, not the 2019 cash deposit rate in the 2019 review, and Commerce addressed it.

[00:29:50] Speaker 01:
However, again, a NAFTA panel is unable to remedy that, and we did not appeal the 2019 final results to the CIT.

[00:30:00] Speaker 01:
We appealed Commerce's cash deposit instructions.

[00:30:04] Speaker 01:
And I want to get back to this manifest inadequacy point.

[00:30:09] Speaker 01:
While USMCA panels have remand authority, remand authority is not injunctive power.

[00:30:15] Speaker 01:
And that's clear by looking at 28 USC section 2643C, which grants this core international trade both remand authority and the power to issue injunctions.

[00:30:28] Speaker 01:
They're different things.

[00:30:29] Speaker 01:
And let me provide one example to try to crystallize what we're talking about here.

[00:30:35] Speaker 01:
And this is a hypothetical that the government did not address, that we raised in our initial briefing, the government did not address.

[00:30:41] Speaker 01:
This is what we're talking about.

[00:30:42] Speaker 01:
Let's take a scenario where in a review, it's the 2019 review, Commerce Calculates says JDI's dumping rate in 2019 was 5%.

[00:30:53] Speaker 01:
Okay, so that's our dumping rate.

[00:30:55] Speaker 01:
But then, completely unlawfully, arbitrarily, commerce nevertheless instructs customs to impose a 1,000% deposit rate.

[00:31:05] Speaker 01:
That is completely unlawful.

[00:31:07] Speaker 01:
That cannot be corrected by participation in administrative reviews, because commerce's unlawful decision to impose a 1,000% deposit rate is unremedied.

[00:31:19] Speaker 01:
and the only way to remedy that legal error is to get an injunction which the Court of National Trade did provide in Cooper Tire showing that the Court of National Trade has this authority.

[00:31:30] Speaker 01:
The Court of National Trade issued an injunction instructing Commerce to reinstate the lawful cash deposit rate retroactively and refund the overpaid cash deposit.

[00:31:40] Speaker 02:
Is there really, though, any distinction between a remand with instructions and just an injunction which instructs

[00:31:47] Speaker 01:
The distinction is that a USMCA panel does not have that authority in a remand to order Commerce to take such action.

[00:31:58] Speaker 01:
And for more evidence of this, I refer you to stainless steel sheet and strip, a NAFTA panel decision from 2011, which the government cited in their response brief.

[00:32:08] Speaker 01:
In that very brief, the plaintiff challenged an 80 deposit rate, but the NAFTA panel decided that, well, the issue was moot because the deposit rate was already superseded by a new cash deposit rate.

[00:32:20] Speaker 01:
So the panel recognized it didn't have any power to do exactly what we need to be done, an injunction issued to retroactively reinstate the lawful cash deposit rate.

[00:32:33] Speaker 04:
Thank you for your time.

[00:32:35] Speaker 04:
Thank you.

[00:32:35] Speaker 04:
The case is repeated on the briefs.

[00:32:38] Speaker 04:
Thank you.

[00:32:39] Speaker 04:
Thank you.

[00:32:40] Speaker 04:
Thank you.