US Says Importer Can't Have Its Cake and Eat It Too in 1581(i) Suit on Solar Cell Duties

Solar cell importer Greentech Energy Solution cannot argue both that it suffered no injury on its goods until CBP issued a notice of action and that it was not required to file a protest with CBP since the agency's actions were purely ministerial, the U.S. argued in a Nov. 16 reply brief supporting its motion to dismiss. Addressing Greentech's claims that its actions were not untimely nor improperly brought under Section 1581(i), the Court of International Trade's "residual" jurisdiction, the government said Greentech's Administrative Procedure Act claim must identify the specific final agency action it is challenging (Greentech Energy Solutions v. United States, CIT # 23-00118).

"If Greentech challenges [the Commerce Department's] certification requirement, such a claim accrued no later than 2019, when Greentech imported merchandise subject to the certification requirement," the brief said. "This would render Greentech’s complaint filed in 2023 untimely." In the alternative, if Greentech is challenging CBP's application of the certification requirement at issue, which led to antidumping and countervailing duties on its products, "Greentech must exhaust protest procedures" with CBP.

Greentech filed its case in June, arguing that the imposition of the AD/CVD were illegal, given the lack of a dumping, subsidization or injury finding for Vietnam, nor even the existence of an anti-circumvention inquiry at that time (see 2306130025). The U.S. based its collection of the duties on Greentech's inability to submit "importer and exporter certifications completed, signed, and dated at the time of shipment from Vietnam and the time of entry into the U.S. of solar modules." The government claimed the certifications were needed for Vietnamese imports despite the fact that the certification provision was set in the AD investigation on solar cells from China.

The U.S. filed a motion to dismiss, claiming that the action is untimely (see 2309120055). In defense of that motion, the government argued against Greentech's claim that Section 1581(i) is "tailor made" for its action. The U.S. said that Greentech's complaint is "tailor pleaded in an unpersuasive attempt to fashion a claim that is both timely and qualifies for review pursuant to this Court's residual jurisdiction." However, a company cannot expand a court's jurisdiction via "creative pleading," the U.S. said, citing U.S. Court of Appeals for the Federal Circuit precedent.