Court of Federal Appeals Trade activity

The U.S. asked for another 60 days to file its reply brief in the massive Section 301 litigation at the U.S. Court of Appeals for the Federal Circuit. The government said the present suit is a test case for over 4,100 similar cases and an extension would allow DOJ more time to confer with all the federal agencies involved in the case (HMTX Industries v. U.S., Fed. Cir. # 23-1891).

Antidumping duty petitioner Aluminum Extrusions Fair Trade Committee's claims against the exclusion of importers Worldwide Door Components' and Columbia Aluminum Products' door thresholds from the scope of the AD/CVD orders on aluminum extrusions from China sit on an incomplete reading of the scope, the importers argued. Filing a reply brief on Aug. 8 at the U.S. Court of Appeals for the Federal Circuit, Worldwide and Columbia claimed that the petitioner ignored the finished merchandise exclusion in the scope and that the Commerce Department refused to consider this exclusion in its initial scope ruling (Worldwide Door Components v. United States, Fed. Cir. # 23-1532) (Columbia Aluminum Products v. United States, Fed. Cir. # 23-1534).

The U.S. Court of Appeals for the Federal Circuit should stay a case concerning an antidumping duty investigation after the termination of a suspension agreement on tomatoes from Mexico while two related cases are being considered at the lower court, Mexican exporter Bioparques de Occidente said in an Aug. 8 motion to stay (Bioparques de Occidente, S.A. de C.V., et al. v. U.S., Fed. Cir. # 23-2109).

Trade Law Daily is providing readers with the top stories from last week in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.

Parties in a suit over the Commerce Department's expedited countervailing duty review on softwood lumber disagreed on whether the Court of International Trade should tell Commerce to exclude four Canadian exporters from the CVD order following the U.S. Court of Appeals for the Federal Circuit's order saying the agency has the authority to conduct the review. In a joint status report filed Aug. 7, the Canadian parties in the case, which include the Canadian government, said the court should tell Commerce to exclude the companies and tell CBP to stop collecting CVD cash deposits, while the petitioner said a joint status report is not the correct venue for the request (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. U.S., CIT # 19-00122).

A three-judge committee at the U.S. Court of Appeals for the Federal Circuit found that Judge Pauline Newman committed a "serious form of misconduct" by thwarting the investigation into her fitness to continue serving at the court. Releasing its findings publicly Aug. 4, the committee recommended the court's Judicial Council bar Newman from sitting on any new cases for a one-year period "until she complies with the Committee's outstanding orders such that the inquiry into whether she suffers from a disability may be completed."

The Commerce Department legally selected Malaysian import data to value backsheet and ethyl vinyl acetate (EVA) in an antidumping duty review on solar cells from China because that data best corresponds to the inputs used by exporter Risen Energy Co., the U.S. argued in an Aug. 3 reply brief at the U.S. Court of Appeals for the Federal Circuit (Risen Energy Co. v. United States, Fed. Cir. # 23-11550).

The U.S. Court of Appeals for the Federal Circuit issued an errata in its Royal Brush Manufacturing v. U.S. opinion. The court removed the word "not" from the sentence that originally read, "The government nonetheless argues that confidential business information cannot not be disclosed absent a statute or regulation authorizing a protective order." In the opinion, the appellate court said that CBP violated importer Royal Brush's due process rights by failing to provide it access to business confidential information in an Enforce and Protect Act proceeding (see 2307270038).

The Court of International Trade improperly dismissed for lack of jurisdiction a $5.7 million customs penalty suit against importer Katana Racing, the U.S. Court of Appeals for the Federal Circuit said in an Aug. 3 opinion. While the trade court said Katana properly revoked a statute of limitations waiver making the U.S. government's suit untimely, Judges Sharon Prost, Alvin Schall and Todd Hughes said the statute of limitations "is not a jurisdictional time limit." Instead, it provides an "affirmative defense" that can be waived.

The Court of Appeals for the Federal Circuit in an Aug. 3 opinion reversed the Court of International Trade's decision tossing a $5.7 million customs penalty suit from the U.S. against importer Katana Racing for lack of jurisdiction. The trade court said Katana properly revoked a statute of limitations waiver, making the government's suit untimely. However, Judges Sharon Prost, Alvin Schall and Todd Hughes said the statute of limitations "is not a jurisdictional time limit" and instead provides an "affirmative defense" that can be waived. While the appellate court said CIT erred in tossing the suit for lack of jurisdiction, Katana is still free to claim that its statute of limitations waiver was void as part of an affirmative defense.