CVD Respondent, Kazakh Gov't Ask CAFC for Chance to Issue 4th Corrected Opening Brief
The U.S. Court of Appeals for the Federal Circuit should let appellants Tau-Ken Temir and Kazakhstan's Ministry of Trade and Integration make corrections to their opening brief, they said May 8. The parties said they would have filed an additional extension motion had their counsel known of a previously undisclosed visit by U.S. Secretary of State Antony Blinken to Kazakhstan on the day the brief was due (Tau-Ken Temir v. United States, Fed. Cir. # 22-2204).
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Blinken's visit dealt with Russia's war in Ukraine and included the Kazakh government trade officials involved in this case. Had counsel known about the visit, another extension would have been filed in the case on the countervailing duty investigation on silicon metal from Kazakhstan, the brief said.
TKT and the Kazakh trade ministry have already made three corrections to their opening brief, resulting in three different versions of the brief appearing in the docket. This led CVD petitioners Globe Specialty Metals and Mississippi Silicon to request guidance from the Federal Circuit on which brief to reply to, given that "substantive" differences were found in each reply brief.
Given that TKT's and the Kazakh government's third opening brief also was found to not be in compliance with court rules, the appellants filed a notice of correction and, if needed, a motion for leave to correct the brief. Globe and Mississippi Silicon told TKT they oppose the motion.
TKT and the Kazakh trade ministry are challenging the Commerce Department's use of a total adverse facts available rate due to an untimely filed submission in the proceedings (see 2303010060). The appellants said that another reason to grant their motion to correct the opening brief is that since the brief was filed, Commerce changed its practice as to "filing questionnaire responses and respondent filing difficulties" in ways confirming TKT's arguments in its opening brief.
The appellants said that Commerce's regulations make changes "across the board" and not a "one off change in one or a few cases," adding that the corrections to the opening brief "reflect this Commerce change and its implications as to the TKT decision. The same substantive TKT argument can be better understood, appreciated and articulated/presented in that context."