CIT Stays UFLPA Entity Listing Challenge for 4 Months Pending FLETF Review of Delisting Petition
The Court of International Trade on July 30 stayed Chinese printer cartridge exporter Ninestar Corp.'s lawsuit challenging its placement on the Uyghur Forced Labor Prevention Act Entity List for four months or until the Forced Labor Enforcement Task Force issues a final decision in the exporter's delisting request before the task force (Ninestar Corp. v. U.S., CIT # 23-00182).
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The decision from Judge Gary Katzmann comes after a July 29 status hearing for the parties to discuss the length of a stay and whether the request made before FLETF, which was filed after the start of the present case, moots the lawsuit. Ninestar requested a two-month stay that can be extended every two months thereafter, while the government said this approach is "not practical," asking instead for a four-month stay.
DOJ attorney Monica Triana said during the status conference that the two-month time frame "doesn't allot enough time for FLETF to do what it needs to do here," which is to evaluate Ninestar's delisting petition, ask questions, request supporting evidence and issue a written decision.
Triana added that the government is "trying to move this matter forward without wasting both the court's and the parties' time."
In response, Ninestar counsel Gordon Todd said that in assessing the practicalities of a two- or four-month stay, the court is balancing two interests: giving FLETF time to review the petition and assessing the live claims from Ninestar that its "rights have been violated."
Todd said the court's repeated status reports thus far "haven't been burdensome" and would not impose a large impediment to FLETF. He noted the "informational asymmetry" of these status conferences, telling the court that Ninestar will have nothing to report and that the ball is fully in the government's court. As such, the status reports will serve as opportunities for the U.S. to provide updates on FLETF's progress. Having the government "disappear for long periods of time", leaving Ninestar with no information, "would do injustice" to the exporter and its pending claims, Todd said.
Ninestar also argued that its delisting petition doesn't moot its present suit. The exporter said the delisting request "seeks different relief," since that request doesn't ask for the reversal of its prior listing decision from the very start, but instead says that FLETF has "no current basis to maintain the listing." If the delisting request is denied, FLETF will have taken a new agency action based on a new record that can be challenged separately.
In response, Triana said that while the two are separate administrative decisions, "practically speaking, they're asking for the exact same relief." If Ninestar succeeds in challenging the original listing decision, the company will still be on the UFLPA Entity List due to the pending decision. "There's no other relief that the court can seek," she said. Triana indicated that the issue will be the subject of additional briefing.