Federal Circuit Rejects Rehearing Bid in Section 301 Exclusion Case
The U.S. Court of Appeals for the Federal Circuit in a Dec. 2 order, denied a petition from plaintiff-appellants ARP Materials and Harrison Steel Castings Co. for a panel rehearing and rehearing en banc in a case over whether a protest is needed to retroactively apply Section 301 duty exclusions (ARP Materials v. United States, Fed. Cir. #21-2176).
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The Federal Circuit had said the Court of International Trade was right to dismiss ARP's and Harrison's case for lack of subject matter jurisdiction since a protest was not filed. The trade court said that it didn't have jurisdiction under Section 1581(i), the court's "residual" jurisdiction, since the court would have had jurisdiction under Section 1581(a) had the importers filed protests with CBP. The Federal Circuit agreed, holding that the true nature of the suit contests CBP's assessment of the duties and not the Office of the U.S. Trade Representative's exclusions, necessitating a protest (see 2209060035).
ARP and Harrison filed for a rehearing, arguing that the Supreme Court's decision in West Virginia v. EPA demanded a reconsideration of the opinion (see 2210040031). The EPA case embraced the "major questions doctrine" -- the idea that federal agencies need explicit congressional approval to regulate issues fundamental to the economy. The U.S. contested this point, telling the Federal Circuit that the major questions doctrine does not apply since it was not brought before the trade court or the Federal Circuit and the case does not concern a major policy decision of vast political significance (see 2210310030).