Let's say you import widgets that potentially fall within the scope of an antidumping or countervailing duty order. You wonder in good faith whether the U.S. Department of Commerce (Commerce) may subject the imported widgets to antidumping or countervailing duties, perhaps because the scope of the relevant order eschews clarity. For a variety of reasons, you decide not to file a formal scope ruling request with Commerce. (As a small business, maybe you lack the financial means to do so.) In the meantime, someone else imports substantially identical widgets, has the same concerns, formally raises those concerns in a scope ruling request with Commerce, has a ruling issued against it and files suit at the U.S. Court of International Trade (CIT) to challenge the ruling. May you join the lawsuit and challenge the ruling, even if it specifically addresses the other importer's widgets and not yours? Yes, says the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).
In Shenyang Yuanda Aluminum Industry Engineering Co. v. United States, Judge Taranto (joined by Chief Judge Prost and Judge Newman) summarily dismissed the argument advanced by the U.S. government that a party in the scenario described above would lack constitutional standing to challenge a Commerce scope ruling. He explained that the U.S. government's position squarely conflicts with Supreme Court precedent and that the U.S. government's brief "omits the very inquiry called for and conducted by" such precedent—"namely, an inquiry into the actual or threatened effect on the plaintiff of the specific challenged agency action and desired judicial relief." Slip Op. at 16. "That inquiry," Judge Taranto explained, "turns on the facts determined in court, as appropriate to the procedural stage of the decision at issue." Id.
Undertaking that inquiry, Judge Taranto concluded that the companies at issue (in a situation somewhat similar to the scenario described above) "will be concretely harmed by being subjected to the AD & CVD Orders' duties as a result of the challenged ruling," and a court's acceptance of their claims would redress their alleged harms. Id. at 17. As a result, game over—the companies have constitutional standing to challenge Commerce's scope ruling.
Judge Taranto did not stop there. He noted that the U.S. government never rebutted the companies' alleged injury at any stage of the litigation. He also observed that, before the CIT, the U.S. government consented to (1) the consolidation of the companies' appeals with others challenging the same scope ruling, as well as (2) an injunction that barred liquidation of the companies' entries of subject merchandise. Id. at 18. Finally, Judge Taranto explained that nothing in the statute authorizing judicial review of scope rulings "precludes" such rulings "from having concrete effects on 'interested parties' other than the requester of the ruling, even when the bottom-line conclusion refers specifically to the requester's merchandise." Id.
Bottom Line: An importer may challenge a Commerce scope ruling, even if the scope ruling did not address its own merchandise. Shenyang Yuanda leaves an important question unanswered: May an importer challenge a scope ruling if it did not participate in the inquiry before Commerce? In Shenyang Yuanda, the companies filed comments with Commerce during the scope inquiry. Unless the importer's arguments meet one of the exceptions to the administrative exhaustion requirement, the CIT likely would not entertain the importer's arguments, even if the importer has constitutional standing to raise them.
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