Slip Op. 23-10

UNITED STATES COURT OF INTERNATIONAL TRADE 

J.D. IRVING, LIMITED,

Plaintiff, 

v. 

UNITED STATES AND U.S. 

DEPARTMENT OF COMMERCE, 

Defendants. 

Before: Timothy M. Reif, Judge 

Court No. 21-00641

OPINION 

[Granting defendants’ motion to dismiss for lack of subject matter jurisdiction pursuant 

to U.S. Court of International Trade Rule 12(b)(1).] 

Dated: January 25, 2023

Jay C. Campbell, White and Case LLP, of Washington, D.C., argued for plaintiff J.D. 

Irving, Limited. With him on the brief were Walter J. Spak and Cristina M. Cornejo. 

Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, D.C., argued for defendants United States and 

the U.S. Department of Commerce. With her on the briefs were Brian M. Boynton, 

Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and 

Claudia Burke, Assistant Director. Of counsel on the briefs was Paul K. Keith, Senior 

Attorney, 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 duty (“AD”) 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 2019 administrative review 

of the AD duty order on certain softwood lumber products from Canada.” Compl. ¶ 1, 
Court No. 21-00641 Page 2 

ECF No. 4; see Cash Deposit Instructions for Certain Softwood Lumber from Canada, 

Message No. 1343410 (A-122-857) (Dec. 9, 2021) (Compl. Attach. 1) (“Commerce’s 

Cash Deposit Instructions”); 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 

Rules 12(b)(1) and 12(b)(6) of the U.S. Court of International Trade (“USCIT” or the 

“Court”). See Def.’s Mot. to Dismiss (“Defs. Br.”), ECF No. 16; Def.’s Reply in Support 

of Its Mot. to Dismiss (“Defs. Reply Br.”), ECF No. 18; see also Pl.’s Resp. in Opp’n to 

Def.’s Mot. to Dismiss (“Pl. Br.”), ECF No. 17. For the reasons discussed below, the 

court grants defendants’ motion to dismiss for lack of subject matter jurisdiction 

pursuant to USCIT Rule 12(b)(1). 

BACKGROUND 

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. Compl. 

¶ 8. Commerce published the Softwood Lumber Order on January 3, 2018. See

Softwood Lumber Order, 83 Fed. Reg. 350. 

On April 1, 2019, Commerce initiated a 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) (initiation notice). AR 1 covered entries of 

subject merchandise made between June 30, 2017, and December 31, 2018. Certain 

Softwood Lumber Products from Canada: Final Results of Antidumping Duty 
Court No. 21-00641 Page 3 

Administrative Review; 2017-2018 (“AR 1 Final Results”), 85 Fed. Reg. 76,519, 76,519-

20 (Dep’t of Commerce Nov. 30, 2020). J.D. Irving was not selected as a mandatory 

respondent in this review. 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%. See id. at 76,520-21. Pursuant to section 751(a)(2)(C) of 

the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(a)(2)(C) (2018),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 id. at 76,520. 

On March 10, 2020, Commerce initiated a second administrative review (“AR 2”) 

of the Softwood Lumber Order. Initiation of Antidumping and Countervailing Duty 

Administrative Reviews, 85 Fed. Reg. 13,860, 13,862 (Dep’t of Commerce Mar. 10, 

2020) (initiation notice). AR 2 covered entries made between January 1, 2019, and 

December 31, 2019. Certain Softwood Lumber Products from Canada: Final Results of 

Antidumping Duty Administrative Review; 2019 (“AR 2 Final Results”), 86 Fed. Reg. 

68,471, 68,471-73 (Dep’t of Commerce Dec. 2, 2021). J.D. Irving was not selected as a 

mandatory respondent in this review. 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 68,472-73. 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; 

Commerce’s Cash Deposit Instructions. 

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. 21-00641 Page 4 

Following Commerce’s initiation of an AR 2 on March 10, 2020, and prior to 

Commerce’s publication of the AR 2 Final Results on December 2, 2021, Commerce 

initiated a third administrative review (“AR 3”) of the Softwood Lumber Order. Initiation 

of Antidumping and Countervailing Duty Administrative Reviews, 86 Fed. Reg. 12,599, 

12,601 (Dep’t of Commerce Mar. 4, 2021) (initiation notice). On March 4, 2021, 

Commerce initiated an AR 3, which covered entries made between January 1, 2020, 

and December 31, 2020. Id. 

In contrast with AR 1 and AR 2, no party requested that Commerce review J.D. 

Irving’s entries that would have been subject to an AR 3. See id. at 12,603; Compl. ¶ 

17. Accordingly, Commerce instructed Customs to liquidate J.D. Irving’s entries that 

would have been subject to an AR 3 at the 1.57% rate then in effect, which had been 

assigned to J.D. Irving in the AR 1 Final Results. See Automatic Liquidation 

Instructions for Certain Softwood Lumber Products for the Period 01/01/2020 Through 

12/31/2020, Message No. 1106404 (A-122-857) (Apr. 16, 2021) (Compl. Attach. 7) 

(“Automatic Liquidation Instructions”); AR 1 Final Results, 85 Fed. Reg. at 76,520; 19 

C.F.R. § 351.212(c)(1)(i). In addition, Commerce instructed Customs to continue to 

collect cash deposits on J.D. Irving’s entries at this 1.57% rate. See 19 C.F.R. § 

351.212(c)(1)(ii) (“If [Commerce] does not receive a timely request for an administrative 

review . . . [Commerce] . . . will instruct [Customs] to . . . continue to collect the cash 

deposits previously ordered.”); Automatic Liquidation Instructions; Cash Deposit 

Instructions for Certain Softwood Lumber Product from Canada, Message No. 0343402 

(A-122-857) (Dec. 8, 2020). 
Court No. 21-00641 Page 5 

On January 31, 2022, J.D. Irving requested that Commerce review J.D. Irving’s 

entries subject to a fourth administrative review (“AR 4”) of the Softwood Lumber Order. 

See Letter from White & Case LLP, to Sec’y of Commerce re: Certain Softwood Lumber 

Products from Canada: Request for Administrative Review for J.D. Irving, Limited, Pub. 

Doc. No. 4207148-01 (A-122-857) (Jan. 31, 2022). On March 9, 2022, Commerce 

initiated an AR 4, which covers entries made between January 1, 2021, and December 

31, 2021. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 87 

Fed. Reg. 13,252, 13,252-54 (Dep’t of Commerce Mar. 9, 2022) (initiation notice). 

Plaintiff alleges in the instant action that “Commerce acted arbitrarily and in a 

manner inconsistent with Congress’[] intent when it replaced” the 1.57% cash deposit 

rate assigned to J.D. Irving following its decision not to request an AR 3, with the 

11.59% rate assigned to J.D. Irving in connection with the earlier AR 2. Compl. ¶ 27. 

According to plaintiff, Commerce’s decision to replace the 1.57% rate with the 11.59% 

rate “calculated for an earlier period . . . injects uncertainty into the review-request 

process” and contravenes 19 U.S.C. § 1675 as well as Commerce’s regulations. Id. ¶ 

19 (emphasis in original). 

Plaintiff filed its complaint on December 30, 2021, asserting that the court has 

subject matter jurisdiction under 28 U.S.C. § 1581(i) to hear the instant action. Id. ¶ 2. 

In its complaint, plaintiff alleges that “[n]ormally, the court would have jurisdiction to 

review [plaintiff’s] claim — and to grant the relief [that plaintiff] seeks — under 28 U.S.C. 

§ 1581(c).” Id. ¶ 4. However, on December 28, 2021 — two days prior to plaintiff’s 

filing of the complaint — other interested parties requested binational panel review of 

the AR 2 Final Results pursuant to Article 10.12 of the United States–Mexico–Canada 
Court No. 21-00641 Page 6 

Agreement (“USMCA”),2 thereby providing a binational panel with “exclusive review” of 

the AR 2 Final Results pursuant to 19 U.S.C. § 1516a(g)(2). Id. ¶ 5; see Letter from 

McDermott Will & Emery LLP et al., to USMCA Secretariat, U.S. Sec’y, re: Request for 

Panel Review of Second Affirmative Antidumping Duty Administrative Review of Certain 

Softwood Lumber Products from Canada (Dec. 28, 2021) (Compl. Attach. 5) (“Request 

for Panel Review”). 

On March 4, 2022, defendants moved to dismiss the instant action, to which 

plaintiff responded in opposition on March 14, 2022. See generally Defs. Br.; Pl. Br.; 

Defs. Reply Br. On May 2, 2022, the court denied plaintiff’s motion to expedite the 

briefing and consideration of the instant action. J.D. Irving, Ltd. v. United States, 46 CIT 

__, 570 F. Supp. 3d 1349 (2022).

LEGAL FRAMEWORK 

I. Binational panel review under the United States–Mexico–Canada 

Agreement 

 On July 1, 2020, the USMCA entered into force, superseding the North American 

Free Trade Agreement (“NAFTA”). See supra note 2; United States–Mexico–Canada 

Agreement Implementation Act, Pub. L. No. 116-113, 134 Stat. 11 (2020). Article 10.12 

of the USMCA, “like NAFTA Article 1904, provides a dispute settlement mechanism for 

purposes of reviewing antidumping and countervailing duty determinations issued by 

2 United States–Mexico–Canada Agreement, art. 10.12 ¶¶ 2, 8, 9, July 1, 2020, OFF. OF 

THE U.S. TRADE REP., https://ustr.gov/trade-agreements/free-trade-agreements/unitedstates-mexico-canada-agreement/agreement-between; Annex II, Rules of Procedure for 

Article 10.12 (Binational Panel Reviews) (“Art. 10.12 Rules of Procedure”), R. 76 ¶ 1, 

OFF. OF THE U.S. TRADE REP., 

https://ustr.gov/sites/default/files/files/agreements/usmca/AnnexIIRulesProcedureUSMC

ABinationalPanels.pdf (last visited Jan. 20, 2022). 
Court No. 21-00641 Page 7 

the United States, Canada, and Mexico.” Procedures and Rules for Article 10.12 of the 

United States–Mexico–Canada Agreement (“USMCA Procedures and Rules”), 86 Fed. 

Reg. 70,045, 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 NAFTA. Id.

 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.” 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. Further, and pursuant to Article 10.12 ¶ 14 of the USMCA, 

the USMCA Free Trade Commission has adopted Rules of Procedure that are 

“applicable to all binational panel reviews under the USMCA.” USMCA Procedures and 

Rules, 86 Fed. Reg. at 70,045; see USMCA, art. 10.12 ¶ 14. Rule 12 provides that 

“panel review shall be limited to . . . the allegations of error of fact or law . . . that are set 

out in the Complaints filed in the panel review . . . .” Art. 10.12 Rules of Procedure, R. 

12(a). Rule 77 provides that subsequent to a panel decision that remands to 

Commerce a challenged determination, Commerce shall “give notice of the action taken 

pursuant to a remand of the panel by filing . . . a Determination on Remand within the 

time specified by the panel.” Id. R. 77 ¶ 1. 

 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. 19 U.S.C. § 1516a(g)(2) provides: 

(2) EXCLUSIVE REVIEW OF DETERMINATION BY BINATIONAL PANELS. If binational 

panel review of a determination is requested pursuant to . . . article 10.12 

of the USMCA, then . . . — 
Court No. 21-00641 Page 8 

(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). “[T]he binational panel process replaces the forum — 

not the remedies — available to the parties.” Bldg. Sys. de Mexico, 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.”). 

Several exceptions to the exclusive review of a determination by a binational 

panel are set forth in 19 U.S.C. § 1516a(g)(3) and (4).3 Further, the statute defines 

3 19 U.S.C. § 1516a(g)(3) provides: 

(3) EXCEPTION 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 — 

(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; 

(footnote continued) 
Court No. 21-00641 Page 9 

“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 — i.e., Commerce’s final results with 

respect to the administrative review of an AD or CVD order. 19 U.S.C. § 

1516a(a)(2)(B)(iii); 19 U.S.C. § 1675; cf. 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 Commerce’s “final results” of an 

administrative review). 

II. Subject matter jurisdiction of the Court under 28 U.S.C. § 1581(i) 

Whether a court has subject matter jurisdiction to hear an action is a “threshold” 

inquiry. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). 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) (citing Conoco, Inc. v. United States 

Foreign-Trade Zones Bd., 18 F.3d 1581, 1584 n.4 (Fed. Cir. 1994)), which allows the 

(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)(A)(i)-(vi). Further, 19 U.S.C. § 1516a(g)(4) provides for certain 

exceptions with respect to actions that raise constitutional issues. See Mitsubishi Elecs. 

Indus. Canada, Inc. v. Brown, 20 CIT 313, 316, 917 F. Supp. 836, 838 (1996). There is 

no indication — nor do the parties assert — that any of the foregoing exceptions apply 

with respect to the instant action. 
Court No. 21-00641 Page 10 

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) 

(citation omitted). The Court previously has stated that 28 U.S.C. § 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 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., S.A., 135 F.3d 778 (Fed. Cir. 1998). However, the “scope” of 28 

U.S.C. § 1581(i) is “strictly limited,” Norcal/Crosetti, 963 F.2d at 359, and jurisdiction 

under this provision “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.” Consol. Bearings Co. v. United States, 25 

CIT 546, 549, 166 F. Supp. 2d 580, 583 (2001) (emphasis in original) (quoting Ad Hoc 

Comm. of Fla. Producers of Gray Portland Cement v. United States, 22 CIT 902, 906, 

25 F. Supp. 2d 352, 357 (1998)) (internal quotation marks omitted). 

To determine whether jurisdiction “is or could have been available” under another 

subsection of 28 U.S.C. § 1581, the Court is required to “look to the true nature of the 

action.” Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1292-93 (Fed. Cir. 

2008); cf. Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 

2006) (“[A] party may not expand a court’s jurisdiction by creative pleading.”); Sunpreme 

Inc. v. United States, 892 F.3d 1186, 1191, 1193-94 (Fed. Cir. 2018) (concluding that 

the plaintiff’s “characterization of its appeal . . . [was] unavailing” in view of the nature of 
Court No. 21-00641 Page 11 

the relief that the plaintiff sought in its complaint and, consequently, that the court 

lacked jurisdiction under 28 U.S.C. § 1581(i)). Further, to determine whether the relief 

provided under another subsection would be “manifestly inadequate,” the Court 

evaluates whether such relief would constitute an “exercise in futility, or [would be] 

‘incapable of producing any result; failing utterly of the desired end through intrinsic 

defect; useless, ineffectual, [in] vain.’” Hartford Fire, 544 F.3d at 1294 (emphasis in 

original) (quoting OXFORD ENGLISH DICTIONARY (2d ed. 1989)). The party that seeks to 

invoke the Court’s jurisdiction “bears the burden of demonstrating manifest inadequacy.” 

Intercontinental Chems., LLC v. United States, 44 CIT __, __, 483 F. Supp. 3d 1232, 

1241 (2020) (citing Miller & Co. v. United States, 824 F.2d 961, 964 (Fed. Cir. 1987)). 

With respect to the binational review process set forth in Article 10.12 of the 

USMCA, 28 U.S.C. § 1581(i)(2) provides that the Court’s jurisdictional statute “shall not 

confer jurisdiction over [a] . . . determination which is reviewable by . . . a binational 

panel under [19 U.S.C. § 1516a(g)].” 28 U.S.C. § 1581(i)(2)(B) (emphasis supplied). 

The legislative history of 28 U.S.C. § 1581(i)(2) indicates that Congress amended the 

Court’s jurisdictional statute to “assure that a litigant cannot invoke the CIT’s ‘residual 

jurisdiction’ . . . for the purpose of circumventing the binational panel system.” S. Rep. 

100-509, at 35 (emphasis supplied). The legislative history indicates further that 

Congress intended for the amendment to “clarify” the “precise scope of the ‘residual 

jurisdiction’ authority” with respect to determinations that are “reviewable” by a 

binational panel so that it is clear that the Court’s residual jurisdiction does not apply to 

those determinations. Id.; H.R. Rep. 103-361, 86 (1993), as reprinted in 1993 

U.S.C.C.A.N. 2552, 2636. Consequently, if a determination is reviewable by a 
Court No. 21-00641 Page 12 

binational panel, 28 U.S.C. § 1581(i) “shall not confer jurisdiction” over the 

determination. 28 U.S.C. § 1581(i)(2)(B); see 19 U.S.C. § 1516a(g); Bhullar v. United 

States, 27 CIT 532, 544, 259 F. Supp. 2d 1332, 1341-42 (2003), aff’d, 93 F. App’x 218 

(Fed. Cir. 2004). 

DISCUSSION 

I. Positions of the parties 

Defendants argue that the court lacks subject matter jurisdiction under 28 U.S.C. 

§ 1581(i) to hear the instant action. See Defs. Br. at 6-10. To start, defendants contend 

that jurisdiction “is or could have been available” under 28 U.S.C. § 1581(c). Id. at 10. 

According to defendants, the instant action concerns a “[d]etermination that would have 

been properly reviewable pursuant to section 1581(c), but for a request for binational 

panel review of the determination.” Id. at 1, 10; see Request for Panel Review. 

Defendants argue also that plaintiff characterizes inaccurately the instant action as 

involving a challenge to Commerce’s Cash Deposit Instructions. See Defs. Reply Br. at 

4. According to defendants, plaintiff “attempts to create a distinction where none exists: 

Commerce’s instructions to [Customs] implementing Commerce’s determination [in the 

AR 2 Final Results] are not — in and of themselves — a separate determination.” Id. 

Defendants contend further that the relief provided to plaintiff under 28 U.S.C. § 

1581(c) would not be “manifestly inadequate.” Defs. Br. at 9; see Defs. Reply Br. at 4. 

Defendants argue that the “true nature” of the instant action is “twofold”: (1) “a challenge 

to the issue [that J.D. Irving] raised in [AR 2] — that Commerce ruled upon and that is 

now on review with a binational panel”; and (2) “a challenge to the cash deposit rate 

currently being applied to [J.D. Irving’s] new entries” made on or after December 2, 
Court No. 21-00641 Page 13 

2021. Defs. Reply Br. at 4. Defendants maintain that plaintiff can obtain a remedy that 

is not manifestly inadequate through a favorable binational panel decision as to 

Commerce’s determination in the AR 2 Final Results and “any additional administrative 

review challenges” with respect to the cash deposits collected on J.D. Irving’s entries 

made on or after December 2, 2021. Id. Consequently, defendants argue that the court 

lacks subject matter jurisdiction under 28 U.S.C. § 1581(i) and should dismiss the 

instant action. See Defs. Br. at 6-10. 

Plaintiff argues that the court has subject matter jurisdiction under 28 U.S.C. § 

1581(i) to hear the instant action. See Pl. Br. at 1-2. Plaintiff argues that subject matter 

jurisdiction “is or could have been available” under 28 U.S.C. § 1581(c). Compl. ¶ 5; 

see Pl. Br. at 7; Intercontinental Chems., 44 CIT at __, 483 F. Supp. 3d at 1236 (citation 

omitted). Plaintiff maintains separately that the Court has jurisdiction over the instant 

action because the action involves “a challenge to Commerce’s ‘administration and 

enforcement’ of [the AR 2 Final Results] through its issuance of Cash Deposit 

Instructions to [Customs] . . . for which jurisdiction lies under 28 U.S.C. § 1581(i)(1)(D).” 

Pl. Br. at 9 (citations omitted). 

Plaintiff contends further that any relief provided under 28 U.S.C. § 1581(c) 

would be “manifestly inadequate” because the binational panel “lack[s] equitable or 

injunctive powers” to order “Commerce to instruct [Customs] to reinstate J.D. Irving’s 

lawful AD cash deposit rate retroactively as of December 2, 2021.” Id. at 6 (citing 

Compl. ¶¶ 2-7), 13 n.4, 14; see Oral Arg. Tr. at 13:02-08, ECF No. 23. Consequently, 

plaintiff argues that it “could not obtain meaningful relief through USMCA binational 

panel review of the [AR 2 Final Results],” as the binational panel “would be unable to 
Court No. 21-00641 Page 14 

order Commerce to instruct [Customs] to reinstate J.D. Irving’s [AR 3] AD cash deposit 

rate retroactively, depriving J.D. Irving of relief from Commerce’s unlawful decision to 

replace [the AR 3] rate with an AD cash deposit rate for [AR 2].” Pl. Br. at 8 (emphasis 

in original). Plaintiff contends also that the relief provided through a challenge in one or 

more ARs to the cash deposit rate applied to J.D. Irving’s entries made on or after 

December 2, 2021, would be manifestly inadequate because the court would be able to 

provide plaintiff with its requested injunctive relief while a binational panel decision 

would not even have precedential effect. See id. at 7-8; Oral Arg. Tr. at 13:02-08, 

16:01-09, 21-25; cf. 19 U.S.C. § 1516a(b)(3). Consequently, plaintiff argues that the 

court has subject matter jurisdiction under 28 U.S.C. § 1581(i) and should deny 

defendants’ motion to dismiss. See Pl. Br. at 1-2. 

II. Analysis 

The court concludes that it lacks subject matter jurisdiction under 28 U.S.C. § 

1581(i) to hear the instant action and grants defendants’ motion to dismiss pursuant to 

USCIT Rule 12(b)(1). Accordingly, the court does not address defendants’ motion with 

respect to plaintiff’s standing or defendants’ motion to dismiss pursuant to USCIT Rule 

12(b)(6) for failure to state a claim, as dismissal for lack of subject matter jurisdiction 

renders these issues moot. See Intercontinental Chems., 44 CIT at __, 483 F. Supp. 3d 

at 1235; MS Solar Invs., LLC v. United States, Slip Op. 22-140, 2022 WL 17581662, at 

*2 (CIT Dec. 12, 2022) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). 

A. Whether subject matter jurisdiction to hear the instant action “is or 

could have been available” under 28 U.S.C. § 1581(c) 

The court concludes that subject matter jurisdiction to hear the instant action “is 

or could have been available” under 28 U.S.C. § 1581(c), but for the decision by 
Court No. 21-00641 Page 15 

interested parties to request binational panel review of the AR 2 Final Results pursuant 

to Article 10.12 of the USMCA. Intercontinental Chems., 44 CIT at __, 483 F. Supp. 3d 

at 1236 (citation omitted); see Request for Panel Review. 28 U.S.C. § 1581(c) provides 

the Court with subject matter jurisdiction with respect to “any civil action commenced 

under [19 U.S.C. § 1516a].” 28 U.S.C. § 1581(c). Further, 19 U.S.C. § 

1516a(a)(2)(B)(iii) provides that “[a] final determination . . . by [Commerce] . . . under [19 

U.S.C. § 1675]” constitutes a “[r]eviewable determination[]” under 28 U.S.C. § 1581(c). 

19 U.S.C. § 1516a(a)(2)(B)(iii). Commerce published the AR 2 Final Results pursuant 

to 19 U.S.C. § 1675. See AR 2 Final Results, 86 Fed. Reg. at 68,472-73; 19 U.S.C. § 

1675(a)(1). Therefore, as noted, subject matter jurisdiction to hear the instant action, 

which involves plaintiff’s challenge to Commerce’s determination in the AR 2 Final 

Results, not the “administration and enforcement” of that determination as those relate 

to Commerce’s Cash Deposit Instructions — “could have been available” under 28 

U.S.C. § 1581(c). See AR 2 Final Results, 86 Fed. Reg. 68,471 and accompanying 

Issues and Decision Memorandum (Dep’t of Commerce Nov. 23, 2021) at 41-42; 

Compl. ¶ 5. 

The instant action involves a challenge to Commerce’s determination in the AR 2 

Final Results notwithstanding plaintiff’s characterization of the challenge as relating to 

Commerce’s Cash Deposit Instructions. See Pl. Br. at 8-9. The U.S. Court of Appeals 

for the Federal Circuit (“Federal Circuit”) has stated that the Court is required to “look to 

the true nature of the action” to determine whether jurisdiction would be available under 

another subsection of 28 U.S.C. § 1581. Hartford Fire, 544 F.3d at 1293. The Court 

has applied this guidance in the context of disputes similar to that in the instant case as 
Court No. 21-00641 Page 16 

to whether the “true nature” of an action involves a final determination by Commerce or 

Commerce’s instructions to Customs with respect to the “administration and 

enforcement” of such a determination. See, e.g., Mittal Canada, Inc. v. United States, 

30 CIT 154, 414 F. Supp. 2d 1347 (2006); Wanxiang Am. Corp. v. United States, 43 CIT 

__, 399 F. Supp. 3d 1323 (2019); Parkdale Int’l, Ltd. v. United States, 31 CIT 720, 725, 

491 F. Supp. 2d 1262, 1269 (2007) (“The general rule appears to be that liquidation 

instructions lead to § 1581(i) jurisdiction unless they directly implement a 19 U.S.C. § 

1516a determination, such as the final results of an administrative review under § 

1675.” (emphasis supplied)). In these decisions, the Court has concluded that the “true 

nature” of an action involves Commerce’s instructions to Customs in circumstances in 

which the instructions are inconsistent with or contain a legal error that is distinct from

Commerce’s determination. Compare Mittal Canada, 30 CIT at 160-61, 414 F. Supp. 

2d at 1353 (stating that the action concerned whether “Commerce’s liquidation 

instructions contravene[d] the Final Results” and, consequently, that the plaintiff “ha[d] 

defined its claim such that the Court ha[d] jurisdiction” under 28 U.S.C. § 1581(i)), with 

Wanxiang, 43 CIT at __ & n.11, 399 F. Supp. 3d at 1331 & n.11 (concluding that the 

contested guidance of Commerce “reiterated — . . . rather than deviat[ed] from — the 

results of the administrative reviews” and, consequently, that the plaintiff could have 

brought the action under 28 U.S.C. § 1581(c)), and Intercontinental Chems., 44 CIT at 

__, 483 F. Supp. 3d at 1240 (“Plaintiff argues that the issue is with the liquidation 

instructions, but these instructions are based — and not inconsistently — on the Final 

Results; the underlying issue is therefore not with the liquidation instructions but with the 

Final Results.”). 
Court No. 21-00641 Page 17 

No inconsistency is present here. Commerce’s Cash Deposit Instructions are 

consistent with Commerce’s determination in the AR 2 Final Results. The record does 

not indicate that there is any “discrepancy” between Commerce’s determination in the 

AR 2 Final Results with respect to the cash deposit rate assigned to J.D. Irving and 

Commerce’s instructions to Customs. Intercontinental Chems., 44 CIT at __, 483 F. 

Supp. 3d at 1240. Rather, Commerce’s instructions implement the AR 2 Final Results 

in accordance with Commerce’s determination. See id. Accordingly, the “true nature” 

of plaintiff’s challenge in the instant action involves Commerce’s determination in the AR 

2 Final Results, not Commerce’s instructions to Customs. Hartford Fire, 544 F.3d at 

1293.

Consequently, subject matter jurisdiction for this Court to hear plaintiff’s 

challenge with respect to the AR 2 Final Results “could have been available” under 28 

U.S.C. § 1581(c), but for the binational panel review that now is underway. 

Intercontinental Chems., 44 CIT at __, 483 F. Supp. 3d at 1236 (citation omitted); see 

Request for Panel Review. 

B. Whether the relief provided to plaintiff would be “manifestly 

inadequate” 

The court concludes next 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. Hylsa v. 

United States (Hylsa II), 22 CIT 44, 46 (1998), dismissed sub nom. HYLSA, S.A. de 

C.V. v. United States, 185 F.3d 881 (Fed. Cir. 1999), and dismissed sub nom. HYLSA, 

S.A. de C.V. v. United States, 185 F.3d 881 (Fed. Cir. 1999); see Miller & Co., 824 F.2d 

at 963 (“[T]he party asserting § 1581(i) jurisdiction has the burden to show how [the] 
Court No. 21-00641 Page 18 

remedy would be manifestly inadequate.”); S. Rep. 100-509, at 35 (indicating that 

Congress “amend[ed] [28 U.S.C. § 1581(i)] to clarify that [this] section may not be used 

to review an antidumping or countervailing duty determination which is reviewable by 

the CIT under section [19 U.S.C. § 1516a(a)] or by a binational panel under [19 U.S.C. 

§ 1516a(g)]”). In the instant action, plaintiff requests the following relief with respect to 

its challenge to Commerce’s determination: (1) declaratory relief as to the lawfulness of 

the cash deposit rate assigned to J.D. Irving; and (2) the retroactive reinstatement of the 

1.57% rate and the refund of excess cash deposits collected on entries made on or after 

December 2, 2021. See Compl. at 17. The court addresses each request in sequence. 

1. Plaintiff’s request for declaratory relief 

The court addresses first plaintiff’s request for declaratory relief. See id. The 

binational panel has the authority to reach a decision as to the lawfulness of 

Commerce’s determination with respect to the cash deposit rate assigned to J.D. 

Irving.4 Article 10.12 ¶ 8 of the USMCA provides that “[t]he panel may uphold a final 

determination [by Commerce] . . . or remand it for action not inconsistent with the 

panel’s decision.” USMCA, art. 10.12 ¶ 8. Further, 19 U.S.C. § 1516a(g)(7)(A) provides 

that “[i]f a determination is referred to a binational panel . . . and the panel . . . makes a 

decision remanding the determination . . . [Commerce] . . . shall, within the period 

specified by the panel . . . take action not inconsistent with the decision of the panel.” 

4 The parties do not dispute that the binational panel has the authority to reach a 

decision with respect to the lawfulness of Commerce’s determination; plaintiff argues 

instead that binational panels lack powers in equity and that the panel “would be unable 

to order Commerce to instruct [Customs] to reinstate J.D. Irving’s . . . cash deposit rate 

retroactively” should the panel reach a decision in plaintiff’s favor. Pl. Br. at 8 

(emphasis in original), 11 (“The USMCA’s mere ability to review the same legal issue, 

however, does not mean the panel can provide adequate relief.”); see Defs. Br. at 9-10. 
Court No. 21-00641 Page 19 

19 U.S.C. § 1516a(g)(7)(A). On January 11, 2022, plaintiff filed a Notice of Appearance 

before the binational panel. Letter from White & Case LLP, to USMCA Secretariat, U.S. 

Sec’y, re: USMCA Panel Review — USA-CDA-2021-10.12-04 — Notice of Appearance 

(Jan. 11, 2022); Art. 10.12 Rules of Procedure, R. 45 ¶ 1(d)(iii). As such, plaintiff is 

entitled as an “interested person” to participate in the proceedings before the panel and 

bring the same challenge that J.D. Irving brought as a respondent before Commerce. 

Art. 10.12 Rules of Procedure, Rs. 5, 45 ¶ 1, 61 ¶¶ 1-2. Upon a favorable panel 

decision with respect to such a challenge to the lawfulness of Commerce’s 

determination, the panel would have the authority to remand the determination to 

Commerce, which would then be required to “take action not inconsistent with” the 

panel’s decision. See USMCA, art. 10.12 ¶ 8; 19 U.S.C. § 1516a(g)(7)(A). 

Consequently, the relief available to plaintiff through binational panel review with 

respect to its request for declaratory relief is not manifestly inadequate. 

2. Plaintiff’s request to reinstate retroactively the cash deposit 

rate of 1.57% and to refund excess cash deposits 

The court addresses next plaintiff’s request to reinstate retroactively the cash 

deposit rate of 1.57% and to refund excess cash deposits collected on entries made on 

or after December 2, 2021. See Compl. at 17. Plaintiff contends that only “injunctive 

relief” provided by this Court would constitute an adequate remedy with respect to the 

refund of excess cash deposits collected on entries made on or after December 2, 2021 

— plaintiff’s second request. Pl. Br. at 8. Plaintiff notes that binational panels lack the 

powers in equity that this Court possesses and that the panel “would be unable to order 

Commerce to instruct [Customs] to reinstate J.D. Irving’s . . . cash deposit rate 
Court No. 21-00641 Page 20 

retroactively” with respect to entries made on or after December 2, 2021. Id. at 8 

(emphasis in original), 11. 

The court does not find this argument persuasive. Plaintiff retains the recourse 

to obtain an adequate remedy with respect to its request, as “eventually review [of 

plaintiff’s challenge] could be had at the conclusion of administrative proceedings, either 

in this court under 28 U.S.C. § 1581(c) or before a binational panel.” Hylsa II, 22 CIT at 

46; see Sunpreme, 892 F.3d at 1191 (stating that when adequate “relief is prospectively 

and realistically available under another subsection of 1581, invocation of [28 U.S.C. § 

1581(i)] is incorrect” (quoting Chemsol, LLC v. United States, 755 F.3d 1345, 1354 

(Fed. Cir. 2014)) (internal quotation marks omitted)); Jerlian Watch Co. v. U.S. Dep’t of 

Com., 597 F.2d 687, 692 (9th Cir. 1979) (“It is true that injunctive and declaratory relief 

[are] . . . more desirable remed[ies] in plaintiffs’ view, but ‘the mere fact that more 

desirable remedies are unavailable [due to lack of jurisdiction] does not mean that 

existing remedies are inadequate.’” (citation omitted)). An alternative remedy is 

available to plaintiff through its challenge in one or more ARs to the collection of cash 

deposits on plaintiff’s entries made on or after December 2, 2021, at the contested rate 

of 11.59%.5 See Capella Sales, 40 CIT __, __, 180 F. Supp. 3d 1293, 1303 (2016) (“An 

5 J.D. Irving would be entitled to bring such a challenge in an AR 4 with respect to the 

cash deposit rate applied to J.D. Irving’s entries made between December 2, 2021, and 

December 31, 2021, as these dates occurred during the fourth period of review of the 

Softwood Lumber Order. See Softwood Lumber Order, 83 Fed. Reg. 350; AR 2 Final 

Results, 86 Fed. Reg. 68,471. For entries made between January 1, 2022, and 

December 31, 2022 — the fifth period of review — J.D. Irving would be entitled to bring 

such a challenge in an AR 5. See Softwood Lumber Order, 83 Fed. Reg. 350; AR 2 

Final Results, 86 Fed. Reg. 68,471. For entries made between January 1, 2023, and 

(footnote continued) 
Court No. 21-00641 Page 21 

interested party may challenge the cash deposit rate by requesting [that] Commerce 

conduct an administrative review of its entries that were subject to that cash deposit 

rate.” (citing 19 U.S.C. § 1675(a)(1))). Should plaintiff bring such a challenge (or 

challenges) before Commerce, following Commerce’s publication of the final results of 

the respective AR, plaintiff would be entitled to appeal to this Court any determination 

with which plaintiff might disagree.6 See Valeo N. Am., Inc. v. United States, 41 CIT __, 

__, 277 F. Supp. 3d 1361, 1365 (2017). 

Three considerations demonstrate that this alternative remedy would not be 

manifestly inadequate with respect to plaintiff’s requested relief. First, the alternative 

remedy would “produc[e]” an adequate “result” with respect to plaintiff’s challenge to the 

cash deposit rate applied to its entries made on or after December 2, 2021. Hartford 

Fire, 544 F.3d at 1294 (citation omitted) (internal quotation marks omitted). The Federal 

Circuit has held that a remedy is “manifestly inadequate” if the remedy constitutes an 

“exercise in futility, or [is] ‘incapable of producing any result; failing utterly of the desired 

end through intrinsic defect; useless, ineffectual, [in] vain.’” Id. (emphasis omitted). 

Plaintiff states that its challenge concerns “[t]he deposit rate applie[d] to [J.D. Irving’s] 

entries going forward” — i.e., the rate applied to entries made on or after December 2, 

2021. Oral Arg. Tr. at 12:17-18 (emphasis supplied); see Pl. Br. at 13-14; Sunpreme, 

December 31, 2023 — the sixth period of review — J.D. Irving would be entitled to bring 

such a challenge in an AR 6. See Softwood Lumber Order, 83 Fed. Reg. 350; AR 2 

Final Results, 86 Fed. Reg. 68,471.

6 Moreover, should interested parties request binational panel review with respect to the 

final results of one or more such ARs pursuant to Article 10.12 of the USMCA, J.D. 

Irving would be entitled as an “interested person” to bring its challenge before the 

respective panel. See 19 U.S.C. § 1516a(g)(8)(A)(i); Art. 10.12 Rules of Procedure, Rs. 

5, 38 ¶ 1(b), 45 ¶ 1. 
Court No. 21-00641 Page 22 

892 F.3d at 1193. Plaintiff is entitled to challenge in one or more ARs the cash deposit 

rate applied to entries made on or after December 2, 2021. See Capella Sales, 40 CIT 

at __, 180 F. Supp. 3d at 1303. Should plaintiff bring such a challenge (or challenges), 

plaintiff “can be made whole” and receive its requested refund “if [plaintiff’s] claims are 

ultimately successful.” Valeo, 41 CIT at __ n.6, 277 F. Supp. 3d at 1365 n.6. The 

availability to plaintiff of a refund plus interest for any overpaid cash deposits indicates 

that this alternative remedy neither is futile nor “incapable of producing any result” with 

respect to plaintiff’s “desired end.” Hartford Fire, 544 F.3d at 1294 (citation omitted) 

(internal quotation marks omitted); see 19 U.S.C. § 1673f(b)(2), 1677g(a); 19 C.F.R. § 

351.212. Moreover, this alternative remedy is not manifestly inadequate 

notwithstanding that plaintiff would be required to participate in administrative 

proceedings — as well any potential appeals or panel reviews — prior to obtaining such 

relief. See Valeo, 41 CIT at __, 277 F. Supp. 3d at 1365 (“Neither the burden of 

participating in the administrative proceeding nor the business uncertainty caused by 

such a proceeding is sufficient to constitute manifest inadequacy.” (citations omitted)); 

MacMillan Bloedel Ltd. v. United States, 16 CIT 331, 332 (1992); cf. Int’l Custom Prod., 

Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2007) (“[D]elays inherent in the 

statutory process do not render [a remedy] manifestly inadequate.” (citing Am. Air 

Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1551 (Fed. Cir. 1983))). 

The second consideration that supports the court’s conclusion is that plaintiff’s 

payment of cash deposits at the contested rate of 11.59% while plaintiff participates in 

administrative proceedings — as well as any potential appeals, including panel reviews 

— would not render the alternative remedy manifestly inadequate. See Int’l Custom 
Court No. 21-00641 Page 23 

Prod., 467 F.3d at 1327 (“[M]ere allegations of financial harm . . . do not make the 

remedy established by Congress manifestly inadequate.” (citations omitted) (internal 

quotation marks omitted)). This conclusion is consistent with the court’s decision in 

Valeo, 41 CIT __, 277 F. Supp. 3d 1361. In Valeo, the court held that it lacked 

jurisdiction under 28 U.S.C. § 1581(i) to hear the plaintiffs’ challenge to Commerce’s 

preliminary determination in an AD investigation of certain aluminum foil from China. 

See id. at __, 277 F. Supp. 3d at 1363. The court stated that the plaintiffs sought relief 

through the court’s exercise of jurisdiction under 28 U.S.C. § 1581(i) so that the 

plaintiffs’ “imports [would] not [be] subject to the collection of cash deposits in the 

interim period between the publication of the preliminary determination and the final 

determination.” Id. at __, 277 F. Supp. 3d at 1366 (citation omitted). However, the 

court concluded that the remedy available through the exercise of jurisdiction under 28 

U.S.C. § 1581(c) subsequent to Commerce’s publication of the final determination was 

not manifestly inadequate, as the plaintiffs would receive a refund for any overpaid cash 

deposits if they prevailed. See id. Further, the court explained that “exposure to cash 

deposits is not a recognized harm that would render the available relief . . . manifestly 

inadequate,” id. at __ n.6, 277 F. Supp. 3d at 1365-66 n.6 (emphasis supplied) (citing 

MacMillan, 16 CIT at 333), as the payment of cash deposits “is an ordinary 

consequence of the statutory scheme.” Id. at __, 277 F. Supp. 3d at 1366; cf. Shanghai 

Tainai Bearing Co. v. United States, 46 CIT __, __, 582 F. Supp. 3d 1299, 1310 (2022) 

(“America’s retroactive system, financially inconvenient as it may be, is the course 

adopted by Congress and committed to Commerce and Customs to enforce.” (citation 

omitted)). 
Court No. 21-00641 Page 24 

The third consideration that supports the court’s conclusion is that the alternative 

remedy is not manifestly inadequate notwithstanding plaintiff’s assertion that this 

remedy would “fall[] well short of [a] remedy that this Court has the authority to provide.” 

Oral Arg. Tr. at 13:09-10. Contrary to plaintiff’s argument, that this Court possesses the 

powers in equity to provide plaintiff with its requested injunctive relief does not render 

the alternative remedy “manifestly inadequate.” Id.; see 28 U.S.C. § 2643(c)(1) (“[T]he 

Court of International Trade may . . . order any . . . form of relief that is appropriate in a 

civil action, including, but not limited to, declaratory judgments, orders of remand, 

injunctions, and writs of mandamus and prohibition.”). 

To support its argument, plaintiff points to the Cooper Tire decision, in which the 

court issued an injunction ordering Commerce to reinstate a cash deposit rate with 

respect to the plaintiff’s entries. See Pl. Br. at 7-8 (citing Cooper Tire & Rubber Co. v. 

United States, 41 CIT __, __, 217 F. Supp. 3d 1373, 1377, 1384 (2017)), 12. However, 

the Cooper Tire court exercised its discretion to issue such injunctive relief in view of the 

unusual circumstances presented in that case. See generally Cooper Tire, 41 CIT __, 

217 F. Supp. 3d 1373; Cooper Tire & Rubber Co. v. United States, Slip Op. 17-130, 

2017 WL 4250812 (CIT Sept. 25, 2017). The court concluded that Commerce assigned 

unlawfully to the plaintiff a cash deposit rate that “was unrelated to [the plaintiff’s] future 

antidumping duty liability” and stated that the plaintiff was entitled to its requested 

remedy — i.e., for the court to “order [Commerce] on remand to determine [the 

plaintiff’s] AD cash deposit rate the same as all other separate rate respondents.” 

Cooper Tire, 41 CIT at __, 217 F. Supp. 3d at 1380, 1383. Nonetheless, the court 

explained that the plaintiff had not yet “sought injunctive or other equitable relief as to 
Court No. 21-00641 Page 25 

the implementation of the remedy it is pursuing.” Id. at __, 217 F. Supp. 3d at 1383. 

Accordingly, the plaintiff moved subsequently for a preliminary injunction and the court 

ordered the parties to “consult with the objective of producing an agreed-upon proposed 

injunction for the Court’s consideration.” See Cooper Tire, Ct. No. 15-00251, Pls.’ Mot. 

for Prelim. Inj. (May 10, 2017), ECF No. 49, and Order (May 15, 2017), ECF No. 

51. The parties complied with the court’s order and filed a proposed injunction, which 

the court issued thereafter. See Cooper Tire, Ct. No. 15-00251, Order (June 1, 2017), 

ECF No. 53. 

Plaintiff’s assertion and reference to Cooper Tire with respect to this Court’s 

powers in equity also do not provide a legal basis to conclude that the availability of a 

preferred or more desirable remedy — i.e., a court-issued injunction — renders an 

alternative form of relief “manifestly inadequate.” See Am. Air Parcel, 718 F.2d at 1551. 

This conclusion is consistent with the decision of the U.S. Court of Appeals for the 

Second Circuit (“Second Circuit”) in J. C. Penney Co. v. U.S. Treasury Dep’t (J. C. 

Penney II), 439 F.2d 63 (2d Cir. 1971).7 In J. C. Penney, the plaintiff, an importer of 

television sets from Japan, sought to challenge in district court the decision of the U.S. 

Treasury Department to conduct an investigation as to whether the imported 

7 The Second Circuit decided J. C. Penney prior to the establishment of the U.S. Court 

of International Trade and the enactment of 28 U.S.C. § 1581(i). See Customs Courts 

Act of 1980. Pub. L. No. 96-417, 94 Stat. 1727 (1980) (codified as amended in scattered 

sections of 28 U.S.C.). The enactment of 28 U.S.C. § 1581(i) “transferred the subject 

matter jurisdiction of the district courts [with respect to the enumerated civil actions] to 

the Court of International Trade.” Am. Air Parcel, 718 F.2d at 1551 n.4 (citing United 

States v. Uniroyal, Inc., 69 CCPA 179, 187 n.9, 687 F.2d 467, 475 n.9 (1982)); see H.R. 

Rep. No. 96-1235, at 33 (1980), as reprinted in 1980 U.S.C.C.A.N. 3729, 3745 (“Section 

201 of H.R. 6394 added a new section 1581(i) to Title 28, U.S.C. . . . to eliminate the 

confusion which currently exists as to the demarcation between the jurisdiction of the 

federal district courts and the Court of International Trade.”). 
Court No. 21-00641 Page 26 

merchandise had been sold at less than fair value. See id. at 64; J. C. Penney Co. v. 

U.S. Dep’t of Treasury (J. C. Penney I), 319 F. Supp. 1023 (S.D.N.Y. 1970). The district 

court “dismiss[ed] the plaintiff’s complaint for lack of subject matter jurisdiction” and 

concluded that the plaintiff “must seek its relief against the government in the [U.S.] 

Customs Court.” J. C. Penney II, 439 F.2d at 64-65; see J. C. Penney I, 319 F. Supp. at 

1028-31. On appeal, the plaintiff contended that the district court had jurisdiction over 

the action on the basis that “no adequate relief may be obtained in” the Customs Court. 

J. C. Penney II, 439 F.2d at 68. The plaintiff argued that the Customs Court lacked the 

equitable power to provide the plaintiff with its requested relief, including the “power to 

require the holding of a hearing” with respect to the plaintiff’s challenge. Id.; cf. Flintkote 

Co., Glens Falls Div. v. United States, 82 Cust. Ct. 305, 306, 467 F. Supp. 626, 628 

(1979). The Second Circuit rejected the plaintiff’s argument and concluded that “an 

adequate remedy [was] available . . . in the Customs Court” through “the obtaining of 

refunds of special dumping duties which may have been improperly assessed and 

paid.” J. C. Penney, 439 F.2d at 68. The court stated further that “[t]hough it may be 

true that the ordering of a hearing would be a more desirable form of relief from [the 

plaintiff’s] point of view than the obtaining of refunds, the mere fact that more desirable 

remedies are unavailable does not mean that existing remedies are inadequate.” Id.; 

see Jerlian Watch, 597 F.2d at 692. Similarly, in the instant action the mere existence 

of a potential remedy that plaintiff might prefer or find “more desirable” — i.e., a courtissued injunction — does not render the alternative remedy manifestly inadequate. 

Moreover, the alternative remedy is not “manifestly inadequate” notwithstanding 

plaintiff’s argument that a Court decision with respect to plaintiff’s challenge would have 
Court No. 21-00641 Page 27 

precedential effect while a panel decision would not. See Oral Arg. Tr. at 16:01-09, 21-

25; 19 U.S.C. § 1516a(b)(3). Plaintiff’s argument proves too much. Applying plaintiff’s 

reasoning, because a panel decision with respect to any legal issue lacks precedential 

effect, a panel decision as to any legal issue before it would be manifestly inadequate. 

See 19 U.S.C. § 1516a(b)(3). In a similar way, plaintiff’s reasoning would lead to the 

conclusion that the Court’s subject matter jurisdiction exists under 28 U.S.C. § 1581(i) 

with respect to any determination for which panel review is requested. This conclusion, 

in turn, would contravene the intent of Congress in amending 28 U.S.C. § 1581(i) to 

“assure that a litigant cannot invoke the CIT’s ‘residual jurisdiction’ . . . for the purpose 

of circumventing the binational panel system.” S. Rep. 100-509, at 35; see H.R. Rep. 

103-361, at 86. 

CONCLUSION 

In The Jungle Book, the 1967 animated film based on the 1894 novel by Rudyard 

Kipling,8 Mowgli, a young orphan, is found abandoned in the jungle and rescued by 

Bagheera, a black panther. Two wolves, Raksha and Rama, adopt Mowgli and raise 

him along with their own cubs. Over ten years, Mowgli — known affectionately as 

“man-cub” — learns the ways of his forest (which Kipling likely based on the forests in 

the vicinity of the city of Seoni in Madhya Pradesh, India), but Mowgli’s animal 

guardians realize that he must return eventually to be with other humans. 

One night, Akela, the leader of the wolf pack, announces that Shere Khan, a 

Bengal tiger who does not especially care for humans, has appeared in the jungle. The 

8 THE JUNGLE BOOK (Walt Disney Productions 1967); Rudyard Kipling, The Jungle Book

(1894). 
Court No. 21-00641 Page 28 

pack reaches the difficult decision that Mowgli must leave the forest and return to 

human society. 

Akela: “Shere Khan will surely kill the boy and all who try to protect him. Now, 

are we all in agreement as to what must be done?” 

[Wolves nod]. 

Akela: “Now it is my unpleasant duty to tell the boy’s father. Rama! Come over 

here, please.” 

Rama: “Yes, Akela?” 

Akela: “The council has reached its decision. Man-cub can no longer stay with 

the pack. He must leave at once.” 

Rama: “Leave?” 

Akela: “I am sorry, Rama. There is no other way.” 

Rama “But-but the man-cub is-is like my own son. Surely he’s entitled to the 

protection of the pack.” 

Akela: “But, Rama, even the strength of the pack is no match for the tiger.” 

Rama: “But the boy cannot survive alone in the jungle.” 

Bagheera then interjects to offer a potential solution to the quandary in which the 

pack finds itself. 

Bagheera: “Akela. Perhaps I can be of help.” 

Akela: “You, Bagheera? How?” 

Bagheera: “I know of a man-village where he’ll be safe. Mowgli and I have taken 

many walks into the jungle together. I’m sure he’ll go with me.” 

Akela: “So be it. Now there’s no time to lose. Good luck.” 
Court No. 21-00641 Page 29 

* * *

For the reasons discussed, the court concludes that it lacks subject matter 

jurisdiction under 28 U.S.C. § 1581(i) to hear the instant action. Accordingly, the court 

grants defendants’ motion to dismiss pursuant to USCIT Rule 12(b)(1). Pursuant to the 

court’s order of November 21, 2022, see Order, ECF No. 26, which stays consideration 

of “plaintiff’s motion to consolidate Court Nos. 21-00641 and 22-00256 pending 

resolution of the jurisdictional issue raised in the instant action . . . after appeals, if any, 

are exhausted,” the parties shall file a joint status report within 14 days of the date that 

the stay expires. 

Judgment will enter accordingly. 

/s/ Timothy M. Reif 

Judge 

Dated: ___________________ 

 New York, New York 

January 25, 2023